King v. Herbert et al

Filing 33

ORDER denying 15 MOTION to Dismiss Pursuant to Fed. R. Civ. Proc. 12(b)(4), (5), and (6). Signed by Chief Judge Shelly D. Dick on 9/12/2018. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WANDA KING

CIVIL ACTION

VERSUS
TRAVIS JAMES HEBERT, ET AL

NO. 17-406-SDD-EWD
ORDER

Before the Court is a Motion to Dismiss1 Pursuant to Rule 12(b)(4), (5), and (6) of
the Federal Rules of Civil Procedure filed by Defendants, Burnell Thompson, III (“B.
Thompson”), Douglas Thompson (“D. Thompson”), Daryl Davis (“Davis”), and Lanny
Bergeron (“Bergeron”) (collectively “Defendants”). Plaintiff, Wanda King (“King”), has filed
an Opposition.2 For the following reasons, Defendants’ motion is DENIED.
I.

Brief Factual Background
King filed the instant lawsuit against Defendants on June 28, 2017 alleging

violations of her rights under the Fourth and Fourteenth Amendments of the United States
Constitution and also State Law Claims under Article I, Section 5 of the Louisiana
Constitution.3 Specifically, King alleges that Defendants violated 42 U.S.C. § 1983 when
she was subjected to an unreasonable search and seizure following a motor vehicle
accident.
In her Complaint, King alleges she was struck by a vehicle being driven by Deputy
Travis Hebert of the Iberville Parish Sheriff’s Department while walking across the

1

Rec. Doc. 15.
Rec. Doc. 24.
3
Rec. Doc. 1.
2

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intersection of LA-1 and Castro Street in Plaquemine, Louisiana.4 Shortly thereafter, King
alleges that Defendants, Louisiana State Police Officers, arrived on the scene to conduct
and or supervise the investigation of the accident. After being transported to Our Lady of
the Lake Hospital’s Emergency Care Unit, Defendants, D. Thompson, Davis, and
Bergeron, ordered B. Thompson to obtain a blood sample from King to determine if she
was intoxicated. King alleges that B. Thompson “requested and observed RN Leigh Ann
Trepagnier draw [her] blood to test it for intoxication.”5 King alleges that Defendants did
not have probable cause, did not obtain a warrant, and did not receive her consent to
have her blood taken for such testing; thus, this act violated her Fourth Amendment right
to be free of unreasonable search and seizure.
Defendants now seek dismissal of Plaintiff’s claims based upon insufficient service
of process and failure to state a claim. Specifically, Defendants allege that Plaintiff did not
follow the requirements of La. R.S. 39:1538 for service on Louisiana State Employees
and Officials. Additionally, Defendants allege that Plaintiff has failed to state a cognizable
claim because she has not alleged an injury or damages as a result of a constitutional
violation.
II.

Law and Analysis
a. Motion to Dismiss for Improper Service
Defendants’ Motion seeks dismissal under Rule 12(b)(4) and Rule 12(b)(5) of the

Federal Rules of Civil Procedure. Although Rules 12(b)(4) and 12(b)(5) may appear to
be similar, there is a distinction.

4
5

“Rule 12(b)(4) is the proper challenge when the

Rec. Doc. 22, pp. 2-5.
Id. at pp. 6-7.

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respondent alleges that the summons and complaint do not properly name the party on
whom the summons and complaint were served.”6 Whereas, Rule 12(b)(5) of the Federal
Rules of Civil Procedure allows for the dismissal of a complaint for insufficiency of service
of process.7 Defendants do not argue that they were incorrectly named on the summons
or complaint; instead, they argue that service was ineffective. Accordingly, Defendants’
Motion is considered under Rule 12(b)(5), and the burden is on the Plaintiff to show that
service was valid.8
Under Rule 4(e) of the Federal Rules of Civil Procedure, an individual within the
Middle District of Louisiana may be served by: “(1) following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or (2) doing any of the following: (A)
delivering a copy of the summons and of the complaint to the individual personally…”9
Defendants argue that Plaintiff’s suit should be dismissed because she failed to
request service of summons upon the head of the Louisiana Department of Public Safety
and Corrections, the Office of Risk Management, and the Attorney General in accordance
with La. R.S. 39:1538. However, Plaintiff was not required to effect service pursuant to
state law as this case was originally filed in federal district court where the Federal Rules
of Civil Procedure apply. Defendants’ argument fails to take into account the second
provision of Rule 4(e) which allows service on the individual personally.10

6

Nicholson v. Wise, No. CIV.A. 08-0110, 2008 WL 2051747, *2 (W.D.La. Apr. 7, 2008).
Id.
8
Aetna Business Credit, Inc. v. Universal Décor & Interior Design, Inc., 635 F.2d 434, 435-36 (5th Cir.
1981).
9
Fed. R. Civ. P. 4.
10
Fed. R. Civ. P. 4(e)(2)(A).
7

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Here, the record reflects that Defendants were each served personally within
ninety days as required by Rule 4(e) and (m). Defendants have submitted no case law to
support the position that Defendants are required to be served under La. R.S. 39:1538
when they have otherwise been served properly under Fed. R. Civ. P. 4. Accordingly,
Defendants’ motion to dismiss based on improper service is DENIED.
b. Motion to Dismiss Under Rule 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.’”11 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”12 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”13 In Twombly, the United States Supreme
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”14 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”15 However,

11

In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
12
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
13
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d at 467).
14
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
(hereinafter Twombly).
15
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
(hereinafter “Iqbal”).

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“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”16 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”17 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”18 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”19
c. Pleading Standard for § 1983
“Section 1983 imposes liability on anyone who, under color of state law, deprives
a person ‘of any rights, privileges, or immunities secured by the Constitution and laws.’”20
In order to state a claim under 42 U.S.C. § 1983, the plaintiff must establish two elements:
“(1) that the conduct in question deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States; and (2) that the conduct
complained of was committed by a person acting under color of state law.”21 As for the
first element, 42 U.S.C. § 1983 only imposes liability for violations of rights protected by
the United States Constitution—not for violations of duties of care arising out of tort law.22
As to the second element, a “plaintiff must identify defendants who were either personally

16

Twombly, 550 U.S. at 570.
Iqbal, 556 U.S. at 678.
18
Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
19
Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
20
Blessing v. Freestone, 520 U.S. 329, 340 (1997).
21
Jones v. St. Tammany Parish Jail, 4 F.Supp.2d 606, 610 (E.D.La. 1998). See also, Elphage v. Gautreaux,
2013 WL 4721364, *5 (M.D. La. Sept. 3, 2013).
22
Griffith v. Johnston, 899 F.2d 1427, 1436 (5th Cir. 1990).
17

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involved in the constitutional violation or whose acts are causally connected to the
constitutional violation alleged.”23
“The performance of official duties creates two potential liabilities, individualcapacity liability for the person and official-capacity liability for the municipality.”24 Officialcapacity suits generally represent only another way of pleading an action against an
entity of which an officer is an agent. However, to be liable in one’s official capacity under
Section 1983, the defendant must have been delegated policy-making authority under
state law. In contrast, a state actor may have Section 1983 liability in his/her individual
capacity for actions causing the deprivation of a federal right taken under color of state
law.
Here, Plaintiff alleges that the Defendants violated her Fourth Amendment rights
when they ordered and obtained a blood sample to determine if Plaintiff was intoxicated
without probable cause, consent, or a search warrant.25 The United States Supreme
Court has long maintained that the procurement of a blood sample is a violation of the
Fourth Amendment when taken without probable cause, consent, or incident to a search
warrant.26 Additionally, Plaintiff alleges that all Defendants were acting under color of
state law as they were all employed by and acting on behalf of the Louisiana Office of
State Police.27 Therefore, Plaintiff has met the two requirements for stating a claim under
section 1983 for violation of her Fourth Amendment right to be free from unreasonable
searches and seizures.

23

Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995).
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 484 (5th Cir. 2000).
25
Rec. Doc. 22, pp. 6-7.
26
See Schmerber v. California, 384 U.S. 757, 770–72 (1966).
27
Rec. Doc. 22, pp. 2-3.
24

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Defendants do not argue that Plaintiff failed to allege a violation of her
constitutional rights. Instead, Defendants argue that Plaintiff’s action must be dismissed
because she failed to allege an injury or damage as a result of the constitutional violation.
As stated above, Plaintiff has met the two requirements in order to state a claim under
section 1983. Furthermore, a violation of a person’s constitutional rights is injury in and
of itself. Both the Supreme Court and the Fifth Circuit have stated, “a party who proves a
violation of [her] constitutional rights is entitled to nominal damages even when there is
no actual injury.”28 Here, Plaintiff’s Complaint contains allegations that she suffered both
a violation of her constitutional rights and actual physical injury as a result of the blood
draw.29 Thus, she has pled sufficient injury to survive a motion to dismiss.
Finally, Defendants argue that Plaintiff failed to allege facts against D. Thompson,
Davis, and Bergeron. On the contrary, Plaintiff alleges that all three officers were involved
in the investigation and/or supervision of the underlying automobile accident and
collectively made the decision to order and obtain a blood sample from the Plaintiff.
Specifically, the Complaint states:
Upon information and belief, Defendant D. Thompson, Defendant D. Davis,
and Defendant L. Bergeron, as troopers investigating the crash and
resulting injuries, directly ordered Defendant B. Thompson III to obtain a
blood sample to determine if Plaintiff was intoxicated. Defendants D.
Thompson, D. Davis, and L. Bergeron gave such direction despite
knowledge that such an order was in clear violation of Plaintiff’s
constitutional rights as set forth herein.30

28

Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988)(citing Memphis Cmty. Sch. Dist. v. Stachura, 477
U.S. 299, 106 (1986)).
29
Rec. Doc. 22, pp. 14-15.
30
Id. at p 6.

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Accepting all these facts as true and taking them in the light most favorable to the Plaintiff,
the Court finds that Plaintiff has alleged that the Defendants each had personal
involvement in making the decision to violate Plaintiff’s Fourth Amendment right. Thus,
under the pleading standards set by the Supreme Court in Twombly and Iqbal, Plaintiff
has succeeded in stating a claim against defendants under section 1983.
III.

Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss31 under Fed. R. Civ

Proc. 12(b)(4), (5), and (6) is DENIED.
Baton Rouge, Louisiana the 12th day of September, 2018.

S

____________________________________________
SHELLY D. DICK, CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

31

Rec. Doc. 15.

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