Smith v. McKesson et al
RULING AND ORDER: IT IS ORDERED that the above-captioned matter is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the Motion to Dismiss for Failure to State a Claim filed by DeRay McKesson (Doc. 37) is DENIED as MOOT. IT IS FURTHER ORDERED that the Motion to Dismiss for Failure to State a Claim filed by Johnetta Elzie (Doc. 38) is DENIED as MOOT. IT IS FURTHER ORDERED that the Motion to Proceed under Fictitious Names filed by Officer John Doe Smith (Doc. 2) is DENIED as MOOT. Signed by Chief Judge Brian A. Jackson on 10/27/2017. (PJH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
OFFICER JOHN DOE SMITH
DERAY MCKESSON, ET AL.
RULING AND ORDER
After the Court issued an Order to Show Cause Why This Action Should
Not Be Dismissed for Failure to State a Claim (Doc. 42), the Court provided
Plaintiff’s Counsel an opportunity to file a response, (Doc. 48). Two of the named
Defendants, DeRay McKesson and Johnetta Elzie, had previously filed Motions to
Dismiss (Docs. 37, 38) to which Plaintiff’s Counsel responded, (Docs. 46, 47). Also
pending before the Court is a Motion to Proceed under Fictitious Names filed by
Plaintiff’s Counsel (Doc. 2).
Before addressing the merits of the case, the Court must express its admiration
and deepest sympathies for Officer John Doe Smith, who was grievously injured while
protecting the citizens of Baton Rouge. That he suffered and continues to suffer from
the injuries he sustained in the line of duty is not in question, nor should it be
minimized. Nothing in the Court’s ruling impugns the character and courage of
Despite the tragic events that gave rise to Officer Smith’s injuries, however,
Plaintiff’s Counsel has utterly failed to state a plausible claim for relief against any
named Defendant in this matter. Instead, Plaintiff’s Counsel launches a confused
attack against “Black Lives Matter” and other Defendants in this suit, whom she
alleges are inspired by “a radical feminist and Marxist revolutionary.” (Doc. 48 at p.
10). For the following reasons, this action is DISMISSED WITH PREJUDICE.
This is Plaintiff’s Counsel’s second attempt to hold McKesson and “Black Lives
Matter” liable for injuries sustained by Baton Rouge Police Officers. See Doe v.
McKesson, No. 16-742, ___ F. Supp. 3d ___, 2017 WL 4310240 (M.D. La. Sept. 28,
2017). On July 17, 2016, Officer Smith and other law enforcement officers were
ambushed by an individual who, as Plaintiff’s Counsel noted in her Motion for Leave
of Court to Proceed as John Doe (Doc. 2), “has not been shown to be a member of
BLACK LIVES MATTER” because “[t]he shooter was outraged with the Alton
Sterling shooting,” (Id. at ¶ 7). Officer Smith was seriously injured (see Doc. 1 at
¶¶ 66–83), three other officers were killed, (Doc. 2 at ¶ 7).
Defendants in this action are DeRay McKesson and Johnetta Elzie, who
Plaintiff’s Counsel claims are leaders of “Black Lives Matters”; “Black Lives Matter,”
which Plaintiff’s Counsel alleges is a national unincorporated association; Black
Lives Matter Network, Inc., a Delaware corporation; “#BlackLivesMatter,” which is
alleged to be a national unincorporated association; and Alicia Garza, Patrisse
Cullors, and Opal Tometi, who are alleged to be founders and leaders of “Black Lives
Matter.” (Doc. 1 at ¶ 3).
On July 7, 2017, Plaintiff’s Counsel filed suit against Defendants in this
matter. (Doc. 1). On September 12, 2017, Defendants DeRay McKesson and Johnetta
Elzie filed separate motions to dismiss. (Docs. 37; 38). On September 28, 2017, the
Court issued its ruling in the related case Doe, 2017 WL 4310240. On October 4,
2017, the Court issued a show cause order, notifying Plaintiff’s Counsel of its
intention to dismiss this action sua sponte for failure to state a claim. (Doc. 42). The
Court provided Plaintiff’s Counsel with ten days to respond. (Id.). Plaintiff’s Counsel
requested an extension of time to respond. (Doc. 43). After considering the request,
the Court provided Plaintiff’s Counsel an additional ten days to respond. (Doc. 45).
Plaintiff’s Counsel timely filed a response. (Doc. 48).
A district court is empowered to dismiss a complaint sua sponte for failure to
state a claim. See Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006).
Before granting sua sponte dismissal, the court must provide the parties with “both
notice of the court’s intention and an opportunity to respond.” Id. (quoting Bazrowx
v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam)).
Federal Rule of Civil Procedure 8 requires only “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
However, “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] a contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679. “[F]acial plausibility” exists “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678.
Thus, a complaint need not set out “detailed factual allegations,” but a
complaint must contain something more than “‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action.’” Id. (quoting Twombly, 550 U.S. at
555). When conducting its inquiry, the Court must “accept all well-pleaded facts as
true and view those facts in the light most favorable to the plaintiff.” Bustos v.
Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quoting True v. Robles, 571 F.3d
412, 417 (5th Cir. 2009)). “[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions,” and
therefore “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to survive dismissal. Iqbal, 556 U.S. at 678.
All of Plaintiff’s Counsel’s allegations against Defendants suffer from the same
deficiency: the facts pleaded do not give rise to a plausible inference that Defendants
are liable for the conduct alleged. See New Orleans v. Ambac Assur. Corp., 815 F.3d
196, 200 (5th Cir. 2016). Plaintiff’s Counsel’s rambling Complaint focuses almost
exclusively on events in other states, in other cities, and at other periods of time
entirely unconnected to the shooting that gave rise to this cause of action. (See Doc
1 at ¶¶ 5–63, 87–100). To the extent the Complaint describes allegations against
named Defendants, such general allegations consist either of protected free speech
activity or wholly conclusory statements that do not meet the plausibility standard
required to survive a motion to dismiss. See Iqbal, 556 U.S. at 678.
Plaintiff’s Counsel brings negligence claims against Defendants based on
direct liability and respondeat superior, claiming that Defendants “knew or should
have known that violently mentally disturbed persons would be aroused by their call
to violence and retribution to police for the death of black men.” (Doc. 1 at ¶ 111(o)).
The other allegations refer to violence at protests unrelated to the shooting of Officer
Smith. (See id. at ¶ 101). However, the shooting of Officer Smith did not take place
at a protest. (See Id. at ¶ 64); therefore, any alleged unlawful activities related to
“Black Lives Matter” protests are simply not relevant for determining Defendants’
liability in this action. (See id. at ¶ 64).
The First Amendment places limits on state tort suits, especially when the
Defendants were engaged in speech that addresses matters of public concern. See
Snyder v. Phelps, 562 U.S. 443, 451 (2011). Even so, the First Amendment does not
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982)
(“Certainly violence has no sanctuary in the First Amendment, and the use of
weapons . . . may not constitutionally masquerade under the guise of ‘advocacy.’”
(quoting Samuels v. Mackell, 401 U.S. 66, 75 (1971) (Douglas, J., concurring))). “[T]he
presence of activity protected by the First Amendment,” however, “imposes restraints
on the grounds that may give rise to damages liability and on the persons who may
be held accountable for those damages.” Id. at 916–17. While a person may be held
liable in tort “for the consequences of [his] violent conduct,” a person cannot be held
liable in tort “for the consequences of nonviolent, protected activity.” Id. at 918. “Only
those losses proximately caused by unlawful conduct may be recovered.” Id. To
impose tort liability on an individual for the torts of others with whom he associated,
a plaintiff must prove that (1) the individual “authorized, directed, or ratified specific
tortious activity”; (2) his public speech was “likely to incite lawless action” and the
tort “followed within a reasonable period”; or (3) his public speech was of such a
character that it could serve as “evidence that [he] gave other specific instructions to
carry out violent acts or threats.” Id. at 927.
Plaintiff’s Counsel concedes that the shooter acted alone at a time and place
where Defendants were not actively protesting. (Doc. 1 at ¶¶ 63–64). Plaintiff’s
Counsel’s subsequent pleadings in this case also directly contradict the Complaint’s
conclusory statements that the shooter was associated with Defendants or inspired
by the actions of Defendants. (See Doc. 2 at ¶ 7 (“[A]n out of state African American,
who has not been shown to be a member of BLACK LIVES MATTER ambushed
several Baton Rouge Police offices [sic] with a semi-automatic rifle killing three. The
shooter was outraged with the Alton Sterling shooting.”)).
Defendants could only be held liable if their public speech was “likely to incite lawless
action.” Claiborne Hardware Co., 458 U.S at 927.
Based on the facts alleged, Plaintiff’s Counsel has failed to plead a plausible
claim that Defendants can be held liable for Officer Smith’s injuries.
Plaintiff’s Counsel simply asserts—without pointing to any supporting facts—that
the shooter was acting “as [‘Black Lives Matter’] leaders had directed its followers.”
(Doc. 1 at ¶ 42).1 This “[t]hreadbare recital of the elements” of the cause of action,
“supported [with] mere conclusory statements,” does not “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
The Complaint also repeatedly accuses Defendants of failing to disavow
violence and defending violent actions. (See Doc. 1 at ¶¶ 14, 20, 31). However, failing
to disavow violence and defending those who take part in violent acts plainly falls
short of the standard for liability established in Claiborne Hardware Co., 458 U.S at
927. Additionally, Plaintiff’s Counsel relies in part on private conversations between
Conspicuously absent from the twenty-eight page Complaint are references to the shooter, who is
mentioned in only a few sentences and never connected—directly or indirectly—to Defendants apart
from conclusory statements. (See Doc. 1 at ¶¶ 3, 42, 64–65).
Defendants to establish liability (see Doc. 1 at ¶ 43), but because those private
conversations do not include the shooter, they are not relevant to the question of
whether Defendants incited or directed the shooter to act. See Claiborne Hardware
Co., 458 U.S at 927.
Plaintiff’s Counsel further seeks to attribute to named
Defendants the statements of anonymous protestors (see Doc. 1 at ¶ 45). Regardless,
the Supreme Court has noted that “[c]ivil liability may not be imposed merely because
an individual belonged to a group, some members of which committed [or incited] acts
of violence,” Claiborne Hardware Co., 458 U.S at 920. The balance of the Complaint
largely consists of a meandering history of “Black Lives Matter.” Even accepting
every well-pleaded allegation in the Complaint as true, Plaintiff’s Counsel has failed
to plead in the Complaint “factual content that allows the court to draw the
reasonable inference that [Defendants are] liable for the misconduct alleged,” and
thus the claims against Defendants must be dismissed. Iqbal, 556 U.S. at 678.
Although the Complaint does not mention conspiracy, Plaintiff’s Counsel’s
responses to the motions to dismiss allege a conspiracy between Defendants and the
shooter. (Doc. 47 at pp. 3–8; Doc. 46 at pp. 2–8). Louisiana law, however, requires
as an element of civil conspiracy that “an agreement existed among the defendants
to commit the tortious act which caused the plaintiff’s injury.” Thames v. Thames,
50,639 (La. App. 2 Cir. 5/18/16), 196 So. 3d 653, 656. Plaintiff’s Counsel has not
pleaded that Defendants had any contact either directly or indirectly with the shooter
of Officer Smith, much less that Defendants entered into an agreement concerning
the shooting. Therefore, any conspiracy claim Plaintiff’s Counsel brings or seeks to
bring must fail as a matter of law.
In the alternative, the Court finds that Defendants “Black Lives Matter” and
“#BlackLivesMatter” are not entities capable of being sued, for the reasons set forth
in Doe, 2017 WL 4310240, at * 6–7 (taking judicial notice that “Black Lives Matter”
and “#BlackLivesMatter” are “social movement[s] . . . catalyzed on social media by
the persons listed in the Complaint in response to the perceived mistreatment of
African–American citizens by law enforcement officers,” which are not juridical
persons capable of being sued).
Leave to Amend
Plaintiff’s Counsel alternatively asks that she be granted leave to amend the
Complaint. Rule 15(a) provides that leave to amend should be freely given when
justice so requires. “[T]he language of this rule evinces a bias in favor of granting
leave to amend,” and “[a] district court must possess a ‘substantial reason’ to deny a
request.” Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). The Court must
consider five factors when deciding whether to grant “leave to amend a complaint:
(1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure
deficiencies by previous amendments, (4) undue prejudice to the opposing party, and
(5) futility of the amendment.” SGIC Strategic Global Inv. Capital, Inc. v. Burger
King Eur. GmbH, 839 F.3d 422, 433 (5th Cir. 2016) (quoting Smith, 393 F.3d at 595).
An amendment would be futile if “the amended complaint would fail to state a claim
upon which relief could be granted.” Stripling v. Jordan Prod. Co., LLC, 234 F.3d
863, 873 (5th Cir. 2000).
The Court finds that leave to amend would be futile. See id. In response to
the Court’s Order to Show Cause, Plaintiff’s Counsel requests the opportunity to
amend the Complaint only to add more of the same: allegations against Defendants
unconnected to the incident giving rise to the tragic shooting of Officer Smith. 2 (See
Doc. 48 at p. 10). Plaintiff’ Counsel states that it can provide “more factual allegations
about each of the leaders and what each has done personally in his/her role as a
founder/leader to invoke violence against police . . . to provide ample evidence that
the leaders and founders incited a nation to violence against police.” (Id. at p. 10).
Notably, Plaintiff’s Counsel still does not offer to provide any facts that connect the
words or actions of named Defendants to the actions of the individual who ultimately
shot Officer Smith. Generalized allegations that named Defendants expressed antipolice sentiments, without temporal or causal connection to the shooting, are
insufficient to state a plausible claim for relief.
Plaintiff also requests leave to amend in order to plead that Defendants “Black Lives Matter” and
“#BlackLivesMatter” are juridical persons capable of being sued. (Doc. 48 at p. 2). However, the Court
has previously found that leave to amend would be futile on that issue as well. See Doe, 2017 WL
4310240, at *7–8.
IT IS ORDERED that that the above-captioned matter is DISMISSED
IT IS FURTHER ORDERED that the Motion to Dismiss for Failure to State
a Claim filed by DeRay McKesson (Doc. 37) is DENIED as MOOT.
IT IS FURTHER ORDERED that the Motion to Dismiss for Failure to State
a Claim filed by Johnetta Elzie (Doc. 38) is DENIED as MOOT.
IT IS FURTHER ORDERED that the Motion to Proceed under Fictitious
Names filed by Officer John Doe Smith (Doc. 2) is DENIED as MOOT.
Baton Rouge, Louisiana, this 27th day of October, 2017.
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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