Bender v. Homer et al

Filing 5

MEMORANDUM ORDER granting in part and denying in part 3 Motion to Dismiss. Signed by Judge Elizabeth E Foote on 4/6/2011. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

VERNECIA L BENDER

CIVIL ACTION NO. 5:10-CV-01496

VERSUS

JUDGE ELIZABETH ERNY FOOTE

TOWN OF HOMER, ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the Court is a Motion to Dismiss [Record Document 3] the claims by
Plaintiff, Vernecia1 Bender (“Bender”), against the Town of Homer, Louisiana; the Chief
of Police of Homer; and four police officers of Homer, arising out of the officers’ actions
to restrain and arrest Bender. Defendants move to dismiss Bender’s Complaint for
failure to state a cause of action under Rule 12(b)(6). Plaintiff has failed to respond to
the Motion to Dismiss. The Court holds: 1.) Plaintiff has sufficiently stated an
excessive-force claim under the Fourth Amendment but only as to Officers Smith,
McDaniel, and Thomas; 2.) Plaintiff has sufficiently stated a claim for an entitlement to
relief under state law but only as to Officers Smith, McDaniel, and Thomas and the
Town of Homer as their employer; 3.) Plaintiff does not sufficiently plead any cause of
action under state or federal law as to Officer Glenn or Chief of Police Russell Mills; and
4.) Plaintiff does not sufficiently plead the various other federal claims in her Complaint.
Therefore, for the reasons stated and to the extent explained further herein, the Court

1

Or Vernicia. The Complaint does not spell Plaintiff’s first name consistently.
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GRANTS in part and DENIES in part Defendants’ Motion to Dismiss [Record
Document 3].
I.

Procedural History
Plaintiff, Bender, filed a Complaint alleging an entitlement to relief for violations

of numerous federal and state claims2. Plaintiff alleges that Defendants (the Town of
Homer; the Chief of Police Russell Mills; and police officers Roger Smith, Mario Thomas,
Scott Glenn, and Evan McDaniel)3 deprived and entered into a conspiracy to deprive
Bender of her civil rights under federal and state law. (Complaint, ¶¶ 4.1-5.3). Plaintiff
filed suit pursuant to 42 U.S.C. § 19834 alleging violations of Title VII of the Civil Rights
Act of 1964 and of the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments to the
United States Constitution. Plaintiff also alleges state-law claims under Article I,
Sections 2, 3, 4, and 13 of the Louisiana Constitution and of Louisiana Civil Code Article
2315, et seq.
Defendants filed a Motion to Dismiss [Record Document 3] asserting that
Plaintiff’s Complaint fails to state a claim upon which relief can be granted under Rule
12(b)(6). Defendants’ motion argues that Defendants are immune from suit for the
alleged actions under the doctrine of qualified immunity. Defendants also request, if

2

Plaintiff filed her Complaint with the assistance of counsel.

3

The Complaint names the Chief of Police Mills and Officers Smith, Thomas,
Glenn, and McDaniel as defendants in both their individual and official capacities.
4

Section 1983 does not create substantive rights, rather it is simply a procedural
vehicle that provides a remedy for violation of the rights that it designates. Harrington
v. Harris, 118 F.3d 359, 365 (5th Cir. 1997).
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the Court determines that Plaintiff has not asserted a federal claim, that the Court
dismiss the state law claims for lack of subject-matter jurisdiction under Rule 12(b)(1).
Plaintiff has failed to respond to the Motion to Dismiss, and thus it is unopposed.
Nonetheless, the Court must analyze Plaintiff’s Complaint to determine if the requested
relief is appropriate.
II.

Law and Analysis
Under Iqbal-Twombly’s two-pronged approach, the Court must determine

whether the Complaint contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The first step for the Court is to determine those
pleadings that are more than just “mere conclusions” and thus are entitled to the
presumption of truth. Id. at 1949-50. Then, assuming the veracity of these facts, the
Court must determine whether the factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged” and
“plausibly give[s] rise to an entitlement to relief.” Id.; see also Rhodes v. Prince, 360
Fed. Appx. 555, 557 (5th Cir. 2010) (citing Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996)) (“When reviewing a motion to dismiss, the court must accept all well-pleaded
facts as true and view them in the light most favorable to the non-moving party.”).
A.

Factual Allegations of Bender’s Complaint

Plaintiff, in her Complaint, alleges the following facts. Bender, an African-

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American woman who is “virtually completely hearing impaired,” arrived at her home to
find her sixteen-year-old daughter being restrained by police officers. Officers Roger
Smith and Scott Glenn had drawn their guns on Bender’s daughter who was laying on
the ground. Bender, who was panicked, began to ask the officers what her daughter
had done, and the officers instructed Bender to back away. Bender, who could not hear
what the officers were saying to her, then went into the street to ask Officer Mario
Thomas what her daughter had done.
Soon thereafter, Bender alleges she realized that her vehicle was overheating
and appeared to be smoking.5 Bender went to the vehicle, turned the car off, removed
the keys, and placed the keys in the seat of the car. After she had removed the keys
from the ignition, Officer Thomas, to whom Bender had asked questions in the street,
shined a flashlight in Bender’s face to get her attention. Officer Thomas asked her,
“slowly and loudly,” what she had gotten from the car, and Bender explained to Officer
Thomas what she had done.
As Officer Thomas began to say something else to Bender, Bender was
“suddenly” struck by Officer Smith on her backside. Officer Smith then tased Bender on
her right side. Officer Smith “continued to tase Bender” at least five more times, six
times in total. Officers McDaniel and Thomas stood by without attempting to stop
Officer Smith from tasing Bender. All the while, Bender was yelling that she could not

5

Defendants note in their Motion to Dismiss that Bender’s daughter had lead
officers on a lengthy chase in the car. The chase ended in Bender’s front driveway.
The Court does not consider this extraneous evidence.
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hear what the officers were saying.
Officer McDaniel then told Bender that she was under arrest. Bender complied
with the officer and was handcuffed while she lay on the ground. The State filed a Bill
of Information charging Bender with violations of Louisiana Revised Statutes 14:130.1,
for obstruction of justice, and 14:108(A), for intentional resistance of an officer. These
charges were later voluntarily dismissed by the assistant district attorney on February 3,
2010.
B.

Plausible Claims Stated

On a fair reading of the factual matter in the Complaint, Plaintiff has only stated
a § 1983 claim arising from a violation of the Fourth Amendment of the United States
Constitution for excessive use of force and state-law claims under Louisiana Constitution
Article I, Section 5,6 and Louisiana Civil Code Article 2315. Otherwise, the federal and
state constitutional articles cited in the Complaint are irrelevant to the present facts and
cannot support a claim for relief given the facts stated in the Complaint. Further,
Plaintiff’s allegations of conspiracy are wholly conclusory and thus insufficient under
Iqbal-Twombly. The Complaint alleges that Defendants “committed various acts to
deprive” Bender of her civil rights and “conspired together collectively or in smaller
groups to deprive” her of her rights. These allegations are insufficient to overcome a
12(b)(6) motion to dismiss because they merely recite the threadbare legal elements of

6

Article 1, Section 5 of the Louisiana Constitution is not expressly stated by name
in the Complaint, but rather only Sections 2, 3, 4 or 13 are named. Nonetheless, the
Court construes the Complaint as asserting a right to relief under Article I, Section 5.
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a conspiracy claim. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127
S.Ct. 1955).
1.

Claim I: Fourth Amendment Violation

Plaintiff states that her Fourth Amendment claims are two-fold: (1) unreasonable
and excessive use of force and (2) false arrest without probable cause. While Plaintiff
has sufficiently stated a claim for excessive use of force, Plaintiff’s Complaint, on its
face, reveals that Plaintiff has no claim for false arrest. Further, liability on Plaintiff’s
excessive-force claim does not extend to all Defendants and must be restricted only to
Officers Smith, McDaniel, and Thomas in their individual capacities. The Court now
addresses the Plaintiff’s two Fourth Amendment claims in detail.
a.

The Complaint Does Not Support a § 1983 Claim for False
Arrest

The Fourth Amendment protects individuals from arrests not based on probable
cause. Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000) (“A warrantless arrest
must be based on ‘probable cause.’”). “Probable cause exists when the totality of the
facts and circumstances within a police officer’s knowledge at the moment of arrest are
sufficient for a reasonable person to conclude that the suspect had committed or was
committing an offense.” Id.; see also Ornelas v. United States, 517 U.S. 690, 696-97,
116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Maslanka, 501 F.2d 208, 212
(5th Cir. 1974). “[P]robable cause is a fluid concept-turning on the assessment of
probabilities in particular factual contexts–not readily, or even usefully, reduced to a
neat set of legal rules.” Fields v. City of South Houston, 922 F.2d 1183, 1189 (5th Cir.
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1991) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983)). Nonetheless, “[p]robable cause does not require proof beyond a reasonable
doubt, but only a showing of the probability that criminal activity has occurred.” United
States v. Daniel, 982 F.2d 146, 151 (5th Cir. 1993) (per curiam). “If there was probable
cause for any of the charges made . . . then the arrest was supported by probable
cause, and the claim for false arrest fails.” Deville v. Marcantel, 567 F.3d 156, 164 (5th
Cir. 2009) (quoting Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995)).
Plaintiff’s Complaint alleges facts that make the probable cause for her arrest
readily apparent. Bender was arrested and then charged with two offenses: obstruction
of justice under La. Rev. Stat. Ann. § 14:130.1 and intentional resistance of an officer
under La. Rev. Stat. Ann. § 14:108(A). First, Louisiana’s obstruction of justice statute,
§ 14:130.1, “unlike other states’ statutes and the federal statute, prohibits the mere
‘movement’ of evidence, if done at a location of an incident which the perpetrator has
good reason to believe will be the subject of any investigation and if done with the
requisite specific intent and knowledge.” State v. Jones, 07-1052 (La. 6/3/08); 983
So.2d 95, 103. Second, Louisiana courts have construed Section 14:108 to criminalize a
refusal to comply with an order to move when the police are attempting to make an
arrest. State v. Moore, 32,983 (La. App. 2 Cir. 8/26/99), 740 So. 2d 803, 806; State v.
Washington, 98-545 (La. App. 5 Cir. 12/16/98), 725 So. 2d 587. Here, as stated in the
Complaint, Plaintiff was instructed by the police officers to get away from the area
where the officers were arresting Plaintiff’s daughter. (Compl. ¶ 3.3). Bender moved

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away, and then later approached the scene to turn off the car and remove the keys.
(Compl. ¶ 3.4). It was reasonable for an officer to have perceived her act to return to
the area as a refusal to comply with a police order and to turn off the car as
“movement” of evidence. Thus, based on these events stated in the Complaint, there
was a probability of criminal conduct and the police had probable cause to arrest
Bender. Accordingly, Plaintiff’s facts stated in her Complaint do not create a plausible
inference that she was subject to a false arrest which infringed on her rights under the
Fourth Amendment.
b.

The Complaint Supports a § 1983 Claim for Excessive Use of
Force

The Fourth Amendment, which protects against unreasonable seizures, protects
against the use of excessive force on an individual. To prevail on her excessive-force
claim, the plaintiff must establish: “(1) injury, (2) which resulted directly and only from
a use of force that was clearly excessive, and (3) the excessiveness of which was
clearly unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). “[A]n
injury is generally legally cognizable when it results from a degree of force that is
constitutionally impermissible–that is, objectively unreasonable under the
circumstances.” Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008). “The objective
reasonableness of force, in turn, depends on the facts and circumstances of the
particular case, such that the need for force determines how much force is
constitutionally permissible.” Id. “The test for reasonableness must consider ‘whether
the suspect poses an immediate threat to the safety of the officers or others, and
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whether he is actively resisting arrest or attempting to evade arrest by flight.’” Collier v.
Montgomery, 569 F.3d 214, 219 (5th Cir. 2009) (quoting Graham v. Connor, 490 U.S.
386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
The facts stated in the Complaint certainly create a plausible inference that
excessive force was used. The Complaint states that Bender went to the vehicle and
turned it off. After she had removed the keys she put them in the seat of the car.
Officer Thomas then got Bender’s attention by shining his flashlight in her face and
asking her “slowly and loudly” what she had gotten from the car. (Compl. ¶ 3.4).
Then, “suddenly and from behind,” Officer Smith struck Bender in her back and tased
Bender in her right side. (Compl. ¶ 3.5). Officer Smith tased Bender at least six times
in total. (Id.). The facts as alleged in the Complaint do not suggest that Bender posed
an immediate threat to the safety of the officers or that she was actively resisting
arrest. The allegations suggest that the tasing of Bender was objectively unreasonable.
Therefore, Bender has stated a sufficient claim for excessive use of force.
c.

The City and Non-Participating Officers Are Not Liable on the
Excessive-Force Claim

Plaintiff has named as defendants the City of Homer, the Chief of Police, and the
stand-by officers, as well as the officer who actually allegedly used force on Bender.
Defendants argue that many of those named as defendants had no causal connection to
the alleged constitutional violation, and thus cannot be held liable under § 1983.
First, as to the City of Homer, “a municipality cannot be held liable under § 1983
on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98
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S.Ct. 2018, 56 L.Ed.2d 611 (1978). “It is well established that governmental liability
under § 1983 must be premised on a government policy or custom that causes the
alleged constitutional deprivation.” Gates v. Tex. Dep’t of Protective & Regulatory
Servs., 537 F.3d 404, 436 (5th Cir. 2008). In her Complaint, Bender has alleged no
facts that would support an inference that the police officers acted pursuant to a policy
or custom. The Complaint states that the Homer Police Department “was biased and
designed to result in disparate treatment of citizens.” (Compl. ¶ 4.2). This statement is
not only conclusory but also irrelevant to any factual basis for an asserted claim.
Therefore, Plaintiff has not stated a claim against the Town of Homer.
Second, as to the suits against the officers in their official capacity, Plaintiff must
allege a custom or policy adopted by the Town of Homer that caused the alleged
constitutional violation. An official capacity suit is the equivalent of a suit against the
entity of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct.
3099, 87 L.Ed.2d 144 (1985). Thus, to sufficiently plead an official capacity suit,
Plaintiff must allege facts that support a custom or policy that played a part in the
violation of federal law. Turner v. Houma Mun. Fire and Police Civil Serv. Bd., 229 F.3d
478, 483 n.10 (5th Cir. 2000). Plaintiff, who has failed to state a claim against the
Town of Homer, has likewise failed to state a claim against the officers in their official
capacities.
Third, as to Chief of Police Mills, liability will not exist for a supervisor under §
1983 unless the plaintiff shows the supervisor was personally involved in the

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constitutional deprivation or shows “a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.” Floyd v. City of Kenner,
La., 351 Fed. App. 890, 897 (5th Cir. 2009) (quoting Thompkins v. Belt, 828 F.2d 298,
304 (5th Cir. 1987)). “Because vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 129 S.Ct. at 1948. Here,
Plaintiff has not alleged any personal involvement by Chief Mills in or causal connection
by Chief Mills to the alleged constitutional violations. Therefore, Plaintiff has not stated
a claim against Chief Mills.
Fourth, as to Officer Glenn, there is no allegation that he was in any way
involved in the use of force against or the arrest of Plaintiff. The only allegations in the
Complaint concerning Officer Glenn are that he: (1) had his gun drawn on Plaintiff’s
daughter when Plaintiff approached the scene and (2) yelled at Plaintiff to get away
from the scene. (Compl. ¶¶ 3.2, 3.3). No facts imply that Officer Glenn participated in
the force used against Plaintiff or that Officer Glenn stood by or was near Officer Smith
or Plaintiff when the force was used. Therefore, the Complaint fails to state a claim
against Officer Glenn.
Fifth, as to Officers McDaniel and Thomas, “an officer who is present at the
scene and does not take reasonable measures to protect a suspect from another
officer’s use of excessive force may be liable under section 1983.” Hale v. Townley, 45
F.3d 914, 919 (5th Cir. 1995); see also Smith v. Dooley, 591 F. Supp. 1157, 1169 (W.D.

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La. 1984), aff’d, 778 F.2d 788 (5th Cir. 1985). Plaintiff, to establish bystander liability,
must show that the officers “had a reasonable opportunity to realize the excessive
nature of the force and to intervene to stop it.” Id. Here, Bender has alleged that
“McDaniel and Thomas stood by Smith without attempting to stop him.” (Compl. ¶
3.5). Given this allegation, Bender has alleged sufficient facts to create a plausible
entitlement to relief against Officers McDaniel and Thomas, in their individual capacities,
for standby liability.
d.

Questions of Fact Remain Whether the Qualified Immunity
Limits Liability

Further, Plaintiff has also pled sufficient facts to establish that Officers Smith,
McDaniel, and Thomas are not protected from liability on the § 1983 claim by the
doctrine of qualified immunity. “The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172
L.Ed.2d 565 (2009) (citations omitted). The “driving force” behind the qualified
immunity doctrine is the desire to ensure that “‘insubstantial claims’ against government
officials [will] be resolved prior to discovery.” Id. (citations omitted). “The qualified
immunity inquiry involves two prongs that must be answered affirmatively for an official
to face liability: (1) whether the defendant’s conduct violated a constitutional right, and
(2) whether the defendant’s conduct was objectively unreasonable in light of clearly
established law at the time of the violation.” Terry v. Hubert, 609 F.3d 757, 761 (5th
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Cir. 2010) (citations omitted).
In Autin v. City of Baytown, 174 Fed. Appx. 183 (5th Cir. 2005), the Fifth Circuit
considered a case with facts similar to those here. In Autin, the plaintiff had
established facts that a police officer used a taser on the plaintiff although plaintiff
posed no objectively reasonable threat to the police officer:
Not only was [plaintiff] not resisting arrest, but [defendant’s] tasing of her was
allegedly the first indication he gave to her that she was doing anything wrong.
[Defendant] tased [plaintiff] when her back was to him, he gave her no notice of
his intention to do so, and he continued to tase her repeatedly, even after she
was subdued on the ground. In judging the objective reasonableness of
[defendant’s] use of force, it should not be forgotten that Autin was fifty-nine
years old and five feet two inches tall.
174 Fed. Appx. at 185. On the facts presented by the plaintiff in response to
defendant’s motion for summary judgment, the Fifth Circuit held that plaintiff had
submitted sufficient facts for the fact finder to determine the use of force was
objectively unreasonable. Further, the Fifth Circuit determined that, given the facts, the
officer could not have made a reasonable legal mistake in determining the legality of his
conduct. Id. at 185-86. Therefore, the Autin Court affirmed the denial of defendant’s
motion of summary judgment.
Here, Bender’s Complaint creates a plausible inference of excessive force by the
police officers in violation of Bender’s Fourth Amendment rights. Further, based on the
allegations in the Complaint, Defendants could not have believed that the use of force
on Bender was legal, given that the force, as alleged, was objectively unreasonable and
clearly excessive to any need. Here, at the Rule 12(b)(6) stage, Plaintiff’s Complaint

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states facts sufficient to create a plausible inference that the three defendants are not
immune from liability under the doctrine of qualified immunity although such allegations
may well be disproved by the Defendants at a later stage of these proceedings.
Therefore, Plaintiff has alleged a § 1983 claim against Officer Smith, the principal
actor, and Officers McDaniel and Thomas, who stood by, for excessive use of force
against Plaintiff in violation of the Fourth Amendment. The Complaint alleges a
sufficient § 1983 claim against these officers in their individual capacities only. The
Complaint alleges a sufficient claim only for the acts of force that occurred on
September 26, 2009. Plaintiff has not sufficiently pled a claim for violation of any other
federal law, or a claim for conspiracy.
2.

Claims II and III: State Constitutional Claim and Tort Claim

Having found that Plaintiff has alleged an excessive-force claim, the Court also
finds that Plaintiff has stated a claim under Louisiana Constitution Article I, Section 5
and under Louisiana Civil Code Article 2315. First, “damages may be obtained by an
individual for injuries or loss caused by a violation of Article I, [Section] 5 of the 1974
Louisiana Constitution.” Moresi v. Dept. of Wildlife & Fisheries, 567 So. 2d 1081, 1093
(La. 1990) (“Historically, damages have been regarded as the appropriate remedy for
an invasion of a person’s interest in liberty or property.”). Louisiana federal district
courts have noted that privacy principles embodied in the Fourth Amendment have
been incorporated into Article I, Section 5 of the Louisiana Constitution. See, e.g.,
Hudspeth v. City of Shreveport, 2006 WL 3747446, *23 (W.D. La. Dec. 18, 2006).

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Further, unlike for the federal constitutional claim, “[m]unicipalities do not enjoy special
protection from vicarious liability under Louisiana law and are subject to respondeat
superior like every other employer.” Deville v. Marcantel, 567 F.3d 156, 174 (5th Cir.
2009); see also Moresi, 567 So. 2d at 1094 (holding damages may be obtained by an
individual for injuries or loss caused by a violation of Article I, § 5 of the Louisiana
Constitution, but that qualified immunity protected state officers acting under state law
for damages caused by a violation of Article I, § 5 of the Louisiana Constitution).
Therefore, Plaintiff has alleged a sufficient claim against Officers Smith, McDaniel, and
Thomas for excessive use of force in violation of Article I, § 5 of the Louisiana
Constitution. Further, because respondeat superior may apply for the state
constitutional claims, Plaintiff has sufficiently alleged that the Town of Homer is
vicariously liable for these acts.
Second, Plaintiff has sufficiently alleged a tort claim for unreasonable force used
against her by Officer Smith. See La. Code Crim. Proc. art. 220; see, e.g., Stroik v.
Ponseti, 96-2897 (La. 9/9/97), 699 So. 2d 1072, 1078-79; Robertson v. Hessler, 081212 (La. App. 4 Cir. 6/3/09), 13 So. 3d 1214, 1231. Likewise, Plaintiff has sufficiently
alleged a tort claim against Officers McDaniel and Thomas. The Town of Homer
remains potentially vicariously liable for the actions of Officer Smith, and the bystanding
officers. La. Civ. Code art. 2320; Kyle v. City of New Orleans, 353 So. 2d 969, 972 (La.
1977).
Finally, supplemental jurisdiction over these state claims is proper under 28

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U.S.C. § 1367(a). Therefore, the Court exercises jurisdiction over these claims.
III.

Conclusion
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss [Record Document 3] be

and is hereby DENIED in part and GRANTED in part in accordance with the
following:
1.

Plaintiff’s claims against Chief of Police Mills and Officer Glenn, under federal and
state law, are hereby DISMISSED.

2.

Plaintiff’s claims against the Town of Homer under 42 U.S.C. § 1983 are hereby
DISMISSED.

3.

Plaintiff’s claims against Officers Smith, Thomas, and McDaniel in their official
capacities under 42 U.S.C. § 1983 are hereby DISMISSED.

4.

Plaintiff’s Complaint sufficiently alleges a cause of action pursuant to 42 U.S.C. §
1983 against Officers Smith, McDaniel, and Thomas in their individual capacities
for excessive use of force in violation of the Fourth Amendment of the United
States Constitution.

5.

Otherwise, Plaintiff’s claims against Officers Smith, McDaniel, and Thomas in
their individuals capacities pursuant to 42 U.S.C. § 1983 for false arrest in
violation of the Fourth Amendment; for violations of the Fifth, Sixth, Ninth, and
Fourteenth Amendments; and for violations of Title VII of the Civil Rights Act of
1964 are hereby DISMISSED.

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6.

Plaintiff’s Complaint sufficiently alleges a cause of action against Officers Smith,
McDaniel, and Thomas, and against the Town of Homer as their employer, under
Article I, Section 5 of the Louisiana Constitution and under Article 2315 of the
Louisiana Civil Code.

7.

Otherwise, Plaintiff’s claims against Officers Smith, McDaniel, and Thomas and
against the Town of Homer under Article I, Sections 2, 3, 4, and 13 of the
Louisiana Constitution are hereby DISMISSED.
THUS DONE AND SIGNED in Shreveport Louisiana, this 6th day of April, 2011.

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