Top Dollar Pawn, Gun and Car Audio #5 L L C v. Caddo Parish et al

Filing 99

MEMORANDUM RULING re 80 MOTION to Dismiss Willie L. Shaw, Jr., in his individual capacity filed by Willie L Shaw, Jr. Signed by Judge S Maurice Hicks on 10/10/2013. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
TOP DOLLAR PAWN, GUN &
CAR AUDIO #5 LLC

CIVIL ACTION NO. 12-0577

VERSUS

JUDGE S. MAURICE HICKS, JR.

CADDO PARISH, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court is a “Rule 12(b)(6) Motion to Dismiss” (Record Document 80) filed
by defendant Willie L. Shaw, Jr. (“Chief Shaw”), who has been named as a defendant
individually and in his official capacity as Chief of Police of the Shreveport Police
Department. Chief Shaw seeks dismissal of plaintiff Top Dollar Pawn, Gun and Car Audio
#5, LLC’s (“Top Dollar Pawn”) claims against him in his individual capacity. See id. Top
Dollar Pawn opposed the motion. See Record Document 83. For the reasons which
follow, Chief Shaw’s motion is GRANTED and all of Top Dollar Pawn’s claims against Chief
Shaw in his individual capacity are DISMISSED WITH PREJUDICE.
BACKGROUND
Top Dollar Pawn filed the instant Section 1983 action “alleging an illegal seizure of
property and a deprivation of its rights to due process under the Fourth, Fifth and
Fourteenth Amendments to the United States Constitution by the actions and policies of
the named defendants.”

See Record Document 29 (Supplemental and Amended

Complaint) at ¶ III(A)(1). In the Supplemental and Amended Complaint, Top Dollar Pawn
identifies Chief Shaw as a defendant, stating:
Defendant, Willie L. Shaw, Jr., individually, at all times relevant has been and
continues to be the Chief of Police of the Shreveport Police Department. As
an individual, Willie L. Shaw, Jr. has disregarded the clear and explicit

statutes of the State of Louisiana and the Constitutions of the State of
Louisiana and the United States.
Id. at ¶ III(B)(8).1 Top Dollar Pawn further alleges that Chief Shaw is liable in his individual
capacity in the following ways:
68.

Disregarding the applicable clear and explicit statutes of the state of
Louisiana, Defendant Willie L. Shaw, Jr. is the Chief of the Shreveport
Police Department and is directly responsible for the development,
permitting the development of, and/or acquiescence in policies,
procedures, practices and customs permitting and encouraging
members of the Shreveport Police Department to seize private
property unreasonably and without due process of law and making
same the official policy of the [C]ity of Shreveport.

69.

Disregarding the applicable clear and explicit statutes of the state of
Louisiana, Defendant Willie L. Shaw, Jr. has developed, permitted the
development of, and/or acquiesced in policies, procedures, practices
and customs encouraging and condoning the improper seizure,
retention and disposal of property by city personnel by the following
acts and omissions:
a.

b.

Failing to properly train persons hired by the Shreveport Police
Department in proper techniques of seizing and retaining
property so as to avoid the unconstitutional deprivation of
property interests without due process of law[; and]

c.

70.

Hiring officers who have no qualifications or inadequate
qualifications in the matter of seizure and retention of property;

Failure to properly develop proper policies relating to the
seizure, retention, and disposal of property that addresses the
rights of those having an interest in said property.

By engaging in such acts and omissions, Defendant Willie L. Shaw,
Jr. has thereby made the unreasonable and improper seizure of
property without due process of law the official policy of the
Shreveport Police Department.

1

Top Dollar Pawn has also named Chief Shaw as a defendant in his official capacity.
See Record Document 29 at ¶ III(B)(9). Chief Shaw has not moved to dismiss the official
capacity claims.
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71.

In engaging in and following the policy of the [C]ity of Shreveport to
permit or condone the improper seizure and disposal of private
property by employees of its Police Department, Defendant Willie L.
Shaw, Jr. violated the civil rights of the Plaintiff under the color of state
law, giving rise to the damages set forth herein, while acting both in
his individual and in his official capacity as Chief of Police,
disregarding the applicable clear and explicit statutes of the state of
Louisiana and the Constitutions of the State of Louisiana and the
United States.

72.

Further, not only should Defendant Willie L. Shaw have known that his
actions were in violation of clear and explicit state statutes and the
Constitutions of the State of Louisiana and the United States, but
Defendant or representatives of his department were expressly
informed by Plaintiff’s counsel in a meeting prior to the filing of this
litigation. Despite that knowledge, Defendants continue to violate the
due process rights of the Plaintiff.

Id. at ¶¶ III(L)(68-72).
LAW AND ANALYSIS
I.

Rule 12(b)(6) Standard.
Federal Rule of Civil Procedure 12(b)(6) allows for dismissal of an action “for failure

to state a claim upon which relief can be granted.” While a complaint attacked by a Rule
12(b)(6) motion does not need detailed factual allegations in order to avoid dismissal, the
plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–1965
(2007); see also Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007). A plaintiff’s obligation
“requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Id. The Supreme Court expounded on the Twombly
standard, explaining that a complaint must contain sufficient factual matter to state a claim
to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that
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allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In evaluating a motion to dismiss, the Court must construe the
complaint liberally and accept all of the plaintiff’s factual allegations in the complaint as true.
See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2009).
“Conclusory allegations or legal conclusions masquerading as factual conclusions
will not suffice to prevent a motion to dismiss.”

Fernandez-Montes v. Allied Pilots

Association, 987 F.2d 278, 284-285 (5th Cir. 1993). Additionally, the general rule that “a
court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Ashcroft, 556 U.S. at 678, 29 S.Ct. at 1949. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” will not survive
dismissal. See id.
II.

Analysis.
Chief Shaw argues that he is entitled to qualified immunity because Top Dollar

Pawn’s allegations are not made with adequate specificity. See Record Document 80.
More specifically, Chief Shaw contends that the allegations in the Supplemental and
Amended Complaint “are not adequate to satisfy the heightened pleading burden
applicable to a claim against a public official in his individual capacity.” Record Document
80-1at 5. Chief Shaw submits that Top Dollar Pawn has simply added the word “individual”
to general allegations and “that such disguised official capacity allegations are not sufficient
to escape a [Rule] 12(b)(6) dismissal.” Id., citing Mann ex rel. Terrazas v. Lopez, 404
F.Supp.2d 932, 937 (W.D.Tex. 2005) and Batiste v. City of Beaumont, 421 F.Supp.2d
1000, 1007 (E.D.Tex. 2006). Chief Shaw asserts that the allegations in the Supplemental
and Amended Complaint fail to sufficiently state “what in particular [he] did or failed to do,”
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much less give the Court enough information to ascertain whether his actions were
objectively unreasonable and clearly established as such on the day that such actions
occurred. Id. at 6. More specifically, Chief Shaw seeks dismissal because Top Dollar
Pawn has not alleged he was personally involved in any constitutional deprivation and/or
that any alleged wrongful action on his part was causally connected to the alleged
constitutional deprivation. See Record Documents 80 at 7-8 & 84 at 1; see also Thompson
v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement is an essential element
of a civil rights cause of action.”).
Conversely, Top Dollar Pawn maintains that its allegations in the Supplemental and
Amended Complaint are sufficient to defeat Chief Shaw’s motion. See Record Document
83 at 5. Top Dollar Pawn relies heavily upon the factual allegation that “Chief Shaw’s
representatives met with the Plaintiff and his attorneys on numerous occasions prior to
litigation in an attempt by Plaintiff to stop the continuing deprivation of Plaintiff’s
constitutional rights by illegal seizures.” Id. Despite these meetings, Top Dollar Pawn
contends that the deprivations continued at the direction of Chief Shaw, thus constituting
“personal action and/or inaction . . . [rising] to the level of involvement showing that Chief
Shaw’s action and/or inaction was objectively unreasonable under the circumstances.” Id.
In support of this argument, Top Dollar Pawn also points to “the similar case” of G & G
Jewelry, Inc. v. City of Oakland, 989 F.2d 1093 (9th Cir. 1991).2
2

In G&G Jewelry, Inc., the court stated:

The police clearly are not authorized by California law to seize property from
a pawnbroker for the purpose of returning it to the person who has reported
it stolen. There is a genuine issue of material fact as to whether the police
seized the property from the pawnbroker for that purpose, rather than as
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Relying upon Wolfenbarger v. Williams, 826 F.2d 930 (10th Cir. 1987),3 Top Dollar
Pawn further contends that there are ample examples of Chief Shaw’s authorization and/or
condoning or acquiescing in the actual deprivation and violation of its rights. See Record
Document 83 at 8. Top Dollar Pawn also argues that Chief Shaw’s motion is premature
because “discovery in this matter has only recently commenced” and it has “propounded
discovery to Defendant in an effort to obtain any additional documentation regarding the
official and/or unofficial policies of the Shreveport Police Department.” Id. at 7, 8.

evidence in a criminal investigation. More importantly, there is evidence that
this is a standard practice of the Oakland Police Department, which may
justify injunctive relief.
989 F.2d at 1102.
3

In Wolfenbarger, the appellate court denied summary judgment on qualified
immunity grounds as to the District Attorney, Assistant District Attorney, and the Police
Chief, reasoning:
Though [the Assistant District Attorney] rather than [the District Attorney]
signed the memorandum . . . directing [the police officer] to release the
stereo items, it is unclear from the pre-trial record whether [the District
Attorney] authorized, condoned or acquiesced in the issuance of the
memorandum. This is the same reasoning the district court relied upon in
refusing to grant [the Police Chief’s] motion for summary judgment based on
the similar argument that he did not participate in the actual deprivation. We
find it compelling in regard to [the Police Chief] and it is equally persuasive
in regard to [the District Attorney].
Further, it is unclear from the record whether [the District Attorney], by
issuing his . . . memorandum directing police officers to seize stolen goods
found in pawn shops, authorized, condoned or acquiesced in the violation of
the plaintiff’s constitutional rights to freedom from unwarranted search and
seizure. We conclude that the district court acted correctly in refusing to
grant summary judgment in favor of [the District Attorney].
826 F.2d at 937-938.
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“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, 231, 129 S.Ct. 808, 815 (2009). “The plaintiff bears the burden
of proving that a government official is not entitled to qualified immunity.” Michalik v.
Hermann, 422 F.3d 252 (5th Cir.2005). The qualified immunity analysis is a two-step
inquiry:
First, the court must determine whether the plaintiff has alleged a violation of
a clearly established constitutional right. If the plaintiff fails this step, the
defendant is entitled to qualified immunity. If [the plaintiff] is successful, the
issue becomes the objective legal reasonableness of the defendant’s conduct
under the circumstances [and given the clearly established law at the time
the challenged conduct occurred].
Newman Marchive Partnership v. Hightower, 735 F.Supp.2d 483, 501 (W.D.La. 2010).
Judges may decide the order in which they address the two prongs of the qualified
immunity test “in light of the circumstances in the particular case at hand.” Pearson, 555
U.S. at 236, 129 S.Ct. at 818.
Here, Top Dollar Pawn has alleged the illegal seizure of property without due
process under the Fifth and Fourteenth Amendments. See Record Document 29 at
III(A)(1), (F)(31-43). It has also alleged the unreasonable seizure of property in violation
of the Fourth Amendment. See id. at III(A)(1), (G)(44-45). As to Chief Shaw, Top Dollar
Pawn has alleged that he, in his individual capacity, disregarded clear and explicit statutes
of the state of Louisiana, the Louisiana Constitution, and the United States Constitution,
thus violating its civil rights. See Record Document 29 at ¶¶ III(L)(68, 69, 71). It has also
alleged that Chief Shaw was “directly responsible for the development, permitting the
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development of, and/or acquiescence in policies, procedures, practices and customs
permitting and encouraging members of the Shreveport Police Department to seize private
property unreasonably and without due process of law and making same the official policy
of the [C]ity of Shreveport.” Id. at ¶ III(L)(68). Top Dollar Pawn further avers that Chief
Shaw “developed, permitted the development of, and/or acquiesced in policies, procedures,
practices and customs encouraging and condoning the improper seizure, retention and
disposal of property by city personnel” by hiring unqualified officers; failing to properly train
officers; and failing to develop proper policies relating to seizure, retention, and disposal
of property. Id. at ¶ III(L)(69). It contends that the aforementioned acts and omissions on
the part of Chief Shaw “made the unreasonable and improper seizure of property without
due process of law the official policy of the Shreveport Police Department.” Id. at ¶
III(L)(70). Finally, Top Dollar Pawn contends that Chief Shaw “or representatives of his
department were expressly informed by Plaintiff’s counsel in a meeting prior to the filing of
this litigation” that his actions were in violation of clear and explicit laws. Id. at III(L)(72).
Top Dollar Pawn has not alleged that Chief Shaw personally participated in any of
the illegal/unreasonable seizures, or that he personally directed or ordered his officers to
make such seizures. Additionally, other than the conclusory allegations that Chief Shaw
was “directly responsible for the development . . . of . . . policies, procedures, practices”
and “acquiesc[ed] in policies, procedures, practices and customs,” there is no indication
that Chief Shaw was personally responsible for any of the alleged illegal/unreasonable
seizures. See id. at ¶¶ III(L)(68, 69). Top Dollar Pawn asserts no facts showing that any
action or inaction on the part of Chief Shaw was affirmatively linked in any way to the
alleged misconduct of his officers.
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Top Dollar Pawn has alleged that a pawn detective for the Shreveport Police
Department threatened its employees. See id. at ¶ III(E)(22).

It further alleged that a

meeting with “representatives” of the Shreveport Police Department to discuss the custom
that developed contrary to the Louisiana Law of Pawn occurred on March 11, 2011 and that
a meeting with the Shreveport Police Department’s pawn detective to resolve recurring
deprivations occurred on January 13, 2012. Id. at ¶¶ III(E)(25, 28). None of these specific
factual allegations aver personal involvement, or lead to an inference of personal
involvement, on the part of Chief Shaw. Top Dollar Pawn makes a general reference to
Chief Shaw’s alleged personal involvement in relation to a meeting that occurred prior to
this litigation. However, Chief Shaw’s involvement in this meeting is a mere potential, as
the allegation in paragraph 72 of the Supplemental and Amended Complaint reads: “[Chief
Shaw] or representatives of his department were expressly informed by Plaintiff’s
counsel in a meeting prior to the filing of this litigation” that “his actions were in violation of
clear and explicit state statutes and the Constitutions of the State of Louisiana and the
United States.” Id. at ¶ III(L)(72) (emphasis added).
The Court finds that Top Dollar Pawn has failed to state a proper constitutional claim
against Chief Shaw in his individual capacity. It has likewise failed to meet its burden of
proving that Chief Shaw is not entitled to qualified immunity. “Plaintiffs suing governmental
officials in their individual capacities . . . must allege specific conduct giving rise to a
constitutional violation. This standard requires more than constitutional assertions: the
plaintiff must allege specific facts giving rise to the constitutional claims.” Oliver v. Scott,
276 F.3d 736, 741 (5th Cir.2002) (citations omitted). Additionally, “[p]ersonal involvement
is an essential element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d
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381, 382 (5th Cir.1983). As set forth above, Top Dollar Pawn’s factual allegations against
Chief Shaw do not meet this heightened standard. Excepting the reference to a meeting
prior to the filing of this litigation, the factual allegations against Chief Shaw in his individual
capacity and the factual allegations against Chief Shaw in his official capacity are verbatim.
See Record Document 29 at ¶¶ III(L)(67-72), (M)(73-77).

The Court finds that the

reference to such meeting, which does not even definitively allege that Chief Shaw
attended the meeting, simply does not provide the additional facts needed to meet the
requirements of a claim against an official in his individual capacity. See id., ¶ (L)(72)
(“[Chief Shaw] or representatives of his department”) (emphasis added). Moreover, Top
Dollar Pawn’s allegation of mere presence at a meeting, even if accepted as true, is
insufficient to survive Rule 12(b)(6) dismissal, as it is not a factual allegation of specific
conduct giving rise to a constitutional violation. Top Dollar Pawn’s has not plead enough
factual content as to its claims against Chief Shaw in his individual capacity for this Court
to draw the reasonable inference that Chief Shaw is liable for the constitutional deprivations
plead.
The Court further finds Top Dollar Pawn’s reliance in its opposition upon G & G
Jewelry, Inc. and Wolfenbarger to be unpersuasive. Neither case is binding upon this Court
nor has Top Dollar Pawn provided ample support for its contention that such cases are
“similar” to the instant matter.
Therefore, the Court concludes that Chief Shaw is entitled to qualified immunity as
to the claims asserted against him in his individual capacity because Top Dollar Pawn has
not plead its factual allegations with sufficient specificity to overcome the defense of
qualified immunity; rather, its claims are disguised official capacity claims that are not
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sufficient to escape Rule 12(b)(6) dismissal.
CONCLUSION
Chief Shaw’s Rule 12(b)(6) Motion to Dismiss is hereby GRANTED. The factual
allegations in the Supplemental and Amended Complaint do not satisfy the heightened
pleading burden applicable to a claim against a public official in his individual capacity.
Thus, Chief Shaw is entitled to qualified immunity and all of Top Dollar Pawn’s claims
against him in his individual capacity are DISMISSED WITH PREJUDICE.
An order consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 10th day of October,
2013.

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