Wilson et al v. Brown Chrysler Dodge Jeep Ram L L C et al

Filing 28

MEMORANDUM RULING granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim and 25 Motion to Dismiss for Failure to State a Claim. Signed by Judge Elizabeth E Foote on 2/1/2018. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

MARIETTE KIMBLE WILSON, ET AL

CIVIL ACTION NO: 17-0316

VERSUS

JUDGE ELIZABETH ERNY FOOTE

BROWN CHRYSLER DODGE JEEP RAM
LLC, ET AL

MAGISTRATE JUDGE HAYES

MEMORANDUM RULING
Before the Court is a Motion to Dismiss for Failure to State a Claim Upon Which
Relief Can Be Granted [Record Document 9] filed by Defendants Lt. Keith King (“King”),
Officer Joel Kendrick (“Kendrick”), and the City of Minden. Plaintiffs, Mariette Kimble
Wilson and John L. Wilson (“The Wilsons”), filed a motion in opposition. [Record
Document 17]. Thereafter, Plaintiffs filed an Amended Complaint to provide additional
facts in support of their claims. [Record Document 19]. In response, Defendants filed a
supplemental Motion to Dismiss First Amended Complaint for Failure to State a Claim
Upon Which Relief Can Be Granted. [Record Document 25] Plaintiffs oppose the
motion. [Record Document 27].1 For the reasons assigned herein, Defendants’ motions
are hereby GRANTED IN PART and DENIED IN PART as specified in the conclusion
of this ruling.

1

Defendants incorporate the entirety of their original Motion to Dismiss into their
second Motion to Dismiss. [Record Document 25-1 at 1]. Accordingly, the Court
will consider the motions concurrently.

BACKGROUND INFORMATION
The Wilsons are a married couple from Homer, Louisiana. [Record Document 19
at ¶ 2]. John Wilson is visually impaired and unable to operate a motor vehicle. Id. at ¶
4. It is alleged that on or about February 15, 2016, Plaintiffs purchased a 2015 Dodge
Charger from Brown Chrysler Dodge Jeep Ram, LLC (“Brown Chrysler” or “dealership”).
Id. at ¶ 5. Plaintiffs signed a contract, paid a $2000.00 down payment, and traded in a
2006 Chevrolet Impala. Id. The parties agreed upon the drafting of monthly payments
from the Plaintiffs’ bank account. Id. Plaintiffs departed the dealership with the Dodge
Charger, leaving the Impala with the dealership. Id. Plaintiffs maintain that their
transaction with Brown Chrysler qualifies as a consumer transaction pursuant to
Louisiana Revised Statute 51:1401 et seq. Id.
Thereafter, Brown Chrysler requested that Mariette Wilson return the vehicle
because she allegedly failed a credit check. Id. at ¶ 6. Plaintiffs argue that as part of
the sales transaction, Fred Shaffer (“Shaffer”), an employee of the dealership, verified
Mariette Wilson’s income and John Wilson’s monthly disability payments. Id. However,
at the time of the transaction Mariette was recovering from a medical procedure and
had missed time from work, which lowered her income. Id. Plaintiffs allege that the
dealership used this temporary dip in Mariette Wilson’s income to claim that the Wilsons
had misrepresented their income to the dealership. Id. When the dealership requested
the return of the Dodge Charger, two payments in the amount of $293.38 each had

2

been drafted from the Wilson’s bank account. Id. at ¶ 7. The dealership had also placed
the Impala for sale and had begun the process of transferring the tags. Id.
On the advice of counsel, Mariette Wilson refused to return the Dodge Charger
because she allegedly signed a valid and binding contract of sale. Id. at ¶ 8. She
provided the dealership with her attorney’s contact information, but claims no one from
the dealership contacted her attorney. Id. Instead, Elliot Brown (“Brown”), co-owner of
the dealership, Shaffer, and employee Judson Patrick Harper (“Harper”) contacted the
Minden Police Department for assistance in retrieving the car. Id. at ¶ 9. Plaintiffs
allege that Brown, Shaffer, and Harper filed a criminal complaint, requesting that
Plaintiffs be arrested. Id. Plaintiffs allege that Brown, Shaffer, and Harper were acting
in the scope of their employment with the dealership when the criminal complaint was
filed. Id. at ¶ 10. Plaintiffs also allege that the employees “either refused to disclose
exculpatory information or misled police, or the police failed to consider statements of
these defendants.” Id.
Plaintiffs allege that King and Kendrick of the Minden Police Department were
provided with ample information surrounding the vehicle sale, which was sufficient to
demonstrate that no probable cause existed for their arrest. Id. at ¶ 11. Specifically,
Plaintiffs allege that King and Kendrick were aware that Plaintiffs gave the dealership a
$2000.00 down payment, trade-in vehicle, and cooperated in providing income
information. Id. Plaintiffs contend that King and Kendrick “acting in concert” were
provided a copy of the sales contract, and were aware that Plaintiffs were represented

3

by counsel regarding the dealership’s request for return of the vehicle. Id. at ¶ 12.
Despite this information, King and Kendrick failed to consider that Plaintiffs had entered
into a valid sales contract, and failed to contact their attorney to discuss the matter. Id.
Plaintiffs contend that King and Kendrick should have known that there was no
probable cause for their arrest given that the dispute involved a civil matter, and King
and Kendrick failed to investigate available exculpatory evidence. Id. Plaintiffs allege
that “Lt. King, in concert with and acting with the knowledge of Officer Kendrick applied
for a warrant” without informing the Judge of the exculpatory evidence surrounding the
sale of the vehicle. Id. at ¶ 13. Plaintiffs further allege that King and Kendrick’s actions
were “in furtherance of the Minden Police Department’s practice of assisting local
merchants to recover property and rescind contracts without incurring the expense of a
civil proceeding, even if probable cause to arrest is absent.” Id.
The dealership, through Harper, also contacted Deputy James Spillers (“Spillers”)
of the Claiborne Parish Sheriff’s Office. Id. at ¶10.2 On March 1, 2016, Claiborne Parish
Sheriff Deputies Jerry Nehl and Spillers arrested the Plaintiffs for the felony of
Unauthorized Use of Motor Vehicle, allegedly without probable cause. Id. at ¶ 12.3
John Wilson alleges that the deputies should have known there was no probable cause
for his arrest because he is legally blind and cannot drive a vehicle. Furthermore, the
2

The Court notes that Plaintiffs reside in Claiborne Parish. Brown Chrysler is
located in Minden, Louisiana, which is in Webster Parish.
3

Unauthorized use of a motor vehicle is the intentional taking or use of a motor
vehicle which belongs to another, either without the other’s consent, or by
means of fraudulent conduct, practices, or representations, but without any
intention to deprive the other of the vehicle permanently. La. R.S. 14:68.4.
4

Plaintiffs allege that Spillers “knew the Plaintiffs deposited $2,000 cash and their trade
in vehicle was in possession of Brown Dodge.” Id. at ¶ 14. Plaintiffs were placed into
custody at the Claiborne Parish Detention Center, and were transferred the next day to
the Bayou Bodceau Detention Center. Id. Thereafter, Plaintiffs were released on bond.
Id. Plaintiffs were formally charged with Unauthorized Use of a Movable or Motor
Vehicle, and made several court appearances concerning the charge. Id. at ¶ 15.
However, the charges were ultimately dismissed on June 14, 2016. Id.
Plaintiffs returned the Dodge Charger. Id. After retaining an attorney, Plaintiffs
received a refund of all monies paid as well as their Chevy Impala. Id. Because it took
several weeks for the dealership to return the Impala, Plaintiffs had to rent a vehicle
during the interim. Id. Plaintiffs also allege that the dealership damaged their credit,
making it difficult for them to finance a vehicle to replace the Impala. Id. at ¶16. These
actions caused additional inconvenience, anxiety, embarrassment, and stress. Id.
Mariette Wilson later hired a third party to repair her credit. Id.
Plaintiffs name the following Defendants in this matter: Brown Chrysler, Brown,
Shaffer, Harper, the City of Minden, King in his official and individual capacities,
Kendrick in his official and individual capacities, Claiborne Parish Sheriff in its official
capacity, and Spillers in his official and individual capacities.
Plaintiffs assert claims under 42 U.S.C. § 1983 for false arrest and malicious
prosecution against the City of Minden, King, Kendrick, Spillers, Brown Chrysler, Brown,

5

Shaffer, and Harper. Id. at ¶ 17. Plaintiffs claim that Defendants violated their rights
under the Fourth and Fourteenth Amendments of the Constitution. Id. at ¶¶ 18 and 20.
Plaintiffs also claim that the City of Minden is liable pursuant to section 1983 for
its failure to adequately train King and Kendrick regarding sales contracts, unfair trade
practices used by car dealerships, illegal debt collection practices, and the protections
afforded to individuals under the Americans with Disabilities Act. Id. at ¶¶ 19 and 24.
Plaintiffs also claim that the City of Minden failed to properly supervise King and
Kendrick by failing to instruct them not to engage in unfair trade practices and illegal
debt collection. Id. Plaintiffs also allege that the City of Minden is liable because it
instituted a policy at the direction of the Chief of Police to assist car dealers with
repossessing vehicles through the use of criminal laws rather than civil proceedings,
regardless of probable cause. Id. Plaintiffs assert that this unconstitutional policy was
the moving force behind their arrest in violation of the Fourth and Fourteenth
Amendments. Id.
Plaintiffs also assert several state law claims against the Defendants, including:
unlawful arrest, malicious prosecution, abuse of process, and unfair trade practices
pursuant to La. R.S. 51:1401. Id. at ¶ 26.
LEGAL STANDARD
To survive a motion to dismiss brought under Federal Rule of Civil Procedure
12(b)(6), a plaintiff must “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads

6

factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 663. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. at 678. The court must accept as true all of the factual allegations in the
complaint in determining whether plaintiff has stated a plausible claim. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); In re Katrina Canal Breaches Litigation,
495 F.3d 191, 205 (5th Cir. 2009). However, a court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286
(1986). If a complaint cannot meet this standard, it may be dismissed for failure to
state a claim upon which relief can be granted. Iqbal, 556 U.S. at 678-679. A court
does not evaluate a plaintiff’s likelihood for success, but instead determines whether
plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St. Luke’s
Episcopal Hospital, 355 F.3d 370, 376 (5th Cir. 2004). A dismissal under 12(b)(6) ends
the case “at a point of minimum expenditure of time and money by the parties and the
court.” Twombly, 550 U.S. at 558.
LAW AND ANALYSIS
I.

Plaintiffs’ Federal Claims

4

4

To the extent Plaintiffs have asserted a claim for violations of their First
Amendment right to free speech, Defendants move the Court to dismiss for
failure to state a claim. Plaintiffs state in both their Original and Amended
Complaint: “this action is brought pursuant to 42 U.S.C. section 1983, First,
Fourth, and Fourteenth Amendments of the United States Constitution.” [Record
Document 1 at ¶| 1 and Record Document 19 at ¶ 1]. This is the only mention of
the First Amendment in either complaint. The Court assumes the inclusion of
the claim was inadvertent. However, to the extent a claim regarding the First
Amendment was asserted, Plaintiffs have failed to provide any facts to support
7

A.

Plaintiffs’ Federal Claims against the City of Minden

Plaintiffs assert claims under 42 U.S.C. § 1983 against the City of Minden,
alleging that the City instituted an unconstitutional policy of assisting local businesses in
seizing property through criminal procedures without regard for probable cause.
Plaintiffs also allege that the City of Minden failed to properly train King and Kendrick in
the law concerning the unauthorized use of a movable, unfair trade practices, theft,
and probable cause. Plaintiffs also assert that the City failed to properly supervise King
and Kendrick, and directed its officers to engage in unfair trade practices and illegal
debt collection procedures.
I.

City of Minden’s Policy Regarding Car Dealerships

A municipality cannot be held liable for the actions of its employees under the
traditional respondeat superior theory. Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978). However, a municipality may be sued if it is “alleged to
have caused a constitutional tort through a policy statement, ordinance, regulation, or
decision officially adopted and promulgated” by officers of the municipality. City of St.
Louis v. Praprotnik, 485 U.S. 112, 121 (1988). Municipal liability under section 1983
requires proof of three elements: (1) a policymaker; (2) an official policy; and (3) a
violation of constitutional rights whose “moving force” is the policy or custom.
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). An “official policy”
can be evidenced through “duly promulgated policy statements, ordinances or
such a claim. Accordingly, Plaintiffs’ First Amendment claim is hereby
DISMISSED.
8

regulations,” or by a custom that is such a persistent and widespread practice that,
although not officially promulgated, it fairly represents a municipal policy. Webster v.
City of Houston, 735 F.2d 838, 841 (5th Cir. 1984); see also Zarnow v. City of Wichita
Falls, Tex., 614 F.3d 161, 168–69 (5th Cir. 2010). To establish the “moving force”
requirement, a plaintiff must show that the municipality's policy or custom that caused
the alleged harm was either unconstitutional or “promulgated with deliberate
indifference.” Piotrowski, 237 F.3d at 578. Where a policy is facially constitutional, a
plaintiff must demonstrate that the policy was promulgated with deliberate indifference
that a known or obvious unconstitutional consequence would result. Id. at 579.
Plaintiffs allege that the City of Minden, through its police department, has an
established policy or practice of using criminal laws to repossess property and rescind
contracts on behalf of local businesses, regardless of probable cause. [Record
Document 19 at ¶¶ 13, 19, and 24]. Plaintiffs allege that the policy is unconstitutional
and was the moving force behind their unlawful arrest and malicious prosecution.
Plaintiffs have also alleged that the policy was established, tolerated, and perpetuated
by the Chief of Police, the City’s decision-maker on matters of law enforcement. Id. at
¶¶ 19 and 24.
Plaintiffs have named a policymaker and identified a policy, which they allege to
be the moving force behind the deprivation of their constitutional rights. Plaintiffs have
also alleged that the policy is unconstitutional because its application leads to arrest
without probable cause in violation of the Fourth and Fourteenth Amendments. In a

9

situation in which the ownership of property is the subject of a civil dispute, if the City
of Minden has a policy to use criminal statutes to recover that property for local
businesses without regard to probable cause or due process, such a policy would be
unconstitutional. Taking all of Plaintiffs’ alleged facts as true, and viewing them in a
light most favorable to the Plaintiffs, the Court finds that there are sufficient facts to
state a plausible claim for relief. Therefore, Defendants’ motion to dismiss this claim is
DENIED.
ii.

City of Minden’s Failure to Train

The Plaintiffs allege that the City of Minden is liable under 42 U.S.C. § 1983 for
failing to properly train officers King and Kendrick, which contributed to Plaintiffs’
unlawful arrest and detention. To establish a failure-to-train claim giving rise to
municipal liability under section 1983, a plaintiff must demonstrate: (1) inadequate
training procedures; (2) the inadequate training caused a violation of the plaintiff's
constitutional rights; and (3) the deliberate indifference of municipal policymakers.
Pineda v. City of Houston, 291 F.3d 325, 331–32 (5th Cir. 2002). Deliberate indifference
requires actual or constructive notice that a particular omission in a training program
causes city employees to violate citizens' constitutional rights, yet the municipality
nevertheless chooses to retain that program. Connick v. Thompson, 563 U.S. 51, 61
(2011). A pattern of similar constitutional violations by untrained employees is
ordinarily necessary to demonstrate deliberate indifference. Id. “Without notice that a
course of training is deficient in a particular respect, decision makers can hardly be said

10

to have deliberately chosen a training program that will cause violations of
constitutional rights.” Id.
Plaintiffs allege that the City of Minden is liable under section 1983 due to its
failure to properly train King and Kendrick as follows:
in the law of motor vehicle transactions in that they were not provided
training in what constitutes a contract of sale, good faith dealings, contract
ratification, unfair trade practices concerning the use of dealerships to obtain
return of property lawfully sold in a civil context through the use of criminal
laws, the protections provided persons protected under the Americans with
Disabilities Act, use of process or arrest to collect a debt not due, using
criminal process to rescind a civil contract, [and] probable cause[].
[Record Document 19 at ¶ 19]. The City of Minden argues that Plaintiffs have merely
offered conclusory allegations, which fail to meet the standard set forth in Monell.
[Record Document 9 at p. 5].
Plaintiffs have not offered sufficient or specific facts regarding the City of
Minden’s actual training procedures or how those procedures were deficient. Moreover,
Plaintiffs have offered no allegations regarding prior incidents similar to those that
occurred in this case. Without a pattern of constitutional violations, Plaintiffs cannot
demonstrate that the City of Minden acted with deliberate indifference. It is insufficient
for Plaintiffs to provide conclusory allegations that their injuries could have been
avoided through better training. Accordingly, Plaintiffs’ claims regarding the City of
Minden’s alleged failure to train King and Kendrick are DISMISSED.
iii.

City of Minden’s Failure to Supervise

11

Plaintiffs have also alleged that the City of Minden is liable pursuant to 42 U.S.C.
§ 1983 for failing to properly supervise King and Kendrick. [Record Document 19 at ¶
19]. Municipal liability for failure to supervise requires a showing that: (1) a supervisor
failed to supervise a subordinate official; (2) a causal link exists between the failure to
supervise and the violation of plaintiff’s constitutional rights; and (3) the failure to
supervise amounts to deliberate indifference. Porter v. Epps, 659 F.3d 440, 446 (5th
Cir. 2011). The standard for a plaintiff to demonstrate deliberate indifference is the
same high standard that is required for allegations of failure to train, which generally
requires the plaintiff to demonstrate a pattern of similar incidents causing injury to
citizens. Estate of Davis v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir.
2005).
Plaintiffs’ allegations on this cause of action are threadbare. The Plaintiffs merely
state that the City of Minden is liable for “failing to properly supervise [King and
Kendrick] and failing to instruct and direct officers and deputies to not engage in unfair
trade practices, and illegal debt collection practices.” [Record Document 19 at ¶¶ 19
and 24]. Plaintiffs have not offered sufficient allegations to suggest that the City of
Minden acted with deliberate indifference in the supervision of its officers. Plaintiffs
provide no examples of other instances where citizens were allegedly harmed to
demonstrate a pattern of violations. Therefore, Plaintiffs’ claims against the City of
Minden for failure to supervise are DISMISSED.

12

B.

Plaintiffs’ 42 U.S.C. § 1983 Claims against King and
Kendrick

Plaintiffs allege that King and Kendrick violated their constitutional rights under
the Fourth and Fourteenth Amendments by withholding exculpatory evidence from a
judge when seeking an arrest warrant. Plaintiffs also allege that King and Kendrick
engaged in malicious prosecution. Plaintiffs have sued King and Kendrick in their
official and individual capacities.
i.

Motion to Dismiss Kendrick

Defendants move for the complete dismissal of Kendrick from this lawsuit
arguing that Plaintiffs’ Amended Complaint fails to provide any direct acts taken by
Kendrick in connection with their claims. [Record Document 9 at p. 4 and Record
Document 25 at p. 5]. The central issue throughout Plaintiffs’ numerous claims is that
they allegedly were arrested without probable cause. Defendants argue that King was
the officer who applied for the arrest warrant, and he was the officer who authored the
affidavit in support thereof. [Record Document 25 at p. 5]. Therefore, Defendants
argue that only King may be held liable for constitutional violations stemming from a
lack of probable cause. Id. Defendants argue that Plaintiffs merely allege that Officer
Kendrick “acted in concert” with King, which Defendants contend is a legal
determination couched as a factual allegation. Id.
Upon review, the Court finds that Plaintiffs’ Amended Complaint does provide
factual allegations regarding Kendrick. Specifically, Plaintiffs assert that Kendrick had
sufficient knowledge concerning the Plaintiffs’ transaction with the dealership, that is,
13

that he was provided with a copy of the contract of sale itself, knew that Plaintiffs had
paid a $2,000 cash deposit, and Plaintiffs had left their trade-in vehicle at the
dealership. [Record Document 19 at ¶ 12]. These facts constitute indicia of a good faith
sales contract and negate the elements of criminal intent. Plaintiffs also allege that
Kendrick was aware that they had legal representation regarding their dispute with the
dealership, another indicator that this was a civil dispute and not a felony criminal
matter. Id. Plaintiffs also allege that King acted in concert and with Kendrick’s
knowledge when he applied for an arrest warrant without providing exculpatory
evidence (presumably the deposit, the trade-in, and the hired lawyer) to the Judge.
[Record Document 19 at ¶ 13]. Plaintiff does not allege however what specific acts by
Kendrick constitute “acting in concert” with King. Accordingly, without examining the
merits of Plaintiffs’ claims regarding Kendrick, Defendants’ motion is DENIED at this
time.
ii.

Official Capacity Suits

A suit brought against a defendant in his official capacity is effectively a suit
against the governmental unit that employs the defendant. Monell, 436 U.S. at 690
n.55; Brooks v. George County, Miss., 84 F.3d 157, 165 (5th Cir. 1996). Official
capacity suits “generally represent only another way of pleading an action against an
entity of which an officer is an agent.” Monell, 436 U.S. at 690 n.55. It is firmly
established that a municipality cannot be held liable for the unconstitutional acts of its
non-policy making employees under the theory of respondeat superior. Id. at 691.
Therefore, it is appropriate to dismiss allegations against officers in their official
14

capacities where those allegations duplicate claims against the respective governmental
entity. Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001).
Plaintiffs’ claims against King and Kendrick are functionally equivalent to their
claims against the City of Minden, and are therefore redundant. Plaintiffs allege that
King and Kendrick sought an arrest warrant without probable cause in connection with
the City of Minden’s unconstitutional policy to assist car dealerships in repossessing
vehicles through the use of criminal procedure rather than a civil proceeding. Plaintiffs’
claim against the City of Minden regarding the alleged unconstitutional policy survives
this motion to dismiss. Accordingly, Plaintiffs’ claims against King and Kendrick in their
official capacities are redundant, and are hereby DISMISSED.
iii.

Individual Capacity Claims/Qualified Immunity

Defendants King and Kendrick have raised qualified immunity as a defense to
Plaintiffs’ section 1983 claims against them in their individual capacities for alleged
violations of their Fourth and Fourteenth Amendments rights. It is well established that
“government officials performing discretionary functions generally are shielded 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.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Once qualified immunity has been raised by a defendant, the burden is then
upon the plaintiff to demonstrate the inapplicability of the defense. McClendon v. City
of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). Qualified immunity is

15

“immunity from suit rather than a mere defense to liability.” Id. Accordingly, the issue
of whether qualified immunity applies should be resolved at the earliest possible stage
in the litigation. Porter, 659 F.3d at 445. Resolving the issue early serves to protect
officials from unwarranted liability and “costly, time-consuming, and intrusive” pre-trial
discovery. Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
The defense of qualified immunity involves a two-part inquiry: (1) whether the
facts alleged or shown by the plaintiff demonstrate a violation of a constitutional right,
and (2) whether that right was “clearly established” at the time of the defendant’s
alleged misconduct. Harlow, 457 U.S. at 818. “The constitutional right must be
sufficiently clear to put a reasonable officer on notice that certain conduct violates that
right.” Sanchez v. Swyden, 139 F.3d 464, 466 (5th Cir. 1998). A public official may
assert the defense of qualified immunity even though a plaintiff’s civil rights have been
violated, provided that the official’s conduct was objectively reasonable. Sanchez, 139
F.3d at 466-67. The standard of “objective reasonableness” ensures that officers are
on notice that their conduct is unlawful before they are subjected to a lawsuit. Pearson
v. Callahan, 555 U.S. 223, 244 (2009). Whether the actions of the official are
objectively reasonable turns on the circumstances confronting the official as well as
“clearly established law” in effect at the time of the official’s conduct. Id. “The
subjective intent of the officer is irrelevant, and the officer’s knowledge of the law need
not rise to the level of a ‘constitutional scholar.’” Id. at 467 (citing Harlow, 457 U.S. at

16

815-17). A court may begin its analysis of qualified immunity with either prong. Gibson
v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014).
Plaintiffs allege that Defendants King and Kendrick are liable to them pursuant to
42 U.S.C. § 1983 in their individual capacities for violations of their Fourth and
Fourteenth Amendment rights. [Record Document 19 at ¶¶ 18 and 22]. Plaintiffs assert
that King and Kendrick withheld exculpatory evidence from the Judge issuing the arrest
warrant, which caused their arrest without probable cause. [Record Document 19 at ¶
18]. Specifically, Plaintiffs allege that King and Kendrick were aware of, yet failed to
inform the Judge of the following information: (1) Plaintiffs were instructed by counsel
not to return the vehicle; (2) Plaintiffs provided a $2000.00 down payment; (3)
Plaintiffs traded in a vehicle; (4) Plaintiffs had no prior criminal history; (5) the
dealership debited payments from Plaintiffs’ account; (6) the dealership was in the
process of transferring the title of Plaintiffs’ trade-in vehicle; (7) the dealership retained
possession of the trade-in vehicle; (8) the parties signed a contract for sale of the
vehicle in good faith; (9) the officers concluded that a sale had taken place; (10) John
Wilson is legally blind; (11) the dealership verified Mariette Wilson’s employment and
John Wilson’s disability payments as part of the transaction; and (12) Plaintiffs
cooperated with the dealership to provide financial information. [Record Document 19
at ¶ 13]. Plaintiffs contend that all of the enumerated evidence known to King and
Kendrick demonstrates that the parties executed a contract, and no criminal
misrepresentations took place. Id.

17

It is a clearly established constitutional right to be free from arrest without
probable cause. See Gerstein v. Pugh, 420 U.S. 103, 111-12 (1975). Qualified
immunity will not protect a well-trained police officer that should have known that his
affidavit seeking arrest failed to establish probable cause. Malley v. Briggs, 475 U.S.
335, 345 (1986).5 An application for a warrant is not objectively reasonable where it
creates an unnecessary danger of an unlawful arrest. Id. If an officer is aware of
information casting doubt upon the information contained in a warrant affidavit, this
may serve as evidence that a reasonably trained officer would have known that the
search (or arrest) was illegal despite authorization by a magistrate judge. U.S. v. Leon,
468 U.S. 897, 922 n.23. The fact that a neutral magistrate issued an arrest warrant
does not cure the underlying violation if the officers knowingly or recklessly included
false information in the affidavit upon which the warrant was issued. Malley, 475 U.S.
335, 344 n.7. If exculpatory evidence is deliberately concealed, this violates a clearly
established constitutional right to due process. Brown v. Miller, 519 F.3d 231, 238 (5th
Cir. 2008). If an officer was merely negligent in his investigation before obtaining a
warrant, liability does not attach. See Herrera v. Millsap, 862 F.2d 1157, 1160 (5th Cir.
1989).
Plaintiffs have alleged that King and Kendrick had sufficient information to know
that there was no probable cause for their arrest. Moreover, Plaintiffs allege that King
5

See also Winfrey v. San Jacinto County, 481 Fed.Appx. 969 (5th Cir. 2012)
(noting that the same standard for “objective reasonableness” applied in the
context of a suppression hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978), defines the extent of qualified immunity provided to officers whose
affidavit for a warrant allegedly caused an unconstitutional arrest.).
18

and Kendrick failed to provide the Judge issuing the warrant with any of the
exculpatory evidence, which would have demonstrated that the matter involved a civil
contract dispute rather than a criminal violation. At this stage in the proceedings,
Plaintiffs have pleaded sufficient facts for their section 1983 claims against King and
Kendrick to proceed. Defendants may still reassert the qualified immunity defense in a
motion for summary judgment if the law and facts justify such a filing.
C.

Malicious Prosecution

Plaintiffs also assert a claim of malicious prosecution pursuant to 42 U.S.C. §
1983 against the City of Minden, King, and Kendrick. Defendants correctly note that
the Fifth Circuit has held that the U.S. Constitution does not contain a freestanding
right to be free from malicious prosecution. Deville v. Marcantel, 567 F.3d 156, 169
(5th Cir. 2009) (citing Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en
banc)). A free-standing 42 U.S.C. § 1983 claim based solely on malicious prosecution
fails as a matter of law. Cuadra v. Houston Indep. School Dist, 626 F.3d 808, 812-13
(5th Cir. 2010). Plaintiffs must allege that officials violated other specific constitutional
protections in connection with their malicious prosecution. Id. at 812. Plaintiffs in this
case have asserted violations of their Fourth and Fourteenth Amendment rights in
connection with the issuance of the warrant leading to their arrest, which the Court has
considered. Accordingly, Plaintiffs’ federal claim for malicious prosecution is
DISMISSED.

19

II.

Plaintiffs’ State Law Claims
A.

Unlawful Arrest

To properly state a claim for unlawful or false arrest under Louisiana law,
Plaintiffs must demonstrate that they were unlawfully detained by the police. Zerbe v.
Town of Carencro, 04-422 (La. App. 3 Cir. 10/6/04), 884 So.2d 1224, 1228. A
detention is unlawful if it is made without color of legal authority. O’Connor v.
Hammond Police Dept., 83-0009 (La. App. 1 Cir. 10/11/1983), 439 So.2d 558, 560 (La.
App. 1 Cir. 1983). If an arrest is made pursuant to a warrant that is null and void on its
face, a false arrest has occurred. Id. 6 The burden lies with the plaintiff to prove that
an arrest is made without legal authority. Id. Plaintiffs also bear the burden of proving
that the arrest affidavit presented to the magistrate contained misrepresentations. See
State v. Smith, 80-2546 (La. 4/6/1981), 397 So.2d 1326, 1330. If the affidavit
supporting an arrest warrant was inadequate, the subsequent arrest based on the
affidavit would be unlawful. See State v. Cook, 81-0345 (La. 9/28/1981), 404 So.2d
1210, 1212.

6

Louisiana Code of Criminal Procedure article 203 provides: The warrant of
arrest shall: (1) Be in writing and be in the name of the State of Louisiana; (2)
State the date when issued and the municipality or parish where issued; (3)
State the name of the person to be arrested, or, if his name is unknown,
designate the person by any name or description by which he can be identified
with reasonable certainty; (4) State the offense charged against the person to be
arrested; (5) Command that the person against whom the complaint was made
be arrested and booked; and (6) Be signed by the magistrate with the title of his
office. The warrant of arrest may specify the amount of bail in noncapital cases
when the magistrate has authority to fix bail.
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Plaintiffs have not alleged that the warrant itself was facially null or void, or that
it did not meet the requirements set forth in Louisiana Code of Criminal Procedure
article 203. However, Plaintiffs have alleged that the warrant for their arrest was
issued without probable cause because King and Kendrick failed to provide exculpatory
evidence to the Judge. Defendants move for the dismissal of Plaintiffs’ claim, arguing
that probable cause existed. Whether probable cause existed necessarily requires the
Court to weigh the evidence, which is more properly considered in the context of a
motion for summary judgment. Plaintiffs have alleged specific facts which if true would
tend to prove that they were arrested without probable cause, which caused them
financial and emotional harm. This is sufficient to state a claim. Defendants’ motion to
dismiss is DENIED.
B.

Malicious Prosecution

To properly state a claim for malicious prosecution under Louisiana law, Plaintiffs
must allege facts to support the following elements: (1) the commencement or
continuance of an original criminal or civil judicial proceeding; (2) its legal causation by
the present defendant in the original proceeding; (3) its bona fide termination in favor
of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the
presence of malice therein; and (6) damage conforming to legal standards resulting to
plaintiff. Waste Management v. Parish of Jefferson, 947 F.Supp.2d 648, 656 (E.D. La.
2013) (citing Hibernia Bank of New Orleans v. Bollester, 66157 (La. 5/19/1980), 390
So.2d 842.

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Defendants argue that the existence of probable cause and the issuance of a
properly signed arrest warrant preclude a viable claim for malicious prosecution.
[Record Document 9 at p. 10]. Probable cause is the standard of proof used to defend
a claim of malicious prosecution. Jenkins v. Baldwin, 2000-0802 (La. App. 4 Cir.
8/29/01), 801 So.2d 485, 496. However, where charges have been dropped there is a
presumption of want of probable cause in a suit for malicious prosecution based on the
discharge. Hope v. City of Shreveport, 37,759 (La. App. 2 Cir. 12/17/03), 862 So.2d
1139, 1143. The burden is on defendant to show they acted on probable cause and
without malice. Id. Malice may be inferred from a lack of probable cause, or from a
finding that the defendant acted with reckless disregard of the plaintiff’s rights.
Jenkins, 801 So.2d at 497 (citing Miller v. East Baton Rouge Parish Sheriff, 86-C-1696
(La. 7/28/1987), 511 So.2d 446, 453. A dismissal by the prosecutor pursuant to
Louisiana Code of Criminal Procedure article 691, nolle prosequi, constitutes a bona fide
termination in a plaintiff’s favor for the purposes of a malicious prosecution suit.
Lemoine v. Wolfe, 2014-1546 (La. 3/17/15), 168 So.3d 362, 370-71.
Plaintiffs have alleged the following actions in support of their claim: (1) a felony
prosecution was commenced against them; (2) the prosecution was caused by Kendrick
and King obtaining a warrant and presenting the case to the Webster Parish District
Attorney; (3) the felony charges were terminated in Plaintiffs’ favor by dismissal; (4)
there was no probable cause for their arrest because the surrounding facts suggest that
the matter involved a civil disagreement on a sales contract, not a criminal violation;

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(5) malice may be inferred due to the lack of probable cause; and (6) Plaintiffs were
damaged financially and in their loss of liberty.
All of the required elements are contained in Plaintiffs’ Amended Complaint.
Whether Plaintiffs will ultimately be successful in their claim will turn on the question of
probable cause. This determination will require the Court to examine the sufficiency of
the evidence, especially in light of the prosecutor’s dismissal of the charges against the
Wilsons. Accordingly, Defendants’ motion to dismiss Plaintiffs’ state-law claim for
malicious prosecution is DENIED.
C.

Abuse of Process

Plaintiffs did not specifically label a claim “abuse of process” in their Amended
Complaint. [Record Document 19]. However, Plaintiffs argue that such a claim is “fairly
derived” from the alleged facts, and a second amended complaint could be filed to
specifically add this cause of action. [Record Document 27 at p. 13]. Although
Plaintiffs did not specifically allege abuse of process, they did allege that Defendants
are liable to them pursuant to Louisiana Civil Code article 2315. Abuse of process is a
common law tort, which Louisiana Courts have held to be actionable under Louisiana
law through Civil Code article 2315. Waguespack, Seago and Carmichael APLC v.
Lincoln, 99-2016, (La. App. 1 Cir. 9/22/00) 768 So.2d 287, 290. A plaintiff is not
required to specify the legal theory of recovery to claim relief. Johnson v. City of
Shelby, Mississippi, 135 S.Ct. 346 (2014). Federal Rule of Civil Procedure 8(a)(2) only
requires “a short and plain statement of the claim showing that the pleader is entitled
to relief.” The statement need only give the defendant fair notice of what the claim is
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and the facts upon which it rests. Twombly, 550 U.S. at 555. Given the lengthy factual
allegations contained in the Amended Complaint, the Court finds that Plaintiffs have
stated a claim for relief under the theory of abuse of process, and Defendants have
been provided fair notice of the claim. Defendants move to dismiss this claim without
providing an analysis as to why dismissal is proper. [Record Document 25 at p. 4].
Abuse of process involves the misuse of a process already legally issued whereby
a party attempts to obtain a result not proper under the law. Goldstein v. Serio, 5153
(La. App. 4 Cir. 11/19/1986), 496 So.2d 412, 415. To properly state a claim for abuse
of process, a plaintiff must allege two essential elements: (1) the existence of an
ulterior purpose; and (2) a willful act in the use of the process not proper in the regular
conduct of the proceeding. Waguespack, 768 So.2d at 290-91. The regular use of
process does not constitute an abuse. Id. at 292. There must be a showing of an
abuse through an illegal, improper, or irregular use of process. Id.
Plaintiffs allege that the Defendants sought an arrest warrant without probable
cause in an effort to force the return of the Dodge Charger in furtherance of the City of
Minden’s policy to assist car dealerships in recovering property through criminal
proceedings rather than a civil proceeding. Plaintiffs allege that the ulterior motive was
the collection of the vehicle on behalf of the dealership. The improper act is alleged to
be the filing of criminal charges without probable cause. The allegations are sufficient
to state a cause of action. Defendants’ motion to dismiss is DENIED on this issue.

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D.

Louisiana Unfair Trade Practices

Plaintiffs have asserted a claim of unfair trade practices for alleged illegal debt
collection practices in violation of La. R.S. 51:1401 et seq against the City of Minden,
King, and Kendrick. The Louisiana Unfair Trade Practices and Consumer Protection Act
(“LUTPA”) states: “unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce are hereby declared unlawful.”
LUTPA provides a cause of action for trade practices that are unfair, and for those
which are deceptive. Jefferson v. Chevron USA Inc., 98-0254 (La. App. 4 Cir. 5/20/98),
713 So.2d 785, 792. To recover, a plaintiff must “prove some element of fraud,
misrepresentation, deception, or unethical conduct.” Omnitech Intern., Inc. v. Clorox
Co., 11 F.3d 1316, 1332 (5th Cir. 1994). “Trade” and “Commerce” are defined by
LUTPA as “advertising, offering for sale, sale, or distribution of any services and any
property, corporeal or incorporeal, immovable or movable, and any other article,
commodity, or thing of value wherever situated, and includes any trade or commerce
directly or indirectly affecting the people of the state.” La. R.S. 51:1402(10).
Plaintiffs cannot properly state a cause of action under LUTPA against the City of
Minden, King, or Kendrick because these Defendants were not involved in any conduct
that could be considered trade or commerce as defined by the act. La. R.S.
51:1402(10). The City of Minden, King, and Kendrick did not engage in sales,
distribution, or offer services affecting the people of the state of Louisiana.
Accordingly, Plaintiffs’ claims against the City of Minden, King, and Kendrick under
LUTPA are DISMISSED.
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Defendants request that the Court grant their attorney fees and cost associated
with defending Plaintiffs’ LUTPA claim. La. R.S. 51:4109(A) provides that “upon a
finding by the court that an action under this section was groundless and brought in
bath faith or for the purposes of harassment, the court may award to the defendant
reasonable attorney fees and costs.” Plaintiffs have failed to state a proper claim, but
the Court does not find that Plaintiffs alleged a LUTPA claim in bad faith or merely for
the purpose of harassment. Therefore, Defendants’ request for attorney fees and costs
is DENIED.
CONCLUSION
For the foregoing assigned reasons, Defendants’ Motions to Dismiss [Record
Documents 9 and 25] are hereby GRANTED IN PART and DENIED IN PART.
Specifically, Defendants’ motion is GRANTED as to the following claims, and
they are hereby DISMISSED: (1) 42 U.S.C. § 1983 First Amendment against King,
Kendrick, and the City of Minden, (2) 42 U.S.C. § 1983 against the City of Minden for
failure to train; (3) 42 U.S.C. § 1983 against the City of Minden for failure to supervise;
(4) all claims against King in his official capacity; (5) all claims against Kendrick in his
official capacity; (6) 42 U.S.C. § 1983 malicious prosecution against King, Kendrick, and
the City of Minden; and (7) LUTPA claims against King, Kendrick, and the City of
Minden.
Defendants’ motion is DENIED as to the following claims: (1) 42 U.S.C. § 1983
against the City of Minden for its alleged unconstitutional policy of assisting local
businesses through the use of criminal proceedings; (2) claims against King in his
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individual capacity based on alleged violations of Plaintiffs’ Fourth and Fourteenth
Amendment rights; (3) claims against Kendrick in his individual capacity based on
alleged violations of Plaintiffs’ Fourth and Fourteenth Amendment rights; (4) Louisiana
unlawful arrest against King, Kendrick, and the City of Minden; (5) Louisiana malicious
prosecution against King, Kendrick, and the City of Minden; and (6) Louisiana abuse of
process against King, Kendrick, and the City of Minden.
Defendants’ motion for attorney fees and costs associated with defending
Plaintiffs’ LUTPA claim is also DENIED.
THUS DONE AND SIGNED, this 1st day of February, 2018.

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