Robinson v. Shreveport Police Department Officers et al

Filing 8

MEMORANDUM ORDER: Directing plaintiff to amend complaint. Pro Se Response due by 6/13/2018. Signed by Magistrate Judge Karen L Hayes on 5/14/2018. (crt,Haik, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
LADARIUS D. ROBINSON

CIVIL ACTION NO. 18-0324
SECTION P

VS.
JUDGE TERRY A. DOUGHTY
SHREVEPORT POLICE DEPARTMENT
OFFICERS, ET AL.

MAG. JUDGE KAREN L. HAYES

MEMORANDUM ORDER
Plaintiff Ladarius D. Robinson is incarcerated at Caddo Correctional Center and is
proceeding pro se and in forma pauperis. He filed the instant Complaint on March 13, 2018,
under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).1 He names “Shreveport Police Department Officers,” “US Marshals
Office,” “Cpl. Hammer,” and “K9 Juice” as Defendants.2
Background
Plaintiff alleges that, on October 5, 2017, officers with the Shreveport Police Department
and the United States Marshals Service pursued him. Officers then searched his grandmother’s
home pursuant to a warrant and located him in a closet. Plaintiff claims that Defendant “K9
Juice,” a police dog, attacked him in the closet. After Plaintiff screamed for help, Defendant
Hammer found Plaintiff and began to kick and punch him for a “lengthy time.”

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Plaintiff filed his Complaint under 42 U.S.C. § 1983. However, as one Defendant, the
United States Marshals Service, is a federal agency, Plaintiff’s claims also arise under Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which authorizes
civil rights suits against federal employees or agents.
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This matter has been referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of
the Court.

Plaintiff claims that, once officers pulled him from the closet and placed him in
handcuffs, Defendant Hammer allowed the police dog to “once again rip open [his] flesh,”
resulting in injuries to his right arm and permanent damage to his left hand. Plaintiff faults
Defendants for excessive force and for failing to protect him. He seeks “monetary gain” for his
injuries.
Amendment
While Federal Rule of Civil Procedure 8 does not require explicit detail, it does require a
plaintiff to allege some facts which support the conclusion that his constitutional rights were
violated by the defendants. In other words, a civil rights plaintiff must support his claims with
specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory
allegations. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Schultea v. Wood, 47 F.3d 1427, 1433 (5th
Cir. 1995).
The Court has identified several deficiencies in Plaintiff’s allegations. Before proceeding
further, Plaintiff should amend his Complaint, provide the information outlined below, and
remedy the deficiencies described below. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
At the very least, Plaintiff should provide:
(1) the name of each person who allegedly violated his constitutional rights;
(2) a separate description of what, exactly, each person did to violate Plaintiff’s
rights; in other words, a description of how each person participated in the violation
of his constitutional rights;
(3) a description of the injury, if any, sustained as a result of each alleged violation;
and
(4) the specific place and date that each event occurred.
Plaintiff should also clarify the relief he seeks.

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1. United States Marshals Service
Plaintiff’s claims against the “U.S. Marshals Office” are barred by the doctrine of
sovereign immunity. While Plaintiff may bring a Bivens action against individual federal
officials for alleged constitutional violations, he may not bring an action against the United
States or its agencies. See Gibson v. Federal Bureau of Prisons, 121 Fed. App’x. 549, 551 (5th
Cir. 2004); Trapp v. U.S. Marshals Serv., 139 F. App’x 12 (10th Cir. 2005) (holding that
sovereign immunity barred suit against the United States Marshals Service). The United States
has not waived sovereign immunity in a Bivens suit for monetary damages or injunctive relief.3
Oladipupo v. Austin, 104 F. Supp. 2d 623, 624-25 (W.D. La. 2000). Here, accordingly, Plaintiff
should amend and withdraw his claims against the U.S. Marshals Office.
2. Heck v. Humphrey and Wallace v. Kato Considerations
Plaintiff does not identify the crimes with which he was charged, and he does not state
whether charges are pending, whether he was convicted of any charges, or whether any
conviction was reversed, expunged, declared invalid, or called into question by a federal court’s
issuance of a writ of habeas corpus. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme
Court held that a successful civil rights action that would necessarily imply the invalidity of the
plaintiff’s conviction or sentence must be dismissed unless the plaintiff first shows that the
conviction or sentence has been reversed, expunged, declared invalid, or called into question by
a federal court’s issuance of a writ of habeas corpus. To the extent a plaintiff’s charges are

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Even if the United States Marshals Service was not protected by sovereign immunity, a
Bivens action may not be brought against a federal agency. F.D.I.C. v. Meyer, 510 U.S. 471, 486
(1994) (“An extension of Bivens to agencies of the Federal Government is not supported by the
logic of Bivens itself.”); see also Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)
(recognizing the holding in Meyer that Bivens does not permit suit against an agency that waived
sovereign immunity).
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pending, and to the extent the plaintiff’s claims relate to rulings that will likely be made in a
pending or anticipated criminal trial, a court is authorized to to stay the plaintiff’s claims.
Wallace v. Kato, 549 U.S. 384, 393-94 (2007).
Here, Plaintiff should amend his Complaint and provide: (1) the crimes with which he
was charged arising out of his October 6, 2017 arrest; (2) whether he was convicted and which
charges resulted in convictions; (3) whether any conviction was reversed, expunged, declared
invalid, or called into question by a federal court’s issuance of a writ of habeas corpus; and (4)
the documents associated with any charges or proceedings related to the incident in question.
3. Unidentified Officers
Plaintiff names “Shreveport Police Department Officers” as Defendants. This is not
prohibited, but the Court reminds Plaintiff of his obligation to uncover the individual officers’
identities through discovery and to amend his Complaint when he identifies them. Plaintiff
should also be mindful of the one-year prescriptive period for his claims and the Fifth Circuit’s
holding that amendments to substitute a named party for a John Doe may not relate back to the
date of the original filing. Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998); but see
Sanchez v. Tangipahoa Par. Sheriff’s Off., 2010 WL 1729381 (E.D. La. Apr. 22, 2010) (holding
that, under Louisiana tolling principles, prescription is interrupted for the John Doe defendants
by the filing of a complaint against a named defendant in a § 1983 suit if the defendants are joint
tortfeasors); Authement v. Wilkinson, 2017 WL 3510790 at *5 (W.D. La. Jul. 11, 2017).

4. Police Canine
Plaintiff names a police canine, “Juice,” as a Defendant. A police canine, however, is not
a “person” under 42 U.S.C. § 1983 (emphasis supplied), which provides in part: “Every person
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who . . . subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured . . . .” Ohlsson v. Normand,
2011 WL 3563207, at *1–2 (E.D. La. July 27, 2011) (collecting cases), report and
recommendation adopted, 2011 WL 3563292 (E.D. La. Aug. 12, 2011); Dye v. Wargo, 253 F.3d
296, 299 (7th Cir. 2001). Thus, Plaintiff should amend and withdraw his claim against “K9
Juice.”
5. Excessive Force
Plaintiff claims that officers utilized excessive force. Claims that law enforcement
officers used excessive force in the course of an arrest are analyzed under the Fourth
Amendment and its “reasonableness” standard. Graham v. Connor, 109 S. Ct. 1865, 1871
(1989). “To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must
first show that she was seized. Next she must show that she suffered (1) an injury that (2)
resulted directly and only from the use of force that was excessive to the need and that (3) the
force used was objectively unreasonable.” Flores v. City of Palacios, 381 F.3d 391, 396 (5th
Cir. 2004) (citations removed).
“The use of force must be evaluated from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight. Factors to consider in determining whether
the force was objectively reasonable include the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Griggs v. Brewer, 841 F.3d 308,
312 (5th Cir. 2016) (citations and internal quotations omitted).
Here, Plaintiff should amend his Complaint and detail, for example, the severity of the
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crime(s) for which officers were pursing him, whether he was armed or threatening officers,
whether he resisted arrest, and whether he attempted to evade law enforcement. In other words,
Plaintiff should amend and allege facts relevant to whether officers applied unreasonable force
under the circumstances.
6. Failure to Protect
Plaintiff writes vaguely: “failure to protect.” An officer may be liable for failing to
protect an individual if the officer (1) knows that a fellow officer is violating an individual’s
constitutional rights, (2) has a reasonable opportunity to prevent the harm, and (3) chooses not to
act. Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013). Here, Plaintiff should amend and
explain his claim in light of the standard above. He should, for example, identify who failed to
protect him and detail the circumstances surrounding the alleged failure to protect.
Conclusion
For the foregoing reasons, IT IS ORDERED that Plaintiff Ladarius D. Robinson shall
amend his Complaint, within thirty (30) days of the filing of this Order, to cure the deficiencies
outlined above. Plaintiff shall dismiss any claims that he is unable to cure through amendment.
Plaintiff shall also notify the Court of any change in his address under Local Rule 41.3.
Failure to comply with this Order may result in dismissal of this action as frivolous under
28 U.S.C. § 1915(e)(2)(B)(i) or dismissal under either Federal Rules of Civil Procedure 41(b) or
16(f).
In Chambers, Monroe, Louisiana, this 14th day of May, 2018.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE
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