Garner et al v. City of Many et al

Filing 36

MEMORANDUM RULING re 5 MOTION to Dismiss For Failure to State a Claim filed by District Attorneys Office Sabine Parish, Don Burkett, 15 MOTION to Dismiss For Failure to State a Claim filed by School Board Sabine Parish, and 21 MOTION to Dismiss For Failure to State a Claim filed by Sheriffs Dept Sabine Parish. An order consistent with the terms of this ruling shall issue herewith. Signed by Chief Judge S Maurice Hicks, Jr on 9/9/2021. (crt,Keifer, K)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ELLIOT GARNER, ET AL.

CIVIL ACTION NO. 21-0228

VERSUS

JUDGE S. MAURICE HICKS, JR.

CITY OF MANY, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court are three Motions to Dismiss challenging the sufficiency of Elliot
and Rose Garner’s (collectively “Plaintiffs” or “the Garners”) civil rights allegations brought
individually and on behalf of their minor child, P.G. See Record Documents 5, 15 & 21.
Each motion is opposed. See Record Documents 13, 27 & 29.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The following facts are taken from Plaintiffs’ Amended Complaint, 1 and are
considered in the light most favorable to the Garners. See Record Document 26. On
January 28, 2020, Plaintiffs’ child was held down and sodomized in the Many High School
locker room by nine fellow students with a mechanical pencil and their fingers. See id. at
¶31. Although an athletic coach walked in on the attack, local law enforcement was not
contacted, nor were the Garners immediately informed of what had taken place. See id.
at ¶¶31-32. Rose Garner became aware of the incident on Friday, January 31, 2020,
when an individual showed her a video of the attack, which had been posted on the
internet. See id. at ¶¶16-19.

Although Plaintiffs’ Amended Complaint was filed after the three pending motions to dismiss, the
Defendants continue to pursue dismissal, except where otherwise noted.
1

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After viewing the video, Rose Garner made a recording and returned home to
confirm what had happened with P.G. See id. at ¶¶19-20. She then took P.G. to the
Sabine Parish Sheriff’s Office to file a report but was not permitted to make a statement
or leave a copy of the video, instead being redirected to the City of Many Police
Department. See id. at ¶¶21-23. Once there, she was advised the individual she needed
to speak with was not present and instructed to return on Monday, February 3. See id. at
¶24. She returned an hour later and forced an officer to watch the video, make a recording
of it, and take down her information. See id. at ¶¶25-26. Nevertheless, the officer advised
her that nothing could be done until after the weekend. See id. at ¶27.
Upset and frustrated, she telephoned the Louisiana State Police, who launched an
investigation into the sexual assault. See id. at ¶28. Later in the evening on January 31,
Many High School’s assistant principal finally called Elliot Garner, but did not discuss the
nature or extent of the incident, only stating that “something happened with P.G., but it
will be taken care of by Monday.” See id. at ¶30. Ultimately, the Louisiana State Police
drafted and filed arrest warrants against six suspects. See id. at ¶34.
LAW AND ANALYSIS
Plaintiffs’ Amended Complaint spans fifty pages and over two hundred paragraphs.
See id. It names nearly a dozen Defendants. See id. at ¶8. The Amended Complaint
explicitly labels claims for (1) Equal Protection and 42 U.S.C. § 1983; (2) Due Process
and § 1983; (3) civil conspiracy, § 1983, and 42 U.S.C. § 1985; (4) Fourth Amendment
violations; (5) policies, procedures, or lack thereof; (6) intentional infliction of emotional
distress; (7) abuse of process; and (8) direct action recovery.

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The Amended Complaint struggles to attach specific allegations to particular
Defendants, opting instead to generalize the vast majority of its assertions. Accordingly,
the Court is left to decipher which claims and which allegations within them pertain to
each Defendant based solely on the nature of the contentions. With this task set forth, the
Court is prepared to analyze the pending motions to dismiss in this matter filed by the
Sabine Parish District Attorney’s Office and District Attorney Don Burkett (Record
Document 5), the Sabine Parish School Board (Record Document 15), and the Sabine
Parish Sheriff’s Department (Record Document 21).
I.

Legal Standard

In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough
facts to state a claim [for] relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). A complaint need not contain detailed factual allegations but
does require more than mere labels and conclusory statements. See id. at 555.
Importantly, a “formulaic recitation of the elements of a cause of action will not do.” Id.
When evaluating a pleading, courts must accept all factual allegations as true, but need
not accept legal conclusions as facts. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Determining whether a complaint states a plausible claim for relief [is]… a contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679. Facial plausibility is present when the plaintiff “pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556).

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II.

Sabine Parish District Attorney’s Office and District Attorney Don
Burkett’s Motion to Dismiss (Record Document 5)

Plaintiffs have sued the Sabine Parish District Attorney’s Office (“DA’s Office”) and
District Attorney Don Burkett (“Burkett”) in his official and personal capacities. See Record
Document 26 at ¶8. The official capacity claims against Burkett and the claims against
the DA’s Office as a whole are duplicative, and the Court will proceed to analyze them
together as claims against the DA’s Office. The personal capacity claims against Burkett
appear to be made against him in his role as prosecuting attorney. See id. This distinction
is important because Plaintiffs’ allegations state that in addition to serving as the elected
District Attorney, Burkett also represents the Sabine Parish School Board (“School
Board”). See id. at ¶110. This dual representation is statutorily mandated, pursuant to
Louisiana Revised Statute 42:261.
A singular motion to dismiss has been filed on behalf of the DA’s Office and
Burkett. See Record Document 5. It argues immunity from some claims and insufficient
pleading for others. See Record Document 5-1. Plaintiffs counter with attempted
explanations of their precise claims to avoid immunity, and with arguments in support of
the strength of their allegations. See Record Document 13.
A. Prosecutorial Immunity and Standing
Underscoring any suit against a prosecutor or his office are the related concepts
of absolute and qualified immunity. While prosecutorial acts more often than not qualify
for absolute immunity, “the actions of a prosecutor are not absolutely immune merely
because they are performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273
(1993). Rather, the prosecutor seeking absolute protection bears the burden of showing
that such immunity is justified for the function he performs. See Burns v. Reed, 500 U.S.
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478, 486 (1991). For state prosecutors, absolute immunity is available for conduct that is
“intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman,
424 U.S. 409, 430 (1976).
Courts distinguish between (1) actions taken “in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course of [the prosecutor’s] role as
an advocate for the State,” and (2) “administrative duties and those investigatory functions
that do not relate to an advocate’s preparation for the initiation of a prosecution or for
judicial proceedings.” Singleton v. Cannizzaro, 956 F.3d 773, 779-80 (5th Cir. 2020)
(quoting Buckley, 509 U.S. at 273). The former will be subject to absolute immunity, while
the latter, so-called investigatory functions, may be eligible for only qualified immunity.
See Burns, 500 U.S. at 496 (holding that a prosecutor’s participation in a probable cause
hearing qualified for absolute immunity, whereas legal advice he gave to police earned
only qualified immunity).
Whether an act is entitled to qualified immunity depends on if the official’s conduct
violated clearly established statutory or constitutional rights of which a reasonable person
would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts must
determine whether the government official’s actions were objectively reasonable in light
of law which was clearly established at the time of the disputed action. See Collins v.
Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004). Qualified immunity supports all but the
plainly incompetent or those who knowingly violate the law. See Burns, 500 U.S. at 480.
Tied to the concept of prosecutorial immunity is the widely recognized rule that “a
private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution
of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Recently, the Fifth Circuit

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discussed the breadth of Linda R.S., stating that “every court to our knowledge to have
addressed this question prior to this case agrees that a crime victim may not challenge a
prosecutor’s failure to investigate or prosecute his perpetrator.” Lefebure v. D’Aquilla, 987
F.3d 446, 447 (5th Cir. 2021). With this framework in place, the Court is prepared to
analyze the instant motion to dismiss.
B. Equal Protection
The DA’s Office and Burkett argue Plaintiffs’ Equal Protection claims are rooted in
failures to prosecute and investigate the alleged sexual assault of P.G., as well as for
advising police on how to handle the matter. See Record Document 5 at 2-5.
Consequently, they argue for dismissal under absolute and qualified immunity, as well as
for a lack of standing. See id. Plaintiffs clarify that the alleged failures and advice to police
are not the foundation of the claims themselves, but rather examples of differential
treatment towards black and white victims of crime that comprise their overarching Equal
Protection claims. See Record Document 13 at 4-6. Plaintiffs state repeatedly throughout
their opposition memorandum:
Plaintiffs alleged that Don Burkett failed to review their case, failed to investigate
the matter, failed to recuse himself (if he couldn’t be fair and impartial because of
dual representation of the School Board and the District Attorney’s office), failed to
keep victim and his family reasonably informed of the proceedings, failed to keep
victim and his family reasonably informed of location and actions of perpetrators,
went out of his way to instruct Chief of Police to withhold public information to the
victim and his family, failed to disclose to the victim that they were or could have
been entitled to benefits as victims of a crime, and unlawfully modified bonds of
perpetrators unilaterally without informing the victim or his family. Plaintiffs, further,
allege that these actions were taken with a discriminatory intent as the [P]laintiffs
are of African American descent.
Id. at 1, 6 & 16. This, they argue, removes their claims from the realm of prosecutorial
immunity and warrants survival under Rule 12(b)(6).

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The Court disagrees. Even construing Plaintiffs’ allegations in accordance with
their desires, as examples of discrimination rather than independent claims themselves,
the basic foundation of their alleged Equal Protection violations remains (1)
disagreements with the investigation or lack thereof, (2) a failure to prosecute, and (3)
advice given to police concerning the investigation. The Fifth Circuit’s recent decision in
Lefebure and decades of case law clearly preclude liability for any investigatory or
prosecutorial decisions that victims may find objectionable. As for legal advice to police
concerning the publicization of information, qualified immunity applies because the advice
provided was not objectively unreasonable in light of clearly established law. Given the
sensitive nature of the crime and the minor status of the victim and perpetrators,
instructing police to withhold information from the public did not violate clearly established
law. Such practice, undoubtedly common in sexual assault cases involving minors, falls
within the shield of qualified immunity and cannot be actionable.
Even were the Court to determine the alleged acts fall outside the realms of
immunity or standing principles, Plaintiffs’ Equal Protection claims fall short, as the bald
assertions of discriminatory intent and the conclusory allegations of an Equal Protection
violation cannot withstand 12(b)(6) scrutiny. While Plaintiffs allege discrimination dozens
of times in their Amended Complaint, they do so without any supporting detail on why or
how any alleged failures in the investigation or prosecution of this crime evidence an
Equal Protection violation. 2 Plaintiffs’ amendments to their initial pleadings do provide
instances where white and black students have been disciplined differently within Many

2 For example, Paragraph 65 states “[o]n information and belief, DEFENDANTS have a history of
discriminating against African Americans, juveniles, and indigent people. DEFENDANTS have treated
sexual assault reports from these classes of individuals with less priority than other crimes not involving
these classes, with not legal, lawful, or rational basis or justification.” See Record Document 26.

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High School, but each of these examples concerns intra-school punishment as opposed
to criminal charges brought by the DA’s Office. See Record Document 26 at ¶¶51-60.
Simply put, Plaintiffs have provided nothing more than conclusory allegations that the
DA’s Office or Burkett as a prosecutor treat black and white crime victims differently. 3
The Equal Protection claims brought against the DA’s Office and Burkett must be
dismissed, as they are rooted in allegations from which prosecutors may not be held
liable. Even assuming otherwise, Plaintiffs have also failed to set forth sufficiently detailed
allegations to state a claim for relief under this constitutional provision. Accordingly,
Plaintiffs’ Equal Protection claims against the DA’s Office and Burkett are hereby
DISMISSED.
C. Due Process
Similar to Plaintiffs’ Equal Protection claims, their Due Process allegations revolve
around disagreements with investigatory and prosecutorial decisions. See id. at ¶¶74-95.
For example, Paragraph 86 of Plaintiffs’ Amended Complaint provides:
DEFENDANTS’ failure to Investigate deprived COMPLAINANTS of their
substantive due process rights by taking his property, failing to prosecute the
crime, failing to investigate the crime, failing to protect, failing to present evidence
to the necessary agency, and failure to prosecute all alleged perpetrators for their
involvement in the crime.
See id. at ¶86. The Amended Complaint then specifically names Burkett as committing a
“taking” without substantive due process by failing to pass along video evidence to the
FBI. Id. at ¶87.

3 At times, Plaintiffs argue Defendants, including the DA’s Office, discriminate against “African American
males, juveniles, and indigent people.” See, e.g., Record Document 26 at ¶65. While stated in their
pleadings, Plaintiffs have devoted their attention entirely to racial discrimination, offering no specific
allegations or arguments concerning age or financial status. Consequently, the Court will also focus solely
on potential race discrimination in its analysis.

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Again, the large body of case law on this subject explicitly forecloses Plaintiffs’
allegations regarding failures to investigate and prosecute that form the basis of their Due
Process claims. Plaintiffs’ complaints of a “taking” of their personal property—the video
evidence of the assault—is likewise related to the investigation and potential prosecution
of the crime. Additionally, Plaintiffs have not demonstrated how they possessed or lost a
property interest in their copy of an online video from which additional copies were made
by law enforcement at the behest of Rose Garner. Accordingly, this claim, too, must be
DISMISSED against the DA’s Office and Burkett.
D. Conspiracy Claims
Next, Plaintiffs allege an overarching conspiracy to cover-up the assault and
impede the investigation and prosecution of the perpetrators. See Record Document 26
at ¶¶96-114. Their claims arise under 42 U.S.C. § 1985 and for civil conspiracy under §
1983. See id. The Garners recite a lengthy list of actions that they believe evidence a
prior agreement amongst, inter alia, the DA’s office, the School Board, and law
enforcement. See id. at ¶101. The DA’s Office counters, once again, that the basis for
their alleged role in the conspiracy remains rooted in nonviable claims. See Record
Document 5-1.
Section 1985 prohibits conspiracies “for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws.” 42 U.S.C.
§ 1985. “To state a claim under § 1985(3), a plaintiff must allege: (1) a conspiracy
involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a
person or class of persons of the equal protection of the laws; and (3) an act in furtherance
of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any

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right or privilege of a citizen of the United States.” Texas Democratic Party v. Abbott, 961
F.3d 389, 410 (5th Cir. 2020) (citing Hilliard v. Ferguson, 30 F.3d 649, 652-52 (5th Cir.
1994)). Similarly, “the elements of civil conspiracy are (1) an actual violation of a right
protected under § 1983 and (2) actions taken in concert by the defendants with the
specific intent to violate the aforementioned right.” Angelle v. Town of Duson, 2018 WL
4649788 at *8 (W.D. La. Aug. 7, 2018).
In arguing for the existence of a conspiracy involving the DA’s Office and Burkett,
the Garners point to (1) the failures to prosecute and investigate, (2) the withholding of
information, and (3) Burkett’s dual representation as District Attorney of Sabine Parish
and counsel for the School Board. See Record Document 13 at 11-12. As discussed,
these first two alleged collusive actions are protected by absolute and qualified immunity,
and lack standing. This mandates the dismissal of these claims against the DA’s Office.
The third allegation supporting a conspiracy with Burkett at its center, however,
requires a more thorough analysis. The Court ordered supplemental briefing on this
contention, particularly to address the impact of Louisiana Revised Statute 42:261, which
establishes parish district attorneys as the “ex officio” counsel for school boards within
their jurisdictions. See Record Document 33; La. Stat. Ann. § 42:261. Burkett and the
DA’s Office argue that a conspiracy between a client and its lawyer is a legal impossibility,
so long as the actions of the attorney remain within the scope of the attorney-client
relationship. See Record Document 34. Plaintiffs argue the statutorily mandated
representation has no effect on their conspiracy claims, and Burkett should have recused

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himself from the matter because of a severe conflict of interest. 4 See Record Document
35.
While the Fifth Circuit has not directly addressed attorney-client conspiracies,
particularly in light of § 42:261, it has analyzed the general rule that agents and employees
cannot conspire with their principals or employers and extended that bar to the school
setting. See Hilliard, 30 F.3d at 653. In Hilliard, the court held the plaintiffs’ § 1985(3)
claim was properly dismissed because a school superintendent and his overseeing
school board were the same collective entity, and thus, the conspiracy did not involve two
or more people. See id.
Sister circuits have considered claims of conspiracies between attorneys and
clients and held that so long as the attorney’s actions fall within the broad scope of
representation, his conduct is immune from an alleged conspiracy. See Farese v.
Scherer, 342 F.3d 1223, 1232 (11th Cir. 2003); see also Heffernan v. Hunter, 189 F.3d
405, 413 (3d Cir. 1999). This holds true “even if the challenged activity violates the canons
of ethics.” Farese, 342 F.3d at 1232. If such an ethical violation is indeed present,
sufficient remedies exist “under state law through court imposed sanctions or reference
to state disciplinary bodies.” Heffernan, 189 F.3d at 413.
Here, Burkett and the School Board maintain an attorney-client relationship that is
perhaps even stronger than these cases due to the statutory mandate of the arrangement.
Unlike the attorneys in Farese or Heffernan, Burkett did not voluntarily take on the School
In support of their conspiracy argument, the Garners reference a former instance where Burkett recused
himself and his office from the prosecution of two teachers at Many Junior High School. See Record
Document 35 at 1. This allegation was first raised by the Garners in their opposition to the School Board’s
motion to dismiss as an accompanying news article exhibit. See Record Document 27-2. However, the
Court cannot consider this extrinsic evidence on a motion to dismiss, as it was not referenced in the
Plaintiffs’ pleadings. See All Green Corp. v. Wesley, 2021 WL 314290 at *2 (W.D. La. Jan. 29, 2021) (citing
Scanlan v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003)).
4

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Board as a client, but rather was assigned this additional duty by virtue of his election as
District Attorney. The actions allegedly taken by Burkett, which the Garners believe
evidence a conspiracy, clearly fall within the scope of a typical attorney-client relationship.
See Record Document 34 at 6-8. Further, any potential ethical violations arising from his
involvement in this case have no effect on the viability of Plaintiffs’ conspiracy claims.
Consequently, the Garners’ conspiracy claims against Burkett and the DA’s Office must
be DISMISSED.
E. Fourth Amendment Violation
Plaintiffs allege a Fourth Amendment violation occurred when unknown deputies
of the Sabine Parish Sheriff’s Office entered their home without consent or a warrant and
took pictures of the home and attempted to intimidate P.G. See Record Document 26 at
¶115. According to the Garners, deputies did not knock before entering and left
immediately when questioned by P.G. as to why they were there. See id. at ¶117. The
Amended Complaint also states that “eyewitnesses” believe deputies had been watching
the home for some time because they entered through the back door, as the Garners
typically did. Id. at ¶118.
This claim appears to connect to the DA’s Office through the alleged conspiracy.
See id. at ¶116. The only factual support offered that this home entry was planned
amongst multiple Defendants is temporal proximity to the report of the sexual assault.
See id. No additional allegations addressing possible involvement by the DA’s Office or
Burkett are present. While unquestionably odd, Plaintiffs’ pleadings do not address any
involvement or coordination by the DA’s Office or Burkett in this event, and this claim must
be DISMISSED.

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F. Lack of Policies and Procedures
Plaintiffs allege that “Defendant-Municipalities” have failed to generate policies to
protect black males from sexual assault, constituting deliberate indifference. Id. at ¶124.
Plaintiffs specifically allege that the DA’s office does not:
have a policy concerning investigation and prosecution of juvenile rape cases
when the perpetrators are juvenile or are adults that are in high school, concerning
taking statements from parents of rape victims, containment of rape videos,
protecting youths from bullying, rape, sodomization, dissemination of child
pornography.
Id. at ¶128. In support of this claim, Plaintiffs include a list of nineteen acts by Burkett and
the DA’s Office that they believe demonstrates the lack of an appropriate policy. See id.
at ¶156.
Aside from the fact that the foundation of these allegations are disagreements with
the investigatory and prosecutorial decisions made, they do not represent an
independent, standalone cause of action. Rather, any alleged lack of policy is relevant
only to establish municipal liability under § 1983, which Plaintiffs have failed to do through
their Equal Protection, Due Process, and conspiracy claims against the DA’s Office. As
such, these allegations must be DISMISSED.
G. Intentional Infliction of Emotional Distress
Plaintiffs devote five paragraphs to their claim for intentional infliction of emotional
distress (“IIED”). See id. at ¶¶186-90. The most detailed allegation states:
DEFENDANTS’ conduct was extreme and outrageous. Knowing that the emotional
distress suffered by COMPLAINANTS was severe, DEFENDANTS desired or
acted with recklessness to inflict severe emotional distress and/or knew that
severe emotional distress would be certain or substantially certain to result from
the violent sexual assault.

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Id. at ¶187. The additional allegations discuss the actions of the perpetrators in
committing the assault, reaching the conclusion that the actions of the Defendants “after
the rape support that they were working in concert with the perpetrators to commit and
cover-up the violent sexual act.” Id. at ¶190.
Plaintiffs’ pleadings tie the emotional distress suffered to the perpetrators of the
crime, not the DA’s Office or Burkett. To the extent the investigatory and prosecutorial
decisions are meant to encompass this cause of action, the Court reiterates that these
claims are not viable. Plaintiffs’ IIED claim must be DISMISSED.
H. Abuse of Process
Plaintiffs’ abuse of process claim appears to be against only Burkett himself, not
the DA’s Office. See id. at ¶¶191-93. The Amended Complaint alleges that Burkett:
used his authority as the DISTRICT ATTORNEY to impede the prosecution … by
modifying each perpetrators’ bond obligations, reducing their bonds, amending
their bills of information to misdemeanor hazing, in order to, impede or abuse his
authority and working against the regular conduct of the proceeding with an ulterior
purpose in mind.
Id. at ¶192. Burkett argues Plaintiffs have failed to state an abuse of process claim
because their allegations do not encompass an irregularity in the regular course of
criminal proceedings. See Record Document 5-1 at 19. Plaintiffs hold firm that the bond
modifications made by Burkett are only typically made by courts themselves, and
Burkett’s ulterior purpose was to help the School Board evade liability. See Record
Document 13 at 15.
In Louisiana, “an abuse of process claim has 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 prosecution of the proceeding.” No Drama, LLC v. Caluda, 15-211 (La. App.

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5 Cir. 10/14/15), 177 So.3d 747, 751. Plaintiffs have sufficiently pled the first required
element of this tort, arguing Burkett’s dual representation and desire to avoid liability on
behalf of the School Board was his ulterior motive. However, Plaintiffs fall short of
demonstrating an irregularity outside the regular course of criminal prosecution. As
argued in Defendants’ reply memorandum, if bond modifications are exclusively the
prerogative of the judiciary, then Burkett could not have unilaterally revised them absent
forgery, bribery, or another illegal act. See Record Document 14 at 5. This has not been
alleged by Plaintiffs. The remaining allegation constituting this claim—the charging
decision—is routinely made by district attorneys in the regular scope of their positions
and cannot form the basis of an abuse of process claim.
The Court agrees with Defendants. Plaintiffs’ allegations defeat themselves, as
they simultaneously admit that the action Burkett undertook is something he cannot do.
Without this second required element, this claim must be DISMISSED.
I. Summary of Plaintiffs’ Claims Against DA’s Office and Burkett
The DA’s Office and Burkett’s Motion to Dismiss (Record Document 5) is hereby
GRANTED. All of Plaintiffs’ claims against the DA’s Office and Burkett must be
DISMISSED.
III.

Sabine Parish School Board’s Motion to Dismiss (Record Document
15)

The School Board similarly moves to dismiss all claims under Rule 12(b)(6). See
Record Document 15. Addressed in its motion are Plaintiffs’ (1) Equal Protection claims,
(2) Due Process claims, (3) conspiracy claims, (4) First Amendment allegations, (5) lack
of policy and procedure arguments, (6) IIED claims, and (7) criminal allegations. See
Record Document 15-1. The School Board argues Plaintiffs’ “sprawling” complaint fails
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to allege sufficient facts for each of these claims or allegations, relying only on conclusory
statements and unsubstantiated beliefs. Id. at 1. Plaintiffs counter with their disagreement
and belief that plausible claims have been pled. See Record Document 27 at 6.
A. Equal Protection
The School Board breaks Plaintiffs’ Equal Protection claims into two parts— (1)
failure to prevent or protect P.G. from the sexual assault and (2) failure to respond
appropriately to it. See Record Document 15-1 at 7. With respect to an alleged failure to
protect P.G., it argues no special duty of care exists for schools to protect students from
violence by private actors. See id. at 7-10. As for an inadequate response, the School
Board argues Plaintiffs have failed to show their son was treated differently than similarly
situated individuals and have not sufficiently pled a policy or custom to hold the School
Board liable. See id. at 10-14.
i.

Failure to Protect

First, the Court agrees that the School Board did not have a special duty to prevent
the sexual assault of P.G. by private actors. In DeShaney, the Supreme Court recognized
that the Due Process Clause generally does not impose upon the government an
affirmative duty of care to protect its citizens against the actions of private actors. See
DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196 (1989).
While the Court did recognize that certain “special relationships” created or assumed by
the State with regard to particular individuals may constitute an exception to this general
rule, the Fifth Circuit has rejected this exception’s applicability to school-sponsored
activities held outside of normal school hours. See Priester v. Lowndes County, 354 F.3d
414, 422 (5th Cir. 2004); Leffall v. Dallas Independent School Dist., 28 F.3d 521, 529 (5th

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Cir. 1994). Further, the Fifth Circuit has held that compulsory attendance laws alone do
not create a special relationship between schools and students, while at school during
normal hours. See Doe v. Hillsboro Independent School Dist., 113 F.3d 1412, 1415 (5th
Cir. 1997) (joining “every circuit court that has considered the issue in holding that
compulsory school attendance … does not create the custodial relationship envisioned
by DeShaney”).
While DeShaney and its progeny concern the Due Process Clause, the Fifth Circuit
has “cautioned that the Equal Protection Clause should not be used to make an end-run
around the DeShaney principle.” Beltran v. City of El Paso, 367 F.3d 299, 304 (5th Cir.
2004); see also McKee v. City of Rockwall, 877 F.2d 409, 413 (5th Cir. 1989) (warning
that DeShaney could easily be circumvented if plaintiffs were allowed to convert “every
Due Process claim into an Equal Protection claim, via an allegation that state officers
exercised their discretion to act in one situation and not another”).
Plaintiffs cannot skirt DeShaney through their Equal Protection claims. The law
clearly prohibits School Board liability for failing to protect P.G. from the assault at the
hands of his fellow students. Plaintiffs have not pled any allegations demonstrating a
special relationship between the school and P.G., outside of his compulsory attendance.
See Record Document 26 at ¶¶92-93. Accordingly, to the extent Plaintiffs’ Equal
Protection claims are rooted in a failure to protect, those claims must be DISMISSED.
ii.

Failure to Respond

The School Board argues for dismissal of any claims based on an insufficient
response to the attack because of Plaintiffs’ failure to provide supporting detail as to how
their child was treated differently than similarly situated individuals because of his race.

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See Record Document 15-1 at 11. The School Board also asserts that Plaintiffs have
failed to sufficiently describe and support a policy or custom through which municipal
liability could attach. See id. at 12-14. Even after Plaintiffs amended their complaint to
include alleged examples of racial disparities within Many High School, the School Board
continues to argue that a precisely analogous situation has not been pled. See Record
Document 30.
Plaintiffs’ Amended Complaint added ten paragraphs of claimed instances at Many
High School where black students were allegedly treated differently than white students.
See Record Document 26 at ¶¶51-60. They include descriptions of white students
obtaining permission to get dressed in the coach’s office instead of the locker room, the
expulsion of a black student for a firearms arrest outside school hours compared to a
white student who brought a gun to school and was permitted to return, and the denial of
P.G.’s hardship exemption to play sports after changing schools when white students are
routinely granted such exemptions. See id. Most notably, Plaintiffs also allege that the
day prior to P.G.’s attack, another black student was sexually assaulted in the same
manner, and the School Board failed to take action. See id. at ¶53. Plaintiffs believe that
had this student or P.G. been white, the response would have been different. See id.
The School Board’s position is that Plaintiffs have failed to allege a perfectly
analogous situation of the sexual assault of a white student who received a more thorough
and favorable investigation process, and thus, their Equal Protection claims must fail
under either a traditional suspect class analysis or a “class of one” argument. See Record
Document 15-1 at 11. The Court cannot accept this stance. At this early stage of the
litigation, Plaintiffs have pled enough factual allegations, which if true, plausibly suggest

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differential treatment based on race at Many High School. Particularly persuasive to the
Court is the alleged attack on another black student the day prior to P.G., which garnered
a similarly lackluster response. See id. This allegation, coupled with Plaintiffs’ other
alleged discriminatory instances, satisfies the need to plead differential treatment among
similarly situated individuals within Many High School.
Based on these specific allegations of differential treatment, Plaintiffs have likewise
met the plausibility burden for municipal liability. In order to hold a municipality, such as
a school board, liable under § 1983, a plaintiff must show that (1) an official policy (2)
promulgated by the municipal policymaker (3) was the moving force behind the violation
of a constitutional right. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.
2001). Plaintiffs are required to link governmental misconduct to a specific policy or
custom through detailed factual allegations. See Spiller v. City of Texas City, Police Dept.,
130 F.2d 162, 166-67 (5th Cir. 1997). While official policies typically exist in the form of
written policy statements, ordinances, or regulations, they may also arise in the form of
widespread practices that are “so common and well-settled as to constitute a custom that
fairly represents municipal policy.” Webster v. City of Houston, 735 F.2d 838, 841 (5th
Cir. 1984). Consequently, isolated violations do not represent “persistent, often repeated,
constant violations that constitute custom or policy.” Bennett v. City of Slidell, 728 F.2d
762, 768 n. 3 (5th Cir. 1984).
While the Garners do not point to a specific enumerated policy for the handling of
sexual assault amongst students, they repeatedly allege that a widespread practice to
deny or limit sexual assault investigations of black student victims is present. Although
this allegation in itself is a conclusory statement, entitled to no deference from the Court,

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Plaintiffs have pled supporting allegations in the form of instances of differential treatment
for white and black students. See Record Document 26 at ¶¶51-60. Once again, the Court
is persuaded by the particular allegation that another black student was sexually
assaulted in a similar manner the day prior to P.G. and also received a minimal response.
See id. at ¶53. A second, prior, racially based assault without discipline removes what
happened to P.G. from the realm of an isolated, one-off incident and plausibly suggests
something more than mere negligence or failure to follow district policy. Taken in the light
most favorable to Plaintiffs, this assertion and other examples of potential discriminatory
treatment lead the Court to reject dismissal of Plaintiffs’ Equal Protection claims at this
early stage of the proceedings.
B. Due Process
Plaintiffs’ Amended Complaint adds a lengthy list of actions by the School Board
that they believe constitute a Due Process violation. See Record Document 26 at ¶91.
Plaintiffs’ central argument is the School Board violated their substantive due process
rights by failing to have policies in place to prevent sexual assaults and bullying at Many
High School and abdicating their investigatory and disciplinary roles. See id. In response
to the School Board’s DeShaney argument, Plaintiffs plead that a “special relationship
does exist between SCHOOL BOARD and its students as Louisiana law does require that
students attend school.” Id. at ¶92.
As discussed, DeShaney holds that an affirmative duty on behalf of schools to
protect their students from private actors exists only in limited circumstances. See 489
U.S. at 196. Compulsory attendance laws alone do not create the required “special
relationship” for the Due Process Clause to provide a cognizable avenue for redress. See

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Doe, 113 F.3d at 1415 (5th Cir. 1997). Consequently, Plaintiffs’ Due Process claims must
be DISMISSED.
C. Conspiracy
Although the Garners’ conspiracy claims against Burkett and the DA’s Office are
foreclosed by various legal principles, these claims against the School Board remain
viable because other Defendants remain in the lawsuit that the Plaintiffs allege conspired
with the School Board. The Garners have plausibly pled an Equal Protection violation
against this entity, and whether the remaining Defendants can or cannot be part of a
conspiracy remains an open question that may be the subject of future motion practice.
Until the conspiracy claims against the remaining Defendants are properly before the
Court, Plaintiffs’ conspiracy claims against the School Board must be permitted to
proceed.
D. First Amendment
While discussed in the School Board’s motion to dismiss, Plaintiffs do not explicitly
assert a First Amendment claim, nor do they address such a violation in their opposition
memorandum. The Court is unable to ascertain any logical basis for a First Amendment
claim based on Plaintiffs’ allegations. As such, to the extent any claim was intended to be
asserted under the First Amendment, it is hereby DISMISSED.
E. Policies, Procedures, or Lack Thereof
While Plaintiffs’ pleadings contain a section of allegations concerning deficient or
nonexistent policies and procedures regarding sexual assault in school or the
investigation of student crime, these do not constitute independent, standalone claims for
relief. Instead, these allegations must be tied to possible § 1983 municipal liability, which

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relies upon a policy or custom showing. As set forth above, Plaintiffs have demonstrated
a viable Equal Protection claim against the School Board, partly based on a possible
custom of racial discrimination towards black students. This set of allegations included in
Plaintiffs’ Amended Complaint, albeit not claims in themselves, may proceed alongside
the Garners’ Equal Protection claims.
F. Intentional Infliction of Emotional Distress
While somewhat amorphously pled in their Amended Complaint, Plaintiffs argue
the School Board committed the state law tort of IIED through its actions and inactions
following P.G.’s assault. See Record Document 27 at 13. Specifically, they challenge the
School Board’s failure to inform the Garners of the assault and to report the crime to a
law enforcement agency, failure to grant P.G.’s sports hardship exemption and award him
his lettermen’s jacket, and decision to force P.G. to attend school online, which together
they believe were designed to harass P.G. and suppress the sexual assault. See id. The
School Board argues these actions fail to satisfy IIED’s essential elements. See Record
Document 15-1 at 22.
“In order to prove a claim for intentional infliction of emotional distress, a plaintiff
must show (1) that the conduct of the defendant was extreme and outrageous; (2) that
the emotional distress suffered by the plaintiff was severe; and (3) that the defendant
desired to inflict severe emotional distress or knew that severe emotional distress would
be certain or substantially certain to result from his conduct.” Yazdi v. Lafayette Parish
School Board, 2019 WL 4805835 at *6 (W.D. La. Sept. 30, 2019) (citing White v.
Monsanto Co., 585 So.2d 1205, 1209 (La. 1991)). Extreme and outrageous conduct is

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that which goes “beyond all bounds of decency, [so as] to be regarded as atrocious and
utterly intolerable in a civilized community.” Id.
The post-assault actions by the School Board that comprise Plaintiffs’ IIED claim
do not rise to the level of extreme and outrageous conduct. Plaintiffs’ pleadings link the
assault itself to their son’s emotional distress, and although the School Board’s decisions
in its aftermath are questionable, they do not approach the “utterly intolerable” standard
required to state a claim for IIED. Accordingly, this claim must be DISMISSED.
G. Criminal Allegations
Finally, the School Board seeks to address Plaintiffs’ references of criminal
conduct. See Record Document 15-1 at 24. Plaintiffs allege generally that the Defendants’
actions in this case “arise [sic] to the level of Accessory After the Fact of Sexual Battery,
2nd Degree Kidnapping, Distribution of Child Pornography, Assault, Battery, and other
crimes under Louisiana State Criminal law.” Record Document 26 at ¶187. The Court
need not devote serious attention to these wild allegations and reminds Plaintiffs they are
pursuing a civil action in a United States federal district court. Any criminal allegations
made against the School Board are hereby DISMISSED.
H. Summary of Plaintiffs’ Claims Against the School Board
The School Board’s Motion to Dismiss (Record Document 15) is hereby
GRANTED IN PART and DENIED IN PART. Plaintiffs’ Equal Protection claims founded
on an inadequate response and their conspiracy claims remain, but all other remaining
claims and allegations must be DISMISSED.

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IV.

Sabine Parish Sheriff’s Department’s Motion to Dismiss (Record
Document 21)

The final pending motion to dismiss in this matter has been resolved. Plaintiffs’
original filing named the Sabine Parish Sheriff’s Department (“Sheriff’s Department”)
through Sheriff Aaron Mitchell (“Mitchell”) as a Defendant. See Record Document 1 at ¶8.
The Sheriff’s Department moved for dismissal from the suit as an entity lacking the
capacity to be sued. See Record Document 21-1. Plaintiffs agreed with this argument,
and their Amended Complaint now pursues Mitchell in his official capacity. See Record
Document 26 at ¶8. As a result of this correction, the Sheriff’s Department’s Motion to
Dismiss (Record Document 21) is hereby DENIED AS MOOT.
CONCLUSION
The instant case presents serious allegations stemming from a horrific incident.
While many of Plaintiffs’ claims must be dismissed as nonviable or insufficiently pled,
claims for an Equal Protection violation and potential conspiracy against the School Board
may proceed. An order consistent with the terms of this ruling shall issue herewith.
THUS DONE AND SIGNED in Shreveport, Louisiana on this 9th day of
September, 2021.

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