Barnes v. McQueen et al, No. 2:2014cv02636 - Document 110 (E.D. La. 2016)

Court Description: ORDER AND REASONS granting in part and denying in part 55 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 99 Motion to Dismiss; denying 103 Motion to Strike. Signed by Judge Susie Morgan. (bwn)

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Barnes v. McQueen et al Doc. 110 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OSH U A BARN ES Plain tiff CIVIL ACTION VERSU S N O. 14 -2 6 3 6 KEITH MCQU EEN , e t al. D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Before the Court are two m otions to dism iss filed by Defendants Nicholas Knight, Rockwell McClellan, Keith Bowm an, and the City of Slidell. 1 For the reasons stated herein, Defendants’ m otions to dism iss are GRAN TED IN PART and D EN IED IN PART. BACKGROU N D Plaintiff J oshua Barnes (“Barnes”) filed this action under 42 U.S.C. § 1983 on Novem ber 19, 20 14, against Defendants Keith McQueen (“McQueen”), Nicholas Knight (“Knight”), Rockwell McClellan (“McClellan”), Keith Bowm an (“Bowm an”), and the City of Slidell (“City”). 2 Barnes avers that on Novem ber 27, 20 13, he went to his ex-wife’s residen ce to pick up his children. 3 At all relevant tim es, Barnes’ ex-wife was m arried to and lived with McQueen, a police officer with the Slidell Police Departm ent. 4 Barnes alleges that when he was waiting for one of his children, McQueen “ran at [Barnes] knocking him to the ground” and “struck [Barnes] and repeatedly hit him with his knees all over his body.”5 Barnes’ 13-year-old son called 9-1-1. 6 McQueen’s neighbor cam e out, and McQueen 1 R. Docs. 55, 99. R. Doc. 1. The Slidell Police Departm ent was dism issed as a party on Novem ber 6, 20 15. See R. Doc. 77. 3 R. Doc. 90 at ¶ 1. 4 Id. 5 Id. at ¶ 2. 6 Id. at ¶ 3. 2 1 Dockets.Justia.com allegedly told the neighbor that Barnes was violating a protective order and instructed the neighbor to help arrest Barnes. 7 McQueen an d his neighbor handcuffed Barnes. 8 McQueen then called the Slidell Police Departm ent on a non-em ergency lin e an d requested assistance, according to the second am ended com plaint. 9 Slidell Police Officer Knight, Sergeant Bowm an, and Lieutenant McClellan arrived, took Barnes into their custody, and transported him to the Slidell lock-up, where he was charged with violating a protective order and sim ple assault. 10 The com plaint alleges that the officers failed to verify that a protective order was in place, as there was none. 11 The com plaint states, however, that a perm anent injunction was in place. 12 The com plaint also alleges that “[a]t no tim e did Mr. Barnes strike, attem pt to strike, or intend to strike anyone involved in the attack against him .”13 Barnes brings claim s against McQueen in his individual capacity because, Barn es alleges, McQueen “acted out of m alice when he attacked Mr. Barnes and publicly berated him over child support paym ents in front of Mr. Barnes children.”14 Barnes also brings claim s against McQueen in his official capacity pursuant to 42 U.S.C. § 1983, arguing McQueen violated his rights “by beating him and falsely arresting him in front of [Barnes’] children.”15 Barnes also brings § 1983 claim s for false arrest and excessive force, 16 and 7 Id. Id. 9 Id. at ¶ 5. 10 Id. at ¶ 9; R. Doc. 97-3. 11 R. Doc. 90 at ¶ 9. 12 Id. at ¶ 10 . 13 Id. at ¶ 11. 14 Id. at ¶ 17. 15 Id. at ¶¶ 14– 18 . 16 Id. at ¶¶ 19– 20 . The constitutional torts underlying Barnes’ § 1983 claim s are false arrest and excessive force. See id. In McQueen’s m otion to dism iss, McQueen states, “Although Plaintiff’s claim is vague, it appears that he is alleging two constitutional tort claim s, (1) false arrest or im prisonm ent; and (2) excessive use of force.” R. Doc. 97-1 at 8 . McQueen argues he is en titled to qualified im m unity on those § 1983 claim s. Id. at 8– 12. 8 2 Barnes asserts state-law claim s against McQueen for false arrest, excessive force, assault and battery, intentional infliction of em otional distress, invasion of privacy, m alicious prosecution, intentional m isrepresentation, and defam ation. 17 Barnes alleges that Knight, McClellan, and Bowm an conspired with McQueen to deprive Barnes of his rights under color of law. 18 Barnes also brings § 198 3 claim s for false arrest an d excessive force 19 against Knight, McClellan, and Bowm an for their individual actions. 20 Barnes asserts state-law claim s against the officers for false arrest, excessive force, assault and battery, intentional infliction of em otional distress, invasion of privacy, m alicious prosecution, intentional m isrepresentation, and defam ation. 21 Barnes asserts vicarious liability claim s against the City under § 1983 and under state law and alleges the City is liable under § 1983 for the negligent hiring and retention of em ployees, the negligent training and supervision of its em ployees, and the failure to adopt sufficient policies to deter or prevent the violation of Barnes’ civil rights, and for allowing the conspiracy and cover-up of the unlawful arrest and prosecution of Barnes. 22 On J anuary 9, 20 15, Defendants Knight, McClellan, and Bowm an filed a m otion to dism iss for insufficient process, insufficient service of process, and failure to state a claim . 23 The City filed a m otion to dism iss for failure to state a claim on March 16, 20 15. 24 On May 21, 20 15, the Court denied these m otions without prejudice, ordering Barnes to 17 R. Doc. 90 at ¶¶ 19– 22, 35. Id. at ¶ 24. 19 Id. at ¶¶ 24– 26, 36. The constitutional torts underlying Barnes’ § 1983 claim s are false arrest and excessive force. See id. The m otion to dism iss filed by Knight, McClellan, Bowm an , and the City states, “[I]t is assum ed that the plaintiff is only brin ging claim s against defendants Knight, McClellan and Bowm an under § 1983 for excessive force and false arrest . . . .” R. Doc. 55-1 at 6– 12. The officers argue they are entitled to qualified im m un ity on those § 1983 claim s. Id. at 6– 12. 20 R. Doc. 90 at ¶¶ 24– 26, 36. 21 Id. at ¶¶ 19– 22, 35. 22 Id. at ¶¶ 32– 34, 40 – 41. 23 R. Doc. 10 . 24 R. Doc. 29. 18 3 file an am ended com plaint by J une 19, 20 15. 25 Barnes filed his am ended com plaint on J une 16, 20 15. 26 On J une 24, 20 15, Defendants Knight, McClellan, Bowm an, and the City filed a m otion to dism iss pursuant to Rule 12(b)(6) for failure to state a claim . 27 The m otion asserts that Knight, McClellan, and Bowm an are entitled to qualified im m unity and that Barnes fails to state a claim against Knight, McClellan, Bowm an, and the City. 28 Barn es filed a response in opposition on J uly 7, 20 15. 29 Defendants filed a reply on J uly 22, 20 15. 30 On J anuary 25, 20 16, Barnes filed a Second Supplem ental and Am ended Com plaint nam ing Southern Fidelity Insurance Com pany, McQueen’s hom eowner’s insurer. 31 Knight, McClellan, Bowm an, and the City filed a m otion to dism iss the second am ended com plaint on February 8, 20 16, adopting the m em oran dum of support in their J une 24, 20 15, m otion to dism iss. 32 Barnes filed a response in opposition on March 1, 20 16, adopting his J uly 7, 20 15, opposition and reiterating various allegations from his com plaint. 33 25 R. Doc. 42. Barnes argues in his opposition that the Defendants are barred from filing “further pre-answer m otions under Rule 12” because their in itial 12(b) m otions “have been correctly denied by this Honorable Court.” R. Doc. 61 at 5– 6. The Court denied those m otions without prejudice, however, allowing Defendants to refile Rule 12(b) m otions should grounds arise. Therefore, Barn es’ argum ent that Defendants are precluded from filin g the Rule 12 m otion currently before the Court is without m erit. 26 R. Doc. 53. 27 R. Doc. 55. 28 R. Doc. 55-1 at 6– 15. 29 R. Doc. 61. 30 R. Doc. 68. 31 R. Doc. 90 at 3. 32 R. Doc. 99. 33 R. Doc. 10 6. 4 STAN D ARD OF LAW When deciding a m otion to dism iss, the Court accepts all well-pleaded facts as true and views those facts in the light m ost favorable to the plaintiff. 34 The Court m ay consider only the pleadings, the docum ents attached to or incorporated by reference in the plaintiff’s com plaint, the facts of which judicial notice m ay be taken, m atters of public record, 35 and docum ents attached to a m otion to dism iss “when the docum ents are referred to in the pleadings and are central to a plaintiff’s claim s.”36 If the Court accepts m aterials outside of the pleadings that do not fit within these param eters, the Court m ust treat the Rule 12(b)(6) m otion as a m otion for sum m ary judgm ent pursuant to Rule 56. 37 For the com plaint to survive a m otion to dism iss, the facts taken as true m ust state a claim that is plausible on its face. 38 A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.”39 “The plausibility standard is not akin to a probability requirem ent, but it asks for m ore than a sheer possibility that a defendant has acted unlawfully.”40 A com plaint is insufficient if it contains “only labels and conclusions, or a form ulaic recitation of the elem ents of a cause of action.”41 The Court cannot grant a m otion to dism iss under Rule 12(b)(6) “unless the plaintiff would not be entitled to relief under any set of facts that he could prove consistent with the com plaint.”42 34 W hitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 20 13), cert. denied, 134 S. Ct. 1935, 188 (20 14). See U.S. ex rel. W illard v. H um ana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 20 0 3); Lovelace v. Softw are Spectrum Inc., 78 F.3d 10 15, 10 17– 18 (5th Cir. 1996); Baker v . Putn al, 75 F.3d 190 , 196 (5th Cir. 1996). 36 Brand Coupon N etw ork, L.L.C. v . Catalina Marketing Corp., 748 F.3d 631, 635 (5th Cir. 20 14). 37 F ED . R. CIV. P. 12(d). 38 Brand, 748 F.3d at 637– 38 . 39 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). 40 Culbertson v. Ly kos, 790 F.3d 60 8, 616 (5th Cir. 20 15) (citation om itted) (internal quotation m arks om itted). 41 W hitley , 726 F.3d at 638 (citation om itted) (internal quotation m arks om itted). 42 Johnson v. Johnson, 385 F.3d 50 3, 529 (5th Cir. 20 0 4). 35 5 D ISCU SSION I. QUALIFIED I MMUNITY—I NDIVIDUAL CAPACITIES Barnes asserts § 1983 claim s of excessive force and false arrest against Knight, McClellan, and Bowm an. 43 Defendants argue they are entitled to qualified im m unity with respect to these claim s. 44 To state a claim under 42 U.S.C. § 1983, “a plaintiff m ust first show a violation of the Constitution or of federal law, and then show that the violation was com m itted by som eone acting under color of state law.”45 The qualified im m unity defense serves to shield governm ent officials perform ing discretionary functions “from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”46 When considering a qualified im m unity defense raised in the context of a Rule 12(b)(6) m otion to dism iss, the Court m ust determ ine whether “the plaintiff’s pleadings assert facts which, if true, would overcom e the defense of qualified im m unity.”47 “Thus, a plaintiff seeking to overcom e qualified im m unity m ust plead specific facts that both allow the court to draw the reason able inferen ce that the defendant is liable for the harm he has alleged an d that defeat a qualified im m unity defense with equal specificity.”48 When evaluating a claim of qualified im m unity, the Court m ust determ ine whether the facts alleged show the officer’s conduct violated a constitutional right and whether the 43 R. Doc. 90 at ¶¶ 26– 28 . R. Doc. 55-1 at 6– 12. 45 Atteberry v . N ocona Gen. Hosp., 430 F.3d 245, 252– 53 (5th Cir. 20 0 5). 46 Kinney v. W eaver, 367 F.3d 337, 349 (5th Cir. 20 0 4). 47 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 20 12); Jordan v. City of N ew Orleans, No. 15-1922, 20 16 WL 633666, at *2 (E.D. La. Feb. 17, 20 16). 48 Backe, 691 F.3d at 648. See also Babb v. Dorm an, 33 F.3d 472, 475 n .5 (5th Cir. 1994) (“To survive a m otion to dism iss in cases where the qualified im m unity defense is raised, a plaintiff m ust state facts, which if proven , would defeat the defense.”); Jackson v. City of Beaum ont Police Dep’t, 958 F.2d 616, 620 (5th Cir. 1992). 44 6 officer was acting under color of state law at the tim e of the alleged incident. 49 If there is a constitutional violation and state action, the Court m ust then determ ine whether the right was clearly established in light of the specific context of the case. 50 For a right to be “clearly established,” “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”51 Whether the right was clearly established at the tim e the defendant acted “requires an assessm ent of whether the official’s conduct would have been objectively reasonable at the tim e of the incident.”52 A. “Under Color of State Law” To state a claim under 42 U.S.C. § 1983, the plaintiff m ust show the alleged violation of the Constitution or of federal law was com m itted by som eone acting under color of state law. 53 As a threshold m atter, the Court addresses whether Knight, McClellan, and Bowm an were acting under color of state law during the incident. 54 Whether an officer acted under color of state law depends on (1) whether the officer m isused or abused his official power, and (2) whether there is a nexus between the victim , the im proper conduct, and the officer’s perform ance of official duties. 55 “If an officer pursues personal objectives without using his official power as a m eans to achieve his private aim , he has not acted under color of state law.”56 However, “[i]f an individual is possessed of state authority and purports to act under that authority, his action is state 49 Brow n v. Miller, 519 F.3d 231, 236 (5th Cir. 20 0 8). Id. 51 Anderson v. Creighton, 48 3 U.S. 635, 640 (1987). 52 Kinney , 367 F.3d at 350 (quoting Conroe Creosoting Co. v . Montgom ery County , 249 F.3d 337, 340 (5th Cir. 20 0 1)). 53 Atteberry v . N ocona Gen. Hosp., 430 F.3d 245, 252– 53 (5th Cir. 20 0 5). 54 McQueen does not dispute that he was acting under color of state law at the tim e of the incident. See R. Doc. 97. 55 Id. at 464– 65; Tow nsend v. Moy a, 291 F.3d 859, 865 (5th Cir. 20 0 2). 56 Bustos, 599 F.3d at 465. 50 7 action. It is irrelevant that he m ight have taken the sam e action had he acted in a purely private capacity.”57 Barnes alleges the officers were dispatched to McQueen’s hom e after McQueen called the Slidell Police Departm ent requesting assistance, the officers took Barnes into their custody, and the officers transported him to the Slidell lock-up, where Barnes was charged with violating a protective order. 58 The officers were clearly acting under color of state law. B. Violations of Constitutional or Federal Law 1. False Arrest a. Violation of a Constitutional Right A false arrest is a violation of the arrestee’s Fourth and Fourteenth Am endm ent rights unless the arresting officer has probable cause for the arrest. 59 To survive a m otion to dism iss a false arrest claim , a plaintiff “m ust allege facts perm itting an inference that defendants lacked arguable (that is, reasonable but m istaken) probable cause for the arrests.”60 “The Suprem e Court has defin ed probable cause as the ‘facts and circum stances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circum stances shown, that the suspect has com m itted, is com m itting, or is about to com m it an offense.’”61 The facts m ust 57 United States v. Causey , 185 F.3d 40 7, 414 (5th Cir. 1999) (quotin g Griffin v . M ary land, 378 U.S. 130 , (1964)). 58 R. Doc. 90 at ¶¶ 5, 9. 59 Thom as v . Kipperm an, 846 F.2d 10 0 9, 10 11 (5th Cir. 198 8) (per curiam ); Pienda v. City of Houston, 124 F. Supp. 2d 10 37, 10 44 (S.D. Tex. 1999) (citin g Beck v. State of Ohio, 379 U.S. 89 (1964); Mangieri v. Clifton, 29 F.3d 10 12, 10 16 (5th Cir. 1994)). See also Perkins v . State of Miss., 455 F.2d 7, 39 n.70 (5th Cir. 1972) (“Beyond any doubt State police officers who deprive citizens of Federally protected rights by m eans of false arrest, im prisonm ent and prosecution are acting ‘under color of law.’”); Club Retro, L.L.C. v . Hilton, 568 F.3d 181, 20 4 (5th Cir. 20 0 9) (referring to false arrest as a “constitutional claim ”). 60 Club Retro, 568 F.3d at 20 7. 61 Piazza v. May ne, 217 F.3d 239, 245– 46 (5th Cir. 20 0 0 ) (quotin g Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). 8 be particularized to the arrestee. They m ust also be “known to the officer at the tim e of the arrest; post-hoc justifications based on facts later learned cannot support an earlier arrest.”62 The arresting officer him self, however, need not have personal knowledge of all the facts constituting probable cause for an arrest. 63 To survive a m otion to dism iss on a claim of false arrest, it is sufficient for the plaintiff to allege that the inform ation that form ed the basis for his arrest was supplied by an officer who knew or should have known the inform ation was false. 64 Eviden ce that the arrestee was innocent of the crim e, however, “is not necessarily dispositive of whether the officer had probable cause to conduct the arrest because ‘probable cause requires only a probability or substantial chan ce of crim inal activity, not an actual showing of such activity.’”65 The Court m ust exam ine the allegations of the second am ended com plaint to determ ine whether the pleadings assert facts that, if true, would overcom e the defense of qualified im m unity. According to the com plaint, McQueen requested assistance from the Slidell Police Departm ent on a non-em ergen cy line and told the dispatcher, “[M]y wife’s ex-husband, he has a restraining order, I have a copy of the restraining order, he needs to go to jail for that.”66 Barnes also alleges that Knight, Bowm an, and McClellan, “without so m uch as a pre cursory [sic] investigation, [] took Mr. Barnes into their custody and transported him to the Slidell lock up where he was charged with violating a protective 62 Club Retro, 568 F.3d at 20 4. United States v. W ebster, 750 F.2d 30 7, 323 (5th Cir. 1984). 64 See Thom as, 846 F.2d at 10 11 (“Thom as asserts that the inform ation which form ed the basis for his arrest, detention, and prosecution was m aliciously supplied by Norm an with the knowledge that it was false. Therefore, he asserts that his arrest . . . [was] without probable cause. This Court has specifically held that such allegations state a claim of false arrest . . . under § 1983.”); W heeler v. Cosden Oil & Chem . Co., 734 F.2d 254, 261 (5th Cir. 1984) (“[A] defendant m ay challenge a Fourth Am endm ent probable cause determ ination on the groun d that it was based on inform ation which the state knew or should have known to be false and that such inform ation was necessary to the findin g of probable cause.”). 65 Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir. 20 0 9) (quotin g Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983)). 66 R. Doc. 90 at ¶ 5. 63 9 order” but failed to verify whether there was indeed a restraining order again st Barnes. 67 The com plaint alleges that Knight, Bowm an, and McClellan “based their decision to arrest and charge Mr. Barnes on the word of their co-worker, McQueen.”68 Barnes avers there was no protective order again st him and that McQueen knew there was no such protective order. 69 In addition to the am ended com plaint, the Court m ay consider m atters of public record 70 and docum ents attached to the m otion to dism iss “when the docum ents are referred to in the pleadings and are central to a plaintiff’s claim s.”71 Attached to Defendants’ m otion to dism iss is the consent judgm ent issued by the 22nd J udicial District Court for the Parish of St. Tam m any, State of Louisiana, on J uly 21, 20 11. 72 The consent judgm ent m ay be considered by the Court both as a m atter of public record 73 and as a docum ent that is attached to the m otion to dism iss, referred to in the pleadings, an d central to Barnes’ claim s. 74 Under these circum stances, the Court’s consideration of the 67 Id. at ¶ 9. Id. 69 Id. at ¶¶ 10 , 15. 70 See Cinel v . Connick, 15 F.3d 1338, 1343 n .6 (5th Cir. 1994) (“In decidin g a 12(b)(6) m otion to dism iss, a court m ay perm issibly refer to m atters of public record. Accordin gly, the consideration of the consent judgm ent does not convert this m otion into on e for sum m ary judgm ent.” (internal citations om itted)); Johnson v. W ells Fargo Bank, N .A., No. 13-1793, 20 14 WL 2593616, at *3 (N.D. Tex. J une 9, 20 14) (“The Consent J udgm ent is also a m atter of public record that can be judicially noticed in considerin g a Rule 12(b)(6) m otion.”). 71 Brand, 748 F.3d at 635. 72 R. Doc. 55-2. 73 See Cinel, 15 F.3d at 1343 n.6 (“In deciding a 12(b)(6) m otion to dism iss, a court m ay perm issibly refer to m atters of public record. Accordingly, the consideration of the consent judgm ent does not convert this m otion into on e for sum m ary judgm ent.” (internal citations om itted)); Johnson, 20 14 WL 2593616, at *3 (“The Consent J udgm ent is also a m atter of public record that can be judicially n oticed in considerin g a Rule 12(b)(6) m otion.”). 74 See R. Doc. 90 at ¶ 10 , in which Barnes quotes the consent judgm ent. Barn es claim s he was falsely arrested for violatin g a protective order or perm anent injunction in violation of La. R.S. 14:79. Barnes alleges in the com plaint that there was a perm anent injunction that prohibited him from being on his ex-wife’s property but that nevertheless he was not violating La. R.S. 14:79 by virtue of his being on his ex-wife’s property. Therefore, the consent judgm ent is central to his claim s. 68 10 consent judgm ent does not convert the m otion to dism iss into a m otion for sum m ary judgm ent. 75 In the consent judgm ent, the 22nd J udicial District Court did issue a perm anent injunction prohibiting Barnes from going within 10 0 feet of his ex-wife, Mandy Barnes, or her hom e, 76 but to be a violation of La. R.S. 14:79, the injunction m ust be issued pursuant to one of the statutes or code articles listed therein. 77 This consent judgm ent was not. 78 Based on review of the well-pleaded allegations in the second am ended com plaint and the consent judgm ent, the Court finds no probable cause for Barnes’ arrest based on a violation of La. R.S. 14:79. 79 Violation of an injunction that was not issued pursuant to one of the statutes or code articles listed in La. R.S. 14:79 does not provide a basis for arrest under the statute. The consent judgm ent specifically states that the perm anent injunction “shall not constitute a Louisiana Protective Order and shall not be forwarded to the Louisiana Protective Order Registry, pursuant to [La. R.S. 46:2136, et seq.].”80 As a result, Barnes was not in violation of La. R.S. 14:79 when he was present on his ex-wife’s property, and there was no probable cause for arrest on this basis. Accordingly, considering the well-pleaded allegations of the com plaint and the consent judgm ent, the Court finds Knight, McClellan, and Bowm an did not have probable cause to arrest Barnes for violation of La. R.S. 14:79, and thus Barnes has sufficiently pleaded a cause of action for false arrest, a constitutional violation. 75 Barnes filed a m otion to strike the consent judgm ent and the police report from the m otion to dism iss. R. Doc. 10 3. For the reasons stated herein, the m otion to strike is D EN IED . 76 R. Doc. 56-3; R. Doc. 97-2. 77 See LA. R EV. STAT. § 14:79A(1)(a). See also LA. R EV. STAT. §§ 9:361 et seq., 9:372, 46:2131 et seq., 46:2151, 46:2171 et seq., 46:2181 et seq.; LA. CHILD. CODE art. 1564 et seq.; LA. CODE CIV. P ROC. arts. 360 4, 360 7.1; LA. CODE CRIM. P ROC. arts. 327.1, 335.1, 335.2, 871.1. 78 See R. Doc. 97-2; LA. R EV. STAT. § 14:79A(1)(a). 79 Barnes was charged with violating La. R.S. 14:79. R. Doc. 97-3 at 6; R. Doc. 90 at ¶ 9. 80 R. Doc. 55-2 at 2. 11 b. Clearly Established The Fourth Am endm ent right to be free from false arrest was clearly established at the tim e of the incident. 81 But “[e]ven law enforcem ent officials who reasonably but m istakenly conclude that probable cause is present are entitled to im m unity.”82 The inquiry is whether a reasonable officer could have believed the arrest at issue was lawful in light of clearly established law and the inform ation the arresting officers possessed. 83 Barnes alleges there was no protective order in place. 84 He also alleges that Knight, McClellan, and Bowm an arrested Barnes for violating a protective order without seeing a protective order or “verifying that one existed through the Louisiana Protective Order Registry.”85 The second am ended com plaint further states that the officers arrested Barnes “without so m uch as a pre cursory [sic] investigation . . . [based] on the word of their co-worker, McQueen.”86 Taking the well-pleaded allegations of the com plaint as true, the Court finds that an objectively reasonable officer would have realized that an arrest under La. R.S. 14:79 for the violation of a protective order or injunction without first seeing a copy of the protective order or injunction and without checking with the Louisiana Protective Order Registry, when there was no protective order as defined by the statute in place, was a violation of Barnes’ right to be free from false arrest. Thus, a reasonable officer in the officers’ circum stances would “understand that what he [was] doing violate[d]” Barnes’ constitutional right to be free from false arrest. 87 81 See Club Retro, 568 F.3d at 20 6. Id. (quoting Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 20 0 0 )) (internal quotation m arks om itted). 83 Mendenhall, 213 F.3d at 230 . 84 R. Doc. 90 at ¶¶ 10 , 15. 85 R. Doc. 90 at ¶ 9. 86 Id. 87 See Anderson , 483 U.S. at 640 . 82 12 Accordingly, taking the well-pleaded allegations of the com plaint as true and considering the consent judgm ent, the Court finds Kn ight, McClellan, and Bowm an are not entitled to qualified im m unity on Barnes’ false arrest claim under § 1983. 2. Excessive Force Barnes alleges that Knight, McClellan, and Bowm an used excessive force to effect his arrest. 88 To bring a § 1983 claim for excessive force, a plaintiff m ust first show he was seized. 89 A seizure occurs when “the officer, by m eans of physical force or show of authority, has in som e way restrained the liberty of a citizen.”90 The com plaint alleges Knight, McClellan, and Bowm an arrested Barnes and “took Mr. Barnes into their custody and transported him to the Slidell lock up.”91 Barnes has clearly alleged he was seized. The plaintiff m ust then dem onstrate the following: (1) he suffered an in jury; (2) such injury resulted directly and only from the use of force that was excessive to the need; and (3) such force was objectively unreasonable. 92 The use of excessive force is a violation of the Fourth Am endm ent. 93 Barnes alleges that the actions of Knight, McClellan, and Bowm an deprived Barn es of his constitutional rights to be free from excessive force. 94 Aside from this conclusory allegation, the com plaint does not include any factual allegations to support the § 198 3 claim for excessive force. The com plaint fails to allege the use of any force by Kn ight, McClellan, and Bowm an, m uch less force in excess of the need. The com plaint states only that “Mr. Barnes asserts the use of excessive force in his arrest by the co- 88 R. Doc. 90 at ¶ 26 (“The aforem entioned facts described the circum stances of Mr. Barnes’ arrest and assert the co-workers/ defendants used excessive force.”). 89 Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 20 0 4). 90 Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968). 91 R. Doc. 90 at ¶ 9. 92 Id. 93 See Bush v. Strain , 513 F.3d 492, 50 0 – 0 1 (5th Cir. 20 0 8); Flores, 381 F.3d at 396. 94 R. Doc. 90 at ¶ 36. 13 workers/ defendants because they acted in concert, conspired, and aided and abetted McQueen in his unlawful conduct.”95 Therefore, Barnes fails to sufficiently allege a cause of action for excessive force against Knight, McClellan, and Bowm an under § 1983, and the Court need not determ ine whether Barnes’ right to be free of the use of excessive force against him was clearly established. 96 This claim is dism issed with prejudice as to Knight, McClellan, and Bowm an. II. QUALIFIED I MMUNITY—OFFICIAL CAPACITIES Barnes also sued Knight, McClellan, and Bowm an in their official capacities as police officers for the City of Slidell. 97 “[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.”98 As a result, claim s against officers in their official capacities are treated as claim s against the m unicipality they serve. 99 Barnes’ claim s against the City are addressed infra Part V. III. CONSPIRACY CLAIMS AGAINST KNIGHT, M CCLELLAN , BOWMAN , AND THE CITY Barnes asserts claim s in his am ended com plaint for “conspiracy against his rights and the deprivation of his rights under color of law, pursuant to Title 18 U.S.C. § 241 and § 242 respectively,” against McQueen, Knight, McClellan, Bowm an, and the City. 10 0 Knight, McClellan, and Bowm an argue that Barnes fails to state a cause of action for 95 Id. at ¶ 26. Barnes’ conspiracy claim s are addressed infra Part III. The com plaint also fails to allege any in jury that Barn es suffered after Kn ight, McClellan, and Bowm an arrived at the scene. See R. Doc. 90 at ¶¶ 9– 13. A plaintiff m ust allege that he suffered “at least som e injury.” Jackson v. Culbertson, 984 F.2d 699, 70 0 (5th Cir. 1993). An injury is legally cognizable “when it results from a degree of force that is constitutionally im perm issible—that is, objectively unreasonable under the circum stances.” Bush, 513 F.3d at 50 1. “While certain injuries are so slight that they will never satisfy the injury elem ent, . . . psychological in juries m ay sustain a Fourth Am endm ent claim .” Flores, 381 F.3d at 397– 98 (citing Dunn v . Denk, 79 F.3d 40 1, 40 2 (5th Cir. 1996) (en banc)). 97 R. Doc. 90 at ¶¶ II.B– D. 98 Hafer v. Melo, 50 2 U.S. 21, 25 (1991). 99 Id. (“Suits against state officials in their official capacity . . . should be treated as suits against the State.”); Mason v. Lafay ette City -Par. Consol. Gov’t, 80 6 F.3d 268, 279 (5th Cir. 20 15) (“The Masons also bring claim s against Lafayette and Chief Craft, in his official capacity. Because Craft was sued in his official capacity, the claim against him is treated as a claim against Lafayette, a m un icipality.”). 10 0 R. Doc. 90 at ¶¶ 30 – 31. See also R. Doc. 90 at ¶¶ 24, 26– 28. 96 14 conspiracy as to them because (1) he cannot bring conspiracy claim s under 18 U.S.C. §§ 241 an d 242, as they provide no basis for civil recovery; and (2) Barnes fails to allege that the officers entered into any prior agreem ent with McQueen to deprive Barnes of his rights. 10 1 18 U.S.C. § 241 m akes it a crim e for two or m ore persons to conspire to deprive another of the rights secured to him by the Constitution or laws of the United States. 10 2 18 U.S.C. § 242 m akes it a crim e to deprive another person of such rights under color of law on account of alienage or race. 10 3 These crim inal statutes, however, do not provide a basis for private action under § 1983. 10 4 Therefore, to the extent that Barnes alleges a conspiracy to violate 18 U.S.C. §§ 241 and 242, these claim s are dism issed with prejudice. Barnes also alleges a claim against Kn ight, McClellan, and Bowm an for conspiracy to use excessive force under § 198 3. 10 5 To state a claim for conspiracy under § 198 3, a plaintiff m ust allege (1) the defendants reached an understanding or agreem ent that they would deny the plaintiff of one of his constitutional rights; and (2) the conspiracy resulted in an actual denial of one of his constitutional rights. 10 6 The claim ant m ust state specific facts, not m erely conclusory allegations. 10 7 Nowhere in his com plaint does Barnes allege that Knight, McClellan, or Bowm an reached an agreem ent or understanding with 10 1 R. Doc. 55-1 at 12– 14. 18 U.S.C. § 241. 10 3 18 U.S.C. § 242. 10 4 Goldston v. W eary , No. 14-1836, 20 15 WL 4230 66, at *6 (E.D. La. Feb. 2, 20 15); Sm ithback v. Texas, No. 0 7-0 28 8, 20 0 7 WL 1518971, at *12 (N.D. Tex. May 24, 20 0 7) (citing Hanna v . Hom e Ins. Co., 281 F.2d 298 , 30 3 (5th Cir. 1960 )); Clem ents v . Chapm an , 189 F. App’x 68 8, 692 (10 th Cir. 20 0 6); Moore v . Kam ikaw a, 940 F. Supp. 260 , 265 (D. Haw. 1995), aff’d, 82 F.3d 423 (9th Cir. 1996); Aldabe v. Aldabe, 616 F.2d 10 89, 10 92 (9th Cir. 1980 ) (“Appellant also claim ed relief under 18 U.S.C. §§ 241 and 242. These crim inal provisions, however, provide no basis for civil liability.”). 10 5 R. Doc. 90 at ¶ 26. 10 6 W eiland v. Palm Beach Cty . Sheriff’s Office, 792 F.3d 1313, 1327 (11th Cir. 20 15); Carr v. Montgom ery County , Tex., 59 F. Supp. 3d 787, 80 5 (S.D. Tex. 20 14); DiLosa v. City of Kenner, No. 0 3-0 310 , 20 0 4 WL 2984342, at *16 (E.D. La. Dec. 16, 20 0 4). 10 7 Hale v. Harney , 786 F.2d 68 8, 690 (5th Cir. 1986) (citations om itted) (internal quotation m arks om itted). 10 2 15 McQueen or each other to deny Barnes of his constitutional rights, and the Court cannot reasonably infer from the factual allegations that are in the com plaint that the officers reached any agreem ent to deny Barn es of his rights. His com plaint states only that Knight, McClellan, and Bowm an “acted in concert, conspired, and aided and abetted McQueen in his unlawful conduct.”10 8 Mere conclusory allegations of conspiracy, however, “cannot, absent reference to m aterial facts, state a substantial claim of federal conspiracy under 42 U.S.C. § 1983.”10 9 Accordingly, Barnes’ § 1983 claim s for conspiracy are dism issed with prejudice. IV. STATE -LAW CLAIMS AGAINST KNIGHT, M CCLELLAN , AND BOWMAN Barnes brings state-law claim s against Knight, McClellan, and Bowm an for false arrest, excessive force, assault and battery, intentional infliction of em otional distress, invasion of privacy, m alicious prosecution, intentional m isrepresentation, and defam ation. 110 The officers argue that Barnes fails to allege facts sufficient to state a claim under Louisiana law. 111 A. Assault and Battery Barnes brings a state-law claim against Knight, McClellan, and Bowm an for assault and battery. 112 Specifically, the am ended com plaint states the following: Mr. Barnes asserts a claim for assault and battery against [Knight, McClellan, and Bowm an] because they acted in concert, conspired, and aided and abetted McQueen in his unlawful conduct. As such, [they] assaulted and battered Mr. Barnes in front of his children. 113 10 8 R. Doc. 90 at ¶¶ 24, 26– 28 . Hale, 786 F.2d at 690 (citations om itted) (internal quotation m arks om itted). 110 R. Doc. 90 at ¶¶ 19– 22, 35. 111 R. Doc. 55-1 at 14– 15. 112 See R. Doc. 90 at ¶ 35. 113 Id. at ¶ 27. 10 9 16 Assault is “an attem pt to com m it a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”114 Battery is “the intentional use of force or violence upon the person of another.”115 The basis for the state-law tort of assault and battery is Louisiana Civil Code article 2315. Barnes appears to base his claim for assault and battery against Knight, McClellan, and Bowm an on a theory of conspiracy liability, claim s which the Court has dism issed. 116 Barnes fails to allege facts that, if true, would establish that Knight, McClellan, or Bowm an m ade any threats or put Barnes in reasonable apprehension of harm ful or offensive contact, that Barnes suffered any injury after Knight, McClellan, and Bowm an arrived at the scen e, or that the arresting officers used any force to effect the arrest. Therefore, the claim for assault and battery against these officers is dism issed with prejudice. B. Intentional Infliction of Em otional Distress Barnes also asserts a state-law claim for intentional infliction of em otional distress. 117 The am ended com plaint states the following: Mr. Barnes asserts a claim of intentional infliction of em otional distress against the co-workers/ defendants because they acted in concert, conspired, and aided and abetted McQueen in his unlawful conduct. Mr. Barnes asserts he suffered and continues to suffer extrem e em otional distress as a result of the coworkers/ defendants m isconduct. Mr. Barnes asserts the co-workers/ defendants aided and abetted McQueen’s attack and continued to com m it assault and battery on Mr. Barnes’ person in front of his children under the false pretense of an arrest. As stated above, such arrest was lacking in probable cause. 118 114 LA. R EV. STAT. § 14:36. See also N .S. v. City of Alexandria, 919 F. Supp. 2d 773, 784 (W.D. La. 20 13) (citing Groff v. Sw . Beverage Co., 20 0 8 -625 (La. App. 3 Cir. 11/ 5/ 0 8 ), 997 So. 2d 78 2, 787 (internal quotation m arks om itted)). 115 LA. R EV. STAT. § 14:33. See also Zim m erm an v. Progressive Sec. Ins. Co., 49,982 (La. App. 2 Cir. 8/ 12/ 15), 174 So. 3d 1230 , 1235, w rit denied, 20 15-1955 (La. 11/ 30 / 15); Groff, 997 So. 2d at 787. 116 See supra “Discussion ,” Part III. 117 See R. Doc. 90 at ¶ 35. 118 Id. at ¶ 28. 17 The basis for the tort of intentional infliction of em otional distress under Louisian a law is Louisiana Civil Code article 2315. 119 To recover for intentional infliction of em otional distress, a plaintiff m ust establish three elem ents: “‘(1) that the conduct of the defendant was extrem e and outrageous; (2) that the em otional distress suffered by the plaintiff was severe; and (3) that the defen dant desired to inflict severe em otional distress or knew that severe em otional distress would be certain or substantially certain to result from his conduct.’”120 Unless the plaintiff alleges facts to show that the individual defendants acted in a m anner that was atrocious, outrageous, or utterly intolerable, his claim m ust fail. 121 Indeed, the alleged conduct “m ust be so outrageous in character, and so extrem e in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized com m unity.”122 The conduct m ay arise from an abuse by the actor of a position that “gives him actual or apparent authority over the other, or power to affect his interests.”123 It m ust be intended or calculated to cause severe em otional distress; “som e lesser degree of fright, hum iliation, em barrassm ent, worry, or the like” is insufficient. 124 As the Fifth Circuit has explained, “Louisiana courts, like courts in other states, have set a very high threshold on conduct sufficient to sustain an em otional distress claim , and the Louisiana Suprem e Court has noted that courts require truly outrageous conduct before allowing a claim even to be presented to a jury.”125 119 N icholas v. Allstate Ins. Co., 765 So. 2d 10 17, 10 21 (La. 20 0 0 ); Ham ilton v. Pow ell, No. 13-270 2, 20 14 WL 6871410 , at *7 (W.D. La. Dec. 2, 20 14). 120 Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1137 (5th Cir. 20 14) (quotin g W hite v. Monsanto Co., 58 5 So. 2d 120 5, 120 9 (La. 1991)). 121 Obee v. X erox Corp., No. 99-470 , 1999 WL 717637, at *2 (E.D. La. Sept. 14, 1999). 122 W hite, 585 So. 2d at 120 9. 123 Id. at 120 9– 10 . 124 W hite, 585 So. 2d at 1210 . 125 Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 756– 57 (5th Cir. 20 0 1). 18 The following excerpt from the am ended com plaint contains the only actions Barnes attributes to Knight, McClellan, and Bowm an: [Once they arrived at McQueen’s house, Knight, McClellan, and Bowm an] took Mr. Barnes into their custody and transported him to the Slidell lock up where he was charged with violating a protective officer. These responding officers, two of which are ranking officers and supervisors, m ade their decision to go through with the arrest and book Mr. Barnes in front of his two m inor children, for violating a protective order without seeing a protective order, or verifying that one existed through the Louisiana Protective Order Registry. The responding officers based their decision to arrest and charge Mr. Barnes on the word of their co-worker, McQueen. These responding officers knew McQueen obviously had an intense personal conflict of interest. . . . Although [they] lacked probable cause, they arrested Mr. Barnes and charged him with a crim inal offense which he did not com m it and will have to answer for the rest of his life in situations such as em ploym ent interviews, etc. 126 Barnes’ am ended com plaint fails to allege facts that, if true, would establish that Knight, McClellan, and Bowm an engaged in extrem e and outrageous behavior or that they intended to inflict severe em otional distress or knew that severe em otional distress would be certain or substantially certain to result from their conduct. As a result, Barnes’ claim for intentional infliction of em otional distress with respect to Knight, McClellan, and Bowm an is dism issed with prejudice. 127 126 R. Doc. 90 at ¶¶ 9, 11. See, e.g., Clay ton v. Zullo, No. 10 -1228, 20 14 WL 790 869, at *11 (E.D. La. Feb. 26, 20 14) (dism issing the plaintiff’s claim for intentional infliction of em otion al distress because “Plaintiff has only m ade bald allegations in his com plain t that there was a conspiracy between [Defendants] in the first place, and the Court has already found that the Plaintiff failed to state a claim for conspiracy” and “Plaintiff has brought no additional evidence or allegations . . . to support his claim that there was a conspiracy or that [Defendants] entered into such a conspiracy with the intention of inflictin g severe em otional distress”); Obee, 1999 WL 717637, at *3 (concluding the plaintiff could not m aintain a claim for intentional infliction of em otional distress under Louisiana law and noting that the plaintiff’s com plain t “fails to allege conduct beyond all possible bounds of decency; conduct utterly intolerable in a civilized com m unity”); Thom as v. Tow n of Jonesville, No. 11-0 48, 20 13 WL 265235, at *8 (W.D. La. J an . 23, 20 13), aff'd, 539 F. App’x 645 (5th Cir. 20 13) (“[T]he court finds that [the defendant’s] conduct durin g the in vestigatory stop and subsequent arrest was lawful and em ployed force within the bounds of reason ableness. This conduct cannot, therefore, as a m atter of law, constitute “extrem e and outrageous” behavior such as would be required for plaintiff’s IIED claim .”). 127 19 C. False Arrest Barnes also asserts a state-law claim against Knight, McClellan, and Bowm an for false arrest. 128 Under Louisiana law, “[f]alse arrest and im prisonm ent occur when one arrests an d restrains another against his will without a warrant or other statutory authority.”129 As under federal law, an officer who does not have a warrant for the arrest m ust have probable cause under Louisiana law. 130 False arrest claim s under Louisiana law are analyzed with the sam e standard used to assess false arrest claim s under § 1983. 131 Louisiana courts recognize the defense of qualified im m unity to a plaintiff’s claim s that an actor’s conduct under color of state law deprived him or her of a right secured by Article I, Section 5 of the Louisiana Constitution, the state counterpart to the Fourth Am endm ent to the United States Constitution. 132 That is, like in the qualified im m unity context, the actions of the defendants m ust be judged for objective reasonableness when considered under state law. “If the defendant shows that the state constitutional right alleged to have been violated was not clearly established, the defendant is entitled to qualified im m unity.”133 Considering the consent judgm ent and taking the well-pleaded allegations of the com plaint as true, the Court finds Kn ight, McClellan, and Bowm an lacked probable cause to arrest Barnes for violation of La. R.S. 14:79 and are not entitled to qualified im m unity 128 R. Doc. 90 at ¶ 32. Deville, 567 F.3d at 172 (quoting Ky le v. City of N ew Orleans, 353 So.2d 969, 971 (La. 1977)). 130 Id. 131 See, e.g., Moresi v. State Through Dep’t of W ildlife & Fisheries, 567 So. 2d 10 81, 10 94 (La. 1990 ); Ky le v. Civil Serv . Com m ’n, 58 8 So. 2d 1154, 1160 – 62 (La. Ct. App. 1991), w rit denied sub nom . Ky le v. Civil Serv. Com m ’n , State of La., 595 So. 2d 654 (La. 1992). 132 See Moresi, 567 So. 2d at 10 94 (“[W]e believe that a qualified im m unity is justified in an action against state officers or persons acting under color of state law for dam ages caused by a violation of Article I, § 5 of the Louisiana Constitution . Consequently, a plaintiff’s allegation and proof of conduct under color of state law that deprived him or her of a right secured by Article I, § 5 m ay not always assure the plaintiff of recovery.”). 133 Id. 129 20 regarding Barnes’ state-law claim for false arrest for the reasons stated supra in the § 198 3 context. 134 D. Excessive Force Barnes also alleges the officers used excessive force in violation of state law. 135 Louisiana courts analyze excessive force claim s “under the aegis of the general negligen ce law of Louisiana.”136 Therefore, a plaintiff asserting excessive force under Louisiana law m ust establish the following elem ents: “(1) the conduct in question was a cause-in -fact of the resulting harm ; (2) defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendant; and (4) the risk of harm was within the scope of the protection afforded by the duty breached.”137 An officer “m aking a law ful arrest m ay use reasonable force to effect the arrest and detention, and also to overcom e any resistance or threaten ed resistance of the person being arrested or detained.”138 “Factors in determ ining whether the force exerted was reasonable under the circum stances entail: the known character of the arrestee; the risks and dangers faced by the officer; the nature of the offense or behavior involved; the chance of escape if the particular m eans are not em ployed; the existen ce of alternative m ethods 134 Barnes also brin gs a claim for false im prisonm ent, which “occurs when one arrests and restrains another against his will and without statutory authority.” Bellanger v. W ebre, Bellanger v. Webre, 20 10 -0 720 (La. App. 1 Cir. 5/ 6/ 11), 65 So. 3d 20 1, 20 9 (La. Ct. App.), w rit denied, 69 So. 3d 1149 (La. 20 11). See also Kennedy v . Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La. 20 0 6) (“Wrongful arrest, or the tort of false im prison m ent, occurs when one arrests and restrain s another against his will and without statutory authority.”). In Louisiana, “[F]alse arrest is not distinguished as a separate tort from false im prisonm ent.” Parker v. Tow n of W oodw orth, 20 11-1275 (La. App. 3 Cir. 3/ 7/ 12), 86 So. 3d 141, 144 (La. Ct. App. 20 12) (internal quotation m arks om itted). Therefore, the m otion to dism iss Barn es’ claim s for false im prison m ent against Knight, McClellan, and Bowm an is denied. 135 R. Doc. 90 at ¶ 35. 136 Hall v. City of Shrev eport, 45,20 5 (La. App. 2 Cir. 4/ 28/ 10 ), 36 So. 3d 419, 422. 137 Id. 138 LA. CODE CRIM . P ROC. art. 220 . 21 of arrest or subduing the arrestee; the physical strength, size and weaponry of the officers as com pared to that of the arrestee; and the exigen cies of the m om ent.”139 The Court has concluded that Barnes fails to state a claim for excessive force under § 198 3 because the com plaint fails to allege the use of any force by Knight, McClellan, and Bowm an, m uch less force in excess of the need. 140 Barnes fails to allege Knight, McClellan, and Bowm an em ployed any conduct that constituted a breach of duty and that was a cause-in-fact of any harm , and, in light of the Court’s analysis of Barnes’ excessive force claim under § 1983, the Court finds Barnes fails to state a claim for excessive force under state law. This claim is therefore dism issed with prejudice. E. Barnes’ Rem aining State-Law Claim s Barnes enum erates several additional state-law causes of action against Knight, McClellan, and Bowm an: “The acts and conduct of the defendants constitute . . . m alicious prosecution, invasion of privacy, intentional m isrepresentation, . . . and defam ation under the laws of the State of Louisiana.”141 Defendants argue Barn es fails to state a claim for these causes of action. 142 Barnes fails to thoroughly address these claim s in his opposition. 143 In his opposition, Barnes avers only that, “Barnes described the circum stances of his arrest [in his com plaint] and concluded that Knight, McClellan, and Bowm an com m itted” these state-law offenses. 144 Aside from Barnes’ general and conclusory allegations, Barnes m akes no other reference to these claim s and fails to allege well-pleaded facts that state a claim for these causes of action. Accordingly, Barn es’ state-law claim s against Kn ight, McClellan, and 139 Penn v. St. Tam m an y Par. Sheriff’s Office, 20 0 2-0 893 (La. App. 1 Cir. 4/ 2/ 0 3), 8 43 So. 2d 1157, 1161. See supra Part I.B.2. 141 Id. See also id. at ¶ 13. 142 See R. Doc. 55-1 at 5 n.26; R. Doc. 29-1 at 17– 18 . 143 See R. Doc. 61 at 10 . 144 Id. (em phasis added). 140 22 Bowm an for m alicious prosecution, invasion of privacy, intentional m isrepresentation, and defam ation are dism issed with prejudice. 145 V. BARNES’ CAUSES OF ACTION AGAINST THE CITY OF SLIDELL A. § 1983 Claim s The am ended com plaint contends, “[T]he City of Slidell [is] liable for all of the defendants’ acts which are described herein and/ or vicariously liable for all claim s stated herein . . . .”146 A m unicipality is a “person” subject to suit under § 1983. 147 It is well-established, however, that a m unicipality or other local governm ent cannot be vicariously liable under § 198 3 for its em ployees’ actions. 148 Therefore, Barnes’ § 1983 claim s against the City are dism issed to the extent Barnes asserts them under the doctrine of vicarious liability. A m unicipality m ay be liable under § 1983 if it “‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.”149 To prevail on a § 198 3 claim against a local governm ent or m unicipality, a plaintiff m ust prove that action pursuant to official m unicipal policy caused his injury. 150 Thus, the plaintiff must establish three elem en ts: (1) a policym aker; (2) an official policy; and (3) a violation of constitutional rights whose “m oving force” is the policy or custom . 151 An “official policy” for purposes of § 1983 includes the following: (1) “[a] policy statem ent, ordinance, regulation or decision that is officially adopted and prom ulgated 145 A com plaint is insufficient if it contains “only labels and conclusions, or a form ulaic recitation of the elem ents of a cause of action.” W hitley , 726 F.3d at 638 (citation om itted) (in ternal quotation m arks om itted). 146 R. Doc. 90 at ¶ 33. 147 Zarnow v. City of W ichita Falls, Tex., 614 F.3d 161, 166 (5th Cir. 20 10 ) (citin g Monell v. N ew York City Dep’t of Soc. Servs., 436 U.S. 658 , 690 (1978)). 148 Connick v. Thom pson , 563 U.S. 51, 60 (20 11); W hitt v. Stephens Cty ., 529 F.3d 278 , 283 (5th Cir. 20 0 8). 149 Connick, 563 U.S. at 60 . 150 Id. 151 Piotrow ski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 20 0 1). 23 by the m unicipality’s lawm aking officers or by an official to whom the lawm akers have delegated policy-m aking authority”; and (2) a persistent and widespread practice of city officials or em ployees, “which, although not authorized by officially adopted and prom ulgated policy, is so com m on and well settled as to constitute a custom that fairly represents m unicipal policy.”152 “[E]ven a facially innocuous policy will support liability if it was prom ulgated with deliberate in difference to the ‘known or obvious consequences’ that constitutional violations would result.”153 The requirem ent of an official policy or custom is “intended to distinguish acts of the m unicipality from acts of em ploy ees of the m unicipality, and thereby m ake clear that m unicipal liability is lim ited to action for which the m unicipality is actually responsible.”154 Barnes alleges that the City’s custom s and practices include “(a) the negligent hiring and retention of em ployees; (b) the negligent train ing and supervision of its em ployees or the lack of training and supervision of its em ployees; (c) its failure to adopt sufficient policies to deter or prevent the violation of civil rights of the Plaintiff; and (d) allowing the conspiracy and cover up of the unlawful arrest and prosecution of Officer McQueen’s wife’s ex-husband: Mr. Barnes.”155 Barnes alleges that McQueen, Knight, McClellan, and Bowm an “acted in accordance with the Slidell Police Departm ent’s custom s and practices” and “were acting . . . within the course and scope of their em ploym ent” with the City of Slidell. 156 Barnes alleges Knight, McClellan, and Bowm an charged Barnes with violating a protective order “without seeing [one] or verifying that one existed through the Louisiana Protective 152 Brow n v. Bry an Cty ., OK, 219 F.3d 450 , 457 (5th Cir. 20 0 0 ). Piotrow ski, 237 F.3d at 579 (quotin g Bd. of Cty . Com m ’rs of Bry an Cty ., Okl. v. Brow n , 520 U.S. 397, 40 5 (1997)). 154 Pem baur v. City of Cincin nati, 475 U.S. 469, 479 (1986) (em phasis in original). 155 R. Doc. 90 at ¶ 34. 156 Id. at ¶ 32. 153 24 Order Registry,” when there was no protective order against Barnes. 157 Taking the allegations of the complaint as true, the Court finds Barnes sufficiently states a claim against the City for m unicipal liability under § 1983 for its alleged failure to adopt sufficient policies to deter or prevent the violation of Barnes’ constitutional rights by its alleged failure to adopt a policy requiring officers to verify a protective order exists before arresting in dividuals for violation of La. R.S. 14:79. The m otion to dism iss, in sofar as it seeks dism issal of Barnes’ § 1983 claim again st the City for m unicipal liability, is denied. B. State-Law Claim s Barnes alleges the City is vicariously liable “under Louisiana law for the actions of the defendants, its agents and em ployees, that violated duties owed to plaintiff under the Louisiana Constitution and La. Civ. Code arts. 2315– 2316.”158 “[A]n em ployer is liable for a tort com m itted by his em ployee if, at the tim e, the em ployee was acting within the course and scope of his em ploym ent.”159 “Course” refers to tim e and place, and “scope” refers to “the em ploym ent-related risk of injury.”160 Louisiana courts have explain ed that “[a]n em ployee’s conduct is within the course and scope of his em ploym ent if the conduct is of the kind that he is em ployed to perform , occurs substantially within the authorized lim its of tim e an d space, an d is activated at least in part by a purpose to serve the em ployer.”161 Courts should consider four factors when determ in ing vicarious liability under Louisiana law: (1) whether the tortious act was prim arily em ploym ent rooted; (2) whether the tortious act was reasonably incidental to 157 Id. at ¶ 9. Id. at ¶ 39. See also id. at ¶¶ 33, 40 . 159 Baum eister v . Plunkett, 673 So. 2d 994, 996 (La. 1996). 160 Id. 161 Bates v. Caruso, 20 0 3-2150 (La. App. 4 Cir. 7/ 28/ 0 4), 8 81 So. 2d 758 , 762. See also Baum eister, 673 So. 2d at 996 (explain in g that, for vicarious liability to attach to the em ployer, the em ployee m ust have acted “within the am bit of his assigned duties and also in furtherance of his em ployer’s objective”). 158 25 the perform ance of the em ployee’s duties; (3) whether the act occurred on the em ployer’s prem ises; and (4) whether it occurred during the hours of em ploym ent. 162 The Court finds Barnes sufficiently alleges a claim of vicarious liability against the City for the actions of Knight, McClellan, and Bowm an. The com plaint alleges that two of the three officers are ranking officers and supervisors with the Slidell Police Departm ent. 163 Barnes also alleges the officers were dispatched to McQueen’s hom e after McQueen called the police departm ent on a non-em ergency lin e, requested assistance, and said Barnes needed to go to jail. 164 The on-duty officers arrested Barnes, took him to the Slidell lock-up, filled out a police report, and charged Barnes with violation of a protective order, according to the am ended com plaint. 165 It is clear that, based on the well-pleaded allegations of the com plaint, Knight, McClellan, and Bowm an were acting within both the course and the scope of their em ploym ent with the Slidell Police Departm ent when they arrested Barnes. The Court therefore finds that Barnes states a claim for vicarious liability against the City for the actions of Knight, McClellan, and Bowm an. 166 Barnes fails to sufficiently allege that the City is vicariously liable for McQueen’s actions. The incident underlying Barnes’ com plaint occurred “on property owned by 162 N agle v. Gusm an, 61 F. Supp. 3d 60 9, 626 (E.D. La. 20 14) (citin g LeBran e v. Lew is, 292 So.2d 216, 218 (La. 1974)). 163 R. Doc. 90 at ¶ 9. 164 Id. at ¶¶ 5, 9. 165 Id. at ¶¶ 9, 38. 166 See, e.g., Johnson v. Gantt, 60 6 So. 2d 854, 860 (La. Ct. App.), w rit denied, 60 8 So. 2d 196 (La. 1992) (affirm in g finding of vicarious liability against the town for which defendant officer worked because the officer “was en gaged to som e appreciable extent in law enforcem ent activity and his m otivation was not purely personal, entirely extraneous to his service as a policem an”). Cf. Bates v. Caruso, 20 0 3-2150 (La. App. 4 Cir. 7/ 28/ 0 4), 881 So. 2d 758, 764 (“In the in stant m atter, the City had no knowledge of Caruso's propensity to abuse teenage boys. We conclude that Caruso was outside his em ploym ent and was effectin g a purpose of his own when the abuse took place.”); Russell v. N oullet, 721 So. 2d 868 , 872 (La. 1998); Patrick v. Poisso, 38,841 (La. App. 2 Cir. 9/ 22/ 0 4), 8 8 2 So. 2d 686, 691. 26 [McQueen].”167 Barnes alleges McQueen “acted out of m alice and attacked the plaintiff over personal feelings and hatred”168 and that “McQueen’s attack was m otivated by his personal hatred towards Mr. Barnes.”169 McQueen was off-duty at the tim e of the alleged attack, and nothing in the com plaint suggests McQueen was in uniform . 170 Further, McQueen called the Slidell Police Departm ent, requesting that on-duty police officers arrest Barnes. 171 An officer’s em ployer can be held liable for the actions of an off-duty police officer only if the officer was acting in the course and scope of his em ploym ent at the tim e of his actions that led to injury. 172 Because the allegations of the second am en ded com plaint in dicate McQueen was not acting in the course and scope of his em ploym en t at the tim e of the alleged attack, 173 the City cannot be held vicariously liable for McQueen’s actions. 174 167 R. Doc. 90 at ¶ 43. Id. at ¶ 42. 169 Id. at ¶ 17. 170 Id. at ¶ 14 (“McQueen is a Slidell Police Officer who was not working at the tim e of the attack. As a police officer, McQueen has the power to arrest even if he is off duty.”). 171 Id. at ¶ 5 (“Officer McQueen then called the Slidell Police Departm ent on a non-em ergency lin e an d requested assistance.”). 172 W right v. Skate Country , Inc., 98-0 217 (La. App. 4 Cir. 5/ 12/ 99), 734 So. 2d 874, 8 79 (La. Ct. App.), w rit denied, 99-2272 (La. 1999), (explain in g that whether the City could be held vicariously liable for the negligence of the off-duty police officer, uniform ed and working a paid detail, “turn s on whether [the officer] was in the ‘course and scope’ of his em ploym ent for the City at the tim e of his alleged negligent actions”); Russell, 721 So. 2d at 872 (concluding that the city could not be held vicariously liable for the officerdefendant’s assault of a bystander because the officer was acting outside the course and scope of his em ploym ent at the tim e of the assault). 173 “‘Under color of state law’ does not necessarily equate to ‘scope of em ploym ent.’” McLaren v. Im perial Cas. & Indem . Co., 767 F. Supp. 1364, 1371 (N.D. Tex. 1991), aff’d sub nom . McLaren v. Im perial Cas., 968 F.2d 17 (5th Cir. 1992). See also Brow n v. Miller, 631 F.2d 40 8 , 411 (5th Cir. 198 0 ) (“Action taken ‘under color of’ state law is not lim ited only to that action taken by state officials pursuan t to state law. Rather, it includes: Misuse of power, possessed by virtue of state law and m ade possible only because the wrongdoer is clothed with the authority of state law.” (citations om itted) (internal quotation m arks om itted)); Robertson v. Betz, No. 0 9-10 449, 20 0 9 WL 2144371, at *2 (D. Mass. J uly 16, 20 0 9) (“Whether an officer is acting under color of state law does not depend on whether he or she is in uniform , on or off duty, at a police station, or acting within or outside the scope of his or her em ploym ent.”) (citing M artinez v. Colon, 54 F.3d 980 , 98 6 (1st Cir. 1995)). 174 See, e.g., Russell, 721 So. 2d at 872 (denying vicarious liability claim against the City of New Orleans for an off-duty police officers actions, findin g that “[t]he tortious assault on [the plaintiff] clearly was m otivated by [the off-duty officer’s] purely personal considerations, entirely extraneous to the City’s interests in keepin g the peace” and explainin g that “[e]ven if [the off-duty officer] was acting as a police officer when he attem pted to break up the fight involvin g his brother, he clearly was not acting in that capacity when he 168 27 VI. P UNITIVE DAMAGES Barnes seeks to recover punitive dam ages under both federal and state law from Knight, McClellan, Bowm an, and the City. 175 Defendants Kn ight, McClellan, Bowm an, and the City argue in their m otion to dism iss that Barnes is not entitled to punitive dam ages. 176 Barnes is not entitled to recover punitive dam ages from the City, as m unicipalities are im m une to punitive dam ages under § 198 3. 177 Punitive dam ages m ay be awarded in a § 198 3 action against individuals “when the defendant’s conduct is shown to be m otivated by evil m otive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.”178 The “callous indifference” standard requires ‘recklessness in its subjective form , i.e. a subjective consciousness of a risk of injury or illegality and a crim in al indifferen ce to civil obligations.”179 The second am ended com plaint alleges that Knight, McClellan, and Bowm an arrested Barnes for violating a protective order or injunction. 180 Nevertheless, Barn es alleges the officers did not see a protective order or “verify[] that one existed through the Louisiana Protective Order Registry” and arrested Barnes “without so m uch as a pre cursory [sic] investigation . . . on the word of their co-worker, McQueen.”181 The officers’ alleged failure to confirm that Barnes was in violation of La. R.S. 14:79, and thus their assaulted [the plaintiff]”); Patrick, 88 2 So. 2d at 691 (“The m ere display of a badge and the representation as a police officer, without m ore, are insufficient to establish em ploym ent-rooted conduct.”). 175 R. Doc. 90 at ¶¶ 29, 43. 176 R. Doc. 55-1 at 23– 25. 177 City of N ew port v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (“Because absolute im m unity from such dam ages obtain ed at com m on law and was undisturbed by the 42d Congress, and because that im m un ity is com patible with both the purposes of § 1983 and general principles of public policy, we hold that a m unicipality is im m une from punitive dam ages under 42 U.S.C. § 1983.”). See also Gil Ram irez Grp., L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 40 0 , 412 (5th Cir. 20 15). 178 Sm ith v. W ade, 461 U.S. 30 , 56 (1983). 179 W illiam s v. Kaufm an Cty ., 352 F.3d 994, 10 15 (5th Cir. 20 0 3) (internal quotation m arks om itted). 180 Id. 181 R. Doc. 90 at ¶ 9. 28 alleged failure to ensure they had probable cause to arrest Barnes, constitutes callous indifference to Barnes’ federally protected right against false arrest. Accordingly, taking the allegations of the com plaint in the light m ost favorable to Barnes, the Court finds he has sufficiently stated a claim for punitive dam ages under § 1983. 182 Under Louisiana law, punitive dam ages are not available unless expressly provided for by statute. 183 In both his com plaint and his opposition, Barnes fails to identify any Louisiana statute authorizing an award for punitive dam ages in this case. 184 He is therefore not entitled to recover punitive dam ages for his state-law claim of false arrest. VII. OPPORTUNITY FOR BARNES TO AMEND H IS COMPLAINT In Barnes’ opposition to Defendants’ m otion to dism iss, Barnes requests that, rather than dism iss Barnes’ claim s for excessive force and assault and battery, the Court should instead convert Defendants’ m otion into a m otion for a m ore definite statem ent and allow Barnes to am end his com plaint to re-plead those causes of action. 185 Although Rule 15(a) states that courts should freely give a party leave to am end its pleading “when justice so requires,”186 “leave to am en d under Rule 15 is by no m eans autom atic.”187 “Whether to grant leave to am end a com plaint is entrusted to the sound discretion of the district court.”188 The Court has already provided Barnes with an opportunity to am end his com plaint. After Barnes’ com plaint was initially filed on 182 See, e.g., Thom as v. Frederick, 766 F. Supp. 540 , 562 (W.D. La. 1991) (findin g that the plaintiff was entitled to recover pun itive dam ages from the defendant sheriff because the sheriff “failed to go through even the procedural m otion s of carrying out his [] obligations, m uch less did he have any real objective of findin g the truth . . .”). 183 See Ross v. Conoco, Inc., 828 So. 2d 546, 555 (“In Louisiana, there is a general public policy against punitive dam ages; thus, a fundam ental tenet of our law is that pun itive or other penalty dam ages are not allowable unless expressly authorized by statute.”). 184 See R. Doc. 90 ; R. Doc. 61. 185 See R. Doc. 61 at 11. 186 F ED . R. CIV. P. 15(a)(2). 187 Goldstein v. MCI W orldCom , 340 F.3d 238, 254 (5th Cir. 20 0 3). 188 Sim m ons v. Sabine River Auth. Louisiana, 732 F.3d 469, 478 (5th Cir. 20 13) (citations om itted) (internal quotation m arks om itted). 29 Novem ber 19, 20 14, Knight, McClellan, Bowm an, and the City filed m otions to dism iss in which they raised argum ents sim ilar to those in the m otion to dism iss presently before the Court. 189 On May 21, 20 15, the Court den ied Defendants’ m otions to dism iss without prejudice and ordered Barnes to file an am ended com plaint that “clarif[ies] the claim s and allegations being asserted against each Defendant.”190 The order also provided that Barnes “m ay include any factual allegations substantiating his claim s.”191 Barnes filed an am ended com plaint on J une 16, 20 15. 192 At that tim e, Barnes was aware of the objections Defendants had to his com plaint with respect to his claim s for excessive force and assault and battery but nevertheless failed to sufficiently plead those causes of action in his am ended com plaint. 193 Further, Barnes has not explain ed how he would re-plead his excessive force an d assault and battery claim s if given the opportunity, and he did not provide any additional facts in his opposition that could cure the deficiencies of his am ended com plaint. 194 For exam ple, with respect to Barnes’ excessive force claim , the opposition states only that “the defendants n ow argue Barnes failed to state a cause of action for excessive force because he did not explicitly state that the officers used force and that he consequen tly suffered injuries. These two elem ents can be inferred.”195 189 See R. Docs. 10 , 29. R. Doc. 42. 191 Id. 192 R. Doc. 53. 193 See Goldstein, 340 F.3d at 254 (“Here, as pointed out by the district court, in addition to being poorly drafted and repetitive, the 110 -page com plaint is rich in legal deficiencies. . . . The plaintiffs were certainly aware of the defendants’ objection s to their com plain t as written (because the objection s appeared in the defendants’ principal m otion).”). 194 Id. at 255 (“[T]he plaintiffs did not dem onstrate to the court how they would replead scienter m ore specifically if given the opportunity, did not proffer a proposed second am ended com plaint to the district court, and did not suggest in their responsive pleadin g any additional facts not initially pled that could, if necessary, cure the pleadin g defects raised by the defendants. We cannot, in these circum stances, hold that the district court abused its discretion [in denying leave].”); McKinney v . Irving In dep. Sch. Dist., 30 9 F.3d 30 8, 315 (5th Cir. 20 0 2) (finding the district court did not abuse its discretion in failing to grant leave to am end, as plaintiffs “failed to am end their com plaint as a m atter of right, failed to furnish the district court with a proposed am ended com plaint, and failed to alert both the court and defendants to the substance of their proposed am endm ent”). 195 R. Doc. 61 at 10 – 11. 190 30 Accordingly, the Court denies Barnes’ request for leave to am end his com plaint. CON CLU SION For the foregoing reasons, IT IS ORD ERED that Defendants’ m otion to dism iss is GRAN TED IN PART and D EN IED IN PART. IT IS FU RTH ER ORD ERED that the m otion to dism iss, insofar as it is based on qualified im m unity with respect to Barnes’ false arrest claim s, is D EN IED . The Court finds Knight, McClellan, and Bowm an are not entitled to qualified im m unity on Barnes’ § 198 3 and state-law claim for false arrest at this stage of the proceedings. IT IS FU RTH ER ORD ERED that Barnes’ § 1983 claim s for excessive force against Kn ight, McClellan, and Bowm an are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Barnes’ claim s for conspiracy under federal law against Kn ight, McClellan, and Bowm an are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Barnes’ state-law claim s against Knight, McClellan, and Bowm an for assault and battery, excessive force, in tentional infliction of em otional distress, m alicious prosecution, invasion of privacy, intentional m isrepresentation, an d defam ation are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that the m otion to dism iss, insofar as it seeks dism issal of Barnes’ § 1983 claim against the City for m unicipal liability, is D EN IED . IT IS FU RTH ER ORD ERED that Barnes’ claim against the City for vicarious liability under state law for McQueen’s actions is D ISMISSED W ITH PREJU D ICE. The City m ay be held vicariously liable under state law for the actions of Knight, McClellan, and Bowm an, but Barnes fails to state a claim for vicarious liability under state law against the City for McQueen’s actions. 31 IT IS FU RTH ER ORD ERED that Barnes m ay not recover punitive dam ages from the City under federal law or state law. IT IS FU RTH ER ORD ERED that Barnes m ay not recover punitive dam ages from Knight, McClellan, and Bowm an under state law. IT IS FU RTH ER ORD ERED that Barnes’ request for leave to am end his com plaint is D EN IED . N e w Orle a n s , Lo u is ian a, th is 7th d ay o f March , 2 0 16 . ____________ _______ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 32

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