Barnes v. McQueen et al, No. 2:2014cv02636 - Document 111 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting in part and denying in part 56 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 97 Motion to Dismiss; denying 103 Motion to Strike. Signed by Judge Susie Morgan. (bwn)
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Barnes v. McQueen et al Doc. 111 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 Defendant Keith McQueen. 1 For the reasons below, the m otions 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. 56, 97. 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, and that Knight, Bowm an, and McClellan “based their decision to arrest and charge Mr. Barnes on the word of their co-worker, McQueen.”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 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 an d alleges the City is liable under § 1983 for the negligent hiring and retention of its 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, an d for allowing the conspiracy and cover-up of the unlawful arrest and prosecution of Barnes. 22 On February 2, 20 15, McQueen filed a m otion to dism iss for failure to state a claim and for lack of subject-m atter jurisdiction. 23 On May 21, 20 15, the Court denied 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. 17 R. Doc. 90 at ¶¶ 19– 22, 35. 18 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. 13. 3 McQueen’s m otion without prejudice, ordering Barnes to file an am ended com plaint by J une 19, 20 15. 24 Barnes filed a Supplem ental and Am ended Com plaint on J une 16, 20 15. 25 On J une 26, 20 15, McQueen filed the m otion to dism iss for failure to state a claim currently before the Court. 26 Barnes filed a response in opposition on J uly 7, 20 15. 27 McQueen filed a reply in support of his m otion on J uly 24, 20 15. 28 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. 29 McQueen filed a m otion to dism iss the second am ended com plaint on February 8 , 20 16, raising the sam e argum ents m ade in the J une 26, 20 15, m otion to dism iss. 30 Barnes filed an opposition on March 1, 20 16, adopting his J uly 7, 20 15, opposition and reiterating various allegations from his com plaint. 31 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. 32 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, 33 and docum ents attached to a m otion to dism iss “when the docum ents are 24 R. Doc. 42. Barnes argues in his opposition that the McQueen is barred from filing “further pre-answer m otions under Rule 12” because his initial 12(b) m otions “have been correctly denied by this Honorable Court.” R. Doc. 60 at 5– 6. The Court den ied those m otions without prejudice, however, allowin g McQueen to refile Rule 12(b) m otions should grounds arise. Therefore, Barnes’ argum ent that McQueen is precluded from filing the Rule 12 m otions currently before the Court is without m erit. 25 R. Doc. 53. 26 R. Doc. 56. 27 R. Doc. 60 . 28 R. Doc. 66. 29 R. Doc. 90 at 3. 30 R. Doc. 97. 31 R. Doc. 10 5. 32 W hitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 20 13), cert. denied, 134 S. Ct. 1935, 188 (20 14). 33 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). 4 referred to in the pleadings and are central to a plaintiff’s claim s.”34 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. 35 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. 36 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.”37 “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.”38 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.”39 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.”40 D ISCU SSION I. QUALIFIED I MMUNITY—I NDIVIDUAL CAPACITY Barnes asserts § 1983 claim s of excessive force and false arrest against McQueen. 41 McQueen argues he is entitled to qualified im m unity with respect to these claim s. 42 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.”43 The qualified im m unity defense serves to 34 Brand Coupon N etw ork, L.L.C. v . Catalina Marketing Corp., 748 F.3d 631, 635 (5th Cir. 20 14). F ED. R. CIV. P. 12(d). 36 Brand, 748 F.3d at 637– 38 . 37 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). 38 Culbertson v. Ly kos, 790 F.3d 60 8, 616 (5th Cir. 20 15) (citation om itted) (internal quotation m arks om itted). 39 W hitley , 726 F.3d at 638 (citation om itted) (internal quotation m arks om itted). 40 Johnson v. Johnson, 385 F.3d 50 3, 529 (5th Cir. 20 0 4). 41 R. Doc. 90 at ¶¶ 14– 20 . 42 R. Doc. 56-1 at 7– 12; R. Doc. 97-1 at 7– 12. 43 Atteberry v . N ocona Gen. Hosp., 430 F.3d 245, 252– 53 (5th Cir. 20 0 5). 35 5 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.”44 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.”45 “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 and that defeat a qualified im m unity defense with equal specificity.”46 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 officer was acting under color of state law at the tim e of the alleged incident. 47 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. 48 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.”49 Whether the right was clearly established at the tim e the defendant acted “requires an assessm ent 44 Kinney v. W eaver, 367 F.3d 337, 349 (5th Cir. 20 0 4). 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). 46 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). 47 Brow n v. Miller, 519 F.3d 231, 236 (5th Cir. 20 0 8). 48 Id. 49 Anderson v. Creighton, 48 3 U.S. 635, 640 (1987). 45 6 of whether the official’s conduct would have been objectively reasonable at the tim e of the incident.”50 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. 51 As a threshold m atter, the Court addresses whether McQueen, who was off duty at the tim e of the incident, 52 was acting under color of state law during the incident. 53 “Whether an officer is acting under color of state law does not depend on his onor off-duty status at the tim e of the alleged violation.”54 Instead, the Court must consider (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 action. It is irrelevant that he m ight have taken the sam e action had he acted in a purely private capacity.”57 Action taken under color of state law is “not lim ited only to that action taken by state officials pursuant to state law. Rather, it includes[] 50 Kinney , 367 F.3d at 350 (quoting Conroe Creosoting Co. v. Montgom ery County , 249 F.3d 337, 340 (5th Cir. 20 0 1)). 51 Atteberry , 430 F.3d at 252– 53. 52 R. Doc. 90 at ¶ 14 (“McQueen is a Slidell Police Officer who was not workin g at the tim e of the attack. As a police officer, McQueen has the power to arrest even if he is off duty.”). 53 McQueen does not dispute that he was actin g under color of state law at the tim e of the incident. See R. Doc. 97. 54 Bustos v. Martini Club Inc., 599 F.3d 458 , 464 (5th Cir. 20 10 ). 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. 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)). 7 [m ]isuse of power, possessed by virtue of state law and m ade possible only because the wrongdoer is clothed with the authority of state law.”58 Barnes alleges McQueen called the Slidell Police Departm ent on a non-em ergency line to request assistan ce. 59 McQueen seized Barnes by handcuffing him and directed his neighbor to help him arrest Barnes, according to the am ended com plaint. 60 Barnes rem ain ed handcuffed until the on-duty officers arrived and he was taken into custody. 61 Thus, taking the well-pleaded facts of the com plaint as true, McQueen was acting under color of state law. 62 B. Violations of Constitution 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. 63 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 58 Brow n v. Miller, 631 F.2d 40 8, 411 (5th Cir. 1980 ) (citations om itted) (internal quotation m arks om itted). R. Doc. 90 at ¶ 5. 60 Id. at ¶ 3. 61 Id. at ¶¶ 8 – 9. 62 Cobb v. Jones, No. 14-0 745, 20 15 WL 57940 27, at *2 (W.D. La. Oct. 2, 20 15) (“In the instant case, it is undisputed that Deputy Sers [an off-duty Natchitoches Parish Sheriff’s Deputy] seized Plaintiff by tackling him , handcuffing him and preventin g him from m oving freely until officers from the Natchitoches Police Departm ent arrived at the scene. Based on the foregoin g, we find that Deputy Sers was clearly acting under color of state law when he arrested or seized [Plaintiff].”). Cf. Delcam bre v. Delcam bre, 635 F.2d 40 7, 40 8 (5th Cir. 1981) (“Although the District Court found that at the tim e of the incident Chief Delcam bre was on duty, the court further found, we believe correctly, that the altercation arose out of an argum ent over fam ily and political m atters and that Am y Delcam bre was neither arrested nor threatened with arrest.”). 63 Thom as v. Kipperm an, 8 46 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) (citing 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 actin g ‘under color of law.’”); Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 20 4 (5th Cir. 20 0 9) (referrin g to false arrest as a “constitutional claim ”). 59 8 arrests.”64 “The Suprem e Court has defined 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.’”65 The facts m ust be particularized to the arrestee. 66 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.”67 The arresting officer him self, however, need not have personal knowledge of all the facts constituting probable cause for an arrest. 68 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. 69 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.’”70 The Court m ust exam ine the allegations of the am en ded com plain t 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 knocked Barnes to the ground, 64 Club Retro, 568 F.3d at 20 7. Piazza v. May ne, 217 F.3d 239, 245– 46 (5th Cir. 20 0 0 ) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). 66 Club Retro, 568 F.3d at 20 4. 67 Id. 68 United States v. W ebster, 750 F.2d 30 7, 323 (5th Cir. 1984). 69 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.”). 70 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)). 65 9 handcuffed him , requested assistance from the Slidell Police Departm ent on a nonem ergen cy line, an d told the dispatcher, “[M]y wife’s ex-husband, he has a restrain ing order, I have a copy of the restraining order, he n eeds to go to jail for that.”71 Barnes alleges there was no protective order again st him and McQueen knew there was n o protective order against Barnes. 72 Barnes alleges he rem ain ed in handcuffs until Knight, Bowm an, an d McClellan arrived. 73 Neither party disputes that, based on the allegations of the com plaint, McQueen’s conduct am ounted to an arrest. 74 In addition to the am ended com plaint, the Court m ay consider m atters of public record 75 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.”76 Attached to McQueen’s 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. 77 McQueen also attached the police report from the incident. 78 The consent judgm ent m ay be considered 71 R. Doc. 90 at ¶¶ 2, 3, 5. Id. at ¶¶ 5, 10 , 15. 73 Id. at ¶ 8 . 74 Louisiana law defines an arrest as “‘the taking of one person into custody by another [through] actual restraint [that] m ay be im posed by force or m ay result from subm ission of the person arrested to the custody of one arrestin g him .’” State v. Colem an, 20 14-0 40 2 (La. 2/ 26/ 16) (quotin g State v. Fisher, 97– 1133 (La.9/ 9/ 98 ), 720 So.2d 1179, 1183; LA. CODE CRIM. P. art. 20 1). “The determ ination of whether an arrest occurred depends on the totality of the circum stances, but several factors distinguish an arrest from lesser infringem ents on personal liberty. A prim e characteristic of any Fourth Am endm ent seizure of a person is whether, under the totality of the circum stances, a reasonable person would not consider him self or herself free to leave. Ultim ately, whether a person has been arrested depends on circum stan ces indicating an intent to im pose an extended restraint on the person’s liberty.” Id. See also Cobb, 20 15 WL 57940 27, at *5 (“Neither party disputes that Deputy Sers arrested Plaintiff by taking him to the ground and forcing him to lie on his stom ach, thereafter handcuffin g Plaintiff behind his back. . . . Thus, the viability of Plaintiff’s false arrest claim depends upon whether Deputy Sers had probable cause to believe Plaintiff com m itted an offense at the tim e of the arrest.”). 75 See Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994) (“In deciding 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.”). 76 Brand, 748 F.3d at 635. 77 R. Doc. 97-2. 78 R. Doc. 97-3. 72 10 by the Court both as a m atter of public record 79 and as a docum ent that is attached to the m otion to dism iss, referred to in the pleadings, and central to Barnes’ claim s. 80 The police report m ay be considered by the Court, as it is attached to McQueen’s m otion, referred to in the pleadings, and central to Barnes’ claim s. 81 Under these circum stances, the Court’s consideration of the consent judgm ent and the police report does not convert the m otion to dism iss into a m otion for sum m ary judgm ent. 82 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, 83 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. 84 This consent judgm ent was not. 85 The police report reflects that the officers who arrived on the scene were “provided . . . a copy of 22nd J udicial Court paperwork.”86 The report also states that Knight “reviewed the copy of the original docum ent concerning the perm anent Order of Injunction issued by the Twenty Second J udicial Court.”87 The report reflects that the 79 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.”). 80 See R. Doc. 90 at ¶ 10 , in which Barnes quotes the consent judgm ent. Barn es claim s he was falsely arrested for violating 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 bein g on his exwife’s property but that nevertheless he was not violating La. R.S. 14:79 by virtue of his bein g on his exwife’s property. Therefore, the consent judgm ent is cen tral to his claim s. 81 See R. Doc. 90 at ¶ 38 (alleging the officers “issued a police report falsely accusing the plaintiff of violatin g state laws”). 82 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 reason s stated herein, the m otion to strike is D EN IED . 83 R. Doc. 56-3; R. Doc. 97-2. 84 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. 85 See R. Doc. 97-2; LA. R EV. STAT. § 14:79A(1)(a). 86 R. Doc. 97-3 at 4. 87 Id. 11 officers “inform ed [Barnes] that he was being charged with LA R. S. 14:79 Violation of a Protective Order / Order of Perm anent Injunction.”88 Based on review of the well-pleaded allegations in the second am ended com plaint, the consent judgm ent, and the police report attached to McQueen’s m otion, the Court finds no probable cause for Barnes’ arrest based on a violation of La. R.S. 14:79. 89 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.].”90 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, because McQueen is alleged to have been in possession of and to have seen the consent judgm ent, there was no basis for McQueen to believe that Barnes was in violation. McQueen argues, in any event, that he nevertheless had probable cause to arrest Barnes for sim ple assault in violation of La. R.S. 14:38 91 because Barnes “engaged in a physical altercation with a police officer while on the property,” thus com m itting sim ple assault. 92 La. R.S. 14:38 defines sim ple assault as “an assault com m itted without a dangerous weapon.”93 Assault under Louisiana law is “an attem pt to com m it a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”94 88 Id. at 6. Barnes was charged with violating La. R.S. 14:79. R. Doc. 97-3 at 6; R. Doc. 90 at ¶ 9. 90 R. Doc. 56-3 at 2; R. Doc. 97-2 at 2. 91 See R. Doc. 97-3; LA. R EV. STAT. § 14:38. 92 R. Doc. 97-1 at 10 . 93 LA. R EV. STAT. § 14:38A. 94 LA. R EV. STAT. § 14:36. 89 12 Battery is “the intentional use of force or violence upon the person of another[,] or the intentional adm in istration of a poison or other noxious liquid or substance to another.”95 The Court m ust take the allegations in Barnes’ second am ended com plaint as true. 96 In the second am ended com plaint, Barnes alleges that “[a]t no tim e did [he] strike, attem pt to strike, or intend to strike anyone involved in the attack against him .”97 Based on Barn es’ allegations, he did not attem pt to com m it a battery or intend to place another in reasonable apprehension of receiving a battery. Thus, no probable cause existed for arrest for sim ple assault. Accordingly, considering the well-pleaded allegations of the com plaint, the consent judgm ent, and the police report, the Court finds McQueen did not have probable cause to arrest Barnes for violation of La. R.S. 14:79 or for sim ple assault. Barnes has sufficiently pleaded a cause of action for false arrest, a constitutional violation. b. Clearly Established The Fourth Am endm ent right to be free from false arrest was clearly established at the tim e of the in cident. 98 But “[e]ven law enforcem ent officials who reasonably but m istakenly conclude that probable cause is present are entitled to im m unity.”99 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. 10 0 McQueen possessed a copy of the perm anent injunction, 10 1 which clearly stated it was not a protective order and “shall not be forwarded to the Louisiana Protective Order 95 LA. R EV. STAT. § 14:33. Spann v. Rainey , 987 F.2d 1110 , 1115 (5th Cir. 1993). 97 R. Doc. 90 at ¶ 11. 98 See Club Retro, 568 F.3d at 20 6. 99 Id. (quoting M endenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 20 0 0 )) (internal quotation m arks om itted). 10 0 Mendenhall, 213 F.3d at 230 . 10 1 Barnes allegedly told the dispatcher, “I have a copy of the restrain ing order.” R. Doc. 90 at ¶ 5. See also supra nn. 77– 87 and accom panying text; R. Doc. 97-3. 96 13 Registry.”10 2 As explained above, a violation of the injunction did not constitute a crim e for which Barnes could be arrested under La. R.S. 14:79. 10 3 Therefore, the Court finds that, based on the term s of the consent judgm ent and the allegations of the com plaint, a reasonable officer would have realized that the arrest under La. R.S. 14:79 of a person who violated an injunction not covered by a provision listed in La. R.S. 14:79 was a violation of that person’s right to be free from false arrest. Thus, a reasonable officer in McQueen’s circum stances would “understand that what he [was] doing violate[d]” Barnes’ constitutional right to be free from false arrest. 10 4 With respect to the sim ple assault charge, Barnes alleges that “[a]t no tim e did [he] strike, attem pt to strike, or intend to strike anyone involved in the attack against him .”10 5 He also alleges that he did not harass anyone, threaten anyone, or resist a lawful arrest. 10 6 The Court finds that, assum ing the allegations of Barnes’ second am ended com plaint to be true, a reasonable officer would have realized that arresting a person who did not strike, attem pt to strike, or intend to strike anyone for sim ple assault under Louisian a law would be a violation of that person’s right to be free from false arrest. 10 7 Accordingly, taking the well-pleaded allegations of the com plaint as true and considering the consen t judgm ent and the police report, the Court finds McQueen is not entitled to qualified im m unity on Barnes’ false arrest claim under § 1983 at this stage of the proceedings. 10 2 R. Doc. 97-2 at 2. See supra n . 83– 90 and accom panying text. 10 4 See Anderson , 483 U.S. at 640 . 10 5 R. Doc. 90 at ¶ 11. 10 6 Id. 10 7 The Court reiterates that at this stage it m ust take the well-pleaded allegations of the com plaint as true. See Backe, 691 F.3d at 648; Jordan, 20 16 WL 633666, at *2. 10 3 14 2. Excessive Force a. Violation of a Constitutional Right To bring a § 1983 claim for excessive force, a plaintiff m ust first show he was seized. 10 8 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.”10 9 The plaintiff m ust then dem onstrate the following: (1) he suffered an injury; (2) such injury resulted directly and only from the use of force that was excessive to the need; an d (3) such force was objectively unreasonable. 110 The use of excessive force is a violation of the Fourth Am endm ent. 111 The am ended com plaint alleges McQueen ran at Barnes and knocked him to the ground. 112 McQueen and his neighbor then handcuffed Barnes, a per se seizure. 113 Knight, McClellan, and Bowm an arrived afterward and “took Mr. Barnes into their custody an d transported him to the Slidell lock up.”114 Barnes has clearly alleged he was seized. The plaintiff m ust allege he suffered “at least som e injury.”115 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.”116 The injury m ust be m ore than de m inim is but need not be significant. 117 “While certain injuries are so slight that they will never satisfy the injury elem ent, . . . psychological injuries m ay sustain a Fourth Am endm ent claim .”118 Barnes alleges that, as a result of McQueen’s use of force, Barnes was laying “face down in the dirt, battered and handcuffed in front of his seven-year-old 10 8 Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 20 0 4). Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968). 110 Id. 111 See Bush v. Strain , 513 F.3d 492, 50 0 – 0 1 (5th Cir. 20 0 8); Flores, 381 F.3d at 396. 112 R. Doc. 90 at ¶ 2. 113 Id. at ¶ 3. 114 Id. at ¶ 9. 115 Jackson v. Culbertson , 98 4 F.2d 699, 70 0 (5th Cir. 1993). 116 Bush, 513 F.3d at 50 1. 117 Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 20 0 5). 118 Flores, 381 F.3d at 397– 98 (citing Dunn v . Denk, 79 F.3d 40 1, 40 2 (5th Cir. 1996) (en banc)). 10 9 15 daughter an d thirteen-year-old son.”119 He contends he “suffered greatly and was in constant physical and em otional pain during the ordeal.”120 At one poin t, Barnes allegedly scream ed for help, and as a result McQueen’s neighbor cam e outside. 121 Taking the allegations in the light m ost favorable to Barnes, 122 the Court finds that the am ended com plaint sufficiently alleges that Barnes suffered injury. When considering whether the force used was excessive to the need and objectively unreasonable, the Court considers the severity of the crim e com m itted, whether the plaintiff posed an im m ediate threat to officers, and whether the plaintiff was actively resisting arrest or attem pting to evade arrest by flight. 123 The Court looks to the totality of the circum stances, giving “careful attention to the facts and circum stances of each particular case.”124 The com plaint alleges that McQueen “ran at [Barnes] knocking him to the ground,” struck Barnes, and “repeatedly hit [Barnes] with his knees all over his body.”125 Barnes alleges he was “waiting for one of his children”126 and that he did not violate Louisiana law or strike, attem pt to strike, or intend to strike anyone. 127 According to the well-pleaded allegations of the second am ended com plaint, Barnes was not com m itting a crim e, did not pose a threat to anyone, and was not resisting or evading arrest by flight. Barnes sufficiently alleges the use of force was excessive to the need an d objectively unreasonable. 128 119 R. Doc. 90 at ¶ 8. Id. 121 Id. at ¶ 3. 122 Spann, 987 F.2d at 1115. 123 See Graham v. Connor, 490 U.S. 386, 396 (1989); Ram irez v. Martinez, 716 F.3d 369, 377– 78 (5th Cir. 20 13). 124 Ram irez, 716 F.3d at 377. 125 R. Doc. 90 at ¶ 2. 126 Id. at ¶ 1. 127 Id. at ¶ 11. 128 See Spann, 987 F.2d at 1115 (findin g Plaintiff stated a claim for excessive force, as he alleged that the officers, “without any cause or justification, and in an ‘unreasonable an excessive use of force,’ ‘did assault and beat [the plaintiff] with their hands and n ight sticks as well as other instrum en ts yet to be identified’”). 120 16 Taking the allegations of the second am ended com plaint as true, 129 Barnes has stated a claim that his right to be free from excessive force under the Fourth Am endm ent was violated. b. Clearly Established Whether Barnes’ right to be free from the use of excessive force was clearly established “requires an assessm ent of whether the official’s conduct would have been objectively reasonable at the tim e of the incident.”130 “Even though an officer’s use of force m ust be objectively unreasonable to violate constitutional rights, a defendant’s violation of constitutional rights can still be objectively reasonable if the contours of the constitutional right at issue are sufficiently unclear.”131 Therefore, the Court m ust consider whether McQueen had reasonable warning that his conduct violated Barn es’ constitutional rights. 132 “[W]hile the right to be free from excessive force is clearly established in a gen eral sense, the right to be free from the degree of force em ployed in a particular situation m ay not have been clear to a reason able officer at the scene.”133 The law at the tim e of Barnes’ arrest clearly established that the perm issible degree of force turns on the severity of the crim e at issue, whether Barnes posed a threat to the officer’s safety, and whether he was resisting arrest or attem pting to flee. 134 As discussed above, the allegations of the second am ended com plaint and the consent judgm ent indicate that Barnes did not violate the law, he did not pose a threat to anyone on -scene, Cf. Fuller v. Spragins, 226 F.3d 642 (5th Cir. 20 0 0 ) (per curiam ) (findin g that the plaintiff’s excessive force claim fails “because the unrebutted sum m ary judgm ent evidence dem onstrates that only m inim al force was used and that the officers did not hit or kick [the plaintiff]”). 129 Spann, 987 F.2d at 1115. 130 Kinney , 367 F.3d at 350 (quoting Conroe Creosoting Co. v. Montgom ery County , 249 F.3d 337, 340 (5th Cir. 20 0 1)). 131 Bush, 513 F.3d at 50 1. 132 Id. 133 Id. 134 Id. 17 and he was not attem pting to resist arrest or flee. Taking the allegations of the com plaint as true, the Court concludes McQueen’s conduct was not objectively reasonable and he is therefore not entitled to dism issal on Barnes’ § 1983 claim for excessive force based on qualified im m unity. II. QUALIFIED I MMUNITY—OFFICIAL CAPACITY Barnes also sued McQueen in his official capacity as a police officer for the City of Slidell. 135 “[O]fficial-capacity suits gen erally represent only another way of pleading an action against an entity of which an officer is an agent.”136 As a result, claim s against officers in their official capacities are treated as claim s against the m unicipality they serve. 137 Barnes’ claim s against the City are addressed in the Court’s Order on Defendants Knight, McClellan, Bowm an, and the City’s m otions to dism iss. 138 III. CONSPIRACY CLAIMS AGAINST M CQUEEN 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. 139 McQueen argues that Barnes fails to state a cause of action for conspiracy because (1) he cannot bring conspiracy claim s under 18 U.S.C. §§ 241 and 242, as they provide no basis for civil recovery; and (2) Barnes fails to allege facts that support the elem ents of a conspiracy claim . 140 135 R. Doc. 90 at ¶¶ II.A, 18. Hafer v. Melo, 50 2 U.S. 21, 25 (1991). 137 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.”). 138 R. Doc. 110 at 23– 27. For Defendants Kn ight, McClellan, Bowm an, and the City’s m otions to dism iss, see R. Doc. 55 and R. Doc. 99. 139 R. Doc. 90 at ¶¶ 30 – 31. See also R. Doc. 90 at ¶¶ 24, 26– 28. 140 R. Doc. 56-1 at 12– 13; R. Doc. 97-1 at 12– 13. 136 18 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. 141 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. 142 These crim inal statutes, however, do not provide a basis for private action under § 1983. 143 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 asserts a claim for conspiracy against McQueen under § 1983. 144 To state a claim for conspiracy under § 1983, 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. 145 The claim ant m ust state specific facts, not m erely conclusory allegations. 146 Nowhere in his com plaint does Barnes allege that McQueen reached an agreem ent or understanding with the other defendants 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 den y Barnes of his rights. With respect to this claim , Barnes’ com plaint states only that “[a]ll of the defendants acted in concert, conspired, and aided and abetted McQueen in his unlawful 141 18 U.S.C. § 241. 18 U.S.C. § 242. 143 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.”). 144 See, e.g., R. Doc. 90 at ¶ 16. 145 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). 146 Hale v. Harney , 786 F.2d 68 8, 690 (5th Cir. 1986) (citations om itted) (internal quotation m arks om itted). 142 19 conduct.”147 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.”148 Accordingly, Barnes’ § 1983 claim s for conspiracy are dismissed with prejudice. IV. STATE -LAW CLAIMS AGAINST M CQUEEN Barnes brings 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. 149 McQueen contends Barnes fails to state a cause of action for under state law. 150 A. False Arrest Barnes asserts a state-law claim against McQueen for false arrest. 151 Under Louisiana law, “[f]alse arrest and im prisonm ent occur when one arrests and restrains another against his will without a warrant or other statutory authority.”152 As under federal law, an officer who does not have a warrant for the arrest m ust have probable cause under Louisiana law. 153 False arrest claim s under Louisiana law are analyzed with the sam e standard used to assess false arrest claim s under § 1983. 154 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, 147 R. Doc. 90 at ¶ 16. Hale, 786 F.2d at 690 (citations om itted) (internal quotation m arks om itted). 149 Id. at ¶¶ 19– 22, 35. 150 R. Doc. 97-1 at 4, 13– 15. 151 R. Doc. 90 at ¶ 32. 152 Deville, 567 F.3d at 172 (quoting Ky le v. City of N ew Orleans, 353 So.2d 969, 971 (La. 1977)). 153 Id. 154 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). 148 20 the state counterpart to the Fourth Am endm ent to the United States Constitution. 155 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.”156 Considering the consent judgm ent and the police report and taking the wellpleaded allegations of the com plaint as true, the Court finds McQueen lacked probable cause to arrest Barnes for violation of La. R.S. 14:79 an d is not entitled to qualified im m unity regarding Barnes’ state-law claim for false arrest at this stage for the reasons stated supra in the § 1983 context. 157 B. Excessive Force Barnes asserts a state-law claim against McQueen for excessive force. 158 Louisian a courts analyze excessive force claim s “under the aegis of the general negligence law of Louisiana.”159 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 155 See Moresi, 567 So. 2d at 10 94 (“[W]e believe that a qualified im m un ity is justified in an action again st 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.”). 156 Id. 157 Barnes also brin gs a claim for false im prison m 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 McQueen is denied. 158 R. Doc. 90 at ¶ 35. 159 Hall v. City of Shrev eport, 45,20 5 (La. App. 2 Cir. 4/ 28/ 10 ), 36 So. 3d 419, 422. 21 breached by the defen dant; and (4) the risk of harm was within the scope of the protection afforded by the duty breached.”160 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.”161 “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 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.”162 The Court has determ ined that, based on the well-pleaded allegations of the com plaint, McQueen lacked probable cause for Barnes’ arrest an d therefore Barnes’ arrest was unlawful. 163 The Court has also concluded that Barnes has stated a claim that McQueen violated his right to be free from excessive force. 164 For the reasons stated supra in the § 1983 context, the Court finds Barnes has sufficiently stated a claim for excessive force under state law. C. Assault and Battery Barnes brings a state-law claim against McQueen for assault and battery. 165 Specifically, the am ended com plaint states the following: The facts set forth above support the claim of assault and battery because McQueen intentionally beat and arrested Mr. Barnes for no reason. As a result, Mr. Barnes asserts intentional threatening action, unperm itted contact and injury because of 160 Id. 161 LA. CODE CRIM. P ROC. art. 220 . 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. 163 See supra Part I.B.1. 164 See supra Part I.B.2. 165 See R. Doc. 53 at ¶ 21. 162 22 McQueen’s m isconduct during the illegal arrest. Thus, McQueen com m itted assault and battery against Mr. Barnes. 166 Assault is “an attem pt to com m it a battery, or the intentional placing of another in reasonable apprehen sion of receiving a battery.”167 Battery is “the intentional use of force or violence upon the person of another.”168 The basis for the state-law tort of assault and battery is Louisiana Civil Code article 2315. Barnes alleges that McQueen yelled at Barnes and that Barnes at one point scream ed for help. 169 Barnes also claim s that McQueen knocked Barnes to the ground, struck Barnes, and repeatedly hit Barnes with his knees. 170 Barnes also alleges that McQueen intentionally engaged in such behavior, asserting that McQueen acted out of m alice when he attacked Barnes and that McQueen was m otivated by his personal hatred toward Barnes. 171 The Court finds that Barnes has sufficiently alleged a cause of action for assault and battery against McQueen. McQueen argues that if the Court finds Barnes failed to state a claim for false arrest and for excessive force, then Barnes’ state-law claim s for assault and battery fail. 172 The Court has determ ined, however, that Barnes has stated a claim for false arrest and excessive force. 173 166 Id. 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)). 168 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. 169 R. Doc. 90 at ¶¶ 3, 4. 170 Id. at ¶ 2. 171 Id. at ¶ 17. 172 R. Doc. 55-1 at 14– 15. 173 See supra “Discussion ,” Part I. 167 23 D. Intentional Infliction of Em otional Distress Barnes also asserts a state-law claim for intentional infliction of em otional distress. 174 The basis for the tort of intentional infliction of em otional distress under Louisiana law is Louisiana Civil Code article 2315. 175 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 defendant 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.’”176 Unless the plaintiff alleges facts to show that McQueen acted in a m anner that was atrocious, outrageous, or utterly intolerable, his claim m ust fail. 177 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.”178 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.”179 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. 180 “The distress suffered m ust be such that no reasonable person could be expected to endure it.”181 As the Fifth Circuit has explained, “Louisiana courts, like courts in other 174 Id. at ¶ 22. 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). 176 Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1137 (5th Cir. 20 14) (quotin g W hite v. Monsanto Co., 585 So. 2d 120 5, 120 9 (La. 1991)). 177 Obee v. X erox Corp., No. 99-470 , 1999 WL 717637, at *2 (E.D. La. Sept. 14, 1999). 178 W hite, 585 So. 2d at 120 9. 179 Id. at 120 9– 10 . 180 Id. at 1210 . 181 Id. 175 24 states, have set a very high threshold on conduct sufficient to sustain an em otion al 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.”182 McQueen argues in his m otion to dism iss that Barnes “has failed to allege any sort of em otional distress whatsoever, m uch less that his em otional distress was severe enough to warrant[] recovery under this theory.”183 Barnes does not address this argum ent in his opposition to McQueen’s m otion. 184 The Fifth Circuit has characterized the threshold for severity of em otional distress suffered to substantiate a claim for intentional infliction of em otional distress as “unendurable.”185 In Sm ith v. Am edisy s Inc., the Fifth Circuit, applying Louisiana law, found that im pact of persistent verbal, physical, and sexual harassm ent on the plaintiff, who testified that she felt angry, belittled, em barrassed, depressed, disgusted, hum iliated, horrified, incom petent, m ad, very offended, and repulsed as a result of the conduct, was insufficient to m eet the high threshold for severity. 186 With respect to em otional distress, Barnes alleges only that he “suffered greatly and was in constant physical and em otional pain during the ordeal”187 and that “he suffered and continues to suffer extrem e em otional distress as a result of the co-workers/ defendants [sic] m isconduct.”188 These allegations are conclusory. The com plaint fails to establish factual allegations that, if true, would 182 Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 756– 57 (5th Cir. 20 0 1). R. Doc. 56-1 at 14; R. Doc. 97-1 at 14– 15. 184 R. Doc. 60 at 10 – 11. 185 Sm ith v. Am edisy s Inc., 298 F.3d 434, 450 (5th Cir. 20 0 2). 186 Id. at 449– 50 (citing W hite, 585 So. 2d at 120 9; R ESTATEMENT (SECOND ) OF TORTS § 46 cm t. j (“Em otional distress . . . includes all highly unpleasant m ental reactions, such as fright, horror, grief, sham e, hum iliation, em barrassm ent, anger, chagrin , disappointm ent, worry, and nausea. It is only where it is extrem e that the liability arises. . . . The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it.”)). 187 R. Doc. 90 at ¶ 8. 188 Id. at ¶ 28. 183 25 m eet the high threshold for severe em otional distress as required under Louisiana law to sustain a claim for intentional infliction of em otional distress. McQueen also argues that Barnes fails to allege facts that establish extrem e and outrageous conduct on part of McQueen. In Barnes’ am ended com plaint, he alleges that McQueen ran at Barnes, knocked Barnes down, and struck Barnes repeatedly. 189 In addition, McQueen allegedly berated, yelled at, and cursed at Barnes in front of his 7year-old daughter, his 13-year-old son, and McQueen’s neighbors. 190 The com plaint avers that, am ong other com m ents, McQueen called Barnes a loser, told him he needed to get a job, and said he needs to pay m ore in child support. 191 While this conduct m ay be insulting, offensive, and hum iliating, especially given that it took place in front of Barnes’ children, the com plaint does not establish that McQueen’s conduct was “so outrageous” and “so extrem e in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable.”192 Although the Restatem ent (Second) of Torts states, “In particular police officers . . . have been held liable for extrem e abuse of their position,” the Restatem ent further explains, “Even in such cases, . . . the actor has not been held liable for m ere insults, indignities, or annoyan ces that are not extrem e or outrageous.”193 Barnes fails to allege facts that, if true, establish McQueen’s conduct was sufficiently outrageous and extrem e to support a cause 189 Id. at ¶¶ 2– 3. Id. at ¶¶ 6– 7. 191 Id. 192 W hite, 585 So. 2d at 120 9. 193 R ESTATEMENT (SECOND ) OF TORTS § 46 (1965). The Louisiana Suprem e Court has found that the statelaw cause of action for intentional infliction of em otional distress is “generally in accord with the legal precepts set forth in the Restatem ent text and com m ents.” See W hite, 585 So. 2d at 120 9. 190 26 of action for intentional infliction of em otional distress. 194 Accordingly, this claim is dism issed with prejudice. E. Barnes’ Rem aining State-Law Claim s Barnes enum erates several additional state-law causes of action: “The acts an d conduct of the defendants constitute . . . m alicious prosecution, invasion of privacy, intentional m isrepresentation, . . . and defam ation.”195 Barnes has failed to allege wellpleaded facts that state a claim for these causes of action; this sentence is m erely conclusory. Accordingly, Barnes’ state-law claim s against McQueen for m alicious prosecution, invasion of privacy, intentional m isrepresentation, and defam ation are dism issed with prejudice. 196 V. P UNITIVE DAMAGES Barnes seeks an award of punitive dam ages against McQueen under federal law. 197 McQueen argues in his m otion to dism iss that Barnes is not entitled to punitive dam ages with regard to his state-law claim s. 198 Indeed, under Louisiana law, punitive dam ages are not available unless expressly provided for by statute. 199 Barnes fails to identify any Louisiana statute authorizing an award for punitive dam ages in this case. Therefore, Barnes can not recover punitive dam ages with respect to his state-law claim s. 194 See, e.g., 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 an d noting that the plaintiff’s com plaint “fails to allege conduct beyond all possible bounds of decency; conduct utterly intolerable in a civilized com m un ity”). 195 R. Doc. 90 at ¶ 35. See also R. Doc. 90 at ¶ 13. 196 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). 197 R. Doc. 90 at ¶ 23; R. Doc. 60 at 11. 198 R. Doc. 56-1 at 15; R. Doc. 97-1 at 15. In Barnes’ opposition, he does not dispute this. Barn es m aintains only that punitive dam ages m ay be awarded against McQueen in his individual capacity under § 1983. R. Doc. 60 at 11. 199 See Ross v. Conoco, Inc., 8 28 So. 2d 546, 555 (La. 20 0 2) (“In Louisiana, there is a general public policy against punitive dam ages; thus, a fundam ental tenet of our law is that punitive or other penalty dam ages are not allowable unless expressly authorized by statute.”). 27 VI. J URISDICTION OVER BARNES’ STATE -LAW CLAIMS McQueen conten ds that if the Court dism isses Barnes’ federal claim s, the Court should also dism iss his state-law claim s for lack of subject-m atter jurisdiction. 20 0 The Court, however, has determ ined that Barnes states a claim for false arrest and for excessive force under § 1983 for which McQueen is not entitled to qualified im m unity at this stage of the proceedings. 20 1 In any civil action over which the Court has original jurisdiction, the Court has supplem ental jurisdiction over all other state-law claim s “that are so related to claim s in the action within such origin al jurisdiction that they form part of the sam e case or controversy.”20 2 The Court has determ ined that Barnes has stated a cause of action under federal law. Barnes’ state-law claim s are based on the sam e set of facts as his § 1983 claim for false arrest and excessive force and are “so related” to that claim “that they form part of the sam e case or controversy under Article III of the United States Constitution.”20 3 Therefore, this Court has supplem ental jurisdiction over Barnes’ state-law claim s. 20 4 CON CLU SION For the foregoing reasons, IT IS ORD ERED that McQueen’s m otion to dism iss 20 5 is GRAN TED IN PART and D EN IED IN PART. 20 0 R. Doc. 56-1 at 15– 16; R. Doc. 97-1 at 15– 17. supra “Discussion ,” Part I. 20 2 28 U.S.C. § 1367(a). 20 3 Id. See also R. Doc. 90 . 20 4 McQueen does not argue that the Court lacks supplem ental jurisdiction over the state-law claim s if federal claim s rem ain. 20 5 R. Doc. 56. 20 1 See 28 IT IS FU RTH ER ORD ERED that the m otion to dism iss, insofar as it is based on qualified im m unity, is D EN IED . The Court finds McQueen is not entitled to qualified im m unity on Barnes’ false arrest claim or on Barnes’ excessive force claim at this stage of the proceedings. IT IS FU RTH ER ORD ERED that, pursuant to 28 U.S.C. § 1367, the Court will continue to exercise supplem ental jurisdiction over Barnes’ rem aining state-law claim s. IT IS FU RTH ER ORD ERED that Barnes’ claim s for conspiracy under federal law against McQueen are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Barnes’ state-law claim s against McQueen for intentional infliction of em otional distress, m alicious prosecution, invasion of privacy, intentional m isrepresentation, and defam ation are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Barnes m ay not recover punitive dam ages from McQueen under state law. IT IS FU RTH ER ORD ERED that Barnes’ m otion to strike 20 6 is D EN IED . 20 7 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 20 6 20 7 R. Doc. 10 3. See supra n . 8 2 and accom panying text. 29
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