Cain et al v. New Orleans City et al, No. 2:2015cv04479 - Document 126 (E.D. La. 2016)
Court Description: ORDER granting 58 Motion to Dismiss for Failure to State a Claim. Party New Orleans City dismissed. Signed by Judge Sarah S. Vance on 5/13/2016. (mmm)
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Cain et al v. New Orleans City et al Doc. 126 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ALANA CAIN, ET AL. CIVIL ACTION VERSUS NO. 15-4479 CITY OF NEW ORLEANS, ET AL. SECTION: R(2) ORD ER AN D REASON S Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights action under 42 U.S.C. § 1983 seeking to declare the m anner in which the Orleans Parish Crim inal District Court collects post-judgm ent court costs from indigent debtors unconstitutional. According to plaintiffs, the Crim inal District Court and other, related actors m aintain a policy of jailing crim inal defendants who fail to pay their court costs solely because of their indigence. 1 The City of New Orleans now asks the Court to dism iss plaintiffs’ claim s against it under Federal Rule of Civil Procedure 12(b)(6). 2 The City argues that plaintiffs lodge general allegations against all “defendants” and state only legal conclusions. Because plaintiffs have not plausibly stated a 1 See generally R. Doc. 7 (Plaintiffs’ First Am ended Class Action Com plaint). 2 R. Doc. 58. Dockets.Justia.com Monell claim against the City or a false arrest claim under Louisiana law, the Court grants the motion. I. BACKGROU N D A. Factu al Alle gatio n s In this section 1983 civil rights lawsuit, plaintiffs allege, on behalf of them selves and those sim ilarly situated, that the City of New Orleans, the Orleans Parish Crim inal District Court, its judges and judicial adm inistrator, and Orleans Parish Sheriff Marlin Gusm an m aintain an unconstitutional schem e of jailing indigent crim inal defendants and im posing excessive bail am ounts for nonpayment “offenses” in an effort to collect unpaid court courts. According to plaintiffs, the Crim inal District Court m aintains an internal “Collections Departm ent,” inform ally called the “fines and fees” department, that oversees the collection of court debts from form er crim inal defendants. The “typical” case allegedly proceeds as follows. When a person is charged with a crim e, the Crim inal District Court judges first determ ine whether the crim inal defendant is legally “indigent,” which m eans they qualify for appointm ent of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175. According to plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are legally indigent. 3 With assistance of counsel, the defendants either plead guilty to their crim inal charges or proceed to trial. If convicted, the crim inal defendants m ust appear before a judge at the Crim inal District Court for sentencing. At sentencing, in addition to im posing a term of im prisonm ent or probation, the court m ay assess against the crim inal defendants various “court costs.” These costs m ay include restitution to any victim , a statutory fine, fees, or other costs im posed at the judge’s discretion. According to plaintiffs, the discretionary assessments “fund the District Attorney’s office, the Public Defender, and the Court[,]” which rely on these collections “to fund their operations and to pay employee salaries and extra benefits.”4 Plaintiffs allege that the Crim inal District Court judges im pose court costs without inquiring into the crim inal defendants’ ability to pay. 5 If the crim inal defendants cannot im mediately pay in full, the Crim inal District Court judges allegedly direct them to the Collections Departm ent, or “fines and fees.” There, a Collections Departm ent em ployee allegedly im poses, at his discretion and without inquiring into a defendant’s ability to 3 R. Doc. 7 at 5. 4 Id. at 22-23 ¶ 88. 5 Id. at 23 ¶ 91. pay, a payment schedule—usually requiring a certain am ount per m onth. 6 Collections Departm ent em ployees also allegedly warn the defendants that failure to pay the m onthly am ount, in full, will result in their arrests. Plaintiffs contend that Collections Departm ent employees allegedly refuse to accept anything less than full paym ent. 7 When crim inal defendants fail to pay, a Collections Department em ployee allegedly issues a pre-printed warrant for the defendant’s arrest by forging a judge’s nam e. 8 According to plaintiffs’ allegations, the Collections Department often issues these warrants “years after a purported nonpaym ent,” and the warrants are “routinely issued in error” or without regard to a debtor’s indigence. 9 Plaintiffs also allege that each Collections Departm ent arrest warrant is “accom panied by a preset $ 20 ,0 0 0 secured money bond required for release.”10 According to plaintiffs, defendants’ adherence to this “autom atic $ 20 ,0 0 0 secured m oney bond” requirem ent results from defendants’ 6 Id. at 27-28 ¶10 3. 7 Id. at 28 ¶ 10 6. 8 Id. at 29 ¶ 10 9. 9 Id. at ¶ 110 . 10 Id. at ¶ 113. financial interest in state-court arrestees’ paying for their release. 11 Plaintiffs contend that the Crim inal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney’s office, the Orleans Public Defenders’ office, and the Orleans Parish Sheriff each collect 0 .4% of each bond. 12 Plaintiffs allege that when crim inal defendants are arrested for nonpaym ent, they are “routinely told” that to be released from prison, they m ust pay for the $ 20 ,0 0 0 secured m oney bond, the entirety of their outstanding court debts, or som e other am ount “unilaterally determ ine[d]” by the Collections Department. 13 As a result, these indigent debtors allegedly “languish” in prison “indefinite[ly]” because they cannot afford to pay any of the foregoing am ounts. 14 Although “arrestees are eventually brought to court,” plaintiffs allege that defendants “have no set policy or practice” regarding how long arrestees m ust await a hearing. According to plaintiffs, indigent debtors “routinely” spend a week or m ore in prison. 15 Plaintiffs 11 Id. at 21-22 ¶88. 12 Id. at 22 ¶88. 13 Id. at 30 ¶114. 14 Id. at ¶115. 15 Id. allege that some arrestees, with help from fam ily and friends, pay for their release without ever having a hearing and thus have “no opportunity to contest the debt or the jailing.”16 When crim inal defendants are brought to court, the Crim inal District Court judges allegedly send them back to prison if they are unable to pay their debts or release them “on threat of future arrest and incarceration” if they do not promptly pay the Collections Department. 17 At these brief “failure-to-pay hearings,” the judges allegedly do not consider the debtors’ abilities to pay. 18 Plaintiffs contend that these practices are unconstitutional under the Fourth and Fourteenth Am endm ents. B. Partie s The nam ed plaintiffs in the First Am ended Complaint are six individuals who were defendants in the Orleans Parish Crim inal District Court—Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell. 19 16 Id. at ¶114. 17 Id. at ¶116. 18 Id. 19 Id. at 7 ¶7. The Crim inal District Court appointed counsel from the Orleans Public Defenders to represent each of the named plaintiffs, except Reynaud Variste, during their crim inal proceedings. 20 Thus, the court m ust have determ ined that Cain, Brown, Reynajia Variste, Long, and Maxwell were legally indigent under Louisiana Revised Statutes §15:175. 21 Reynaud Variste appears to have retained private counsel. 22 With the assistance of counsel, all of the nam ed plaintiffs pleaded guilty to their respective crim inal charges, which include theft, 23 battery, 24 20 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/ 0 4/ 20 12) (“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for 10 / 0 2/ 20 13) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste Docket Sheet, entry for 10 / 0 2/ 20 14) (“Court appointed Lindsey Sam uel, OPD.”) 23 (Vanessa Maxwell Docket Sheet, entry for 12/ 14/ 20 11) (“Court appointed J errod Thom pson-Hicks, OIPD.”); R. Doc.95-7 at 1 (Thaddeus Long Docket Sheet, entry for 0 6/ 0 2/ 20 11) (“Court appointed Anna Fecker, OIDP). 21 See R. Doc. 7 at 5. 22 R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/ 25/ 20 12) (“Defendant m ust retain private counsel.”). 23 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 24 Id. at 12 (Reynajia Variste Guilty Plea). drug possession, 25 “sim ple crim inal dam age,”26 and disturbing the peace. 27 At plaintiffs’ sentencings, the presiding judges imposed term s of im prisonment, which were often suspended, as well as terms of active or inactive probation. In addition, the judges assessed against plaintiffs various court costs—whether restitution, fines, and/ or discretionary fees and costs. 28 At som e point, all of the nam ed plaintiffs were arrested for failing to pay outstanding court costs on a warrant issued by the court’s Collections Department. Plaintiffs sue the City of New Orleans for hiring the Crim inal District Court’s Collection Department workers and the police officers who execute the allegedly invalid arrest warrants. 29 Plaintiffs also sue Sheriff Marlin Gusm an, in his official capacity, for “unconstitutionally detain[ing] 25 Id. at 22 (Reynaud Variste Guilty Plea). 26 Id. at 28 (Vanessa Maxwell Guilty Plea). 27 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 28 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/ 30 / 20 13), 6 (Ashton Brown Docket Sheet, entry for 12/ 16/ 20 13), 9 (Reynajia Variste Docket Sheet, entry for 10 / 21/ 20 14), 18 (Reynaud Variste Docket Sheet, entry for 10 / 31/ 20 13), 23 (Vanessa Maxwell Docket Sheet, entry for 3/ 0 6/ 20 12); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 7/ 29/ 20 11). 29 R. Doc. 7 at 7 ¶8. im poverished people indefinitely because of their inability to . . . pay[] for their release.”30 In addition, plaintiffs sue the Orleans Parish Crim inal District Court for its role in m anaging and funding the Collections Department, 31 and the court’s J udicial Adm inistrator, Robert Kazik, in his individual and official capacities, because he is allegedly responsible for operating the Collections Departm ent. 32 Finally, plaintiffs name as defendants every judge at the Crim inal District Court—thirteen in all— because they allegedly supervise the Collections Departm ent em ployees and have failed to provide the parish’s criminal defendants with constitutionallyrequired process before im prisoning them for failure to pay court costs. Plaintiffs sue the judges only for declaratory relief. 33 C. Plain tiffs ’ Claim s fo r Re lie f Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Am endment rights, as well as 30 Id. at 8 ¶12. 31 This Court dism issed the Crim inal District Court as a defendant on May 11, 20 16. R. Doc. 123. 32 Id. at 7-8 ¶¶9-10 . The Court also dism issed all claim s against Kazik, except plaintiffs’ claim against Kazik, in his individual capacity, for declaratory relief. R. Doc. 123. 33 Id. at 8 ¶13. violations of Louisiana tort law. Plaintiffs seek dam ages (including attorneys’ fees) and an injunction against all defendants, except the judges. Plaintiffs also seek a declaratory judgm ent regarding the constitutionality of defendants’ practices. 34 The Court sum m arizes plaintiffs’ claims as follows: (1) Defendants’ policy of issuing and executing arrest warrants for nonpaym ent of court costs is unconstitutional under the Fourth Am endm ent and the Due Process Clause of the Fourteenth Am endm ent; (2) Defendants’ policy of requiring a $ 20 ,0 0 0 “fixed secured m oney bond” for each Collections Departm ent warrant (issued for nonpaym ent of court costs) is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Am endm ent; (3) Defendants’ policy of indefinitely jailing indigent debtors for nonpaym ent of court costs without a judicial hearing is 34 Only Cain, Brown, Reynajia Variste, and Maxwell’s claim s for equitable relief rem ain. In an order addressing an earlier m otion to dism iss, the Court found that Reynaud Variste and Thaddeus Long lacked standing to pursue prospective equitable relief and dism issed those claims. R. Doc. 10 9 at 1921. unconstitutional under the Due Process Clause of the Fourteenth Am endm ent; (4) Defendants’ “schem e of m oney bonds” to fund certain judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Amendm ent. To the extent defendants argue this schem e is in compliance with Louisiana Revised Statutes §§ 13:1381.5 and 22:822, which govern the percentage of each surety bond that the judicial actors receive, those statutes are unconstitutional; (5) Defendants’ policy of jailing indigent debtors for nonpayment of court costs without any inquiry into their ability to pay is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Am endment; (6) Defendants’ policy of jailing and threatening to im prison crim inal defendants for nonpaym ent of court debts is unconstitutional under the Equal Protection Clause of the Fourteenth Am endm ent because it im poses unduly harsh and punitive restrictions on debtors whose creditor is the State, as com pared to debtors who owe m oney to private creditors; (7) Defendants’ conduct constitutes wrongful arrest under Louisiana law; and (8) Defendants’ conduct constitutes wrongful im prisonment under Louisiana law. II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 239 (5th Cir. 20 0 9); Baker v. Putnal, 75 F.3d 190 , 196 (5th Cir. 1996). A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim . Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 555. III. D ISCU SSION With few exceptions, plaintiffs’ First Am ended Com plaint directs its allegations not towards the City, or any other individual or entity, but towards “defendants” as a group. Rather than identifying specific acts of m isconduct by specific defendants, the First Amended Com plaint rests largely on allegations of collective wrongdoing by all eighteen defendants. For instance, plaintiffs allege that “[d]efendants have developed a policy, pattern, and practice of advocating for and im plementing high bonds, fines, costs and fees without any constitutional basis and any m eaningful inquiry into a person's ability to pay, even when they know the person is indigent.”35 They further allege that “[d]efendants are aware of these open policies and 35 R. Doc. 7 at 22 ¶89. practices and yet allow them to continue.”36 Sim ilar allegations pervade the First Am ended Com plaint. This pleading structure—lum ping all defendants together and asserting identical allegations as to each, without distinction—largely prevents the Court from discerning which defendants are allegedly responsible for which allegedly unlawful actions. As the Seventh Circuit recently noted, “liability is personal.” Bank of Am ., N .A. v. Knight, 725 F.3d 815, 818 (7th Cir. 20 13). Because the notice pleading requirement of the Federal Rules of Civil Procedure entitle “each defendant . . . to know what he or she did that is asserted to be wrongful,” allegations based on a “theory of collective responsibility” cannot withstand a m otion to dism iss. Id. (affirm ing dism issal of com plaint alleging collectively responsibility as to all defendants); see also Zola H. v. Sny der, No. 12-140 73, 20 13 WL 4718343, at *7 (E.D. Mich. Sept. 3, 20 13) (dism issing com plaint that lum ped defendants together and failed “to im pute concrete acts to specific litigants”); Petri v. Kestrel Oil & Gas Properties, L.P., No. CIV.A. H-0 9-3994, 20 11 WL 2181316, at *7 (S.D. Tex. J une 3, 20 11) (“[T]he rem aining claim s against all Defendants here are not adequately pleaded under . . . Tw om bly and Iqbal 36 Id. at 29 ¶ 111. and their progeny. Defendants . . . are entitled to a m ore definite statem ent to provide them with adequate notice of the claim s against them , as well as factual pleading distinguishing plausible claim s against each Defendant individually.”). Accordingly, in evaluating the City’s m otion to dism iss, the Court looks only to well-pleaded facts concerning the City’s alleged m isconduct. The Court disregards bare assertions of collective responsibility, unsupported by concrete factual allegations. See Iqbal, 566 U.S. at 678 (“Nor does a com plaint suffice if it tenders naked assertion[s] devoid of further factual enhancem ent.” (quoting Tw om bly , 550 U.S. at 557)). The entirety of plaintiffs’ allegations against the City, rather than all “defendants,” are as follows: • The Orleans Parish Crim inal District Court and the City of New Orleans jointly fund the Collections Department as part of their efforts to supplem ent the City and the Court budgets with the debts collected from m ostly indigent people. 37 • Am ong other things, the City of New Orleans funds the hiring of the Collections Departm ent em ployees who openly and as a m atter of policy com m it the violations at issue in this case. Moreover, the City of New Orleans police officers execute the Collections Department warrants even though the City knows or should know that the warrants 37 Id. at 6 ¶2. are invalid and unconstitutional and that arrestees will be subjected to the Defendants’ unconstitutional practices once in custody. 38 • In 20 12, the Orleans Parish Crim inal District Court judges objected to the transfer of m isdem eanor cases to the Municipal Court because it m eant that they would lose significant revenue. During one discussion at a City Council m eeting, the Chief Municipal Court J udge responded to a discussion about this controversy: The judges should not be in the business of . . . m aking m oney . . . . We’re here to . . . dispense justice . . . . We’re not even supposed to be placed in that extremely conflicting position, as to be concerned about how m any fines and fees we take in so that we can operate. You cannot place that burden on us any longer. It’s unfair . . . and it goes against the pledge we take when we take office. 39 • The Court and the City have even agreed to fund extra positions in the Collections in order to maxim ize additional revenues from more people. 40 In two footnotes, plaintiffs also allege: • The Crim inal District Court reported to the City Council in J une 20 15 that it was in the process of collaborating with the City of New Orleans Police Departm ent and the District Attorney to im plem ent a m ore efficient online warrant system. • Despite the extra positions funded jointly by the Court and the City of New Orleans, the Court com plained to the City Council in J une 20 15 that a shortage of funding for the Collections Departm ent had forced it to float other employees to cover that and other areas of its adm inistration. It noted that budget cuts had left it with one vacant position in the Collections Departm ent. The Court made the sam e com plaints to the City Council in previous years, even though the City 38 Id. at 7 ¶8. 39 Id. at 26 ¶98. 40 Id. at 29 ¶111. has agreed each year jointly to fund additional Collections Department positions. 41 With these allegations in m ind, the Court considers the sufficiency of plaintiffs’ section 1983 and state-law claim s against the City. A. Se ctio n 19 8 3 As noted in plaintiffs’ com plaint, the City of New Orleans is a m unicipal governm ent entity. 42 To state a section 1983 claim against a m unicipal entity, for both monetary and equitable relief, plaintiffs m ust satisfy the requirements outlined in Monell. 43 See Los Angeles Cty . v. Hum phries, 562 U.S. 29, 36-37 (20 10 ) (“The language of § 1983 read in light of Monell . . . explains why claims for prospective relief, like claims for m oney dam ages, fall within the scope of the ‘policy or custom ’ requirem ent.”). Under Monell, plaintiffs m ust allege the existence of (1) an official policy or custom , of which (2) a policym aker can be charged with actual or constructive knowledge, and 41 Id. at n.24 & n.26. 42 Id. at 7 ¶8. 43 In their opposition, plaintiffs assert that “the City does not appear to dispute that it is a proper party for declaratory and injunctive relief.” R. Doc. 67 at 1. How plaintiffs arrive at this conclusion is unclear. In its m otion to dism iss, the City argues that plaintiffs have not plausibly alleged sufficient facts to support a Monell claim , which is necessary to sustain a section 1983 action against a m unicipal entity. See R. Doc. 58-1. As noted, Monell applies regardless of whether the plaintiff seeks m onetary or equitable relief. (3) a constitutional violation whose “moving force” is that policy or custom . Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 20 10 ). These elements are necessary “to distinguish individual violations perpetrated by local government em ployees from those that can be fairly identified as actions of the governm ent itself.” Piotrow ski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 20 0 1) (citations om itted). A m unicipal entity cannot be held liable under section 1983 on a theory of respondeat superior merely because it em ploys a tortfeasor. Monell, 436 U.S. at 694. The “official policy or custom ” m ay be “an actual policy, regulation or decision that is officially adopted and prom ulgated by lawm akers or others with policym aking authority.” Valle, 613 F.3d at 542. It m ay also be “a persistent, widespread practice which, although not officially prom ulgated, is so com m on and well settled as to constitute a custom that fairly represents m unicipal policy.” Esteves v. Brock, 10 6 F.3d 674, 677 (citing Monell, 436 U.S. at 694). Im portantly, however, “[a] plaintiff m ay not infer a policy m erely because harm resulted from som e interaction with a governmental entity.” Colle v. Brazos Cty ., Tex., 981 F.2d 237, 245 (5th Cir. 1993); see also W etzel v. Penzato, Civ. Action No. 0 9– 7211, 20 0 9 WL 5125465, at *3 (E.D. La. Dec. 23, 20 0 9). Rather, the plaintiff m ust identify the policy or custom which allegedly caused the deprivation of his constitutional rights. See, e.g., Murray v. Tow n of Mansura, 76 Fed. App'x 547, 549 (5th Cir. 20 0 3); Treece v. Louisiana, 74 Fed. App'x 315, 316 (5th Cir. 20 0 3). As to the second elem ent, “[a]ctual or constructive knowledge of [a] custom m ust be attributable to the governing body of the m unicipality or to an official to whom that body has delegated policymaking authority.” Valle, 613 F.3d at 542 (quoting W ebster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc)). Finally, to satisfy the “m oving force” elem ent, “a plaintiff m ust show that the m unicipal action was taken with the requisite degree of culpability and m ust dem onstrate a direct causal link between the m unicipal action and the deprivation of federal rights.” Id. (quoting Bd. of Cty . Com m ’rs v. Brow n, 520 U.S. 397, 40 4 (1997)). In other words, “the plaintiff m ust demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.” Id. (quoting Brow n, 520 U.S. at 411). “Deliberate indifference,” often described as a “high standard” or a “stringent test,” requires a municipal actor’s “disregard[ing] [the] known or obvious consequence” that a constitutional violation would result from his actions. Brow n, 520 U.S. at 410 ; accord Valle, 613 F.3d at 542; Piotrow ski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 20 0 1). Here, plaintiffs have not identified any policy or custom attributable to the City of New Orleans that was the moving force behind the alleged Fourth and Fourteenth Amendm ent violations. Most of plaintiffs’ allegations center on the policies and alleged wrongdoing of entities other than the City. For instance, plaintiffs challenge the alleged policies of failing to inquire into a debtor’s ability to pay his court costs, 44 issuing arrest warrants for nonpaym ent, 45 im posing an “$ 20 ,0 0 0 secured m oney bond,”46 and “indefinitely” detaining indigent arrestees. 47 Plaintiffs level these allegations against “defendants” as a group, but none of the policies identified in the com plaint can be reasonably attributed to the City. See, e.g., La. Code Crim. Proc. art. 20 2 (authorizing judges to issue arrest warrants); La. Code Crim. Proc. art. 333 (authorizing judges to fix bail). Absent a plausible allegation that the City exercises policym aking authority in these areas, these allegations fail to state a section 1983 claim against the City. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[T]he challenged action m ust have been taken pursuant to a policy adopted by the official or officials 44 Id. at 22-23 ¶¶89, 91. 45 Id. at 21 ¶¶85, 88. 46 Id. at ¶88; 47 Id. at 15 ¶ 47. responsible under state law for m aking policy in that area of the city's business.”); Pem baur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (“[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is m ade from am ong various alternatives by the official or officials responsible for establishing final policy w ith respect to the subject m atter in question.” (emphasis added)). In opposition, plaintiffs characterize the City’s “using police officers to execute unconstitutional warrants” or “perm itting its police officers to execute” these warrants as an additional m unicipal policy for which the City m ay be liable. 48 The only allegation as to the City on this point is a single sentence in a forty-four-page com plaint. Plaintiffs allege that “the City of New Orleans police officers execute the Collections Departm ent warrants even though the City knows or should know that the warrants are invalid and 48 Plaintiffs’ opposition brief also includes other allegations, not present in their com plaint, regarding policies allegedly attributable to the City. “[I]t is axiom atic that a com plaint cannot be am ended by briefs in opposition to a m otion to dism iss.” Becnel v. St. Charles Par. Sheriff’s Office, No. 15-10 11, 20 15 WL 56650 60 , at *1 (E.D. La. Sept. 24, 20 15) (quoting In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 50 4, 566 (S.D. Tex. 20 11) (collecting cases)). Because a Rule 12(b)(6) m otion tasks the Court with “assess[ing] the legal sufficiency of the com plaint,” the Court does not consider allegations that appear for the first tim e in plaintiffs’ briefing. Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 70 2 F.3d 794, 80 6 (5th Cir. 20 12) (em phasis added). unconstitutional and that arrestees will be subjected to the Defendants’ unconstitutional practices once in custody.”49 By plaintiffs own allegations, these arrest warrants are issued from the Crim inal District Court and bear the signatures of the court judges. Other than referring to these warrants as “illegal,” “invalid,” or “unconstitutional,” in conclusory fashion, plaintiffs have not alleged any facts from which the Court can infer that these warrants, once issued, are facially deficient. In light of an officer’s legal duty to arrest someone on the basis of an outstanding warrant, see, e.g., Sm ith v. Gonzales, 670 F.2d 522, 527 (5th Cir. 1982), it is questionable whether the City’s “perm itting” the New Orleans Police Department officers to perform their duties can constitute an official policy of the City. Plaintiffs fail to allege any facts, or to cite any law, indicating that the City has authority to prohibit police officers from carrying out their legal duties by executing outstanding arrest warrants. See Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir. 1991) (“It is difficult to im agine a m unicipal policy m ore innocuous and constitutionally perm issible, and whose causal connection to the alleged violation is m ore attenuated, than the 'policy' of enforcing state law.”). 49 Id. at 7 ¶8. Further, plaintiffs fail to allege that the City acted with the requisite degree of culpability to satisfy Monell’s “m oving force” elem ent. Aside from sprinkling their com plaint with legal buzzwords, such as “the City knows or should know,” plaintiffs have failed to plausibly allege any facts from which the Court can reasonably infer that the City disregarded known or obvious consequences of its conduct. See Bosarge v. Miss. Bureau of N arcotics, 796 F.3d 435, 442-43 (5th Cir. 20 15) (finding phrases such as “knew or should have known” to be “too conclusory to survive a m otion to dism iss”) (collecting cases). As noted, deliberate indifference is a high standard, and conclusory allegations or form ulaic recitations of the legal elem ents will not suffice. See Iqbal, 556 U.S. at 678. Plaintiffs point to two allegations in their Com plaint which they contend undoubtedly reveal that the City had actual knowledge of the Collections Department’s alleged practices and therefore chose to participate in the allegedly unconstitutional “schem e.” First, plaintiffs note that certain em ployees of the Collections Departm ent testified at an evidentiary hearing in an ongoing crim inal case, State v. Addison, at the Crim inal District Court. 50 Plaintiffs have not presented any facts from which this Court can reasonably infer that City policym akers learned the 50 R. Doc. 7 at 1, 29 n.25; R. Doc. 7, Exhibit 1. substance of a single hearing in a single case pending before the court, which undisputedly m aintains a busy docket. Second, plaintiffs allege, in a footnote, that the Crim inal District Court “collaborat[ed]” with the New Orleans Police Departm ent and the District Attorney “to im plement a m ore efficient online warrant system.”51 From this, plaintiffs contend, “the only reasonable inference . . . is that [Crim inal District Court] officials convinced the City that it was im portant to perpetuate and expand their collections work.”52 This inference, however, is implausible. These entities regularly perform complementary functions within the crim inal justice system to request, issue, and execute arrest warrants for a host of state and local crim es. That the Court, the DA, and the police department allegedly worked to stream line the parish’s arrest warrant process does not suggest that these actors conspired to jail indigent court debtors in violation of the Constitution. In sum , for all its allegations of collective wrongdoing by all eighteen defendants, plaintiffs fail to plausibly allege that an official policy attributable to the City of New Orleans caused their alleged constitutional 51 Id. aat 29 n.25. 52 R. Doc. 67 at 8. injuries. Plaintiffs’ section 1983 claim s against the City m ust therefore be dism issed. See, e.g., Sim m ons v. Mesquite Indep. Sch. Dist., CIV. A. No. 3:0 3– CV– 2665, 20 0 4 WL 1171189, at *5 (N.D. Tex. May 26, 20 0 4) ("Because plaintiffs fail to allege that they were dam aged by the action of an official policym aker or defendant's policy, practice, or custom , plaintiffs have failed to state a claim under § 1983."). B. State -Law Claim s In addition to their section 1983 claim s, plaintiffs also allege that “defendants” are liable for wrongful arrest (count seven) and wrongful im prisonment (count eight) under Louisiana law. The City of New Orleans challenges plaintiffs’ ability to state a claim under the Louisiana jurisprudence. 53 Plaintiffs neglected to reference any Louisiana law on this point in their opposition. To start, “wrongful arrest” and “wrongful im prisonm ent” are not separate causes of action. See Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La. 20 0 6) (using “wrongful arrest” and “the tort of false im prisonment” interchangeably); Parker v. Tow n of W oodw orth, 86 So. 3d 53 R. Doc. 58-1 at 21. 141, 144 (La. App. 3 Cir. 20 12) (“[F]alse arrest is not distinguished as a separate tort from false im prisonment.”). Plaintiffs fail to state a plausible claim for relief under Louisiana law due to plaintiffs’ penchant for group pleading and theory of collective responsibility, as the Court discussed earlier. In addition, construing plaintiffs’ com plaint m ost generously—which this Court need not do because plaintiffs are represented by counsel—the only potential theory of liability against the City under Louisiana law is vicarious liability or respondeat superior for the conduct of its em ployees, officers of the New Orleans Police Department. As the City argues in its m otion to dism iss and as this Court earlier explained, nothing in plaintiffs’ com plaint indicates that the Collections Departm ent arrest warrants were facially invalid. Rather, plaintiffs’ complaint and incorporated state-court hearing transcript indicate that the warrants appear to be issued under the authority of the Crim inal District Court and appear to bear the signatures of court judges. In Louisiana, an arresting officer cannot be liable for false arrest when he acts pursuant to a facially valid arrest warrant. W inn v. City of Alexandria, 685 So. 2d 281, 283 (La. App. 3 Cir. 1996); accord McMasters v. Dep't of Police, 172 So. 3d 10 5, 116 (La. App. 4 Cir. 20 15) ("[P]robable cause to arrest 'is an absolute defense to any claim against police officers for wrongful arrest, false im prisonment, or m alicious prosecution.'" (quoting Brow n v. City of Monroe, 135 So. 3d 792, 796 (La. App. 2 Cir. 20 14)); Dy as v. Shreveport Police Dep’t, 136 So. 3d 897, 90 3 (La. App. 2 Cir. 20 14) (“False arrest and im prisonment occur when one arrests and restrains another against his will without a warrant or other statutory authority.”). If City em ployees have not acted tortuously, the City, as their em ployer, whose liability is only “secondary or derivative,” cannot be liable either. Griffin v. Km art Corp., 776 So. 2d 1226, 1232 (La. App. 5 Cir. 20 0 0 ). Therefore, plaintiffs false to state a claim for false arrest against the City. IV. CON CLU SION For the foregoing reasons, the Court GRANTS the City’s m otion to dism iss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. New Orleans, Louisiana, this _ _13th_ _ _ day of May, 20 16. __ ___________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE
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