D'Aquin v. Landrieu et al, No. 2:2016cv03862 - Document 41 (E.D. La. 2016)

Court Description: ORDER granting 30 Motion to Dismiss for Failure to State a Claim. Granting 31 Motion to Dismiss for Failure to State a Claim. Granting 34 Motion to Dismiss for Failure to State a Claim. Granting 34 Motion for More Definite Statement. Gran ting 9 Motion to Dismiss Party. Granting 11 Motion for Leave to File Amended Complaint. Granting 14 Motion to Dismiss for Failure to State a Claim. Granting 17 Motion to Dismiss for Failure to State a Claim. Granting 17 Motion to Di smiss for Lack of Jurisdiction. Granting 23 Motion to Dismiss for Failure to State a Claim. Party Superintendent Harrison, Mitch Landrieu (Mayor), Brian Lapeyrolerie, New Orleans Police Department, Mr. Noble, Paul Noel, Penske Truck Leasing Co., L.P. (incorrectly identified as Penske Truck Rental), Gordon Secou, Tulane Police Department, Assurant, Inc. (incorrectly named Assurante) and Herbert Cade dismissed. Signed by Judge Sarah S. Vance on 12/9/2016. (mmm)

Download PDF
D'Aquin v. Landrieu et al Doc. 41 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA THOMAS L. D’AQUIN CIVIL ACTION VERSUS NO. 16-3862 MAYOR MITCH LANDRIEU, ET AL. SECTION “R” (2) ORD ER AN D REASON S Before the Court are m otions to dism iss plaintiff Thom as L. D’aquin’s com plaint filed by defendants Gordon Secou; 1 Assurant, Inc.; 2 Brian Lapeyrolerie; 3 Penske Truck Rental; 4 J udge Herbert Cade; 5 Tulane Educational Fund; 6 Mayor Mitch Landreiu; 7 and New Orleans Police Department. 8 Also before the Court is plaintiff’s m otion to file an am ended com plaint. 9 The Court GRANTS plaintiff’s m otion to file an amended com plaint, but because plaintiff’s am ended com plaint fails to state a claim , the Court GRANTS defendants’ m otions. 1 2 3 4 5 6 7 8 9 R. Doc. 9. R. Doc. 14. R. Doc. 17. R. Doc. 23. R. Doc. 30 . R. Doc. 31. R. Doc. 34. Id. R. Doc. 11. Dockets.Justia.com I. BACKGROU N D Plaintiff Thom as L. D’aquin filed this pro se lawsuit on April 29, 20 16. Plaintiff sued twenty-two defendants, and while his com plaint is difficult to understand, the com plaint appears to allege that various actors in the New Orleans crim inal justice system conspired to threaten plaintiff, ignore his com plaints, and deprive him of his constitutional rights. 10 Plaintiff’s com plaint, however, is not lim ited to public officials; he sues private citizens and corporations as well. Plaintiff’s com plaint additionally alleges that the defendants violated various federal crim inal hate crime statutes, as well as 42 U.S.C. § 1983. Plaintiff seeks $ 10 ,0 0 0 ,0 0 0 from each defendant. Defendants’ m otions seek dism issal pursuant to both Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. II. LEGAL STAN D ARD A. Ru le 12 ( b) ( 1) Fed. R. Civ. P. 12(b)(1) requires dism issal of an action if the court lacks jurisdiction over the subject m atter of the plaintiff’s claim . Motions subm itted under that rule allow a party to challenge the court’s subject 10 R. Doc. 1 at 2-4. Though plaintiff does not identify any specific constitutional provision, he alleges that he was arrested without probable cause and subject to an unlawful search and seizure. Id. at 4. 2 m atter jurisdiction based upon the allegations on the face of the com plaint. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); see also Lopez v. City of Dallas, No. 0 3-2223, 20 0 6 WL 1450 420 , at *2 (N.D. Tex. May 24, 20 0 6). If the court lacks the statutory or constitutional power to adjudicate a claim , the claim must be dism issed for lack of subject matter jurisdiction. Hom e Builders Ass’n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 10 0 6, 10 10 (5th Cir. 1998). A court has federal question jurisdiction when the plaintiff’s claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. A claim arises under federal law when federal law creates the cause of action. Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 30 8, 312 (20 0 5). When “a private citizen relies on a federal statute as the basis of federal question jurisdiction, that statute m ust provide a private cause of action, or else a federal court will not have subject m atter jurisdiction to hear the dispute.” Low e v. View Point Bank, 972 F. Supp. 2d 947, 954 (N.D. Tex. 20 13) (citing Merrell Dow Pharm aceuticals Inc. v. Thom pson, 478 U.S. 80 4, 817 (1986)). In ruling on a Rule 12(b)(1) m otion to dism iss, the court m ay rely on (1) the com plaint alone, presum ing the allegations to be true, (2) the com plaint supplem ented by undisputed facts, or (3) the com plaint 3 supplem ented by undisputed facts and by the court’s resolution of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420 , 424 (5th Cir. 20 0 1); see also Barrera-Montenegro, 74 F.3d at 659. A court’s dism issal of a case for lack of subject-matter jurisdiction is not a decision on the m erits, and the dism issal does not necessarily prevent the plaintiff from pursuing the claim in another forum . See Hitt v. City of Pasadena, 561 F.2d 60 6, 60 8 (5th Cir. 1977). B. Ru le 12 ( b) ( 6 ) When a defendant attacks the complaint because it fails to state a legally cognizable claim , Rule 12(b)(6) provides the appropriate challenge. To survive a Rule 12(b)(6) m otion to dism iss, plaintiffs must plead enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atlantic Corp. v. Tw om bly , 550 U.S. 544, 547 (20 0 7)). A claim is facially plausible when a 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 wellpleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiffs. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 232-33 (5th Cir. 20 0 9); Baker v. Putnal, 75 F.3d 190 , 196 (5th Cir. 1996). But the Court is not 4 bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that plaintiffs’ claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Tw om bly , 550 U.S. at 555. 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 elem ent of the plaintiffs’ claim . Lorm and, 565 F.3d at 255-57. If there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 20 0 7), the claim m ust be dism issed. Finally, because plaintiff is a pro se litigant, the Court will apply “less stringent standards to parties proceeding pro se than to parties represented by counsel. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam ). This does not m ean, however, that a court “will invent, out of whole cloth, novel arguments on behalf of a pro se plaintiff in the absence of m eaningful, albeit im perfect, briefing.” Jones v. Alfred, 353 F. App’x 949, 951-52 (5th 5 Cir. 20 0 9). Therefore, even a liberally construed pro se com plaint “m ust set forth facts giving rise to a claim on which relief m ay be granted.” Johnson v. Atkins, 999 F.2d 99, 10 0 (5th Cir. 1993). III. D ISCU SSION The m otions to dism iss attack plaintiff’s com plaint both on jurisdictional grounds and for failure to state a claim. Each argument will be addressed in turn. A. Su bje ct Matte r Ju ris d ictio n Federal courts are courts of lim ited jurisdiction and possess power over only those cases authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). Here, there is no basis for diversity jurisdiction as the plaintiff and m any of the defendants are Louisiana citizens. Though plaintiff does not m ention federal question jurisdiction under 28 U.S.C. § 1331 in his com plaint, he does allege that the defendants have violated federal law. More specifically, plaintiff cites 18 U.S.C. § 242, 18 U.S.C. § 243, 18 U.S.C. § 249, and 42 U.S.C. § 1983. Section 242 of Title 18 is a crim inal statute that crim inalizes deprivation of rights under color of law. Section 243 is a crim inal statute that crim inalizes the exclusion of qualified jurors in any state or federal grand or 6 petit jury on the basis of race, color or previous condition of servitude. Section 249 is the federal hate crim e statute. Unless explicitly provided for in the statute, violations of crim inal statutes do not provide a private right of action. See Lopez v. Dallas Ministry Center, No. 12-0 60 6, 20 12 WL 1413526, at *2 (N.D. Tex. Mar. 9, 20 12); Ali v. Shabazz, 8 F.3d 22, 1993 WL 456323, at *1 (5th Cir. Oct. 28, 1993) (quoting Cort v. Ash, 422 U.S. 66, 79 (1975)). None of the crim inal statutes cited by plaintiff provides for a private cause of action, and therefore cannot establish jurisdiction under 28 U.S.C. § 1331. See Gill v. State of Texas, 153 F.App’x 261, 262 (5th Cir. 20 0 5) (stating 18 U.S.C. § 242 does “not provide a basis for civil liability”); Hall v. Valeska, 50 9 F. App’x 834, 837 (11th Cir. 20 12) (holding that 18 U.S.C. § 243 does not provide a private right of action); D’Aquin v. Starw ood Hotels and W orldw ide Properties Inc., No. 15-1963, 20 15 WL 5254735, at *2 (E.D. La. Sept. 8, 20 15) (holding that 18 U.S.C. § 249 “does not provide for any civil cause of action”) (citation om itted). Therefore, any claim s brought under 18 U.S.C. §§ 242, 243, and 249 m ust be dism issed for lack of subject m atter jurisdiction. See View Point Bank, 972 F. Supp. at 954. Plaintiff does appear to bring an action under 42 U.S.C. § 1983, which is sufficient to grant the Court subject m atter jurisdiction. Therefore, the Court will address the sufficiently of plaintiff’s section 1983 claim . 7 B. Failu re to State a Claim Plaintiff asserts a section 1983 claim against various public and private defendants. Section 1983 provides a civil rem edy for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place under color of state law. See Doe v. Rains Cty . Indep. Sch. Dist., 66 F.3d 140 2, 140 6 (5th Cir. 1995). The “under color of state law” requirement means that the defendant in a section 1983 action m ust have exercised power “possessed by virtue of state law and m ade possible only because the wrongdoer is clothed with the authority of state law.” W est v. Atkins, 487 U.S. 42, 49 (1988) (citing United States v. Classic, 313 U.S. 299, 326 (1941)). This excludes purely private conduct, no m atter how wrongful. See Am erican Mfrs. Mut. Ins. Co v. Sullivan, 526 U.S. 40 , 50 (1999). 1. Private Defendants Plaintiff’s com plaint nam es private actors and private corporations as defendants. And while private actors can be liable under section 1983, there will be liability only if the plaintiff alleges that the private actor conspired or acted in concert with state actors. Priester v. Low ndes County , 354 F.3d 414, 420 (5th Cir. 20 0 4). The Fifth Circuit has previously held that the plaintiff m ust allege an agreement between the public and private defendants to com m it an illegal act and deprive the plaintiff of constitutional rights. Id. 8 Allegations that are m erely conclusory, without reference to specific facts, will not suffice. Id. (citing Brinkm ann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986)). Plaintiff’s com plaint does not allege an agreem ent between the public and private defendants, nor does it allege specific facts to show an agreement. Therefore, plaintiff’s claim s against the Tulane Educational Fund, Maurice Landrieu, Brian Lapeyrolerie, Bill Lem oine, Assurant, Inc., and Penske Truck Leasing Co. are dismissed. 2. Public Defendants As m entioned above, to state a viable section 1983 claim , the plaintiff m ust allege a violation of a right secured by the Constitution or the laws of the United States and show that the violation was com mitted by a person acting under color of state law. W hitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 20 13). The only identifiable rights in plaintiff’s com plaint secured by the Constitution or federal law are the Fourth Am endment rights against unreasonable searches and seizures and against unlawful arrest. Aside from conclusorily alleging that he was arrested without a warrant and that his property was illegally searched, plaintiff’s com plaint alleges no specific facts to support the conclusion that his Fourth Am endment rights were violated. Plaintiff’s com plaint does not disclose the date or location of his arrest, the charge, the identity of the arresting officer, or who allegedly 9 searched his property unlawfully. Thus, the complaint is devoid of detail, let alone any factual basis to support the conclusion that plaintiff’s Fourth Am endm ent rights were violated. See Jones v. Alcoa, Inc., 339 F.3d 359, 363 (5th Cir. 20 0 3). Merely citing the elem ents of a Fourth Am endm ent claim will not suffice. Iqbal, 556 U.S. at 677. Plaintiff’s pro se status does not relieve him of the obligation to set forth facts giving rise to a claim on which relief m ay be granted, Johnson, 999 F.2d at 10 0 , and he has not done so. Therefore, plaintiff’s remaining claim s are dism issed. IV. CON CLU SION For the foregoing reasons, plaintiff’s motion to am end his com plaint is GRANTED. Defendants’ m otions to dism iss are GRANTED. Plaintiff’s am ended com plaint is DISMISSED in its entirety. 11 9th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11 This plaintiff has filed at least 15 cases in this district since February 20 15. Eight have already been dism issed either for failure to state a claim or on jurisdictional grounds. 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.