Brown et al v. Kenner Police Department et al, No. 2:2017cv03445 - Document 31 (E.D. La. 2017)
Court Description: ORDER & REASONS granting in part and denying in part 18 Motion to Dismiss for Failure to State a Claim, as stated herein. Signed by Judge Sarah S. Vance on 12/27/2017. (caa)
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Brown et al v. Kenner Police Department et al Doc. 31 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ARMOND BROWN, ET AL. VERSUS CIVIL ACTION NO. 17-3445 KENNER POLICE DEPARTMENT, ET AL. SECTION “R” (3) ORD ER AN D REASON S Before the Court is defendants’ partial m otion to dism iss. 1 For the following reasons, the m otion is granted in part and denied in part. I. BACKGROU N D This case arises out of the death of Arm ond J airon Chauncey Brown on J anuary 23, 20 17. 2 Mr. Brown, who had been diagnosed with schizophrenia and bipolar disorder, was allegedly shot and killed by Officer Michael Rom ano of the Kenner Police Departm ent SWAT team . 3 According to the com plaint, Mr. Brown was behaving erratically after not taking his prescribed m edication, and his brother called the police for assistance. 4 The SWAT team was dispatched to Mr. Brown’s residence, apparently to enforce 1 2 3 4 R. Doc. 18. R. Doc. 13. Id. at 6 ¶ 13; R. Doc. 28 at 1. R. Doc. 13 at 6 ¶ 13. Dockets.Justia.com a coroner’s em ergency com m itment order. 5 SWAT team officers initially attem pted to negotiate with Mr. Brown to convince him to exit the house. 6 Officers then allegedly deployed tear gas projectiles into his residence. 7 Plaintiffs assert that they personally observed Mr. Brown exit the house unarm ed and rubbing his eyes due to the effects of the tear gas. 8 Plaintiffs further allege that Mr. Brown was about 10 feet or m ore from the fence enclosing his front yard when he was shot and killed by a SWAT team officer standing near the side of the brick fence. 9 On April 13, 20 17, Mr. Brown’s parents, Arm ond Brown, Sr. and J aronet S. Whitaker, and brothers, J oshua Brown and J am es L. Whitaker, J r., sued for dam ages under 42 U.S.C. § 1983 and state tort law. 10 Plaintiffs am ended their com plaint on J uly 12, 20 17. 11 The am ended com plaint nam es as defendants Kenner Police Department Chief Michael Glaser, the City of Kenner, through Mayor E. “Ben” Zahn, III, and certain unknown and as-yetunnam ed Kenner police officers. On Decem ber 8, 20 17, plaintiffs filed a 5 6 7 8 9 10 11 Id. at 6-7. Id. at 7 ¶ 15. Id. at 7 ¶ 16. Id. at 7 ¶ 17. Id. at 8 ¶ 18; R. Doc. 28 at 1. R. Doc. 1. R. Doc. 13. 2 second am ended com plaint adding Officer Michael Rom ano as a defendant. 12 Plaintiffs assert state law claim s for wrongful death, survival, and intentional infliction of em otional distress, and federal civil rights claim s under 42 U.S.C. § 1983. 13 Plaintiffs allege that Mr. Brown was wrongfully shot and killed without just cause. 14 Further, plaintiffs assert that the City of Kenner, through Chief Glaser and Mayor Zahn, adopted policies and practices that deprived Mr. Brown of his civil rights. 15 Specifically, plaintiffs assert that the City of Kenner adopted an express policy and customary procedure that called for the use of the SWAT team to enforce a coroner’s em ergency comm itm ent order. 16 Further, the com plaint alleges that the City of Kenner im plem ented an express policy authorizing and in effect encouraging the use of deadly force when alternative non-lethal m eans of subduing a suspect were em ployed once without success. 17 Finally, plaintiffs assert that the considered, intentional absence of a policy to prom ote effective dealing with suspects known or reasonably believed to be m entally 12 13 14 15 16 17 R. Doc. 28. R. Doc. 13 at 9. Id. at 8 ¶ 18. Id. at 4-5. Id. at 5 ¶ 11. Id. 3 ill constitutes a “negative policy” or “policy by om ission” that am ounts to deliberate indifference, and substantially increases the risk that excessive and deadly force will be used in violation of constitutional rights. 18 Defendants Glaser and the City of Kenner now m ove for partial dism issal of plaintiffs’ com plaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 19 Plaintiffs oppose this m otion. 20 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “sufficient factual m atter, accepted as true, 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 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 18 Id. R. Doc. 18. 20 R. Doc. 11; R. Doc. 22. This is defendants’ second m otion to dism iss. Defendants withdrew as m oot their original m otion after plaintiffs filed an am ended com plaint. See R. Doc. 20 ; R. Doc. 21. Plaintiffs’ m em orandum in opposition to the current m otion adopts in full their m em orandum in opposition to the original m otion to dism iss. See R. Doc. 22. 4 19 all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). 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 relevant evidence of each elem ent of the plaintiff’s claim. Lorm and, 565 F.3d at 257. The claim m ust be dism issed 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). III. D ISCU SSION Defendants assert that the Kenner Police Departm ent is not a juridical person capable of being sued. 21 Plaintiffs rem oved the Kenner Police Department from their amended complaint, and it is no longer a defendant in this m atter. 22 The Court addresses defendants’ rem aining arguments. 21 22 R. Doc. 18-1 at 5-6. R. Doc. 11 at 6; R. Doc. 13. 5 A. Se ctio n 19 8 3 Claim s 1. U n co n t e s t e d D a m a g e s Is s u e s Defendants contend that plaintiffs cannot recover em otional distress dam ages under § 1983 because they were mere bystanders, and not the direct targets of police action. 23 The Fifth Circuit has held that bystanders do not have a cause of action for negligent infliction of em otional distress under § 1983 because “there is no constitutional right to be free from witnessing this police action.” See Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir. 1985). Plaintiffs do not contest this precedent, 24 and the am ended com plaint asserts a claim for em otional distress dam ages under state rather than federal law. 25 To the extent the com plaint could be read to request em otional distress dam ages under § 1983, plaintiffs are not entitled to such dam ages. Defendants further argue that plaintiffs cannot recover punitive dam ages under § 1983 against the City of Kenner or against Glaser in his official capacity. 26 Plaintiffs do not respond to this argum ent, and the Suprem e Court has held that “a m unicipality is im m une from punitive 23 24 25 26 R. Doc. 18-1 at 4. R. Doc. 11 at 5. R. Doc. 13 at 9 ¶ 22. R. Doc. 18-1 at 11. 6 dam ages under 42 U.S.C. § 1983.” City of N ew port v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Thus, plaintiffs are not entitled to punitive dam ages under § 1983 against either the City of Kenner or Glaser in his official capacity. 2 . Ad d it io n a l U n co n t e s t e d Is s u e s Defendants argue that the decedent’s brothers, J oshua Brown and J ames Whitaker, lack standing to pursue a wrongful death or survival claim under § 1983. Federal courts refer to state law to determ ine whether a party has standing to bring a wrongful death or survival claim under § 1983. See 42 U.S.C. § 1988(a); Aguillard v. McGow en, 20 7 F.3d 226, 231 (5th Cir. 20 0 0 ). Under Louisiana law, siblings m ay bring suit for wrongful death or survival only if the decedent has no surviving spouse, child, or parent. See La. Civ. Code arts. 2315.1(A)(3), 2315.2(A)(3). Here, the decedent’s parents are also plaintiffs in this action. 27 Plaintiffs concede that Louisiana law sets up a preclusive hierarchy of claim ants in wrongful death and survival actions. 28 J oshua Brown and J ames Whitaker therefore lack standing to bring wrongful death or survival claim s under § 1983, and the Court dism isses these claim s. 27 28 R. Doc. 13. R. Doc. 11 at 5. 7 Defendants next assert that the City of Kenner cannot be held liable under § 1983 for civil rights violations under a theory of respondeat superior. 29 This is undisputed. The Supreme Court has held that “a local governm ent m ay not be sued under § 1983 for an injury inflicted solely by its em ployees or agents.” Monell v. N ew York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978). But plaintiffs do not press a respondeat superior claim under § 1983. 30 The com plaint instead asserts that the City of Kenner and Glaser are liable under Monell because they m aintained policies and practices that deprived the decedent of his civil rights. 31 The Monell court held that a local government can be liable under § 1983 when “a governm ent’s policy or custom, whether m ade by its lawm akers or by those whose edicts or acts m ay fairly be said to represent official policy, inflicts the injury.” Id. Defendants’ m otion to dism iss does not address plaintiffs’ Monell claim , and that issue is not properly before the Court. 3 . Cla im s Ag a in s t Ch ie f M ich a e l Gla s e r Defendants presume that Glaser is named as a defendant in his official capacity, and argue that plaintiffs’ claim s against him should be dism issed as 29 R. Doc. 18-1 at 6. The com plaint does assert that the City of Kenner is vicariously liable under Louisiana law. See R. Doc. 13 at 4 ¶ 9. Defendants have not sought to dism iss this state law claim . 31 R. Doc. 13 at 4-5. 8 30 redundant of their claim s against the City of Kenner. 32 If the com plaint is construed to assert claim s against Glaser in his individual capacity, defendants ask that such claim s also be dism issed. 33 The com plaint does not specify whether Glaser is being sued in his official or individual capacity. The Court therefore exam ines “the course of proceedings” to determ ine “the nature of the liability sought to be imposed.” Kentucky v. Graham , 473 U.S. 159, 167 n.14 (1985) (internal citation om itted); see also United States ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 40 2-0 3 (5th Cir. 20 0 4) (finding that the course of proceedings dem onstrated that defendants were nam ed only in their official capacities); Parker v. Graves, 479 F.2d 335, 336 (5th Cir. 1973) (explaining that a defendant’s capacity need not be pled, and “[t]he allegations in the complaint m ust be exam ined in order to determ ine the nature of the plaintiff’s cause of action”). Here, the course of the proceedings indicate that Glaser is being sued in his official rather than his individual capacity. The am ended complaint nam es as a defendant “Kenner Police Department Chief Michael Glaser.”34 Plaintiffs present the same allegations against Glaser and the City of Kenner, 32 33 34 R. Doc. 18-1 at 7. Id. at 8-11. R. Doc. 13 at 3 ¶ 6. 9 and the com plaint repeatedly refers to the City of Kenner acting through Chief Glaser. 35 The only facts in the com plaint that relate to Glaser individually involve his policymaking authority. 36 These factual allegations appear to be included to dem onstrate that Glaser is the relevant policymaker for purposes of plaintiffs’ Monell claim for m unicipal liability. Cf. SandersBurns v. City of Plano, 594 F.3d 366, 379 (5th Cir. 20 10 ) (finding that defendant should have known suit was brought against him in his individual capacity in part because the complaint included factually distinct allegations of deliberate indifference as to each defendant). The com plaint includes a dem and for punitive dam ages against Glaser, which under som e circum stances m ight indicate an intent to sue him in his individual capacity. See id. But the context of plaintiffs’ dem and for punitive dam ages suggests otherwise. Plaintiffs assert that both Glaser and the City of Kenner are liable for punitive dam ages under Monell because their policies and practices acted to deprive the decedent of his civil rights. 37 Plaintiffs’ request for punitive dam ages therefore appears to reflect a m isunderstanding of the availability of punitive damages for m unicipal liability rather than an intent to sue Glaser individually. 35 36 37 Id. at 4-5. Id. at 5 ¶ 11. Id. at 4 ¶ 10 . 10 Further, plaintiffs’ opposition to defendants’ m otion to dism iss does not indicate that Glaser is being sued in his individual capacity. The portion of plaintiffs’ m emorandum in opposition devoted to their § 1983 claims focuses exclusively on m unicipal liability under Monell. 38 Plaintiffs’ opposition refers to Glaser as “Chief Glaser,” and asserts that “[b]y reason of his official capacity and legal responsibilities as chief of police, Chief Glaser acted as the policym aker on behalf of the City of Kenner.”39 Plaintiffs do not respond to defendants’ assertion that Glaser is presumed to be sued in his official capacity. 40 See Regents of Univ. of Cal., 363 F.3d at 40 3 (concluding that em ployees were sued in their official rather than individual capacities because plaintiff never challenged defendants’ assertion that the employees were nam ed in their official capacities only). The Court therefore construes plaintiffs’ claim s against Glaser as claim s against him in his official capacity only. 41 As the Supreme Court has 38 R. Doc. 11 at 6-12. This section begins with the statem ent that “[p]laintiffs’ § 1983 claim s against the City of Kenner are governed by the standards enunciated by the Suprem e Court in the landm ark case of Monell.” Id. at 6. The section ends with the assertion that defendants’ m otion should be denied because “plaintiffs have adequately alleged a plausible claim for m unicipal liability under § 1983.” 39 R. Doc. 11 at 12. 40 R. Doc. 18-1 at 7. 41 Thus, the Court need not and does not address defendants’ arguments that plaintiffs have failed to state a claim against Glaser in his individual capacity. 11 explained, “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” W ill v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Turner v. Houm a Mun. Fire and Police Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 20 0 0 ) (noting that “[t]he official-capacity claim s and the claim s against the governm ental entity essentially m erge”). The parties agree that the Kenner Police Departm ent is not capable of being sued, and that the City of Kenner is the proper defendant. 42 Thus, plaintiffs’ suit against Glaser in his official capacity is in effect a suit against the City of Kenner. Because “the real party in interest in an official-capacity suit is the governm ental entity and not the nam ed official,” Hafer v. Melo, 50 2 U.S. 21, 25 (1991), plaintiffs’ claim s against Glaser are redundant of their claim s against the City of Kenner. See U.S. ex. rel. Bias v. Tangipahoa Parish School Bd., 816 F.3d 315, 322 (5th Cir. 20 16) (noting that the district court dism issed official capacity claim s as redundant of claims against the entity, and citing Turner, 229 F.3d at 485); cf. Indes v. Freem an Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999) (holding that a Title VII plaintiff m ay not m aintain suit against both an em ployer and an officer in an official capacity). Plaintiffs’ claim s against Glaser are therefore dism issed. 42 R. Doc. 11 at 6; R. Doc. 18 -1 at 5. 12 Plaintiffs have filed two am ended com plaints since defendants originally m oved to dism iss their claim s against Glaser. 43 Plaintiffs have not requested further leave to amend to nam e Glaser in his individual capacity. The Court finds that plaintiffs had sufficient opportunity to nam e Glaser in his individual capacity if they wished to do so, and therefore dism isses plaintiffs’ claim s against Glaser with prejudice. B. State Law Claim s 1. U n co n t e s t e d Is s u e s Defendants argue that J oshua Brown and J am es Whitaker lack standing to bring state law claim s for wrongful death and survival. 44 As discussed earlier, Louisiana law does not perm it wrongful death or survival claim s by siblings when a decedent’s parents are still alive. See La. Civ. Code arts. 2315.1(A)(3), 2315.2(A)(3). Defendants further note that J oshua Brown and J am es Whitaker have no independent claim for wrongful death or survival under Louisiana Civil Code articles 2315 and 2316. 45 See Tajonera v. Black Elk Energy Offshore Operations, L.L.C., 16 F. Supp. 3d 755, 764 (E.D. La. 20 14) (explaining that articles 2315 and 2316 do not create any additional rights of action in addition to the survival action in 2315.1 and the 43 44 45 See R. Doc. 7; R. Doc. 13; R. Doc. 22. R. Doc. 18-1 at 3-4. R. Doc. 18-1 at 12. 13 wrongful death action in 2315.2). Plaintiffs do not respond to this argum ent. Because J oshua Brown and J ames Whitaker lack standing under Louisiana law, their claim s for wrongful death and survival under Louisiana Civil Code articles 2315, 2315.1, 2315.2, and 2316 m ust be dism issed. Defendants further assert that plaintiffs are not entitled to punitive dam ages under Louisiana law. 46 “In Louisiana, there is a general public policy against punitive dam ages” and punitive dam ages “are not allowable unless expressly authorized by statute.” Ross v. Conoco, Inc., 828 So. 2d 546, 555 (La. 20 0 2). Plaintiffs have identified no basis in state law to recover punitive dam ages on any of their claim s. Accordingly, the Court finds that plaintiffs are not entitled to punitive dam ages on their state law claim s. 2 . Em o t io n a l D is t r e s s D a m a g e s Defendants m ove to dism iss plaintiffs’ claim s for intentional infliction of em otional distress, arguing that Louisiana Civil Code article 2315.6 provides the exclusive basis to recover dam ages for em otional distress for the injury of another. 47 This article provides that “[d]am ages suffered as a result of m ental anguish or em otional distress for injury to another shall be recovered only in accordance with this Article.” La. Civ. Code art. 2315.6(B). 46 47 Id. at 12. Id. at 13. 14 The com plaint states that plaintiffs seek dam ages for em otional distress under article 2315.6, and it is not clear whether plaintiffs are asserting a separate claim for intentional infliction of em otional distress. 48 To the extent that the com plaint could be read to seek em otional distress dam ages beyond what is perm itted by article 2315.6, plaintiffs are not entitled to such dam ages. Plaintiffs assert that J oshua Brown and J am es Whitaker have standing to seek em otional distress dam ages under article 2315.6. 49 Although defendants argue generally that J oshua Brown and J am es Whitaker are im proper plaintiffs, defendants do not address the brothers’ claim s under article 2315.6. 50 This statute perm its the brothers or sisters of an injured person to seek dam ages for the m ental anguish or em otional distress that they suffer as a result of the other person’s injury. La. Civ. Code art. 2315.6. Because siblings have standing to seek dam ages under article 2315.6, the Court does not dism iss J oshua Brown’s and J ames Whitaker’s claims under this provision. 48 49 50 R. Doc. 13 at 9. R. Doc. 22 at 1-2; R. Doc. 11 at 5. R. Doc. 18-1 at 3-4. 15 IV. CON CLU SION For the foregoing reasons, defendants’ m otion to dism iss is GRANTED IN PART. Plaintiffs’ claim s against Defendant Michael Glaser are DISMISSED WITH PREJ UDICE. Further, J oshua Brown’s and J ames Whitaker’s claim s for survival and wrongful death under § 1983 and state law are DISMISSED WITH PREJ UDICE. Plaintiffs’ claim s for punitive dam ages against the City of Kenner under § 1983 and for punitive dam ages under state law are DISMISSED WITH PREJ UDICE. Plaintiffs m ay seek emotional distress dam ages only to the extent perm itted by Louisiana Civil Code article 2315.6. Defendants’ m otion is otherwise denied. 27th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 16
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