Gressett v. New Orleans City et al, No. 2:2017cv16628 - Document 33 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 7 Motion to Dismiss for Failure to State a Claim; denying 22 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. For the foregoing reasons, the City's motion to dismiss is GRANTED. Plaintiff's complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 8/1/2018. (cg)
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Gressett v. New Orleans City et al Doc. 33 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ANDREW GRESSETT CIVIL ACTION VERSUS NO. 17-16628 CITY OF NEW ORLEANS, ET AL. SECTION “R” (2) ORD ER AN D REASON S The City of New Orleans m oves to dism iss plaintiff’s complaint. 1 Pro se plaintiff Andrew Gressett m oves to set aside the Magistrate J udge’s order denying leave to amend the com plaint. 2 For the following reasons, the Court grants the City’s motion to dism iss and denies plaintiff leave to am end. I. BACKGROU N D This case arises out of alleged constitutional violations by a New Orleans Police Departm ent (NOPD) officer. Plaintiff alleges that, on November 11, 20 16, an unidentified NOPD officer m ade “anti-Trum p” and “pro-Black” statements, including that, “[a]nyone that voted for Donald Trum p is a racist,” at a Waffle House in New Orleans. 3 Plaintiff further 1 2 3 R. Doc. 7. R. Doc. 22. R. Doc. 1 at 4-5. Dockets.Justia.com alleges that, on Decem ber 14, 20 16, he was leaving the same Waffle House in New Orleans when he noticed the sam e unidentified officer “lying in wait” outside of the restaurant, standing between plaintiff and his vehicle. 4 The unidentified officer was allegedly standing with one hand on his holstered revolver and the other on his holstered Taser. 5 Plaintiff alleges that he stepped aside in an attem pt to avoid the officer, but that the officer stepped into his path and said, “[y]ou’re still being an [a]sshole.”6 Plaintiff alleges he felt threatened and detained by the officer, but proceeded to his vehicle without issue. 7 Plaintiff brought suit against the City of New Orleans, the unidentified officer, and other unidentified law enforcement officers on Decem ber 11, 20 17. 8 The com plaint asserts claim s for violations of “federal civil rights statutes” and for negligence. 9 On March 26, 20 18, the City m oved to dism iss the com plaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). 10 Before responding to the City’s m otion to dism iss, plaintiff sought 4 5 6 7 8 9 10 Id. at 5. Id. Id. Id. R. Doc. 1. Id. at 2, 8-11. R. Doc. 7. 2 leave to am end his com plaint. 11 The Magistrate J udge denied this m otion on May 2, 20 18. 12 Plaintiff then responded to the City’s m otion to dism iss and filed an objection to the Magistrate J udge’s order. 13 II. D ISCU SSION The City m oves to dism iss plaintiff’s com plaint under Rules 12(b)(1), 12(b)(5), and 12(b)(6). A. Ru le 12 ( b) ( 1) Rule 12(b)(1) requires dism issal of an action if a court lacks jurisdiction over the subject m atter of the plaintiff’s claim . When a Rule 12(b)(1) m otion is filed in conjunction with other Rule 12 m otions, subject m atter jurisdiction m ust be decided first because “the court m ust find jurisdiction before determ ining the validity of a claim.” Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (quoting Gould, Inc. v. Pechiney Ugine Kuhlm ann, 853 F.2d 445, 450 (6th Cir. 1988)). 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 complaint supplem ented by undisputed facts; or (3) the com plaint supplemented by undisputed facts and by the 11 12 13 R. Doc. 12. R. Doc. 20 R. Docs. 21, 22. 3 court’s resolution of disputed facts. Den N orske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420 , 424 (5th Cir. 20 0 1); see also BarreraMontenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). Plaintiff’s original com plaint alleges violations of “federal civil rights statutes and jurisprudence protecting individuals from threats, intim idation, injury, losses and dam ages.”14 He alleges that he felt “detained” by the NOPD officer during the December 14, 20 16 incident, and m entions the officer’s use of “excessive force.”15 These claim s sound in the Fourth Am endm ent. Additionally, plaintiff clarifies in his opposition to the City’s m otion to dism iss that his com plaint alleges violations of 42 U.S.C. § 1983 and 18 U.S.C. § 2261A (a statute that crim inalizes stalking). These claim s therefore arise under federal law. See 28 U.S.C. § 1331. Additionally, the Court m ay exercise supplem ental jurisdiction over plaintiff’s state law negligence claim s. See 28 U.S.C. § 1367. Thus, the Court has subject m atter jurisdiction over this m atter. B. Ru le 12 ( b) ( 5) Rule 12(b)(5) governs insufficient service of process. After the City m oved to dism iss plaintiff’s original com plaint, plaintiff sought and obtained 14 15 R. Doc. 1 at 2. Id. at 5, 9-10 . 4 leave to com plete service of process on the City. 16 Plaintiff obtained a waiver of service on April 6, 20 18. 17 The City’s Rule 12(b)(5) m otion is therefore m oot. C. Ru le 12 ( b) ( 6 ) To survive a Rule 12(b)(6) motion to dism iss, a 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. 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. U.S. 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 16 17 R. Doc. 11. R. Doc. 14. 5 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). Courts “liberally construe briefs of pro se litigants and 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, 952 (5th Cir. 20 0 9). 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). As noted earlier, plaintiff has brought claim s under 42 U.S.C. § 1983, 18 U.S.C. § 2261A, and state law negligence. The Court addresses each set of claim s in turn. 6 1. Se ct io n 19 8 3 “Section 1983 affords a private cause of action to any party deprived of a constitutional right under color of state law.” Tex. Manufactured Hous. Ass’n, Inc. v. City of N ederland, 10 1 F.3d 10 95, 110 6 (5th Cir. 1996). Plaintiff argues in his opposition to the City’s m otion to dism iss that the NOPD officer violated plaintiff’s rights under the Fourth, Eighth, and Fourteenth Am endm ents. 18 As an initial m atter, plaintiff’s claims related to the first incident alleged in the original com plaint are prescribed. Although Section 1983 contains no express lim itations period, courts apply the statute of lim itations for the analogous state law action—here, the one-year prescriptive period for Louisiana torts. See Helton v. Clem ents, 832 F.2d 332, 334 (5th Cir. 1987). The incident involving the NOPD officer’s statem ent that “[a]nyone that voted for Donald Trum p is a racist” allegedly occurred on November 11, 20 16, shortly after the 20 16 presidential election. 19 Plaintiff filed suit on December 11, 20 17, m ore than one year after this incident allegedly occurred. 18 R. Doc. 21 at 5-7. Although plaintiff’s com plaint states that the two interactions with the unnamed NOPD officer occurred on November 11, 20 16, and Decem ber 14, 20 16, plaintiff’s opposition uses various different dates—October 24 and November 11, 20 17, for the first incident, and November 17, Decem ber 14, and Decem ber 17, 20 17, for the second incident. The Court uses the dates provided in plaintiff’s com plaint. 19 R. Doc. 1 at 4. 7 Additionally, plaintiff fails to allege any relationship between this incident and the later incident that could plausibly support a continuing tort theory. Moreover, even if plaintiff’s claim s related to the officer’s statement during the first incident were not prescribed, it is unclear how this statement affected plaintiff’s Fourth, Eighth, or Fourteenth Amendm ent rights. Thus, plaintiff’s allegations regarding the November 11, 20 16 incident do not support the plausible inference that plaintiff’s constitutional rights were violated, and any claim s related to this incident m ust be dism issed. The second incident described in plaintiff’s original com plaint allegedly occurred on December 14, 20 16. 20 Thus, plaintiff’s claim s stem m ing from this incident were tim ely filed. Plaintiff prim arily argues that the NOPD officer’s actions during the second incident violated plaintiff’s Fourth Am endment right to be free from unreasonable searches and seizures. 21 But plaintiff fails to plausibly allege that he was “seized” by the unidentified officer, as required to set out a violation of the Fourth Am endm ent. See Terry v. Ohio, 392 U.S. 1, 16 (1968) (“[T]he Fourth Amendm ent governs ‘seizures’ of the person . . . .”). “[A] person has been ‘seized’ within the m eaning of the Fourth Am endm ent only 20 21 R. Doc. 1 at 5. R. Doc. 21 at 5-6. 8 if, in view of all of the circum stances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980 ). According to plaintiff, the unidentified officer m om entarily stepped into plaintiff’s path as he was walking from the Waffle House to his vehicle. 22 While plaintiff alleges that he felt detained, 23 he never asserts that he was not free to leave. On the contrary, plaintiff states that he walked away and got in his vehicle after the officer stepped into his path. 24 These facts do not support the plausible inference that a reasonable person in plaintiff’s position would have believed that he was not free to leave. Cf. Mendenhall, 446 U.S. at 554 (“Examples of circum stances that m ight indicate a seizure, even where the person did not attem pt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that com pliance with the officer’s request m ight be compelled.”). Thus, plaintiff fails to allege a cause of action under Section 1983 for a violation of his Fourth Am endm ent rights. 22 23 24 R. Doc. 1 at 5. Id. Id. 9 Plaintiff’s argument that the unidentified officer violated his Eighth Am endm ent right to be free from cruel and unusual punishm ent sim ilarly fails. The Eighth Am endm ent applies only to plaintiffs who have been convicted of a crim e. See Ly nch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir. 1987). Plaintiff does not sufficiently allege that he was even seized, let alone convicted of a crim e. Thus, plaintiff has no claim for a violation of his Eighth Am endm ent rights. Finally, plaintiff argues that the NOPD officer’s actions deprived plaintiff of his liberty, without due process of law, in violation of the Fourteenth Amendm ent. 25 Abuse of authority by law enforcem ent personnel m ay violate substantive due process under certain circumstances. See, e.g., Petta v. Rivera, 143 F.3d 895 (5th Cir. 1998). To establish such a violation, a plaintiff m ust show that the defendant’s actions (1) injured the plaintiff, (2) “were grossly disproportionate to the need for action under the circum stances,” and (3) “were inspired by m alice rather than m erely careless or unwise excess of zeal so that it am ounted to an abuse of official power that shocks the conscience.” Petta v. Rivera, 143 F.3d 895, 90 2 (5th Cir. 1998). Plaintiff alleges that the unidentified officer stepped into his path, with one hand on his holstered gun and the other on his holstered Taser, and said, 25 R. Doc. 21 at 7. 10 “[y]ou’re still being an [a]sshole.”26 Without m ore, these allegations do not perm it the plausible inference that the officer’s conduct was “an abuse of official power that shocks the conscience” in violation of the Fourteenth Am endm ent. Petta, 143 F.3d at 90 2. Plaintiff’s Fourteenth Am endment claim therefore fails. Because plaintiff fails to allege any underlying violation of a constitutional right, he fails to state any Section 1983 m unicipal liability claim against the City. See Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 20 0 3) (“Municipal liability under 42 U.S.C. § 1983 requires proof of 1) a policym aker; 2) an official policy; 3) and a violation of constitutional rights whose ‘m oving force’ is the policy or custom .” (citation om itted)). Plaintiff’s Section 1983 claim s m ust be dism issed. 2. Se ct io n 2 2 6 1A Plaintiff attem pts to assert a cause of action under 18 U.S.C. § 2261A, which crim inalizes stalking. 27 To state a civil claim under a crim inal statute, there m ust be “a statutory basis for inferring that a civil cause of action of some sort [lies] in favor of someone.” Cort v. Ash, 422 U.S. 66, 79 (1975); Ali v. Shabazz, 8 F.3d 22 (5th Cir. 1993) (unpublished table decision). Nothing in the text of Section 2261A suggests that the statute creates a civil cause of 26 27 R. Doc. 1 at 5. R. Doc. 21 at 4. 11 action. See Fox v. Tippetts, No. 0 9-485, 20 0 9 WL 3790 173, at *4 (W.D. La. Nov. 10 , 20 0 9) (“Nothing in § 2261A indicates that it is m ore than a ‘bare crim inal statute.’” (quoting Cort, 422 U.S. at 79-80 )); see also Rock v. BAE Sy s., Inc., 556 F. App’x. 869, 871 (11th Cir. 20 14); Haffke v. Discover Fin. Servs., No. 10 -276, 20 10 WL 3430 843, at *2 (E.D. Tex. Aug. 3, 20 10 ), report and recom m endation adopted, 20 10 WL 3430 838 (E.D. Tex. Aug. 27, 20 10 ). Accordingly, plaintiff cannot bring a cause of action against the City under Section 2261A. 3. N e g lig e n ce Finally, plaintiff’s com plaint fails to state a claim for negligence. Under Louisiana law, “[e]very act . . . of m an that causes dam age to another obliges him by whose fault it happened to repair it.” La. Civ. Code art. 2315. To establish negligence, a plaintiff m ust show: first, that the defendant had a duty to conform his conduct to a specific standard (duty); second, that the defendant’s conduct failed to conform to the appropriate standard (breach); third, that the defendant’s substandard conduct was a cause in fact of the plaintiff’s injuries (cause in fact); fourth, that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (legal cause); and fifth, that the plaintiff suffered actual dam ages (dam ages). Duncan v. W al-Mart Louisiana, L.L.C., 863 F.3d 40 6, 40 9 (5th Cir. 20 17). Plaintiff fails to allege the “specific standard” to which the City was obliged to conform its conduct. Instead, plaintiff vaguely asserts that the City 12 “negligently . . . allow[ed] the wrongful and em otional attack upon” plaintiff, and “allow[ed] the negligent . . . wrongful intim idation, pattern of stalking . . . and harassment” of plaintiff. 28 These allegations do not suffice to raise a plausible inference of negligence by the City. D. Le ave to Am e n d As noted earlier, plaintiff m oved for leave to am end after the City filed its m otion to dism iss. Plaintiff’s m otion was referred to the Magistrate J udge, who denied leave to am end because amendment would be futile. 29 Plaintiff filed a tim ely objection to the Magistrate J udge’s ruling. 30 A party m ay appeal a m agistrate judge’s order to the district court. Fed. R. Civ. P. 72(a). When a tim ely objection is raised, the district court will “m odify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id.; see also 28 U.S.C. § 636(b)(1)(A). The court reviews the m agistrate judge’s “‘factual findings under a clearly erroneous standard,’ while ‘legal conclusions are reviewed de novo.’” Moore v. Ford Motor Co., 755 F.3d 80 2, 80 6 (5th Cir. 20 14) (quoting Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993)). A factual “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the 28 29 30 R. Doc. 1 at 9-10 . R. Doc. 20 . R. Doc. 22. 13 entire evidence is left with the definite and firm conviction that a m istake has been comm itted.” United States v. U.S. Gy psum Co., 333 U.S. 364, 395 (1948). Plaintiff’s proposed am ended complaint adds Orleans Parish Sheriff Marlin Gusm an and J efferson Parish Sheriff J oseph Lopinto (as well as unidentified sheriff’s deputies) as defendants. 31 The proposed amended com plaint also specifically pleads violations of plaintiff’s Fourth Am endm ent rights under 42 U.S.C. § 1983 and violations of 18 U.S.C. § 2261A. 32 Finally, plaintiff significantly expands his stalking claim by listing seventeen specific instances—stretching back to the year 20 0 0 —of alleged stalking by law enforcem ent personnel. 33 The Court will “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). The Suprem e Court has held that “[i]f the underlying facts or circum stances relied upon by a plaintiff m ay be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the m erits.” Fom an v. Davis, 371 U.S. 178, 182 (1962). Additionally, “a court should grant a pro se party every reasonable opportunity to am end.” Hale v. King, 642 F.3d 492, 50 3 n.36 (5th Cir. 20 11) (quoting Pena v. United States, 157 F.3d 31 32 33 R. Doc. 12-2 at 5-6. R. Doc. 12-2 at 3. R. Doc. 12-2 at 6-7, 11-21. 14 984, 987 n.3 (5th Cir. 1998)). But leave to am end “is by no m eans autom atic.” Halbert v. City of Sherm an, 33 F.3d 526, 529 (5th Cir. 1994). The Court considers m ultiple factors, including “undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by amendm ents previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of am endment.” Fom an, 371 U.S. at 182. The Magistrate J udge correctly found that am endment would be futile because plaintiff’s proposed am ended com plaint does not state a claim for which relief m ay be granted. First, plaintiff’s Fourth Am endm ent claim under Section 1983 fails because plaintiff’s additional allegations do not describe any seizure by law enforcem ent personnel. Second, plaintiff’s Section 2261A claim fails because, as explained earlier, that provision does not create a private cause of action. Third, plaintiff’s negligence claim s fail because the additional allegations still fail to specify the duty allegedly breached by defendants. In his objection to the Magistrate J udge’s order, plaintiff also cites the Fourteenth Am endm ent. As noted earlier, abuse of authority by law enforcem ent personnel m ay violate substantive due process if the conduct is sufficiently extrem e. See Petta, 143 F.3d at 90 2. But the incidents described 15 in plaintiff’s am ended com plaint sim ply do not describe a pattern of harassment or stalking that “shocks the conscience.” Id. For the m ost part, the alleged incidents m erely involve law enforcement personnel observing plaintiff in public places. Such conduct does not violate the Fourteenth Am endm ent. Cf. Phillips v. City of San Jose, No. 94-20 468, 1994 WL 70 6213, at *4 (N.D. Cal. Dec. 13, 1994) (“Allegations that the police officers followed and observed plaintiffs in public areas are not sufficiently egregious to constitute a due process violation.”). Additionally, the amended com plaint provides no factual basis to plausibly infer that these disparate incidents were connected in any way. Thus, plaintiff’s am ended complaint fails to state a claim upon which relief m ay be granted, and am endment would be futile. III. CON CLU SION For the foregoing reasons, the City’s m otion to dism iss is GRANTED. Plaintiff’s com plaint is DISMISSED WITH PREJ UDICE. 1st New Orleans, Louisiana, this _ _ _ _ _ _ day of August, 20 18. ___________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 16
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