Gressett v. Gusman et al, No. 2:2018cv10893 - Document 20 (E.D. La. 2019)
Court Description: ORDER granting 11 Motion for Judgment on the Pleadings. For the foregoing reasons as set forth in the document, defendants' 11 motion is GRANTED. Plaintiff's complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 5/23/2019. (mm)
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Gressett v. Gusman et al Doc. 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ANDREW GRESSETT CIVIL ACTION VERSUS NO. 18-10 893 MARLIN GUSMAN, ET AL. SECTION “R” (5) ORD ER AN D REASON S Before the Court is defendants’ motion for judgm ent on the pleadings. Because plaintiff’s com plaint is barred by res judicata, defendants’ m otion is granted. I. BACKGROU N D This case arises out of alleged constitutional violations by unidentified Sheriff’s Deputies of Orleans and J efferson parishes. 1 Over the past 18 m onths, plaintiff Andrew Gressett has filed two separate lawsuits involving identical allegations. 2 First, in December 20 17, plaintiff filed a com plaint alleging that unidentified police officers with the New Orleans Police Departm ent (NOPD) harassed him and m ade threatening com m ents towards him on two separate 1 2 R. Doc. 1. See R. Doc. 1; R. Doc. 12-2 (Case No. 17-16628). Dockets.Justia.com occasions in Novem ber and December 20 16. 3 The com plaint was assigned to this Section. 4 The com plaint nam ed as defendants the City of New Orleans and “unidentified [NOPD] officers.”5 Plaintiff asserted that the officers’ conduct violated “federal civil rights statutes.”6 On March 26, 20 18, the City m oved to dism iss the com plaint. 7 Before responding to the City’s m otion to dism iss, plaintiff m oved for leave to am end his com plaint, and attached his proposed amended com plaint to that m otion. 8 In his am ended complaint, plaintiff nam ed as defendants: (1) the City of New Orleans; (2) Marlin Gusman, in his official capacity as Sheriff of Orleans Parish; (3) certain unidentified Orleans Parish Sheriff’s Deputies; (4) J oseph Lopinto, in his official capacity as Sheriff of J efferson Parish; (5) certain unidentified J efferson Parish Sheriff’s Deputies; (6) other unidentified law enforcement officers; and (7) an unnamed insurance com pany. 9 In the 34-page am ended com plaint, plaintiff asserted that on num erous occasions dating back to the year 20 0 0 , deputies from the Orleans 3 4 5 6 7 8 9 R. Doc. 1 at 4-5 (Case No. 17-16628). See id. at 1. See id. Id. at 2. R. Doc. 7 (Case No. 17-16628). R. Doc. 12 (Case No. 17-16628); R. Doc. 12-2 (Case No. 17-16628). R. Doc. 12-2 at 1 (Case No. 17-16628). 2 and J efferson Parish Sheriff’s Offices (OPSO and J PSO) “harassed and stalked” him at various public restaurants and stores. 10 For instance, plaintiff alleged that on March 18, 20 18, he was eating at a Chick-fil-A in J efferson Parish when a uniform ed deputy walked into the restaurant carrying a “plastic black folder with a cell phone on top.”11 Plaintiff alleged that the deputy ordered food, and then placed his belongings and food on a table “right next to” plaintiff in an otherwise “alm ost em pty restaurant.”12 Plaintiff was allegedly “forced to relocate in the m iddle of his meal to another table” as a result of the deputy’s behavior. 13 The other specific instances of alleged stalking and harassing conduct involved sim ilar encounters with law enforcem ent officers. 14 Plaintiff asserted that deputies from OPSO and J PSO know where he is because they track his location using “license plate reading equipm ent, other . . . cell phone pinging or tracking equipm ent and/ or possibly his personal cell phone.”15 In this amended com plaint, plaintiff specifically alleged violations of 42 U.S.C. § 1983 and 18 U.S.C. § 2261A, and also asserted a state-law claim for negligence. 16 For the purposes of his 10 11 12 13 14 15 16 See id. at 11-29. Id. at 13. Id. Id. See id. at 11-29. See, e.g., id. at 13. Id. at 3, 31. 3 Section 1983 claim , plaintiff’s complaint raised violations of his Fourth Am endm ent right to be free of unreasonable searches and seizures. 17 The Magistrate J udge denied plaintiff’s m otion to am end his com plaint on May 2, 20 18. 18 On May 16, 20 18, plaintiff filed an objection to the Magistrate J udge’s order. 19 On August 1, 20 18, the Court granted the City’s m otion to dism iss the initial com plaint under Rules 12(b)(1), 12(b)(5), and 12(b)(6), and took up plaintiff’s objection to the Magistrate J udge’s denial of leave to am end. 20 The Court affirm ed the Magistrate’s decision, and explained that granting plaintiff leave to am end his com plaint would be futile, because his am ended com plaint failed to state a claim for which relief could be granted. 21 The Court noted: First, plaintiff’s Fourth Am endm ent claim under Section 1983 fails because plaintiff’s additional allegations do not describe any seizure by law enforcement personnel. Second, plaintiff’s Section 2261A claim fails because . . . 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. 22 17 18 19 20 21 22 See R. Doc. 33 at 4 (Case No. 17-16628). R. Doc. 20 (Case No. 17-16628). R. Doc. 22 (Case No. 17-16628). R. Doc. 33 (Case No. 17-16628). Id. at 13-16. Id. at 15. 4 The Court therefore dism issed plaintiff’s com plaint with prejudice. 23 Plaintiff then sought review under Federal Rule of Civil Procedure 59 of the Court’s order dism issing his case and denying leave to am end. 24 The Court denied that m otion on February 6, 20 19. 25 Plaintiff appealed the Court’s orders to the Fifth Circuit Court of Appeals on March 4, 20 19. 26 On November 13, 20 18—after plaintiff filed his Rule 59 m otion but before the Court ruled on it—plaintiff filed the instant com plaint. 27 The com plaint is nearly identical to the am ended com plaint plaintiff filed in his previous litigation. 28 As in his am ended com plaint, plaintiff nam es as defendants: (1) Marlin Gusm an, in his official capacity as Sheriff of Orleans Parish; (2) certain unidentified Orleans Parish sheriff’s deputies; (3) J oseph Lopinto, in his official capacity as Sheriff of J efferson Parish; (4) certain unidentified J efferson Parish sheriff’s deputies; (5) other unidentified law enforcem ent officers; and (6) an unnam ed insurance company. 29 Unlike his prior amended com plaint, plaintiff does not nam e the City of New Orleans 23 R. Doc. 34 (Case No. 17-16628). R. Doc. 36 (Case No. 17-16628); R. Doc. 37 (Case No. 17-16628). 25 R. Doc. 45 (Case No. 17-16628). 26 R. Doc. 46 (Case No. 17-16628). 27 See R. Doc. 1. This lawsuit was initially assigned to J udge Lance Africk, but it was transferred to this Section because it involves the sam e subject m atter as plaintiff’s prior com plaint. See R. Doc. 13. 28 R. Doc. 1; R. Doc. 1 (Case No. 17-16628). 29 R. Doc. 1 at 1. 5 24 as a defendant. 30 Plaintiff again alleges that OPSO and J PSO deputies have harassed and stalked him in various restaurants and public stores. 31 The dates and locations of the alleged harassing behavior are identical. 32 Finally, plaintiff’s causes of action are identical to those in his previous amended com plaint. 33 He states that defendants violated his Fourth Am endm ent rights, and asserts violations of 42 U.S.C. § 1983, 18 U.S.C. § 2261A, and state-law negligence. 34 Defendants now move for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), on the ground that plaintiff’s com plaint is barred by res judicata. 35 Plaintiff opposes the m otion. 36 II. LEGAL STAN D ARD A m otion for judgm ent on the pleadings under Federal Rule of Civil Procedure 12(c) is appropriate if the m atter can be adjudicated by deciding questions of law rather than factual disputes. Brittan Com m c’ns Int’l Corp. v. Sw . Bell Tel. Co., 313 F.3d 899, 90 4 (5th Cir. 20 0 2). It is subject to the 30 31 32 33 34 35 36 See id. Id. at 9-27. Com pare id., w ith R. Doc. 12-2 at 11-29 (Case No. 17-16628). See R. Doc. 1 at 2-3, 29. Id. R. Doc. 11. R. Doc. 19. 6 same standard as a m otion to dism iss under Rule 12(b)(6). Doe v. My Space, Inc., 528 F.3d 413, 418 (5th Cir. 20 0 8). 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.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239 (5th Cir. 20 0 9). But the court is not 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 plaintiff’s 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. 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 7 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 Defendants argue that plaintiff’s com plaint is barred by “res judicata and/ or claim preclusion,” because he brings the same allegations that were included in his am ended complaint in the prior lawsuit. 37 “The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ‘res judicata.’” Tay lor v. Sturgell, 553 U.S. 880 , 892 (20 0 8). Claim preclusion bars relitigation of claim s “that have been litigated or should have been raised in an earlier suit.” In re Ark-LaTex Tim ber Co., Inc., 482 F.3d 319, 330 (5th Cir. 20 0 7). The rule “relieve[s] parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication.” Allen v. McCurry , 449 U.S. 90 , 94 (1980 ). The test for claim preclusion has four elements: (1) the parties are identical or in privity; (2) the judgm ent in the prior action was rendered by a court of com petent jurisdiction; (3) the prior action was concluded by a final judgm ent on the m erits; and (4) the same claim or cause of action was involved in both 37 R. Doc. 11-1 at 4. 8 actions. See Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir. 20 0 4). All four requirements are met here. First, all of the defendants named in the current lawsuit were also nam ed in plaintiff’s prior am ended com plaint. 38 Second, the judgment dism issing plaintiff’s prior lawsuit was rendered by a federal court, which is a court of com petent jurisdiction. See St. Bernard Citizens for Env’t Quality , Inc. v. Chalm ette Refining, LLC, 50 0 F. Supp. 2d 592, 60 8 (E.D. La. 20 0 7). Third, the prior action was concluded on a final judgm ent on the m erits. In plaintiff’s prior action, the Court dism issed his initial com plaint and, upon plaintiff’s objection, affirmed the Magistrate’s order denying him leave to am end. 39 The Court held that granting plaintiff leave to amend would be futile, because the am ended com plaint failed to state a claim for which relief could be granted pursuant to Rule 12. 40 The court accordingly dism issed plaintiff’s claim s with prejudice and issued a judgment. 41 This constitutes a final judgm ent on the m erits of plaintiff’s claim s in his am ended complaint. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981) (“The dism issal for failure 38 39 40 41 See R. Doc. 1 at 1; R. Doc. 1 at 1 (Case No. 17-16628). See R. Doc. 33 at 13-16 (Case No. 17-16628). Id. at 15. Id.; R. Doc. 34 (Case No. 17-16628). 9 to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the m erits.’”); Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 n.8 (5th Cir. 1993) (“A dism issal which is designated with prejudice is norm ally an adjudication on the m erits for purposes of res judicata.” (internal quotation m arks om itted)). Finally, plaintiff’s prior amended com plaint contained the same claims and causes of action as the ones in his current com plaint. Both com plaints contain identical allegations of harassm ent and stalking by members of the OPSO and J PSO. 42 Plaintiff includes in his com plaint here the same specific encounters with law enforcement—i.e., encounters at the sam e locations and on the same dates—as he recounted in his prior amended com plaint. 43 His current com plaint in fact appears to be largely a copy-and-paste of his prior am ended com plaint. Plaintiff’s com plaint is therefore barred by res judicata. 42 See R. Doc. 1; R. Doc. 12-2 (Case No. 17-16628). Com pare R. Doc. 1 at 9-27, w ith R. Doc. 12-2 at 11-29 (Case No. 1716628). 10 43 IV. CON CLU SION For the foregoing reasons, defendants’ m otion is GRANTED. Plaintiff’s com plaint is DISMISSED WITH PREJ UDICE. New Orleans, Louisiana, this _ 23rd _ _ _ _ day of May, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11
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