MARTIN L.C. FELDMAN, District Judge.
Before the Court are two motions: (1) a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) filed by the City of New Orleans, the New Orleans Police Department, Superintendent Ronal Serpas, and NOPD Officers Davis and Boyd; and (2) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) filed by the Louisiana Recovery School District, Patrick Dobard, in his official capacity as Superintendent of RSD, Kelly Batiste, individually and in her official capacity as the Principal of Fannie C. Williams Charter School, and Tarynesa Williams, individually and in her official capacity as the Vice Principal of Fannie C. Williams Charter School. For the reasons that follow, the motions are GRANTED.
This civil rights litigation concerns a mother's challenge to the allegedly excessive corporal punishment of her seven year old son, a special education student, by school administrators and school security and city police officers; in particular, the boy and his mother charge that, in response to an unspecified behavioral issue, a school principal and vice principal tried to lock the boy in a closet and, when he ran away, he was struck with a fly swatter, held down on the ground and, ultimately, handcuffed by responding police officers who then followed the boy and his aunt to the hospital so that he could undergo a psychological evaluation.
Meanwhile, the police were called. When New Orleans Police Department Officers Davis and another unidentified officer arrived at the school, they allegedly shoved down D.T. and held him with excessive force until D.T.'s hands were handcuffed behind his back for an unknown length of time.
On April 5, 2012 Chanell Thomas, individually and on behalf of her minor son, D.T., sued the City of New Orleans; Mayor Mitch Landrieu; the New Orleans Police Department; Superintendent Ronal Serpas; NOPD Officers Davis, Boyd, and John Doe; the Louisiana Recovery School District; Superintendent Patrick Dobard; Principal of Fannie C. Williams Charter School, Kelly S. Batiste; and Assistant Principal Tarynesa Williams; as well as the two school security officers, Montgomery and Stewart. Although it is not entirely clear from the complaint, it appears that as to the individual state defendants, Dobard is sued only in his official capacity, Batiste is sued in her official and individual capacity, and Williams is sued in her official and individual capacity.
In sum, the plaintiffs assert four counts. In Count 1, the plaintiffs assert that Batiste and Williams used excessive force against D.T., and unreasonably arrested and seized him, when they attempted to lock him in a closet and when they held him down and restrained him.
Count 2 focuses on Dobard and the RSD; the plaintiffs assert that Dobard and the RSD "acting under color of law and pursuant to official policy or custom had knowledge, or ... should have had knowledge [and power to prevent] or aid in preventing" the force used against D.T. but "with deliberate indifference and callous disregard of [D.T.'s] rights failed or refused to do so."
Count 3 focuses on NOPD Officers Davis and John Doe; the plaintiffs assert that D.T. was met with excessive force when they "handcuffed an already terrified, unarmed, defenseless child weighing in at less than 60 pounds, who did not resist arrest nor could resist arrest in restraints, was never violent, nor a threat to the defendants." The plaintiffs also assert that Officer Boyd "deprived [D.T.] of his liberty without due process ... and deprived him of equal protection of the laws in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution and 42 U.S.C. § 1983."
Finally, in Count 4, the plaintiffs focus on NOPD Officer Boyd, Ronal Serpas, and the NOPD generally, also mentioning Officers Davis and John Doe. The plaintiffs assert that Officer Brian Boyd was acting under the direction and control of Superintendent Ronal Serpas and for the New Orleans Police Department and that
The plaintiffs also assert that Serpas, individually and for the New Orleans Police Department, should have exercised their duties to train and supervise, which would have prevented the violations of D.T.'s rights. The plaintiffs also assert that Serpas, individually and as the superintendent for NOPD, under color of law, "approved or ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of the Defendant police officer."
The plaintiffs seek damages including damages for battery and torture; damages for infliction of mental and emotional distress due to outrageous conduct of all adult defendants; damages for assault; loss of consortium; bystander "Lejuene" damages; false imprisonment/arrest; past, present and future mental anguish; past, present and future pain and suffering; past, present and future medical expenses; punitive damages under § 1983 for torture and injury done with malice; and attorney's fees and court costs.
The defendants now seek dismissal of the plaintiffs' claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the Court's subject matter jurisdiction. Fed. R.Civ.P. 12(b)(1). Patrick Dobard, sued in his official capacity, and Batiste and Williams, to the extent that they are sued in their official capacities, invoke the doctrine of sovereign immunity.
The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). The Court may find a plausible set of facts to support subject matter jurisdiction by considering any of the following: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996).
All defendants seek dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The standard of review applicable to motions to dismiss under Rule 12(b)(1) is similar to that applicable to motions to dismiss under Rule 12(b)(6). See Williams v. Wynne, 533 F.3d 360, 364-65 n. 2 (5th Cir.2008) (observing that the Rule 12(b)(1) and Rule 12(b)(6) standards are similar, but noting that applying the Rule 12(b)(1) standard permits the Court to consider a broader range of materials in resolving the motion).
Rule 12(b)(6) allows a party to move for dismissal of a complaint when the plaintiff has failed to state a claim upon which relief can be granted. Such a motion "`is viewed with disfavor and is rarely granted.'" See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982)).
"`To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (internal quotation marks omitted).
The United States Supreme Court suggests a "two-pronged approach" to determine whether a complaint states a plausible claim for relief. Iqbal, 129 S.Ct. at 1950. First, the Court must identify pleadings that are conclusory and thus not entitled to the assumption of truth. Id. A corollary: legal conclusions "must be supported by factual allegations." Id. Second, for those pleadings that are more than merely conclusory, the Court assumes the veracity of those well-pleaded factual allegations and determines "whether they plausibly give rise to an entitlement to relief." Id.
This facial plausibility standard is met when the plaintiffs pleads facts that allow the Court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. Claims that are merely conceivable will not survive a motion to dismiss; claims must be plausible. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Iqbal, 129 S.Ct. at 1949 ("The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully"). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal 129 S.Ct. at 1949 (internal quotations omitted). In the end, evaluating a motion to dismiss is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
In deciding a motion to dismiss, the Court may consider documents that are essentially "part of the pleadings" — that is, any documents attached to or incorporated in the plaintiffs' complaint that are central to the plaintiffs' claim for relief. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.2000)). Also, the Court is permitted to consider matters of public record and other matters subject to judicial notice without converting the motion into one for summary judgment. See United States ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir.2003).
The plaintiffs here do not attach or refer to matters outside of their complaint, but accompanying their opposition papers they submit certain evidence that purports to be a Behavior Intervention Plan for D.T. and a School Security Officers Manual. Even if these documents were central to the plaintiffs' claims and referred to or incorporated into the complaint, the Court would disregard them as immaterial.
The State defendants — RSD, Dobard, Batiste, and Williams — first seek dismissal of claims asserted against them in their official capacity on the ground that they are immune from suit. The Court must first consider, however, whether the RSD is even an entity capable of being sued.
Rule 17(b) of the Federal Rules of Civil Procedure provides that "capacity to sue or be sued is determined ... by the law of the state where the court is located." The Louisiana Civil Code defines a juridical person as "an entity to which the law attributes personality, such as a corporation or partnership." La.C.C. art. 24. With regard to governmental agencies, the legislature will specifically endow the agency with the capacity to sue or be sued in its own name.
The Louisiana Supreme Court in Roberts v. Sewerage and Water Board of New Orleans, 634 So.2d 341 (La.1994) provides the framework for determining a governmental entity's juridical status. In determining "whether the entity can appropriately be regarded as an additional and separate government unit for the particular purpose at issue", the state high court instructs that courts focus their analysis on such factors as independent managing, financing, and operations of the board and, if "the organic law grants it the legal capacity to function independently and not just as the agency or division of another governmental entity," then the local government unit at issue may be deemed a separate juridical person. See id. at 346-47. Applying this framework, the Louisiana Fourth Circuit Court of Appeal has held that RSD is not a juridical entity capable of suing or being sued. Tankerson v. Vallas, 34 So.3d 355, 356 (La.App. 4 Cir. 3/10/10) ("we find that RSD is not a juridical person and that the proper party to be sued in a claim for or against the RSD is the [Department of Education]."). Another Section of this Court has likewise determined that "the RSD is not a juridical person capable of suing or being sued under the Roberts analysis." See Williams v. Recovery School District, 859 F.Supp.2d 824, 829 (E.D.La.2012) (Vance, J.) (citing Adams v. Orleans Parish Recovery Sch. Dist., 463 Fed.Appx. 297, 298 (5th Cir.2012) (unpublished)(noting that "RSD is not an entity that can sue or be sued" and citing Tankerson)). The Court agrees.
Indeed, the plaintiffs arguments to the contrary fail to undermine the observations made by Judge Vance in Williams, which apply equally here:
Williams, 859 F.Supp.2d at 829 (internal citations omitted). The plaintiffs' claims against the RSD must be dismissed.
Having determined that the RSD is not a juridical entity capable of suing or being sued, the Court now considers the State defendants' invocation of sovereign immunity. Patrick Dobard, sued in his official capacity, and Batiste and Williams, to the extent that they are sued in their official capacities, invoke the doctrine of sovereign immunity and urge the Court to dismiss plaintiffs' official capacity claims on the ground that this Court lacks subject matter jurisdiction; they contend that, because the Louisiana Recovery School District is not an entity capable of being sued, the Louisiana Department of Education would be the proper defendant here. But, they continue, the Louisiana DOE and its employees who are sued in their official capacities are entitled to sovereign immunity from suit in federal court. The Court agrees.
The Eleventh Amendment bars suits by private citizens against a state in federal court. K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir.2010) (citing Hutto v. Finney, 437 U.S. 678, 700, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)). This immunity extends to protect state actors who act in their official capacities. Id. Informed by the Eleventh Amendment, "an unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state." Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Unless a state has waived Eleventh Amendment immunity, neither a state nor its agencies are subject to suit in federal court. Id.
The State of Louisiana has not consented to this lawsuit. Louisiana has not waived its sovereign immunity for suits brought in federal court. Richardson v. Southern University, 118 F.3d 450, 453 (5th Cir.1997); Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991). Louisiana Revised Statute 13:5106(A), in fact, provides that "[n]o suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court." Moreover, Louisiana has not
The State defendants point out that, while the plaintiffs have not named the Department of Education as a defendant, it would be the proper defendant. Indeed, this Court has already determined that the RSD is not amenable to suit because it is merely a sub-office of the DOE without independent capacity to sue or be sued. It is not a juridical entity. The defendants anticipate that the plaintiffs may attempt to amend their complaint to substitute DOE for RSD and because Patrick Dobard, Kelly Batiste, and Tarynesa Williams are each DOE-employed officials who are sued in their official capacities; the defendants contend that the DOE is entitled to sovereign immunity from suit in federal court and that DOE's sovereign immunity extends to Dobard, Batiste, and Williams, to the extent they are sued in their official capacities.
The Court does not consider a request to amend where none is made, but because the plaintiffs do not credibly dispute that their official capacity claims against Dobard, Batiste, and Williams are effectively claims against the DOE, the Court properly resorts to the analysis applied to determining whether a political entity is an "arm of the State" for the purposes of sovereign immunity. As the State defendants point out, however, the Court need not apply anew the Vogt factors
Plaintiffs bring this civil rights challenge under 42 U.S.C. § 1983 for alleged violations of D.T.'s constitutional rights. Section 1983 creates a private right of action for violations of federally-secured rights under color of state law; it provides:
42 U.S.C. § 1983. To state a § 1983 claim, a plaintiff must satisfy three elements:
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir.2004) (citation omitted).
When plaintiffs seek money damages from government officials for alleged violations of constitutional or statutory rights, officials in their official capacities may invoke the defense of qualified immunity. Because it is an immunity from suit and not a defense to liability, courts are advised to resolve the issue "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).
"Qualified immunity shields government officials from civil damages liability," the U.S. Supreme Court has recently reiterated, "unless the official violated a statutory or constitutional right that was clearly established that the time of the challenged conduct." Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (This doctrine protects government officials against individual civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."). "Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (noting that "[t]he protection of qualified immunity
In resolving government officials' qualified immunity defenses, courts have traditionally applied the two-prong process articulated in Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) and mandated by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, the Court must determine whether the plaintiffs have shown a violation of a constitutional right. Id. at 201, 121 S.Ct. 2151. The second inquiry requires the Court to consider "whether the right at issue was `clearly established' at the time of the defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
In other words: qualified immunity "protects `all but the plainly incompetent or those who knowingly violate the law,' so we do not deny immunity unless `existing precedent must have placed the statutory or constitutional question beyond debate.'" Morgan v. Swanson, 659 F.3d 359, 370-71 (5th Cir.2011) (en banc)(internal quotations, citations, and footnotes omitted). Once a defendant has invoked the defense of qualified immunity, the burden shifts to the plaintiff to show that the defense is unavailable. See Collier v. Montgomery, 569 F.3d 214, 217-18 (5th Cir.2009) ("Although nominally an affirmative defense, the plaintiff has the burden to negate the assertion of qualified immunity
Principal Batiste and Vice Principal Williams seek to dismiss the plaintiffs' individual capacity claims on the ground that they are entitled to qualified immunity. They contend that the plaintiffs' unexplained use of the phrase "unreasonable seizure" is insufficient to state a Fourth Amendment claim. Moreover, they contend that the plaintiffs' Fourteenth Amendment claim, that the defendants violated D.T.'s substantive due process right to bodily integrity, fails as a matter of law. The Court agrees.
Although it is not clearly identified in the complaint, the plaintiffs in their opposition papers suggests that they presents a cognizable Fourteenth Amendment claim "i.e., Ms. Batiste and Ms. Williams violated plaintiff[s'] substantive due process right (liberty interest) to be free of state-occasioned damage to his body."
(emphasis added). The plaintiffs suggest that these allegations sufficiently state a claim for violation of D.T.'s substantive due process right. Batiste and Williams counter that, given the plaintiffs' allegation in their complaint that their conduct toward D.T. was "due to an alleged behavior issue", the § 1983 substantive due process claim must be dismissed. The Court agrees.
The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive a person of life, liberty or property without due process of law." The Supreme Court has acknowledged: "Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years,... the Clause has been understood to contain a substantive component as well...." Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d
The "common law principle" of corporal punishment "predates the American Revolution." Ingraham v. Wright, 525 F.2d 909, 917 (5th Cir.1976) (en banc), aff'd, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ("Paddling of recalcitrant children has long been an accepted method of promoting good behavior and instilling notions of responsibility and decorum into the mischievous heads of school children."). As the Fifth Circuit has recognized "coincidently with the genesis of corporal punishment, reasonable limits traditionally have been imposed upon student discipline so as not to give teachers a license to commit state-sanctioned child abuse." Id.
The Due Process Clause as incorporated into the Fourteenth Amendment generally protects the right to be free from bodily restraint and punishment. See Ingraham v. Wright, 430 U.S. 651, 673-74, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (rejecting Eighth Amendment and procedural due process challenge to constitutionality of corporal punishment where state has adequate common law remedies).
It is well-established, then, as a matter of law under Fifth Circuit precedent, that the conduct of which the plaintiffs complain is not a constitutional violation: the United States Court of Appeals for the Fifth Circuit does not permit public school students to bring claims for excessive corporal punishment as substantive due process violations under § 1983 if the state provides an otherwise adequate remedy. Moore, 233 F.3d at 874-75.
Notwithstanding the clearly established law that precludes their claim, the plaintiffs invoke two cases that they say support the viability of the Fourteenth Amendment claim, Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir.1987) and Fee v. Herndon, 900 F.2d 804 (5th Cir.1990). Neither case supports that position. In Jefferson, the Fifth Circuit held that the restraint of a second-grade student to a chair for a whole school day and a "substantial portion" of a second day violated that student's right to bodily integrity. 817 F.2d at 305. The plaintiffs here insist that "if constraining a student to a chair violated the student's substantive due process rights, then constraining a student to the floor and attempting to lock him in a closet qualifies as a violation of the same Constitutional right." But the plaintiffs overlook the materially different context informing the Fifth Circuit's holding in Jefferson:
Jefferson, 817 F.2d at 305. Jefferson's facts separate it from the case of D.T.
The plaintiffs' invocation of Fee to support her position is similarly misleading and unreliable. Taking a quotation from Fee out of context, the plaintiffs insist that the Fifth Circuit held that infliction of "corporal punishment in schools is a deprivation of substantive due process when it is arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning."
Fee, in fact, more accurately advances the defendants' position. The Fifth Circuit characterized the dispute there as "present[ing] the question of whether the federal Constitution independently shields public school students from excessive discipline, irrespective of state-law safeguards." Fee, 900 F.2d at 808. In Fee, the Fifth Circuit affirmed the dismissal of a plaintiff's claims on a motion to dismiss under Rule 12(b)(6). Id. Contrary to the plaintiffs' attempt here to cherry-pick certain principles of law that inform this Circuit's substantive due process jurisprudence, the Fifth Circuit in Fee made observations so uniquely and powerfully pertinent to this
Fee, 900 F.2d at 805-06. As Fee makes clear, "the doctrine of substantive due process focuses expressly upon the arbitrariness of state action". Id. at 810. Given that Louisiana provides for adequate post-punishment relief in favor of students through its tort law, the plaintiffs cannot rely on substantive due process concerns here.
The plaintiffs simply have failed to plead facts that, if true, would show that Batiste and Williams violated D.T.'s Constitutional rights. Accordingly, Batiste and Williams, individually, are entitled to immunity from suit from suit from the plaintiffs' § 1983 claims.
The City defendants — first, the NOPD officers — sued in their individual capacity contend that it is unclear what federal right the plaintiffs are alleging were violated and, even assuming the plaintiffs attempt to assert an excessive force or unreasonable seizure claim, the plaintiffs fail to allege facts that support a constitutional violation. Accordingly, the City defendants, sued in their individual capacity, insist that they are entitled to qualified immunity. Because the plaintiffs maintain the burden of overcoming a defendants'
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." This is the sacred mandate of the Fourth Amendment.
"Students have a constitutional right under the Fourth and Fourteenth Amendments to be free from unreasonable searches and seizures while on school premises." Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 621-22 (5th Cir. 2004) (citing New Jersey v. TLO, 469 U.S. 325, 334-37, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)); Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.1995) (noting that a student's constitutional right to be free from unreasonable seizure "extends to seizures by or at the direction of school officials."). But "[t]he [Supreme] Court [has] indicated that although the Fourth Amendment applies in schools, the nature of those rights is what is appropriate for children in school." Milligan v. City of Slidell, 226 F.3d 652, 654-55 (5th Cir.2000) (citation omitted). "Fourth Amendment rights ... are different in public schools than elsewhere; the `reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).
Notwithstanding these precedents, there is some confusion among counsel as to whether the Fourth Amendment even applies in this case.
In Doe v. S & S Consol. I.S.D., 149 F.Supp.2d 274 (E.D.Tex.), aff'd, 309 F.3d 307 (5th Cir.2002), a mother and her child sued school officials under § 1983 for wrapping the emotionally disturbed and disruptive student in sheets, duct-taping her mouth shut, placing her face down on a
If the Fifth Circuit has declined to recognize school children's claims under the Fourth Amendment for school officials' use of restraining techniques,
The plaintiffs' allegations (that "Officers Davis and John Doe shoved down [D.T.] and held him with excessive force until Defendants Officers Davis and John Doe handcuffed him, with his hands behind his back" and that Officer Boyd unlawfully
To the extent the plaintiffs' complaint can be read to assert individual capacity claims against Mayor Landrieu and Superintendent Serpas, any such claims must also be dismissed for failure to state a claim. Landrieu and Serpas invoke their entitlement to qualified immunity and, not only are there no allegations that either Landrieu or Serpas directly participated in the alleged deprivation of D.T.'s constitutional rights, the plaintiffs abandon in their opposition papers any attempt to link Landrieu's and Serpas' individual liability to D.T.'s claim of constitutional violation and, thus, fail to overcome these defendants' entitlement to immunity.
The plaintiffs also assert § 1983 claims against the City, as well as perhaps official capacity claims against Mayor Landrieu and Superintendent Serpas. The defendants' challenge the sufficiency of the complaint's allegations. Because the plaintiffs make only conclusory assertions that are not entitled to the presumption of truth, these claims do not withstand the defendants' challenge.
Municipalities are "persons" within the meaning of § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But "[t]hey are liable only for their own acts and not those attributed to them by principles of respondeat superior." Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citing Monell, 436 U.S. at 691-92, 98 S.Ct. 2018). "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694, 98 S.Ct. 2018.
The City defendants contend that the plaintiffs fail to state a Monell claim that is plausible on its face. The Court agrees.
The plaintiffs seem to assert that the City through Ronal Serpas failed to train, supervise, or discipline Officers Davis and Boyd. The plaintiffs' allegations are too vague and conclusory. Not only do the plaintiffs fail to identify in their pleadings an official policy or custom, they fall well short of alleging that the City adopted a policy or participated in a widespread practice with deliberate indifference to its known consequences;
Putting aside this Court's observation that the plaintiffs have failed to demonstrate that the individual defendants' conduct was objectively unreasonable in light of clearly established constitutional law,
These allegations are so generic and conclusory, they are not entitled to the presumption of truthfulness. They rely on the false safety of boilerplate. Courts "do not presume true a number of categories of statements," the Fifth Circuit reminds, "including legal conclusions; mere `labels'; `[t]hreadbare recitals of the elements of a cause of action'; `conclusory statements'; and `naked assertions devoid of further factual enhancement.'" Morgan, 659 F.3d at 370 (citations omitted). These allegations simply fail to include sufficient factual matter which, accepted as true, would state a claim for municipal liability that is plausible on its face. The factual allegations in the complaint focus instead on individual police officer conduct, for which the City is not liable, absent a showing that the moving force behind the conduct is the City's identifiable policy or custom.
The plaintiffs have also named the NOPD as a defendant. However, the NOPD is not recognized as a legal entity or person capable of being sued. See, e.g., Everson v. N.O.P.D. Officers (Names Unknown), No. 07-7027, 2009 WL 122759, at *2 (E.D.La. Jan. 15, 2009). Accordingly, the claims asserted against the NOPD are dismissed.
Finally, the plaintiffs have asserted various state law claims in conjunction with their § 1983 claims. This Court has subject matter jurisdiction over the plaintiffs' § 1983 claims pursuant to 28 U.S.C. § 1331 and discretionary supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Section 1367(c) provides that "the district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — ... (3) the district court has dismissed all claims over which it has original jurisdiction." Indeed, when a district court dismisses all federal claims before trial, it is usually accepted practice to dismiss any pendent state law claims. See Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir.1999) (citation omitted). Because this Court has determined that dismissal of the plaintiffs' § 1983 claims is warranted, this Court declines to exercise supplemental jurisdiction over any remaining state law claims; any such claims are dismissed without prejudice.
Accordingly, the defendants' motions to dismiss are GRANTED and the plaintiffs' claims are hereby dismissed. With the exception of the plaintiffs' state law claims and the plaintiffs' claims against the unserved school security officers, which are
(internal citations omitted).
Step two of the qualified immunity analysis requires courts to determine whether the defendants' conduct "was objectively reasonable in light of clearly established law." Thompson v. Upshur County, Tex., 245 F.3d 447, 457 (5th Cir.2001) (citations omitted). "Fair warning" is the touchstone of this analysis. Bush v. Strain, 513 F.3d 492, 501-02 (5th Cir.2008) (citations omitted). "In other words, `existing precedent must have placed the statutory or constitutional question beyond debate.'" Reichle, 132 S.Ct. at 2093 (quoting Camreta v. Greene, 563 U.S. ___, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011)).
Moore, 233 F.3d at 875 (internal citations and footnotes omitted)(because Texas law provides adequate remedies, the court held there was no substantive due process violation under circumstances where student suffered severe injuries as a result of punishment imposed by physical education teacher that forced student to do 100 squat thrusts because he violated a class rule of talking during roll call). In other words, as a matter of law, corporal punishment is not arbitrary if the state has local remedies to address the allegedly offensive conduct.
When a plaintiff brings a claim under federal law contending that a police officer used excessive force in apprehending or arresting a person in violation of the Fourth Amendment, the plaintiff must first demonstrate that he was seized, which may be shown when "by means of physical force or show of authority, [an officer] has in some way restrained the liberty of a citizen". See Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Then, the plaintiff must show that he suffered "(1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force was objectively unreasonable." Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir.2000). The injury must be more than de minimis, evaluated in the context in which the force was deployed. Tarver v. City of Edna, 410 F.3d 745, 751-52 (5th Cir.2005) (finding that the plaintiff failed to satisfy the injury requirement for a § 1983 claim because he did "not allege any degree of physical harm greater than de minimis from the handcuffing"); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001) (holding that "handcuffing too tightly, without more, does not amount to excessive force."). Only substantial psychological injuries are sufficient to satisfy the injury element of a claim for excessive force under the Fourth Amendment. See Flores v. City of Palacios, 381 F.3d 391, 397-98 (5th Cir.2004).
