JOHN W. DeGRAVELLES, District Judge.
This matter is before the Court on a Motion to Dismiss Pursuant to Rule 12(b)(6) filed by Jason Ard in his personal and official capacity and the Livingston Parish Sheriff's Office ("Sheriff Ard" or "Sheriff"), (Doc. 5). In response, Tonia M. Skinner ("Ms. Skinner") and Gregory W. Causey ("Mr. Causey") (together the "Plaintiffs") filed their opposition to the Motion. (Doc. 9.) Sheriff Ard filed a reply. (Doc. 15.) Oral argument is not necessary. Having considered the allegations in the complaint, the arguments, the law and for reasons expressed below, the Motion is granted in part and denied in part.
For the purpose of ruling on the Motion the Court accepts the following facts alleged in the Complaint as true.
Deputy McLin is a civil processing officer who works at the Livingston Parish Sheriff's Office. (Doc. 1 at ¶ 11.) Deputy McLin's responsibility was service of civil summons in Livingston Parish. (Id.) Sheriff Ard is the Sheriff of Livingston Parish. (Doc. 1 at ¶ 5.)
On February 1, 2018, Deputy McLin arrived at Plaintiff's house to serve Ms. Skinner with a jury summons. (Doc. 1 at ¶ 12.) When Deputy McLin arrived, Ms. Skinner informed the Deputy that her dog Roscoe had been let out and asked him to wait by his unit until Roscoe was back in the house. (Doc. 1 at ¶ 13.) Roscoe was a six-year-old Weimaraner dog who had lived with and was cared for by the Plaintiffs for six years. (Doc. 1 at ¶ 25.) Roscoe was confined to Plaintiffs' home and/or back yard and rarely left. (Doc. 1 at ¶ 27.) Deputy McLin proceeded towards Ms. Skinner on her property. (Doc. 1 at ¶ 14.) Because Deputy McLin was warned that Roscoe was out, he was not surprised by Roscoe. (Doc. 1 at ¶ 29.) Roscoe ran from the back of the house and towards Ms. Skinner and Deputy McLin. (Doc. 1 at ¶ 14.) Roscoe ran to the back of Deputy McLin and nipped at his lower right rear calf area. (Doc. 1 at ¶ 15.) Roscoe then ran back toward Ms. Skinner who reached toward Roscoe to bring him inside. (Id.)
As Roscoe was running back towards Ms. Skinner, Deputy McLin pulled his personally owned weapon and shot Roscoe twice in the side. (Doc. 1 at ¶ 16.) Roscoe tried to crawl toward the house and Ms. Skinner, who moved closer to her dog. (Doc. 1 at ¶ 17.) Deputy McLin attempted to shoot Roscoe again and missed. (Doc. 1 at ¶ 18.) Deputy McLin then took a few steps, shot Roscoe in the head and killed Roscoe. (Id.) Mr. Causey arrived at the home shortly thereafter and observed the grief-stricken Ms. Skinner and the deceased Roscoe. (Doc. 1 at ¶ 19.) After Roscoe's death, Ms. Skinner and Mr. Causey suffered mental anguish due to Roscoe's death and witnessing Deputy McLin shooting him. (Doc. 1 at ¶ 24.)
The Sheriff "maintained, enforced, tolerated, permitted, and applied policies, practices, or customs and usages of (including but not limited to) subjecting citizens to unreasonable seizures by failing to adequately train, supervise, and equip employees to properly handle dog/animal encounters." (Doc. 1 at ¶ 30.) Further the Sheriff's "failure to train and/or equip Deputy McLin to properly handle dog/animal encounters without the use of lethal force." (Doc. 1 at ¶ 31.) In addition, that "Defendants, Sheriff Ard . . . had a policy, practice, or custom of failing to train or failing to adequately train its officers regarding use of lethal force and handling dog/animal encounters." (Doc. 1 at ¶ 32.)
In Johnson v. City of Shelby, Mississippi, 574 U.S. 10, 135 S.Ct. 346 (2014), the Supreme Court has explained:
Id., 574 U.S. at 11.
Interpreting Rule 8(a) and Twombly, the Fifth Circuit explained:
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir.2009) (quoting Twombly, 127 S.Ct. at 1965) (emphasis added, footnotes omitted).
Analyzing the above case law, the Western District of Louisiana stated:
Diamond Services Corp. v. Oceanografia, S.A. De C.V., No. 10-177, 2011 WL 938785, at *3 (W.D. La. Feb. 9, 2011) (citation omitted).
Finally, in Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir.2014), the Fifth Circuit recently summarized the Rule 12(b)(6) standard as thus:
Id. at 502-03 (citations and internal quotations omitted).
The Sheriff argues that the Livingston Parish Sheriff's Office is not a legal entity capable of being sued; therefore any claims against it should be dismissed. The Sheriff maintains that although Rule 12(b)(6) does not specifically address a lack of capacity to be sued, "federal courts . . . traditionally have entertained certain pre-answer motions that are not expressly provided for by the rules or statute[,] . . . such as motions raising . . . a lack of capacity to sue or be sued" (Doc. 5-1 at 4-5 (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1360 (3d. ed. 2016)).)
Further, the Sheriff argues that Rule 17(b) instructs that "capacity to sue or be sued shall be determined . . . by the law of the state in which the [c]ourt is located." (Doc. 5-1 at 5 (citing Fed. R. Civ. P. 17(b)). As such, the Sheriff outlines that Louisiana law dictates that to have capacity to be sued, an entity must be a juridical person, meaning "an entity to which the law attributes personality, such as a corporation or partnership." (Doc. 5-1 at 5 (citing La. Civ. Code art. 24.) A parish sheriff's office does not have legal status it is therefore not capable of being sued. (Doc. 5-1 at 5 (citing among others Valentine v. Bonneville Ins. Co., 96-1382 (La. 3/17/97), 691 So.2d 665, 668).)
The Sheriff argues that the Complaint is devoid of factual allegations regarding his actions and merely relies on conclusory allegations as to the Sheriff's failure to properly train, the Sheriff's policy practice or custom regarding lethal force with animal encounters, and/or failure to institute a policy regarding lethal force with animal encounters. (Doc. 5-1 at 6-7.)
The Sheriff argues that "government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." (Doc. 5-1 at 7 (quoting, Iqbal, 556 U.S. 662, 676 (2009)).) As such, the Sheriff maintains that "the law is now settled that in a section 1983 action a Louisiana sheriff may not be held liable for the acts of his deputies under the doctrine of respondeat superior or any other theory of vicarious liability." (Doc. 5-1 at 7 (quoting Campbell v. Bergeron, 486 F.Supp. 1246, 1248 (M.D. La. 1980)).) Therefore, the Sheriff seeks dismissal with prejudice of any respondeat superior claims under § 1983 case. (Doc. 5-1 at 7-8.)
The Sheriff argues that to maintain an official capacity claim Plaintiffs must allege that he is "a policy maker; an official policy; and a violation of constitutional rights whose moving force is the policy or custom." (Doc. 5-1 at 8 (citing Zarnow v. City of Wichita Falls, TX 614 F.3d 161, 165 (5th Cir. 2010)).) Although the Sheriff concedes that he is the policymaker for the Livingston Parish Sheriff's Office, the Sheriff maintains that Plaintiffs have only made conclusory allegations regarding any policy, practice or custom. (Doc. 5-1 at 8-9.) This is insufficient because Plaintiffs have neither provided a specific policy at issue nor outlined a persistent widespread practice of city officials. (Doc. 5-1 at 10 (citing Norton v. Livingston Par. Det. Ctr., No. 13-437, 2013 WL 55149400, at 5 (M.D. La. Oct. 2, 2013).) The Sheriff asserts that to set out a claim in the official capacity, it is necessary to allege what the policies/customs were or what the policies/customs involved, and not merely refer to policies/customs in the abstract. (Doc. 5-1 at 13.) The Sheriff likewise argues that Plaintiffs have failed to allege facts to show that any policy or custom was adopted with deliberate indifference to the known or obvious consequences of the constitutional violation that would result. (Doc. 5-1 at 11.)
The Sheriff argues that Plaintiffs claim in his individual capacity also fails because Plaintiffs have not alleged that the Sheriff was personally involved in the deprivation; that he was present during the encounter; or that his actions were causally connected to the alleged deprivation. (Doc. 5-1 at 14-15.) Specifically, the Sheriff asserts that to state a claim in his personal capacity, Plaintiffs need to allege facts to show that there was a failure to train or supervise deputes that was causally connected to the alleged constitutional deprivation, and that the failure to train or supervise amounted to deliberate indifference. (Doc. 5-1 at 14.) The Sheriff maintains that Plaintiffs simply do not allege facts sufficient to meet these requirements. (Id.)
The Sheriff also argues that even if the Plaintiffs had alleged facts sufficient to state a personal capacity claim, Plaintiffs have not overcome his qualified immunity defense. (Doc. 5-1 at 14.) The Sheriff maintains that Plaintiffs have not alleged sufficient facts support a plausible claim that Sheriff Ard's conduct: "(1) violated a clearly established federal constitutional right; and (2) was not objectively reasonable in light of clearly established law." (Doc. 5-1 at 16-17 (citing, Cox v. Kaelin, 577 F. App'x 306, 313 (5th Cir. 2014)).)
The Sheriff likewise argues that the state law claims should be dismissed because Plaintiffs rely on conclusory allegations, not specific facts, in support of their state law claims. (Doc. 5-1 at 17.) Further, the Sheriff outlines that La. R.S. 9:2798.1 provides immunity to the Sheriff for any negligent hiring, training, retention, or supervision because it is within his discretion as the Sheriff. (Doc. 5-1 at 17-18.) In support, the Sheriff directs the Court to Hoffpauir v. Columbia Cas. Co., No. 12-403-JBB-SCR, 2013 WL 5934699, at *12-13 (M.D. La. Nov. 5, 2013), in which Judge Brady found that a discretionary function of the Livingston Parish Sheriff's Department was the hiring, training, and supervision policy, and applied La R.S. 9:2798.1 to grant immunity to the Sheriff. (Doc. 5-1 at 18.)
Last, the Sheriff argues that because the state law claims against Deputy McLin should be dismissed, the state law claim for respondeat superior liability should likewise be dismissed. (Doc. 5-1 at 19.)
Plaintiffs generally argue that the Complaint sets forth sufficient facts to state a plausible claim for relief. (Doc. 9 at 3.) Specifically, Plaintiffs maintain that the Complaint alleges causes of action under federal and state law against Sheriff Ard in his official and personal capacity. (Doc. 9 at 3.) Plaintiffs assert that the actions of Deputy McLin are sufficient to show that there was a failure to hire, train, or supervise or in the alternative that the Sheriff failed to institute a policy for animal encounters and the use of force. (Doc. 9 at 3.) Plaintiffs outline that "without the benefit of discovery, it is impossible to point to specific policies that the Sheriff may or may not have enacted and followed to appropriately hire, train, and supervise his forces, or specific instances or patterns of which the Sheriff was knowledgeable." (Doc. 9 at 3.) Plaintiffs support this argument by stating that most of the cases cited by the Sheriff involved motions for summary judgment or after a jury trial. (Doc. 9 at 4.)
Plaintiffs argue that qualified immunity is not appropriate because killing a companion animal is a seizure under the Fourth Amendment and under Article 1, § 5 of the Louisiana Constitution. (Doc. 9 at 5.) Further, Plaintiffs maintain that Deputy McLin's actions were objectively unreasonable in light of the fact that Deputy McLin was delivering a civil jury warrant, ignored Ms. Skinner's direction to remain in his car until Roscoe was secured, and killed Roscoe when he was crawling away injured to Ms. Skinner. (Doc. 9 at 5-6.) Because Deputy McLin took this allegedly unreasonable action, Plaintiffs reason that Sheirff Ard must have either not had a policy in place regarding animal encounters or failed to hire, supervise, and train Deputy McLin. (Doc. 9 at 6.) As such, Plaintiffs maintain the Sheriff is not entitled to qualified immunity. (Doc. 9 at 6.)
In addition, Plaintiffs argue that under La. R.S. 9:2798.1(C)(2) public officials are not entitled to immunity for "acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct." (Doc. 9 at 6.) Plaintiffs detail that a failure to have a policy in place regarding the use of force in animal encounters is willful, outrageous and flagrant misconduct by the Sheriff. (Doc. 9 at 6.) Therefore, they reason the Sheriff cannot use this immunity as a defense. Plaintiffs also detail that vicarious liability under state law remains a viable cause of action because the state law claims against Deputy McLin have been sufficiently pled. (Doc. 9 at 7.)
In the alternative, the Plaintiffs request leave to amend the Complaint to set forth more facts under Federal Rule of Civil Procedure 15. (Doc. 9 at 7.)
In reply, the Sheriff argues that Plaintiffs have failed to allege sufficient facts against Sheriff Ard in his official capacity because they do not allege any facts regarding a specific policy or a pattern to show an official custom. (Doc. 16 at 1.) The Sheriff likewise points out that under Iqbal, Plaintiffs cannot open the door to discovery with nothing more than conclusions. (Doc. 16 at 3 (citing, Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009)).) The Sheriff also states that Plaintiffs have waived any arguments regarding the personal capacity claims by not addressing it in their memorandum. (Doc. 16 at 2.) Further the Sheriff argues that Plaintiffs have failed to allege either that Sheriff Ard was personally involved in the constitutional deprivation or that his wrongful acts were causally connected. (Doc. 16 at 4.) The Sheriff argues that the conclusory allegations are not sufficient to overcome the immunity afforded by La. R.S. 9:2798.1. Finally, the Sheriff adopts the arguments made in Deputy McLin's Motion to Dismiss regarding the damages.
The Sheriff is correct that the Livingston Parish Sheriff's Office is not an entity capable of being sued. Federal Rule of Civil Procedure 17(b), dictates that the capacity to sue or be sued is determined by state law. Under Louisiana law, the Louisiana Supreme Court has explained that:
Valentine v. Bonneville Ins. Co., 96-1382 (La. 3/17/97), 691 So.2d 665, 668 (internal citations removed); see Abbott v. Town of Livingston, No. 16-00188, 2016 WL 4134565, at *4 (M.D. La. July 29, 2016) ("It is well settled under Louisiana law that a sheriff's department or office, or the parish prison, is not a separate legal entity capable of being sued. Rather, a parish sheriff, whether in his individual or official capacity, is the proper party defendant."); see also Cozzo v. Tangipahoa Parish Council President Government, 279 F.3d 273, 283 (5th Cir. 2002). Therefore, to the extent the Complaint alleges a claim against the Livingston Parish Sheriff's Office, that claim is dismissed with prejudice.
In short, the Sheriff is also correct that "supervisory officials cannot be held liable under section 1983 for the actions of subordinates . . . on any theory of vicarious or respondeat superior liability." Jackson v. E. Baton Rouge Par. Prison, No. 14-45, 2014 WL 3193124, at *3 (M.D. La. July 8, 2014) (citing Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir.2005)); see also Bd. of Cty. Com'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997) ("We have consistently refused to hold municipalities liable under a theory of respondeat superior."). Thus, the Sheriff's motion is granted, and to the extent that Plaintiff intended to assert a claim of vicarious liability under § 1983 against Sheriff Ard, such a claim is dismissed with prejudice.
Plaintiff has alleged claims against Defendant Ard in his official capacity as sheriff of Livingston Parrish. The Supreme Court outlined in Kentucky v. Graham:
473 U.S. 159, 165-66 (1985) (citations omitted). At the outset, it should be noted that "a federal court may [not] apply a `heightened pleading standard'—more stringent than the usual pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure—in civil rights cases alleging municipal liability under . . . § 1983." Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed. 2d 517 (1993).
Further, this Court has previously explained:
Norton v. Livingston Par. Detention Ctr., No. 13-437-JJB, 2013 WL 5519400, at *4 (M.D. La. Oct. 2, 2013) order clarified on other grounds, No. 13-437-JJB, 2014 WL 1057218 (M.D. La. Mar. 19, 2014).
Boiled down, in this case, Plaintiffs allege that Sheriff Ard had a policy, practice, or custom of failing to train or failing to adequately train regarding the use of lethal force and dog/animal encounters. The Sheriff argues that Plaintiffs have failed to allege facts sufficient to state a claim under the second element—that there was "an official policy." An "official policy" is:
Norton, 2013 WL 5519400 at *4 (citing Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984)).
Here, Plaintiffs' conclusory allegation that the Sheriff "had a policy, practice, or custom of failing to train or failing to adequately train its officers regarding use of lethal force and handling dog/animal encounters," (Doc. 1 at ¶ 32.), without more specific factual allegations support, "effectively amount[s] to a formulaic recitation of the elements of [the] 42 U.S.C. § 1983 cause of action." See Norton, 2013 WL 5519400 at *5 (citing Twombly, 550 U.S. at 555). As explained by the Fifth Circuit, "[t]he description of a policy or custom and its relationship to the underlying constitutional violation . . . cannot be conclusory; it must contain specific facts." Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (emphasis added) (citing Fraire v. Arlington, 957 F.2d 1268, 1278 (5th Cir.1992)).
Plaintiffs likewise allege that there was a failure to train, supervise, and equip employees and specifically Deputy McLin regarding use of lethal force and handling dog/animal encounters. The Fifth Circuit has "consistently held . . . that `[a]llegations of an isolated incident are not sufficient to show the existence of a custom or policy.'" Mathews v. Bowie Cty., Tex., 600 F. App'x 933, 934 (5th Cir. 2015) (unpublished) (citing Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)). This is because "[i]solated violations are not the persistent, often repeated constant violations that constitute custom and policy." Fraire, 957 F.2d at 1278 (5th Cir. 1992) (citing Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir.1984), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985)).
"A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 1359 (2011) (citation omitted). The Supreme Court advises that the heightened standard of fault and causation for these claims is intended to prevent federal courts from engaging "in an endless exercise of second-guessing municipal employee-training programs. This is an exercise we believe the federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism." City of Canton v. Harris, 389 U.S. 378, 392, (1989) (internal citations omitted).
Accordingly, because Plaintiffs have made only conclusory factual allegations as to what the Sheriff's policy was and has made no factual allegations sufficient to show a custom, Plaintiffs' claim against Sheriff Ard in his official capacity must be dismissed.
Plaintiffs have likewise alleged that Sheriff Ard is liable in his personal capacity based on a failure to train Deputy McLin. To establish the individual liability of a supervisor under section 1983 based on a failure to train, a plaintiff must show: "`(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference.'" Porterv. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009)). In the context of failure-to-supervise claims, the Fifth Circuit has said: "`for a supervisor to be liable . . ., the focus must be on the adequacy of the training program in relation to the tasks the particular officers must perform.'" Goodman, 571 F.3d at 395 (quoting Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)). "Moreover, `for liability to attach based on an "inadequate training" claim, a plaintiff must allege with specificity how a particular training program is defective.' " Id. (quoting Roberts, 397 F.3d at 293) (dismissing failure to supervise and failure to train claims together); see also Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (to satisfy deliberate indifference element of failure-to-train claim, a plaintiff must usually demonstrate a "pattern of violations" and that inadequate training is "obvious and obviously likely to result in a constitutional violation"); Floyd v. City of Kenner, 351 F. App'x 890, 898 (5th Cir. 2009) ("[T]he pleadings must have sufficient precision and factual detail to reveal that more than guesswork is behind the allegation.") (internal citation omitted).
In finding factual allegations of a failure to train claim insufficient on a 12(b)(6) motion, this Court quoted the Fifth Circuit and stated:
Clayton v. Colombia Cas. Co., 2012 WL 2952531, at *7 (M.D. La. July 19, 2012) (quoting Estate of Davis, 406 F.3d at 381-83). Here the Plaintiffs' conclusory allegations regarding the Sheriff's failure to train and deliberate indifference are not sufficient to state a claim for personal liability under § 1983.
The Complaint alleges a state law claim for negligent hiring, training, and supervising. In response, the Sheriff raises the state statutory immunity defense under La. R.S. 9:2798.1. La. R.S. 9:2798.1, which is entitled, Policymaking or discretionary acts or omissions of public entities or their officers or employees, states:
Plaintiffs argue that this state law immunity is not appropriate because the actions taken were outrageous, malicious and flagrant misconduct. (Doc. 9 at 6.) La. R.S. 9:2798.1 also states,
The Honorable Judge Brady of this District explained how the Louisiana Court of Appeals applied La. R.S. 9:2798.1.
Judge Brady further explained,
Hoffpauir v. Columbia Cas. Co., No. 12-403-JJB, 2013 WL 5934699, at *12 (M.D. La. Nov. 5, 2013).
The Fifth Circuit has also applied La. R.S. 9:2798.1, explaining,
Roberts v. City of Shreveport, 397 F.3d 287, 296 (5th Cir. 2005).
In this case, Sheriff Ard is a policymaker and in his discretionary decision-making capacity, has to train and supervise deputies at the Livingston Parish Sheriff's Office. La. R.S. 9:2798.1 applies to those decisions. The conclusory allegations in the Complaint that Sheriff Ard's actions in failing to train or supervise were willful, malicious, and flagrant misconduct do not rise to a level to make the La. R.S. 9:2798.1 immunity inapplicable. As such, the Motion will be granted as to the claim for negligent hiring, training, and supervising.
Plaintiffs have also alleged respondeat superior liability under state law for the actions of Deputy McLin. Under Louisiana law,
Frank v. Parnell, No. 1:18-CV-00978, 2019 WL 2438685, at *9 (W.D. La. May 14, 2019). The Sheriff argues that because the state law claims against Deputy McLin should be dismissed, the state law claim for respondeat superior liability should likewise be dismissed. (Doc. 5-1 at 19.) For the reasons that the Court states in the decision on Deputy McLin's Motion to Dismiss under Rule 12(b)(6), (Doc. 17), the Court does not dismiss the state law claims against Deputy McLin, therefore the Court denies the Motion as it pertains to the state law claim for respondeat superior liability.
"[A] court ordinarily should not dismiss the complaint except after affording every opportunity to the plaintiff to state a claim upon which relief might be granted." Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955). The Fifth Circuit has further stated:
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
Relying on Great Plains and other cases from this circuit, one district court in Texas articulated the standard as follows:
Tow v. Amegy Bank N.A., 498 B.R. 757, 765 (S.D. Tex. 2013). Finally, one leading treatise explained:
5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2016). Here, Plaintiffs ask for leave to amend their Complaint in the event the Court found that there are deficiencies; therefore, the Court will act in accordance with the "wise judicial practice" and general rule and allow leave to amend.
Accordingly,
Bibbins v. City of Baton Rouge, 489 F.Supp.2d 562, 584 (M.D. La. 2007)(emphasis omitted).
