# Bookenberger v. Terrebonne Parish

> District Court, E.D. Louisiana · August 16, 2019

URL: https://www.frixlaw.com/law-library/cases/10184750

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** August 16, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10184750

## How later opinions describe it (automated extraction)

- stating that the qualified immunity defense requires two points of analysis
- stating that elements supported by conclusory statements cannot establish plausibility
- stating that it is well established in the Fifth Circuit that placement on paid administrative leave does not constitute deprivation of a property interest
- explaining that Texas district courts have consistently held that procedural regulations or an agency’s failure to such procedures does not give rise to a property interest

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DALLAS BOOKENBERGER CIVIL ACTION
VERSUS NO. 18-6373
TERREBONNE PARISH, ET. AL. SECTION: "B"(3)
ORDER & REASONS
Before the Court are defendants Terrebonne Parish (“TP”), Houma
Police Department (“HPD”), Dana Coleman, Cory Johnson, and Terry
Boquet’s (collectively “defendants”) motion to dismiss (Rec. Doc.

15) with supplemental exhibits (Rec. Doc. 18) and plaintiff Dallas
Bookenberger’s opposition memorandum (Rec. Doc. 16). For the reasons
discussed below,
IT IS ORDERED that the motion to dismiss is GRANTED IN PART,
and we decline to exercise supplemental jurisdiction over
plaintiff’s state law claims.
FACTS AND PROCEDURAL HISTORY
This is a civil rights case. Plaintiff was a commissioned
officer of the HPD. See Rec. Doc. 1 at 1. He began his employment
with the HPD in 2016 after working several years as an officer with
Terrebonne Sheriff’s Office. See id. at 3. Defendants are TP, a
governmental entity; the HPD, where plaintiff was employed; Dana

Coleman, the Chief Police of the HPD, in her official and individual
capacities; Cory Johnson, a sergeant of the HPD, in his official and
individual capacities; and Terry Boquet, a sergeant of the HPD, in
his official capacity only. See id. at 1-2.
Plaintiff alleges First Amendment retaliation; whistleblower
protection; Fourteenth Amendment substantive and procedural due
process; intentional infliction of emotional distress (“IIED”);

civil conspiracy; deprivation of rights and privileges under § 1983;
entitlement to reasonable attorneys’ fees under § 1988; and negligent
hiring, commissioning, training, supervision, and retention. See id.
at 13-22.
On May 26, 2018, at or around 10:32 p.m., defendant Johnson
ordered dispatch to request that plaintiff respond to a call in
Terrebonne Parish. See id. at 4. Specifically, plaintiff was
dispatched to respond to a white pickup truck driving in a reckless
manner. See id. Plaintiff arrived to the area to “intercept the
suspect vehicle.” Id. at 5. While parked in his department-issued
vehicle, he observed traffic but did not encounter any vehicles
matching the suspect vehicle. See id.

At or around 10:38 p.m., plaintiff advised dispatch that he did
not see any vehicles matching the suspect vehicle and was available
for reassignment. See id. “Immediately after advising dispatch he
was available for reassignment, [defendant] Johnson requested
[p]laintiff’s location via radio and advised him to remain in
position.” Rec. Doc. 15-1 at 3. Once defendant Johnson arrived to
the area, a verbal argument ensued between defendant Johnson and
plaintiff. See id. Both were very angry. See id. Plaintiff surmises
that the call was a set-up, unsanctioned investigation by defendant
Johnson to poorly reflect on his service record. See Rec. Doc 1 at
6. Defendants claim that plaintiff was merely subjected to an
“integrity check” for his alleged failure to respond to calls.1 See

Rec. Doc. 15-1 at 1.
On May 29, 2019, plaintiff filed a fourteen-page formal
grievance alleging that defendant Johnson attempted to entrap him
and violated several criminal statutes and HPD policies in doing so.
See id. at 3. Subsequently, plaintiff was suspended and placed on
administrative leave pending an investigation. See id. at 4.
Plaintiff believes that he was relieved of his officer privileges in
a humiliating fashion. See Rec. Doc. 1 at 8-9. Plaintiff alleges
that defendant Coleman advised him that he stopped reading his
grievance after the second page. See id. at 9.
On June 22, 2019, plaintiff returned to the HPD with counsel to
meet with defendant Boquet for additional questioning. See id.

Defendant Boquet asked about the handling of the reckless driving
call, the incident with defendant Johnson, and plaintiff’s work on
federal block grants. See id. at 10-11. Plaintiff alleges that the
interrogation was conducted contrary to state law because defendant
Boquet refused to inform him and his counsel of the scope of the

1 According to defendants, “[i]integrity checks are an accepted procedure that
police departments rely upon to determine if their officers are properly performing
their duties.” Rec. Doc. 15-1 at 2; see also United States v. Battiste, 343 Fed.
Appx. 962, 963 (5th Cir. 2009) (“The NOPD was contacted by a source who informed
them that Battiste was stealing money from arrestees. Investigators from PIB
conducted an "integrity check" of Battiste, employing a decoy and a covert
investigation. See id. at 10. Defendant Boquet mentioned alleged
discrepancies in plaintiff’s work on federal grants to intimidate
him and his counsel. See id. at 12.

At plaintiff’s filing of his complaint, he was on suspended and
on administrative. See id. Defendant Johnson was not. See id. at 10.
Plaintiff alleges that defendant Johnson was assigned to his work.
See id. at 13. Plaintiff states in his opposition that he was ordered
to be reinstated following administrative hearings to be held on the
incident and surrounding issues. See Rec. Doc. 16 at 1.
On October 9, 2018, defendants filed a motion to dismiss. See
Rec. Doc. 15. On October 16, 2018, plaintiff filed an opposition.
See Rec. Doc. 16. On April 22, 2019, defendants added several
exhibits to their motion to dismiss. See Rec. Doc. Nos. 18, 19.
Based on the supplemental exhibits submitted by defendants,
plaintiff was subsequently terminated. See Rec. Doc. 18. Plaintiff

appealed his termination to the Houma Municipal Fire and Police Civil
Service Board (“the Civil Board”). See id. The Civil Board ruled in
plaintiff’s favor, overturning his termination. See id. at 1.
Defendants appealed the Civil Board’s decision to the 32nd Judicial
District Court, Parish of Terrebonne, State of Louisiana. See id. at
2. The 32nd Judicial District Court reversed the Civil Board’s
decision, reinstating the appointing authority’s decision to
terminate plaintiff. See Rec. Doc. 18-2.
LAW AND ANALYSIS
A. Motion to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a

party to move for dismissal of a complaint for failure to state a
claim upon which relief can be granted. To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff’s complaint “must contain
‘enough facts to state a claim to relief that is plausible on its
face.’” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
other words, a plaintiff’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 556

U.S. at 556).
When deciding whether a plaintiff has met his or her burden, a
court “accept[s] all well-pleaded factual allegations as true and
interpret[s] the complaint in the light most favorable to the
plaintiff, but ‘[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements’ cannot establish
facial plausibility.” Snow Ingredients, Inc. v. SnoWizard, Inc., 833
F.3d 512, 520 (5th Cir. 2016) (quoting Iqbal, 556 U.S. at 678) (some
internal citations and quotation marks omitted). Plaintiff must
“nudge[] [his or her] claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.
Rule 12(b)(6) is designed to test the pleadings. Defendants

filed supplemental exhibits outside of the pleadings. Therefore,
pursuant to Rule 12(d), the court will convert this motion to dismiss
as one for summary judgment. See Jones v. St. Tammany Parish Jail,
4 F. Supp. 2d 606, 610 (E.D. La. 1998)(“ When matters outside the
pleadings are presented to and not excluded by the court, a Rule
12(b)(6) motion is converted into a motion for summary judgment.”).
B. Section 1983
Section 1983 allows for a cause of action against an individual
who, acting under color of state law, has deprived a person of a
federally protected statutory or constitutional right. See
Whittington v. Maxwell, 455 Fed. Appx. 450, 456 (5th Cir. 2011). To
establish liability through Section 1983, three elements must be

established: (1) deprivation of a right secured by federal law, (2)
that occurred under color of state law, and (3) was caused by a state
actor. See Victoria W v. Larpenter, 369 F.3d 475, 482 (5th Cir.
2004). Section 1983 “contemplates recovery of compensatory damages,
as well as equitable relief, against a local government official for
the harm that he inflicts because of his constitutional violations,
subject to any personal immunities of the officer.” Lee v. Morial,
2000 U.S. Dist. LEXIS 8307, at *4 (E.D. La. 2000). Such damages are
also available against a local government when its officer has
carried out official policy. See id. citing to Monell v. Department
of Social Services, 436 U.S. 658 (1978).
C. Official Capacity Claims

Defendants Coleman, Johnson, and Boquet argue that there are no
official capacity claims against them because plaintiff lists TP and
HPD as defendants2, making his claims against them redundant. See
Rec. Doc. 15-1 at 11. Defendants are correct in arguing that suit
against a municipal employee in his official capacity is the same as
a suit against the municipality itself. See also Lee, 2000 U.S. Dist.
LEXIS 8307, at *4 (“A suit against a government official in his
official capacity is treated as a suit against the entity.”).
Official capacity claims against defendants Coleman, Johnson, and
Boquet in their official capacity are treated as claims against TP
and HPD. Therefore, plaintiff’s claims against defendants Johnson,
Coleman, and Boquet in their official capacities are dismissed. See
St. Martin v. Jones, 2008 U.S. Dist. LEXIS 70896, at *12 (E.D. La.

2008)(stating that the Fifth Circuit has expressed that identical
claims against individual public officials and the entities by which
they are employed are barred by virtue of subjecting the defendant-
entity to redundant liability).

2 Defendants appear to refer to as defendants Terrebonne Parish (“TP”) and Houma
Police Department (“HPD”) collectively as Terrebonne Parish Consolidated
.
D. Municipal Liability
Defendants TP and HPD argue that municipality liability is non-
existent here because plaintiff fails to adequately allege that TP

and HPD, in their official capacity, violated his constitutional
rights. See Rec. Doc. 15-1 at 6, 8. Plaintiff makes allegations
against TP and HPD employees but fails to assert plausible claims
directly associated with policies, regulations, and decisions
officially adopted and promulgated by TP and HPD. See id. at 8.
Furthermore, plaintiff makes no allegations that defendants Coleman,
Johnson, Boquet were acting pursuant to an official municipal policy
and as official municipal policymakers. See id. at 10.
To establish municipal liability under Section 1983, a
plaintiff must show proof of three elements: (1) an official policy
(or custom), of which (2) a policymaker can be charged with actual
or constructive knowledge, and (3) a constitutional violation whose

moving force is that policy or custom. See Maurer v. Town of
Independence, 2015 U.S. Dist. LEXIS 25035, at *18 (E.D. La. 2015);
see also Brown v. Bolin, 500 Fed. Appx. 309, 316 (5th Cir. 2012).
The Fifth Circuit has held that an official policy is either
(a) a policy statement, ordinance, regulation, or decision that is
officially adopted and promulgated by the government entity or by an
official to whom the entity has delegated policy-making authority;
or (b) a persistent, widespread practice of officials or employees
which although not authorized by officially adopted and promulgated
policy is so common and well-settled as to constitute a custom that
fairly represents the entity's policy. See Mays v. Bd. of Comm'rs
Port, 2015 U.S. Dist. LEXIS 33596, at *26 (E.D. La. 2015).

Here, plaintiff fails to allege an official policy or custom,
much less one that was the moving force of his alleged constitutional
rights violations. Instead of alleging that defendants caused his
alleged injuries through their deliberate conduct in accordance with
a particular policy or custom of TP or HPD, plaintiff alleges the
opposite: that defendants violated his constitutional rights through
their violation of state laws and HPD rules. See id. at *25 (“The
plaintiff must [] demonstrate that, through its deliberate conduct,
the municipality was the “moving force” behind the injury
alleged.”).
Specifcally, plaintiff alleges in a conclusory fashion, that
“[d]efendants [] acted on and used the authority vested in them by

and entrusted to them by the State of Louisiana and Terrebonne Parish
to . . . deprive [him] of rights, privileges, and immunities
protected by the United States Constitution”. Rec. Doc. 1 at 20; see
also Mays, 2015 U.S. Dist. LEXIS 33596, at *27 (“The description of
a policy or custom and its relationship to the underlying
constitutional violation, moreover, cannot be conclusory; it must
contain specific facts.”). The only time that plaintiff comes close
to alleging a custom is when he states that assigning a case number
to a call is a “customary and routine practice and procedure for the
[HPD].” Rec. Doc. 1 at 4. Plaintiff never goes on to link this
alleged custom to his alleged injures. See Mays, 2015 U.S. Dist.
LEXIS 333596, at *26 (“[P]laintiff must show that the municipal

action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and
the deprivation of federal rights.”).
Plaintiff offers similar allegations in his response
memorandum. He states that defendants characterized his complaints
as “accepted procedure” but then states that “no [] policy exists”
and he has sufficiently pled specific facts as to municipal liability
in his complaint by showing that “defendants’ actions were wrongful,
improper under the law, and violated his recognized rights under the
Constitution.” Rec. Doc. 16 at 8-10. Plaintiff misses the mark again
as the rule here requires him to prove that a policy exists and
defendants’ following of that policy caused him injury. See Mays,

2015 U.S. Dist. LEXIS 333596, at *25.
Plaintiff alleges that the only way to “uncover” defendants’
alleged accepted procedure (i.e., integrity checks) is to follow
through with full discovery. See Rec. Doc. 16 at 10. Even when
viewing this allegation in the light most favorable to the plaintiff,
plaintiff’s factual allegations support only one incident involving
defendants’ alleged accepted procedure. That one incident is not
sufficient to show the existence of a custom or policy. See Fraire
v. Arlington, 957 F.2d 1268, 1278 (E.D. La. 1992)(“Allegations of an
isolated incident are not sufficient to show the existence of a
custom or policy.”). Therefore, plaintiff’s claims against defendant
TP and HPD are dismissed. See Mays, 2015 U.S. Dist. LEXIS 33596, at

*25 (“To maintain a § 1983 claim against a municipality, a plaintiff
must show that officials acted in accordance with an official policy
or custom.”).3
E. Individual Capacity Claims
Defendants Coleman and Johnson argue that, as public officials,
they are entitled to qualified immunity. See Rec. Doc. 15-1 at 17.
“Qualified immunity protects all but the plainly incompetent or
those who knowingly violate the law[.]” See Whitley v. Hanna, 726
F.3d 631, 638 (5th Cir. 2013). “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.” Whittington, 455 Fed. Appx. at 456
citing to Pearson v. Callahan, 555 U.S. 223, 231 (2009); see also

Lockett v. New Orleans City, 639 F. Supp. 2d 710, 732 (E.D. La. 2009)
(stating that qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a

3 Beyond stating that defendants acted on and used the authority vested in and
entrusted to them by the State of Louisiana and Terrebonne Parish, plaintiff does
not come close to sufficiently alleging that defendants Johnson, Coleman, or
Boquet were the final policymakers of TP or HPD. See generally Green v. Edward-
Sheriff, 2011 U.S. Dist. LEXIS 148413, at *21 (E.D. La. 2011)(finding the
reasonable person would have known). Courts will not reject an
assertion of qualified immunity unless existing precedent places the
constitutional question beyond debate. See Whitley, 726 F.3d at 638
citing to Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

If a defendant asserts qualified immunity, the burden shifts to
the plaintiff to demonstrate that the defendant is not entitled to
qualified immunity. See Whittington, 455 Fed. Appx. at 456.
Specifically, the plaintiff has the burden of demonstrating (1) a
claim that the defendant committed a constitutional violation under
current law and (2) that the defendant’s action were objectively
unreasonable in light of the law that was clearly established at the
time of the complained of actions. See Lockett, 639 F. Supp. 2d at
732; see also Whittington, 455 Fed. Appx. at 456 (stating that the
qualified immunity defense requires two points of analysis). The
touchstone of this two-point test is whether a reasonable person

would have believed that his conduct conformed to the constitutional
standard in light of the information available to him and the clearly
established law. See Lee, 2000 U.S. Dist. LEXIS 8307, at *12.
The first issue to turn to is whether plaintiff has alleged a
violation of a constitutional right. See Maurer, 2015 U.S. Dist.
LEXIS 25035, at *19 (stating that the first step in the qualified
immunity analysis is to determine whether the plaintiff has alleged
a violation of a clearly established constitutional right).
Plaintiff alleges a claim of First Amendment retaliation and
Fourteenth Amendment substantive and procedural due. See Rec. Doc.
1 at 13, 16.
1. First Amendment Retaliation Claim

Defendants argue that plaintiff has no first amendment claims
because he does not allege sufficient facts. See Rec. Doc. 15-1 at
14. Specifically, plaintiff makes no allegations that any defendant
saw or read his grievance prior to suspending him or that he spoke
out publicly about the allegations in his complaint. See id. As a
paramilitary organization, HPD has more latitude in its discipline
decisions than ordinary government organizations. See id. at 15.
To succeed on a claim for First Amendment freedom of speech
retaliation, a plaintiff must show (1) he spoke as a citizen on a
matter of public concern; (2) he suffered an adverse employment
action; (3) his interest in the speech outweighs the government's
interest in the efficient provision of public service; and (4) the
speech precipitated the adverse employment action. See Dumas v. St.
Tammany Parish Fire Dist. No. 3, 2017 U.S. Dist. LEXIS 72672, at *13

(E.D. La. 2017). Plaintiff contends that he has sufficiently alleged
a first amendment retaliation claim as his complaint includes
multiple charges against defendants. See Rec. Doc. 16 at 7, 10-11.
Plaintiff has failed to allege sufficient facts as to an
essential element of first amendment retaliation: that he spoke as
a citizen on a matter of public concern. See Garcia v. City of
Harlingen, 2009 U.S. Dist. LEXIS 4135, at *19 (S.D. Tex.
2009)(dismissing plaintiff’s first amendment retaliation claim for
failing to sufficiently allege an essential element).
Plaintiff alleges in his complaint that his written allegations

concerning defendant Johnson’s violations of law and departmental
policies are matters of grave public concern because they outline
potential Fourth Amendment violations that could have arose during
the alleged integrity check had there been a person operating a white
pickup truck. See Rec. Doc. 1 at 14. Plaintiff alleges that the
creation of the falsified public record resulting from the alleged
integrity check placed the plaintiff and general public at risk of
great harm. See id. Plaintiff believes that “his raising [of this]
issue of defendants’ violations of law promotes and does not inhibit
the proper and efficient operation of the defendants. . ..” Rec.
Doc. 16 at 11. Plaintiff’s allegations concerning defendants’
conduct relates to conduct of employees rather than in protest of
concerned citizens. See Sinegar v. Jefferson Parish Sch. Bd., 2003

U.S. Dist. LEXIS 14310, at *12 (E.D. La. 2003). Therefore, plaintiff
has not alleged that he spoke as a citizen on a matter of public
concern.
Plaintiff alleges in his memorandum that after he “spoke on
[the] matter of undisputedly great public concern,” he was
“ruthlessly investigated to no end.” Rec. Doc. 16 at 7. Plaintiff
alleges that on the same day he submitted his written allegations,
he was suspended in retaliation for submitting such. See Rec. Doc.
1 at 14. The Fifth Circuit has held that certain actions, while they
have the effect of chilling the exercise of free speech, are not
actionable adverse employment actions. See Dumas, 2017 U.S. Dist.
LEXIS 72672, at *12; see also Benningfield v. City of Houston, 157

F.3d 369, 376 (5th Cir. 1998). Specifcally, this Circuit has held
that discharges, demotions, and refusals to hire or promote are
actionable. False accusations, verbal reprimands, and investigations
are non-actionable. See Garcia, 2009 U.S. Dist. LEXIS 4135, at *18.
Accordingly, plaintiff being investigated by defendant Boquet after
the transpiring of these events does not constitute an actionable
adverse employment action. See Dumas, 2017 U.S. Dist. LEXIS 72672,
at *12 (E.D. La. 2017). Furthermore, in his memorandum, plaintiff
notes that since plaintiff’s suspension and filing of his complaint,
he “has since been ordered to be reinstate by [] defendants following
administrative hearings eventually held on the matter.” Rec. Doc. 16

at 1 fn. 1. Plaintiff’s temporary suspension with pay is not the
type of objective adverse employment action that establishes
constitutional injury. See Sinegar, 2003 U.S. Dist. LEXIS 14310, at
*11; see also Brown, 106 F. Supp. 3d at 789 (“A temporary suspension
with pay has not been found to be an adverse employment action—if
followed by reinstatement and no loss of benefits.”). Defendants
subsequently submitted additional exhibits, showing that the 32nd
Judicial District Court “reverse[d] [the Civil Service Board’s]
decisions, reinstating the [appointing authority’s] decisions to
terminate Bookenberger.” See Rec. Doc. 18 at 2. Therefore, it appears
that plaintiff’s termination could constitute an actionable adverse
employment action. But, nevertheless, plaintiff has failed to allege

that he spoke as a citizen on a matter of public concern.
Because he has failed to allege sufficient facts as to an
essential element of First Amendment retaliation, plaintiff’s First
Amendment claims against defendants fail. See Garcia, 2009 U.S. Dist.
LEXIS 4135, at *19.
2. Substantive and Procedural Due Process Claim
Defendants argue that plaintiff’s due process claims fail
because he fails to establish a property interest as he was placed
on administrative leave. See Rec. Doc. 15-1 at 16. Furthermore,
plaintiff has the right to use civil service statutes and has done
so by filing an appeal with the Civil Service Board to address his
complaints. See id. at 16-17.

Due process rights, whether substantive or procedural, are
implicated only if a state actor deprived an individual of a
protected property interest. See Devall v. Hammond Mun. Fire & Police
Civ. Serv. Bd., 2014 U.S. Dist. LEXIS 166998, at *40 (E.D. La. 2014);
see also U.S. Const. amend. XIV, §1 (stating that no state shall
deprive any person of property, without due process of law).
Defendants are correct in stating that plaintiff was not deprived of
a property interest when he was placed on administrative leave. See
Davis v. Dallas Indep. Sch. Dist., 448 Fed. Appx. 485, 495 (5th Cir.
2011)(stating that it is well established in the Fifth Circuit that
placement on paid administrative leave does not constitute
deprivation of a property interest).

However, in addition to allegation concerning his property
interest in employment, plaintiff alleges the he was deprived of due
process rights because defendant Coleman did not investigate his
grievance complaint within 14 days as required by state law and
defendants did not identify or limit the scope of the investigation
of him as required by state law. See Rec. Doc. 16 at 12-13. Plaintiff
alleges that by failing to disclose the nature of the investigation
against plaintiff and denying records requests, defendants rendered
it impossible for plaintiff’s counsel to provide effective
assistance of counsel, in further violation of plaintiff’s right to
due process. See Rec. Doc. 1 at 14. This Circuit has rejected claimed
property interest in investigations. See Davis, 448 Fed. Appx. at

495 (explaining that Texas district courts have consistently held
that procedural regulations or an agency’s failure to such procedures
does not give rise to a property interest).
Plaintiff alleges in a conclusory fashion that “[d]efendants
then acted on and used the authority vested in them by and entrusted
to them by the State of Louisiana and Parish of Terrebonne, under
the color of law, . . . and deprived the [p]laintiff of rights,
privileges and immunities protected by the United States
Constitution.” Rec. Doc. 1 at 20. This allegation is insufficient.
See Snow Ingredients, Inc., 833 F.3d at 520 (stating that elements
supported by conclusory statements cannot establish plausibility).
Plaintiff is correct in stating that deprivation of a property

interest is not an element of a § 1983 claim. However, defendants
have asserted qualified immunity as to plaintiff’s § 1983 claims.
Therefore, to avoid dismissal, plaintiff must show that he has
sufficiently alleged deprivation of a property interest to show
defendants committed a constitutional violation under current law.
See Lockett, 639 F. Supp. 2d at 732.
Plaintiff has not sufficiently alleged a property interest. It
appears that plaintiff concedes that he has not sufficiently alleged
a property interest by stating in his response memorandum that “[t]he
deprivation of [] property interest shall be detailed in a
forthcoming amended complaint . . ..” Rec. Doc. 16 at 8. Plaintiff
has not sought leave to file an amended complaint or supplemental
memorandum concerning his property interest allegations.4

Furthermore, plaintiff exercised his rights as a civil service
employee by filing an appeal with the Civil Board to address his
complaints and subsequent termination. See Rec. Doc. 18 at 1. The
Civil Board ruled in his favor, reversing the appointing authority’s
decision to terminate him. See id. at 2. However, the 32nd Judicial
District Court reversed the Civil Board’s decision, reinstating the

4 Specifically, plaintiff has not sought leave to allege a property interest in
his employment as a municipal officer since being terminated. See, e.g., Winn v.
New Orleans City
appointed authority’s decision to terminate Bookenberger. See id.
This is sufficient process. See Winn v. New Orleans City, 919 F.
Supp. 2d 743, 755 (E.D. La. 2013) (denying plaintiff’s due process

claim where “[p]laintiff received post-termination process when he
appealed [the appointed authority’s] decision to the New Orleans
Civil Service Commission. A hearing was [conducted], sworn testimony
was taken, and evidence was submitted by both sides.”).
Plaintiff’s substantive and procedural due process claims are
dismissed.
F. Civil Conspiracy
Plaintiff’s failure to state a claim for violation of his
constitutional rights dooms his conspiracy claim. Therefore, his
civil conspiracy claim is dismissed. See Winn, 919 F. Supp. 2d at
756 (“[To] state a claim for conspiracy under § 1983, it remains
necessary to prove an actual deprivation of a constitutional right
. . ..”).5

G. 42 U.S.C. § 1988
42 U.S.C. § 1988 states, in relevant part, that in any action
enforcing a provision of 42 U.S.C. § 1983 the court, in its
discretion, may allow the prevailing party reasonable attorneys’
fees. Having dismissed plaintiff’s federal claims, attorneys fees do
not appear appropriate at this time. Accordingly, plaintiff’s claim

5 Plaintiff relies on La. C.C. art. 2324 for his civil conspiracy claim. See Rec.
for attorneys’ fees is dismissed. See Toga Soc'y, Inc. v. Lee, 323
F. Supp. 2d 779, 797 (E.D. La. 2004).
H. State Law Claims

Having dismissed plaintiff’s federal claims, all that is left
is plaintiff’s state law claims of whistleblower protection, IIED,
and negligent hiring, commissioning, training, supervisions, and
retention. See Rec. Doc. 1 at 15, 18, 27. Pursuant to 28 U.S.C. §
1367, this Court is empowered to hear plaintiff’s state law claims
through the exercise of supplemental jurisdiction. While
supplemental jurisdiction may continue after the federal claims upon
which jurisdiction is based have been dismissed, district courts
have broad discretion in deciding whether to retain jurisdiction.
See Vanderwall v. Peck, 2004 U.S. Dist. LEXIS 7619, at *15 (E.D. La.
2004). 28 U.S.C. § 1367(c)(3) allows district courts to decline to
exercise supplemental jurisdiction over a claim if the court has
dismissed all claims over which it has original jurisdiction. See
id. Accordingly, we decline to exercise supplemental jurisdiction

over plaintiff’s three state law claims, and they are dismissed
without prejudice. See id. at *16.
New Orleans, Louisiana this 16th day of August, 2019

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184750. Public record. Not legal advice.