# Armstead v. Sewage & Water Board

> District Court, E.D. Louisiana · August 28, 2019

URL: https://www.frixlaw.com/law-library/cases/10184786

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** August 28, 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/10184786

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MILTON ARMSTEAD, III CIVIL ACTION

VERSUS NO: 19-11107

SEWAGE AND WATER BOARD, SECTION: T(5)
ENTERGY NEW ORLEANS, COX
CABLE OF NEW ORLEANS, AND THE
CITY OF NEW ORLEANS

ORDER

Before the Court are Motions to Dismiss filed by the City of New Orleans (“City”),1
Sewage & Water Board of New Orleans (“Board”),2 and Entergy New Orleans, LLC (“Entergy”).3
Milton Armstead, III (“Plaintiff”) has filed an opposition.4 For the following reasons, the Motion
to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) 5 is DENIED. The Motions to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)6 are GRANTED.
BACKGROUND

On June 10, 2019, Plaintiff filed this pro se civil action alleging violations of his civil rights
pursuant to 42 U.S.C. §1983 and conspiracy pursuant to 42 U.S.C. §1985.7 Plaintiff also cites 28
U.S.C. § 2201, 28 U.S.C. § 1391, and 28 U.S.C. § 1361.8 Plaintiff asserts that the City, Board, and
Entergy (collectively, “Defendants”) have violated his civil rights and conspired to force African
American residents out of New Orleans and replace them with wealthier residents “making room
for $ people.”9 Plaintiff has filed at least four other complaints in this District seeking relief for

1 R. Doc. 12.
2 R. Doc. 13.
3 R. Doc. 17.
4 R. Doc. 18.
5 R. Doc. 13.
6 R. Docs. 12, 13, 17.
7 R. Doc. 1, ¶1.
8 R. Doc. 1, ¶1.
9 R. Doc. 1, ¶¶5-8.
alleged damages from discrimination against the State of Louisiana, the City, its agencies, and
several companies.10
The Board has filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).11 The City has filed a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6).12 Entergy has filed a Motion to Dismiss adopting the motions filed by the

Board and the City.13
LAW AND ANALYSIS
A. Subject Matter Jurisdiction
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to
challenge the subject matter jurisdiction of the district court to hear a case.14 When presented with
other Rule 12 motions, jurisdictional challenges should be resolved first.15 The Board asserts that
Plaintiff’s complaint should be dismissed for lack of subject matter jurisdiction because Plaintiff’s
claims are “wholly insubstantial and frivolous.”16 The Board contends that Plaintiff’s “frustration
with the cost of water does not warrant a federal suit.”17 Affording the Plaintiff the liberal
construction due pro se pleadings,18 it appears to the Court that he attempts to bring an action

pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. 19 This is sufficient to grant the Court subject
matter jurisdiction in this case. 20

10 See 2:11-cv-00132, Armstead v. AT&T Louisiana; 2:11-cv-00437, Armstead v. Entergy New Orleans; 2:12-cv-
00600, Armstead v. City of New Orleans et al.; 2:16-cv-13629, Armstead v. New Orleans City et al.
11 R. Doc. 13.
12 R. Doc. 12.
13 R. Doc. 17.
14 Fed. R. Civ. P. 12(b)(1).
15 Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).
16 R. Doc. 13, p.3 (citing Bell v. Hood, 327 U.S. 678, 682–83, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946)).
17 R. Doc. 13, p.3.
18 Johnson v. Watkins, 999 F.2d 99, 100 (5th Cir. 1993).
19 R. Doc. 1, ¶1.
20 See Lucien v. Jones, No. CV 16-9591, 2016 WL 4942997, at *2 (E.D. La. Sept. 16, 2016); See also D'Aquin v.
Kramer, No. CIV.A. 15-2524, 2015 WL 5682659, at *2 (E.D. La. Sept. 25, 2015).
B. Failure to State a Claim
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state
a claim to relief that is plausible on its face.”21 A claim is “plausible on its face” when the pleaded
facts allow the court to “[d]raw the reasonable inference that the defendant is liable for the
misconduct alleged.”22 A court must accept the complaint’s factual allegations as true and must

“draw all reasonable inferences in the plaintiff’s favor.”23 The Court need not, however, accept as
true legal conclusions couched as factual allegations.24 A complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.”25 The complaint must
“give the defendant fair notice of what the claim is and the grounds upon which it rests.”26
The City argues that Plaintiff’s complaint fails to state a claim to relief, and that Plaintiff’s
claims are barred by the statute of limitations. The Board asserts that Plaintiff’s complaint fails to
state a claim for relief because Plaintiff states no facts to support his claim that the Board is raising
its rates as part of a grand conspiracy to “run African Americans and other poor people out of
town.”27

1. Prescription under 42 U.S.C. § 1983
Plaintiff brings an action under 42 U.S.C. § 1983 for violations of his civil rights. “To state
a claim under § 1983, plaintiffs must allege two elements: first that they were deprived of a right
or interest secured by the Constitution and laws of the United States, and second that the
deprivation occurred under color of state law.”28 Plaintiff claims that his rights under the Fourth,

21 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
22 Iqbal, 129 S.Ct. at 1949.
23 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
24 Iqbal, 129 S.Ct. at 1940.
25 Fed. R. Civ. P. 8(a)(2).
26 Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005).
27 R. Doc. 13-1, p.4.
28 Doe v. Rains County Ind. School Dist, 66 F.3d 1402, 1406 (5th Cir. 1995).
Thirteenth, Fourteenth, and Fifteenth Amendments have been violated by Defendants’ treatment
of African American slaves and their descendants.29 Plaintiff further claims that Defendants have
conspired to force African Americans out of New Orleans by raising the cost of rent, cable, and
utilities to make room for wealthier people.30
The City asserts that Plaintiff’s claim under § 1983 has long prescribed as it relates to

treatment of slaves and their descendants. The applicable prescriptive period to § 1983 claims in
Louisiana is one year.31 Plaintiff argues that contra non valentum suspended the running of
prescription because Defendants ducked and dodged their acts of corruption.32 However, the
doctrine of contra non valentem applies only in “exceptional circumstances,”33 which have not
been demonstrated here. To the extent Plaintiff’s complaint involves allegations related to the
treatment of slaves and their descendants, Plaintiff’s claims have prescribed.
2. Liability under § 42 U.S.C. 1983
Plaintiff claims that the City is liable for its mistreatment of African Americans and for its
failure to properly train its criminal justice system.34 To bring claims of municipal liability,

Plaintiff must allege three elements: “a policymaker; an official policy; and a violation of
constitutional rights whose ‘moving force’ is the policy or custom.”35 Plaintiff has not satisfied
these requirements. While Plaintiff outlines his perception of the impact certain laws have had on

29 R. Doc. 1, ¶23.
30 R. Doc. 1.
31 Carroll v. Gusman, No. 06-9031, 2009 WL 2949997, at *3 (E.D. La. Sept. 10, 2009) (citing Jacobsen v. Osborne,
133 F.3d 315, 319 (5th Cir. 1998)). “Because there is no federal statute of limitations for § 1983 claims, the district
court looks to the forum state’s statute of limitations for personal injury claims. In Louisiana, personal injury claims
are governed by La. Civ. Code art. 3492, which provides for a prescriptive period of one year from the date of injury
or damage.”
32 R. Doc. 18, p.4.
33 Marin v. Exxon Mobil Corp., 2007-2371, p. 13 (La. 10/19/10) 48 So. 3d 234, 245.
34 R. Doc. 1, ¶31.
35 Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
the African American community, he does not allege facts suggesting that this impact is the result
of a policy that has been adopted by some policymaker in the City.
3. Liability under 42 U.S.C. § 1985
Plaintiff next alleges a conspiracy claim under § 1985. To state a claim under 42 U.S.C. §
1985, a plaintiff must allege: (1) a conspiracy involving two or more persons; (2) for the purpose

of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws;
and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or
a deprivation of any right or privilege of a citizen of the United States.36 Plaintiff’s § 1985 claim
is inadequately pled because he fails to disclose any operative facts demonstrating an
understanding or agreement between Defendants to interfere with his civil rights.
4. Miscellaneous Claims
Finally, Plaintiff’s Complaint takes issue with Louisiana’s majority jury verdict system,37
which was recently changed in the Louisiana Constitution.38 Such a claim is not, however, properly
brought against the City of New Orleans.39 In addition, Plaintiff raises concerns about his wife’s

right to be protected from illegal evictions for failing to pay the cost of living increase by city
officials and its vendors.40 Plaintiff’s wife—and not Plaintiff—is the proper party to seek recovery
for such an injury.
CONCLUSIONS
For the reasons set forth above, Defendants’ Motions to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6)41 are GRANTED. Plaintiff’s § 1983 claims arising out of the

36 Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994).
37 R. Doc. 1, ¶18.
38 La. Const. art. I, § 17(A), amendment by Act 722 of the 2018 Regular Session.
39 See Ex parte Young, 209 U.S. 123, 151, 28 S.Ct. 441, 445 (1908).
40 R. Doc. 1, ¶9.
41 R. Docs. 12, 13, 17.
treatment of slaves and their descendants are DISMISSED WITH PREJUDICE. All other claims
against the City of New Orleans, Sewage & Water Board of New Orleans, and Entergy New
Orleans, LLC are DISMISSED WITHOUT PREJUDICE, and Plaintiff shall amend his
Complaint within 20 days of this Order to the extent that he can remedy the deficiencies identified
herein and state a claim upon which relief can be granted.
New Orleans, Louisiana, on this 28th day of August, 2019.

GREG GERARD GUIDRY □
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184786. Public record. Not legal advice.