# Wright v. Harahan City

> District Court, E.D. Louisiana · February 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10185249

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** February 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MICHAEL WRIGHT CIVIL ACTION

v. NO. 19-13529

CITY OF HARAHAN, ET AL. SECTION “F”

ORDER AND REASONS
Before the Court is Chief Tim Walker, Lieutenant Thomas Bronk,
Captain Manuel Adams, and the City of Harahan’s motion to dismiss
Michael Wright’s pro se complaint. For the reasons that follow,
the motion is GRANTED IN PART and DENIED IN PART.

Background
This civil-rights case raises delicate questions under the
First Amendment, the Fourth Amendment, and qualified-immunity
doctrine. The parties have not treated the questions with the care
their complexity commands. In short——the briefs proved unhelpful.
That is unfortunate, because the (alleged) facts are

straightforward and serious: A former police officer says the
Harahan Police Department fired him for exposing corruption and
then conspired with another agency, the Southeast Louisiana Flood
Protection Authority-East, to ensure that he never worked in law
enforcement again. He sued pro se. The well-pleaded allegations of
his complaint, accepted as true and liberally construed in his
favor, follow. See Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir.

2018).
In May 2018, Michael Wright was a sergeant employed by the
Harahan Police Department. He learned that another Harahan Police
Department officer, Gabriel Swenson, had an affair with a woman
named Dana Mattingly. The problem? Swenson was supposed to be
investigating Mattingly.

Around the same time, Wright learned that Swenson had stolen
a gun and some cash from a Harahan Police Department evidence
locker. Armed with this information, Wright opened an
investigation of Swenson. It began with a search of Mattingly’s
cell phone. According to Wright, that search yielded “overwhelming
evidence” that Swenson committed “malfeasance in office.”
Wright reported his findings to the Harahan Police
Department’s Chief of Police, Tim Walker. Chief Walker then turned
the investigation over to Lieutenant Thomas Bronk, one of Swenson’s

close friends. But Lieutenant Bronk dropped that investigation in
favor of another——an investigation of Wright. Concerned, Wright
approached Chief Walker, seeking answers. He received none.
Instead, the Department placed him on administrative leave and, a
few months later, fired him.
While Wright was out on administrative leave, Lieutenant
Bronk “broke[] into” his locked filing cabinet and stole his
“personal recording device.” The device contained a recording of

an interview Wright gave a reporter in an attempt to expose an
“illegal ticket quota” Chief Walker had “imposed.” The recording
was “used against” Wright at his termination hearing.
Around the same time, Wright interviewed for a position with
the East Jefferson Levee District Police Department. It went well.
His interviewers assured him he was “very qualified” and promised
to call him “to schedule the next phase” of hiring. They never
called. Wright later learned that Chief Walker and the Chief of
the East Jefferson Levee District Police Department, Kerry

Najolia, were friends.
A month after the Department fired him, Wright appeared before
the Harahan Police and Firefighter’s Civil Service Board. He and
the Department struck a deal; under it, he would receive “full
reinstatement with all back pay.” He was not paid.
At some unspecified point, Wright learned that another

officer had committed misconduct: Captain Manuel Adams deleted a
completed police report and then ordered another officer to ghost-
write it for him. This report, too, was “used against” Wright at
his termination hearing.
Since his firing, Wright has not had a job in law enforcement.
He blames the Department and everyone involved in his
investigation. So, he sued all of them: Chief Walker, Lieutenant

Bronk, Captain Adams, the City of Harahan, Chief Najolia, and the
Flood Protection Authority. He insists that the investigation of
him was “illegal” and violated his First and Fourteenth Amendment
rights. He adds that Lieutenant Bronk violated his Fourth Amendment
rights by searching his locked cabinet. And he says that Chief
Walker, Lieutenant Bronk, and Captain Adams retaliated against him
for “whistleblowing.” He concludes that the City of Harahan is
“independently liable” because it failed “to act upon valid
complaints made” and negligently hired or retained Chief Walker,
Lieutenant Bronk, and Captain Adams.

Now, the City of Harahan, Chief Walker, Lieutenant Bronk, and
Captain Adams move to dismiss Wright’s pro se complaint for failure
to state a claim. See FED. R. CIV. P. 12(b)(6). The parties refer
to these defendants collectively as the “Harahan Defendants,” and
the Court does the same.1

1 Chief Kerry Najolia and the Southeast Louisiana Flood
Protection Authority-East have also moved to dismiss Wright’s
complaint. See Docket Entry 13. The Court resolves that motion in
a separate Order and Reasons.
I.

A complaint must contain a short and plain statement of the
claim showing that the pleader is entitled to relief. FED. R. CIV.
P. 8(a)(2). A party may move to dismiss a complaint that fails
this requirement. See FED. R. CIV. P. 12(b)(6).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light

most favorable to the plaintiff.” Thompson v. City of Waco, Tex.,
764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v.
Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012) (en banc)). Conclusory allegations are not well pleaded
and, consequently, are not accepted as true. See Thompson, 764
F.3d at 502-03 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
To overcome a Rule 12(b)(6) motion, “‘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 Iqbal, 556 U.S. at 678). A claim
is facially plausible if it contains “factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
The Court holds “pro se plaintiffs to a more lenient standard
than lawyers when analyzing complaints, but pro se plaintiffs must
still plead factual allegations that raise the right to relief
above the speculative level.” Chhim v. Univ. of Tex. at Austin,
836 F.3d 467, 469 (5th Cir. 2016) (citing Taylor v. Books A

Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).

II.
The Harahan Defendants contend that Wright states no claims
against them. Like most pro se complaints, Wright’s is difficult

to follow. But it seems he aims to state four types of claims: (A)
municipal-liability claims against the City of Harahan; (B)
official-capacity claims against the officers; (C) individual-
capacity federal-law claims against the officers; and (D)
individual-capacity state-law claims against the officers. The
Court considers the claims according to those categories and in
that order.

A.
The Court turns first to the Harahan Defendants’ challenge to
the sufficiency of Wright’s allegations against the City of
Harahan. Wright alleges that the City of Harahan is “independently
liable” because it “fail[ed] to act upon valid complaints” and
negligently hired and retained Lieutenant Bronk, Captain Adams,
and Chief Najolia. Liberally construing these allegations, the
Court finds that Wright intends to state a § 1983 municipal-
liability claim against the City of Harahan.

Section 1983 creates a cause of action against
[e]very person who, under color of any statute,
ordinance, regulation, custom or usage, of any State .
. . subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the Constitution[.]
42 U.S.C. § 1983.
A municipality, like Harahan, is a “person” suable under §
1983. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 690 (1978). But a municipality is not vicariously liable for
the misconduct of its employees; it is liable only for its own
misconduct. Connick v. Thompson, 563 U.S. 51, 60 (2011). So, a
plaintiff cannot recover against a municipality under § 1983 unless
he proves that “action pursuant to official municipal policy”
caused his injury. Monell, 436 U.S. at 691. This is known as a
Monell claim. See id.
To state a Monell claim, a plaintiff must plead facts that
plausibly establish (1) a policymaker; (2) an official policy; and
(3) a violation of constitutional rights whose “moving force” is
the policy or custom. Ratliff v. Aransas Cty., Tex., __ F.3d __,
2020 WL 219011, at *3 (5th Cir. 2020) (citing Piotrowski v. City
of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
The policy element “includes the decisions of a government’s
law-makers, the acts of its policymaking officials, and practices
so persistent and widespread as to practically have the force of

law.” Connick, 563 U.S. at 61 (citation omitted). To survive a
motion to dismiss, “a complaint’s ‘description of a policy or
custom and its relationship to the underlying constitutional
violation cannot be conclusory; it must contain specific facts.’”
Pena v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018)
(quoting Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162,
167 (5th Cir. 1997)).
Wright’s allegations are deficient. First, he fails to allege
specific facts establishing that the City of Harahan had an

“official policy or custom.” Second, he alleges no facts
establishing that the unidentified “official policy or custom” was
the “moving force” behind the violation of his constitutional
rights. He thus fails to state a claim.
Accordingly, the Court GRANTS the Harahan Defendants’ motion
to dismiss any Monell claims Wright may be asserting. Because the
Harahan Defendants have not shown that amendment would be futile,
and Wright has not yet amended, the Court grants him 21 days to
amend his complaint to attempt to state a Monell claim. See FED.

R. CIV. P. 15(a); Brewster v. Dretke, 587 F.3d 764, 767-68 (5th
Cir. 2009) (pro se plaintiffs should generally be offered an
opportunity to amend a complaint before it is dismissed).

B.
The Court next considers the Harahan Defendants’ challenge to
the sufficiency of Wright’s allegations against the officers in
their official capacities. The officers say these claims should be
dismissed as redundant, and the Court agrees.

An official-capacity suit is just “‘another way of pleading
an action against an entity of which an officer is an agent[.]’”
Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017) (quoting Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985)). When a plaintiff sues a
government official and the governmental entity, “[t]he official-
capacity claims and the claims against the governmental entity
essentially merge.” Turner v. Houma Mun. Fire & Police Civil Serv.
Bd., 229 F.3d 478, 485 (5th Cir. 2006). The official-capacity

claims become redundant. See Sanders-Burns v. City of Plano, 594
F.3d 366, 373 (5th Cir. 2010). Because redundant official-capacity
claims create only clutter, courts routinely dismiss them. See,
e.g., Brown v. City of Houston, Tex., No. H-17-1749, 2019 WL
7037391, at *4 (S.D. Tex. Dec. 20, 2019) (collecting cases); see
also Marceaux v. Lafayette City-Parish Consol. Gov’t, 614 F. App’x
705, 706 (5th Cir. 2015) (per curiam) (affirming dismissal of
official-capacity claims against municipal officers as redundant
of claims against the municipality).

Wright’s official-capacity claims against the officers of the
Harahan Police Department are redundant of his claims against the
City of Harahan. They add nothing to this suit. The Court therefore
GRANTS the Harahan Defendants’ motion to dismiss any official-
capacity claims Wright may be asserting against Chief Walker,
Captain Adams, and Lieutenant Bronk, and the Court dismisses those
claims with prejudice.2

C.
The Court next considers Wright’s individual-capacity
federal-law claims against Chief Walker, Lieutenant Bronk, and
Captain Adams. It seems that Wright is trying to state six species
of federal claims: (1) a § 1983 claim predicated on Chief Walker’s
violation of his First Amendment rights; (2) a § 1983 claim

predicated on Lieutenant Bronk’s violation of his Fourth Amendment
rights; (3) a § 1983 claim for Captain Adams’ violation of an
unidentified constitutional right; (4) a § 1983 conspiracy claim
against each officer, (5) a 42 U.S.C. § 1985 conspiracy claim
against each officer; and (6) a § 1983 claim predicated on each

2 Obviously, amendment would be futile.
officer’s violation of his Fourteenth Amendment right to
procedural due process.

In response, the officers invoke qualified immunity and
contend that Wright fails to plead facts sufficient to overcome
the defense.
Qualified immunity protects government officials from civil
liability so long as their conduct “‘does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555

U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). Because the focus is on whether the official had “fair
notice” that his conduct was unlawful, “reasonableness is judged
against the backdrop of the law at the time of the conduct.”
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).
A right is not “clearly established” unless precedent places
the “‘constitutional question beyond debate.’” Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct.
548, 551 (2017)). Courts may not “‘define clearly established law

at a high level of generality.’” City and Cty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1775-76 (2015) (quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 742 (2011)). Instead, courts must locate a
controlling case that “squarely governs the specific facts at
issue.” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)
(per curiam). The exception is the “rare ‘obvious case’” where a
general legal principle makes the unlawfulness of the official’s
conduct clear despite a lack of precedent addressing similar

circumstances. District of Columbia v. Wesby, 138 S. Ct. 577, 590
(2018) (citing Brosseau, 543 U.S. at 199).
When a defendant invokes qualified immunity at the pleadings
stage, as the officers have here, the plaintiff “bears the burden
of pleading facts that demonstrate liability and defeat immunity.”
Shaw v. Villanueva, 918 F.3d 414, 417 (5th Cir. 2019). A plaintiff
meets that burden if he alleges facts establishing “‘(1) that the
official violated a statutory or constitutional right, and (2)
that the right was clearly established at the time of the

challenged conduct.’” Id. at 417 (quoting Whitley v. Hanna, 726
F.3d 631, 638 (5th Cir. 2013)).
The Court has “discretion to decide which prong of the
qualified-immunity analysis to address first.” Morgan v. Swanson,
659 F.3d 359, 370 (5th Cir. 2011) (en banc) (citing Pearson, 555
U.S. at 236). Because “qualified immunity claims should be
addressed separately for each individual defendant,” the Court
turns first to Chief Walker. Westfall v. Luna, 903 F.3d 534, 549
(5th Cir. 2018) (citation omitted).
1.

Wright appears to allege that Chief Walker violated his First
Amendment rights by firing him for engaging in protected speech on
two occasions. On the first occasion, Wright allegedly notified
higher-ranking officers of Swenson’s misconduct. And on the
second, Wright spoke to a “news reporter” about an “illegal ticket
quota” Chief Walker had “imposed.”
The First Amendment, applicable to the states through the
Fourteenth Amendment, provides:

Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or the press; or the
right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
U.S. CONST. amend. I. There is no public-employee exception; the
First Amendment “protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). To
determine whether a public employee’s First Amendment right has
been violated, courts “ask a threshold question: Was the employee’s
speech made pursuant to the employee’s duties or as a citizen on
a matter of public concern?” Cutler v. Stephen F. Austin State
Univ., 767 F.3d 462, 469 (5th Cir. 2014) (citing Garcetti, 547
U.S. at 418). If the employee spoke as a citizen, courts must then
“balance the employee’s speech interest with the government
employer’s interest ‘in promoting the efficiency of the public
services it performs.’” Cutler, 767 F.3d at 469 (quoting Lane v.
Franks, 573 U.S. 228, 231 (2014)).

In determining whether a public employee spoke as part of his
job duties or as a citizen, courts consider “‘factors such as job
descriptions, whether the employee communicated with coworkers or
with supervisors, whether the speech resulted from special
knowledge gained as an employee, and whether the speech was
directed internally or externally.’” Johnson v. Halstead, 916 F.3d
410, 422 (5th Cir. 2019) (quoting Rogers v. City of Yoakum, 660 F.
App’x 279, 283 (5th Cir. 2016).

i.
The Court turns first to Wright’s intra-department
whistleblowing. Wright allegedly reported Swenson’s misconduct to
Chief Walker and other supervisors, so the speech was “directed

internally.” Johnson, 916 F.3d at 422. And Wright learned of
Swenson’s misconduct, at least in part, through the “special
knowledge” about fellow officers that he gained as a Harahan Police
Department employee. Id. Wright’s speech strikes the Court as the
sort of up-the-command-chain communication that is routinely
denied First Amendment protection. See, e.g., Davis v. McKinney,
518 F.3d 304, 313 n.3 (5th Cir. 2008) (finding the case literature
“unanimous in holding that [an] employee’s communications that
relate to his own job function up the chain of command, at least
within his own department or division, fall within his official
duties and are not entitled to First Amendment protection.”).

So, Wright spoke as an employee——not a citizen. Because Wright
was not “speaking as a citizen” at the time he reported Swenson’s
misconduct, Chief Walker cannot have violated Wright’s clearly
established First Amendment rights. Chief Walker is thus entitled
to qualified immunity from any First Amendment claim arising from
Wright’s intra-department whistleblowing. The Court therefore
GRANTS the Harahan Defendants’ motion to dismiss this First
Amendment retaliation claim, and the Court DISMISSES the claim
with prejudice.

ii.
The Court next considers the First Amendment protection
accorded Wright’s interview with a reporter. Unfortunately, Wright

offers few details; he simply says he spoke to a “news reporter”
about Chief Walker’s “illegal ticket quota.” The Harahan
Defendants contend——without citation——that the interview is not
protected because it happened at work and involved Wright’s
“special knowledge” of Harahan Police Department ticketing
practices.
The Court disagrees. In his complaint, Wright does not say
where or when the interview occurred. Nor does he say that speaking
to the press was among his duties as a patrolman. See Garcetti,
547 U.S. at 421-22. True, his speech included information within
his “special knowledge” as an employee of the Harahan Police

Department. But that is not dispositive. See Charles v. Grief, 522
F.3d 508, 513-14 (5th Cir. 2008). The allegations of Wright’s pro
se complaint, construed liberally and in his favor, show that he
spoke as a citizen——not as an employee——when he discussed the
Department’s “illegal ticket quota” with a “news reporter.” And
this speech, aimed at exposing official misconduct, relates to a
matter of public concern. See Grief, 522 F.3d at 514; Wallace v.
County of Comal, 400 F.3d 284, 289 (5th Cir. 2005)(“[T]here is
perhaps no subset of matters of public concern more important than
bringing official misconduct to light.”). Because Wright was
“speaking as a citizen” on a matter of public concern, the
interview constitutes protected speech. Johnson, 916 F.3d at 422.

But that is not the end of the inquiry. To state a First
Amendment retaliation claim, Wright must allege facts establishing
that he “suffered an adverse employment action” because of “‘speech
or activity related to a matter of public concern.’” Maldonado v.
Rodriguez, 932 F.3d 388, 391 (5th Cir. 2019) (quoting Aucoin v.
Haney, 306 F.3d 268, 274 (5th Cir. 2002)). He fails to do so.

Wright alleges no facts linking his termination to the
interview. He thus fails to allege that he suffered an adverse
employment action because of his protected speech. Because he fails
to allege the causation element, he fails to allege facts
establishing that Chief Walker violated his clearly established

First Amendment rights. Having failed to allege the violation of
a clearly established right, Wright cannot overcome Chief Walker’s
qualified-immunity defense.
Accordingly, the Court GRANTS the Harahan Defendants’ motion
to dismiss this First Amendment retaliation claim. Because it is
not clear that amendment would be futile, and Wright has not yet
amended his pro se complaint, the Court grants him 21 days to amend
his complaint to attempt to state a claim sufficient to defeat
Chief Walker’s qualified-immunity defense. See FED. R. CIV. P.

15(a); Brewster, 587 F.3d at 767-68.
2.
The Court next considers Wright’s Fourth Amendment claims

against Lieutenant Bronk. Wright appears to allege that Lieutenant
Bronk violated his Fourth Amendment rights by stealing his
“personal” recorder from his locked filing cabinet, searching the
files on the recorder, and then “us[ing] those files against” him.
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]” U.S. CONST. amend. IV. It
appears that Wright intends to state § 1983 claims predicated on
Lieutenant Bronk’s (a) search of his locked filing cabinet and (b)
seizure of his recorder. The Court turns first to the search claim.

i.
Wright appears to allege that Lieutenant Bronk violated his
Fourth Amendment rights by searching his locked file cabinet.

To state a § 1983 claim for damage caused by a search, a
plaintiff must allege facts establishing a “‘constitutionally
protected reasonable expectation of privacy’” in the place
searched. California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting
Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring)).
Public employees “do not lose Fourth Amendment rights merely

because they work for the government instead of a private
employer.” O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (plurality
op.). For example, a public employee may have a reasonable
expectation of privacy in his file cabinets. Id. at 717-18. That
expectation depends on (a) office practices and procedures; (b)
legitimate regulation; and (c) the cabinet’s contents. Id.
Wright says Lieutenant Bronk stole his “personal recording
device” from his “locked shift file cabinet” for no valid reason.
These allegations, accepted as true and liberally construed in

Wright’s favor, show that Wright had a reasonable expectation of
privacy in the locked filed cabinet. See O’Connor, 480 U.S. at
717. Lieutenant Bronk’s actions thus constituted a “search” to
which the Fourth Amendment applies. See, e.g., Horton v. Goose
Creek Ind. Sch. Dist., 690 F.2d 470, 476 (5th Cir. 1982). That

search is “judged by the standard of reasonableness under all the
circumstances.” O’Connor, 480 U.S. at 725-26.3
To determine the reasonableness of a search under this
standard, the Court considers whether: (1) the search was
“justified at its inception”; and (2) the search, “as actually
conducted[,] was reasonably related in scope to the circumstances
[that] justified the interference in the first place.” Id. at 726
(citation omitted).

A search is “justified at its inception” when “there are
reasonable grounds for suspecting that the search will turn up
evidence that the employee is guilty of work-related misconduct,
or that the search is necessary for a non[-]investigatory work-
related purpose such as to retrieve a needed file.” Id. at 726. A
search is permissible in scope “when ‘the measures adopted are

3 The Court recognizes that Justice Scalia, concurring in the
judgment, endorsed another approach. See O’Connor, 480 U.S. at
731. But the differences between his and the plurality’s approaches
are of no moment here: under either approach, the allegations of
Wright’s complaint establish that Wright had a reasonable
expectation of privacy in his locked file cabinet. See, e.g., City
of Ontario, Cal. v. Quon, 560 U.S. 746, 757 (2010) (distinguishing
the approaches of Justice Scalia and the O’Connor plurality but
concluding that both produced the same result).
reasonably related to the objectives of the search and not
excessively intrusive in light of . . . the nature of the
misconduct.’” O’Connor, 480 U.S. at 726 (quoting New Jersey v.

T.L.O., 469 U.S. 325, 342 (1985) (brackets omitted)).
The allegations of Wright’s pro se complaint, taken as true
and liberally construed in his favor, show that Lieutenant Bronk’s
search of the locked file cabinet was “unreasonable under all the
circumstances.” O’Connor, 480 U.S. at 725-26.
For one, the search was not “justified in its inception.” Id.

The search was allegedly suspicionless: Lieutenant Bronk simply
“broke[] into” Wright’s locked cabinet, for no reason, while Wright
was out of the office on administrative leave. Because the search
was suspicionless, it was necessarily not supported by any
suspicion, let alone “reasonable grounds for suspecting” that it
would yield evidence that Wright had committed work-related
misconduct. Id.
Nor was the search reasonable in scope. Id. After “breaking
into” Wright’s locked cabinet, Lieutenant Bronk “took possession”

of Wright’s “personal recording device.” Lieutenant Bronk could
not have mistaken it for a Department-issued recorder: It did not
resemble a Department-issued recorder, and the Department does not
even issue recorders to patrolman like Wright. Rummaging through
a co-worker’s locked cabinet to explore the contents of his
personal recorder is “excessively intrusive,” considering the
absence of suspicion supporting the search. Id. (quoting T.L.O.,
469 U.S. at 342).

Accordingly, because Lieutenant Bronk’s suspicionless search
of Wright’s locked office cabinet was neither justified in its
inception nor reasonable in scope, the search violated Wright’s
Fourth Amendment rights.4 See O’Connor, 480 U.S. at 725-26. Having
resolved the first qualified-immunity prong in Wright’s favor, the
Court turns to the second——whether Wright’s Fourth Amendment
rights were “clearly established” in fall 2018, at the time of
Lieutenant Bronk’s alleged misconduct.

To resolve the clearly-established prong, the Court “must
frame the constitutional question with specificity and
granularity.” Morrow v. Meachum, 917 F.3d 870, 874-75 (5th Cir.
2019). It is not enough, for example, that the Fourth Amendment
prohibits “unreasonable” searches. See id. at 875 (citing Saucier
v. Katz, 533 U.S. 194, 202 (2001)). The “dispositive question is
whether the violative nature of particular conduct is clearly
established.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).

4 For the same reasons, the Court concludes that the search
would not be “regarded as reasonable and normal in the private
employer context” and would fail the test articulated by Justice
Scalia’s O’Connor concurrence. See O’Connor, 480 U.S. at 732.
Here, the specific constitutional question is: Does an
officer violate the Fourth Amendment rights of a fellow officer
when he, lacking suspicion, “breaks[] into” the officer’s locked

filing cabinet, retrieves what is unmistakably that officer’s
personal property, and explores the contents of that property? The
answer is obvious.
“Obvious cases” are ones where, “in the light of pre-existing
law,” the unlawfulness of the officer’s actions is “apparent.”
White, 137 S. Ct. at 552. In such cases, “the unlawfulness of the
officer’s conduct is sufficiently clear even though . . . precedent
does not address similar circumstances.” Wesby, 138 S. Ct. at 590
(citing Brosseau, 543 U.S. at 199). This is such a case.

It has long been clear that a public employee, like Wright,
may have a reasonable expectation of privacy in his file cabinets.
See O’Connor, 480 U.S. at 719. It has been equally clear for
equally long that a search of a public employee’s file cabinets
must be based on (a) reasonable grounds for suspecting the search
will yield evidence of work-related misconduct or (b) a non-
investigatory work-related purpose. Id. at 726. The allegations of
Wright’s pro se complaint, taken as true and liberally construed
in his favor, show that neither basis supported the search.

Because every reasonable officer would understand that
“break[ing] into” a fellow officer’s locked filing cabinet and
exploring the contents of that officer’s personal recording device
violates the law, Lieutenant Bronk is not entitled——at this
pleading stage——to qualified immunity from Wright’s Fourth
Amendment search claim.5 See Morgan, 659 F.3d at 371 (citation

omitted). The Court therefore DENIES the Harahan Defendants’
motion to dismiss this claim on qualified-immunity grounds. Having
resolved the challenge to the Fourth Amendment search claim, the
Court turns to the Fourth Amendment seizure claim.
ii.

Next, Wright appears to allege a Fourth Amendment seizure
claim against Lieutenant Bronk. Wright alleges that Lieutenant
Bronk violated his Fourth Amendment rights by “t[aking]
possession” of his “personal recording device” from his locked
filing cabinet. To determine whether Wright has stated a Fourth
Amendment seizure claim against Lieutenant Bronk, the Court first
decides if Wright adequately alleges a “seizure” to which the
Fourth Amendment applies. He has.

5 Deciding whether an official is entitled to qualified
immunity for a Fourth Amendment violation is a doctrinally
difficult enterprise on even superior submissions. On sub-par
submissions, like the papers the Harahan Defendants submit, the
enterprise becomes formidable. The Court emphasizes the Harahan
Defendants’ failure to meaningfully analyze any Fourth Amendment
issue.
A “seizure” of property “occurs when ‘there is some meaningful
interference with an individual’s possessory interests in that
property.’” Soldal v. Cook Cty., Ill., 506 U.S. 56, 61 (1992)

(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)).
The allegations of Wright’s complaint, accepted as true and
liberally construed in his favor, establish that Lieutenant Bronk
“meaningful[ly] interfere[d]” with Wright’s “possessory interest”
in his “personal recording device” when Lieutenant Bronk “took
possession” of that device. Soldal, 506 U.S. at 61. Because Wright
adequately alleges a Fourth Amendment seizure, the Court next
considers whether his allegations establish that it was an
“unreasonable” and therefore unconstitutional one.

Generally, a seizure of personal property is “unreasonable”
unless it is “accomplished pursuant to a judicial warrant issued
by a neutral magistrate after finding probable cause.” Illinois v.
McArthur, 531 U.S. 326, 330 (2001) (citation omitted). But there
are exceptions. See id. at 330. “[S]pecial law enforcement needs,
diminished expectations of privacy, minimum intrusions, or the
like” may make a warrantless seizure “reasonable.” Id.

The seizure described in Wright’s complaint was not supported
by a warrant, exigent circumstances, or a special need. It was
therefore unreasonable. Because Wright alleges facts establishing
that Lieutenant Bronk unreasonably seized his “personal recording
device,” Wright alleges a Fourth Amendment violation. Having
resolved the first qualified-immunity prong in Wright’s favor, the
Court turns to the second——whether Wright’s Fourth Amendment

rights were “clearly established” in fall 2018, at the time of
Lieutenant Bronk’s alleged misconduct. They were.
The right to be free from warrantless seizures of personal
property, absent a special need, was clearly established with
obvious clarity in fall 2018. See McArthur, 531 U.S. at 330; United
States v. Place, 462 U.S. 696, 701 (1983)). So, the clearly-
established prong is met.

Because the allegations of Wright’s complaint——accepted as
true and liberally construed in his favor——establish that
Lieutenant Bronk violated his clearly established Fourth Amendment
rights by seizing his “personal recording device,” Wright is not
entitled to qualified immunity from Wright’s Fourth Amendment
seizure claim at this pleading stage. The Court therefore DENIES
the Harahan Defendants’ motion to dismiss this claim on qualified-
immunity grounds.

3.
The Court next considers the claims against Captain Adams, a
minor player in the drama described in Wright’s complaint. The
only specific allegations against Captain Adams are that: (1) he
“deleted a completed police report”; (2) he directed the report to
“be rewritten by another officer as if it [were] his own”; and
(3) he “used” the report “against” Wright “in his termination.”

Shorn of context, these allegations mean little. The
significance of the ghostwritten police report is unclear: Did it
contain false information? Or truthful information that was
unlawfully obtained? Did it give the Department grounds for firing
Wright? We do not know. Because Wright’s complaint lacks specific
factual allegations answering these questions and supplying
relevant context, Wright fails to plausibly allege that Captain
Adams violated any clearly established right. Having failed to
allege the violation of a clearly established right, Wright cannot
overcome Captain Adams’ qualified-immunity defense. See Shaw, 918

F.3d at 417.
Accordingly, the Court GRANTS the Harahan Defendants’ motion
to dismiss with prejudice any claims Wright may be asserting
against Captain Adams.

5.
Having addressed the federal-law claims Wright may be
asserting against the officers individually, the Court considers
the federal-law claims he may be asserting against them
collectively: (1) a § 1983 conspiracy claim; (2) a § 1985
conspiracy claim; and (3) a § 1983 claim predicated on violations
of Wright’s Fourteenth Amendment right to procedural due process.
i.

First, Wright appears to allege that Chief Walker, Lieutenant
Bronk, and Captain Adams are liable under § 1983 for conspiring
against him. To state a § 1983 conspiracy claim, Wright “must not
only allege facts that ‘establish (1) the existence of a conspiracy
involving state action, but also (2) a deprivation of civil rights
in furtherance of the conspiracy by a party to the conspiracy.’”
Shaw, 918 F.3d at 419 (quoting Pfannstiel v. City of Marion, 918
F.2d 1178, 1187 (5th Cir. 1990), abrogated on other grounds by
Martin v. Thomas, 973 F.2d 449 (5th Cir. 1992)).

Wright alleges that Chief Walker, Lieutenant Bronk, and
Captain Adams “participated in a conspiracy to deprive [him] of
property, relative to income[.]” That is it. He alleges no specific
facts to support the legal conclusion that the officers conspired
against him. He thus fails to state a plausible § 1983 conspiracy
claim against any officer. See Twombly, 550 U.S. at 555; Shaw, 918
F.3d at 419.
Accordingly, the Court GRANTS the Harahan Defendants’ motion

to dismiss any § 1983 conspiracy claims Wright may be asserting.
Because the Harahan Defendants have not shown that amendment would
be futile, however, the Court grants Wright 21 days to amend his
complaint to attempt to state plausible § 1983 conspiracy claims.
See FED. R. CIV. P. 15(a); Brewster, 587 F.3d 764 at 767-68.
ii.

Because Wright invokes 42 U.S.C. § 1985 and uses the word
“conspiracy,” he may be trying to state a § 1985 conspiracy claim
against the officers.
Section 1985 creates a cause of action against anyone who
conspires to deprive another of “equal protection of the laws” or
“equal privileges and immunities under the laws.” 42 U.S.C. §
1985(3). A conspiracy is not actionable under § 1985(3) unless it
involves race-based animus. Lockett v. New Orleans City, 607 F.3d

992, 1002 (5th Cir. 2010) (citing Hilliard v. Ferguson, 30 F.3d
649, 652-53 (5th Cir. 1994)).
To state a § 1985(3) conspiracy claim,6 Wright must allege
that the officers “(1) conspired; (2) for the purpose of depriving,
either directly or indirectly, [him] of equal protection of the
laws, or of equal privileges and immunities under the laws; and

6 Wright’s complaint, liberally construed, does not reflect
an intent to state claims under § 1985(1) or § 1985(2). To the
extent that Wright intends to state claims under those provisions,
he fails to do so. Subsection (1) creates a cause of action against
anyone who conspires to (a) prevent a federal officer from
discharging his duties or (b) injure a federal officer because of
his lawful discharge of his duties. 42 U.S.C. § 1985(1). Wright
has not alleged that he was a federal officer; so, any § 1985(1)
claim fails. Prevailing on a subsection (2) claim requires proof
of race- or class-based animus, Bryant v. Military Dep’t of Miss.,
597 F.3d 678, 687 (5th Cir. 2010), and Wright has alleged neither.
He thus fails to state any § 1985(2) claims.
(3) took or caused action in furtherance of the conspiracy; which
(4) injured [him] or deprived him of his rights or privileges as
a United States citizen.” Shaw, 918 F.3d at 419.

Wright’s § 1985(3) conspiracy claim fails for the same reason
his § 1983 conspiracy claim failed: He alleges no specific facts
to support the conclusion that the officers conspired against him.
His claim fails for the additional reason that he alleges no facts
establishing that racial animus played any role. See Cantú v.
Moody, 933 F.3d 414, 419 (5th Cir. 2019) (quoting Deubert v. Gulf
Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987) (“[I]n this
circuit . . . the only conspiracies actionable under § 1985(3) are
those motivated by racial animus.”)).

Accordingly, the Court GRANTS the Harahan Defendants’ motion
to dismiss any § 1985 conspiracy claims Wright may be asserting,
and the Court DISMISSES those claims without prejudice. Because
the Harahan Defendants have not shown that amendment would be
futile, and Wright has not yet amended his pro se complaint, the
Court grants him 21 days to amend his complaint to attempt to state
plausible § 1985 conspiracy claims. See FED. R. CIV. P. 15(a);
Brewster, 587 F.3d 764 at 767-68.

iii.
Wright may be asserting § 1983 claims predicated on the
officers’ violation of his Fourteenth Amendment right to
procedural due process. Indeed, Wright invokes the Fourteenth
Amendment and alleges that the officers conspired to deprive him
“of property relative to income . . . without due process[.]”

The Due Process Clause of the Fourteenth Amendment forbids
any State from “depriv[ing] any person of life, liberty, or
property, without due process of law[.]” U.S. CONST. amend. XIV, §
1. This provision requires that government give an “opportunity to
be heard ‘at a meaningful time and in a meaningful manner’” before
depriving any person of “life, liberty, or property.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo,
380 U.S. 545, 552 (1965)).

When an employee’s “good name, reputation, honor or integrity
is at stake due to an action by the government, he is entitled to
notice and an opportunity to be heard.” Sims v. City of
Madisonville, 894 F.3d 632, 642 (5th Cir. 2018) (citing Wisconsin
v. Constantineau, 400 U.S. 433, 437 (1971)). But an employee’s
constitutionally protected liberty interest “‘is implicated only
if [he] is discharged in a manner that creates a false and
defamatory impression about him and thus stigmatizes him and
forecloses him from other employment opportunities.’” Sims, 894
F.3d at 642 (quoting White v. Thomas, 660 F.2d 680, 684 (5th Cir.

1981)). The proper defendant in a deprivation-of-liberty suit is
the government employer——not a government employee or official.
Sims, 894 F.3d at 642 (citing Harris v. City of Balch Springs, 9
F. Supp. 3d 690, 700 (N.D. Tex. 2014)).

Wright appears to allege that he was deprived of a
constitutionally protected liberty interest when he was fired from
his job as an officer of the Harahan Police Department. But he
alleges no specific facts showing that the City of Harahan or the
Harahan Police Department denied him “notice and an opportunity to
be heard” before his firing. Sims, 894 F.3d at 642. Nor does he
allege, as he must, specific facts establishing that his firing
created “a false and defamatory impression about him.” Sims, 894
F.3d at 642. So, he fails to state a plausible § 1983 procedural-
due-process claim against the City of Harahan. And his claims

against the officers fail as a matter of law because “[a]
deprivation of liberty claim lies against the government employer,
not a government employee or official.” Sims, 894 F.3d at 642
(citing Harris, 9 F. Supp. 3d at 700).
Accordingly, the Court GRANTS the Harahan Defendants’ motion
to dismiss any procedural-due-process claims Wright may be
asserting. Because any such claims against the officers are
deficient as a matter of law, amendment would be futile; those
claims are DISMISSED with prejudice. The Harahan Defendants have

not shown futility with respect to the § 1983 procedural-due-
process claims Wright may be asserting against the City of Harahan,
and Wright has not yet amended his pro se complaint. The Court
therefore grants him 21 days to amend his complaint to attempt to
state a plausible procedural-due-process claim against the City of

Harahan. See FED. R. CIV. P. 15(a); Brewster, 587 F.3d 764 at 767-
68. Having resolved the challenges to Wright’s federal-law
individual-capacity claims, the Court turns to his state-law
individual-capacity claims.
D.

Wright appears to assert Louisiana-law claims for conspiracy,
defamation, and intentional infliction of emotional distress
against the officers in their individual capacities.
1.

Under Louisiana law, “[c]ivil conspiracy is not itself an
actionable tort.” Doe v. Mckesson, 945 F.3d 818, 826 (5th Cir.
2019) (citing Ross v. Conoco, Inc., 828 So. 2d 546, 552 (La.
2002)). It merely “assigns liability arising from the existence of
an underlying unlawful act.” Mckesson, 945 F.3d at 826 (citing
Ross, 828 So. 2d at 552). So, to impose liability under a civil
conspiracy theory, a plaintiff must plead four elements: “(1) an
agreement existed with one or more persons to commit an illegal or
tortious act; (2) the act was actually committed; (3) the act

resulted in plaintiff’s injury; and (4) there was an agreement as
to the intended outcome or result.” Mckesson, 945 F.3d at 826
(citing Crutcher-Tufts Res., Inc. v. Tufts, 992 So. 2d 1091, 1094
(La. Ct. App. 2008)).

Wright fails to state a Louisiana-law conspiracy claim
against any defendant because he alleges no specific facts
establishing that any defendant agreed to commit an illegal or
tortious act. He alleges only that Chief Walker, Captain Adams,
and Lieutenant Bronk “participated in a conspiracy” to deprive him
of property in violation of the Fourteenth Amendment. That will
not do. See FED. R. CIV. P. 8(a). For even pro se plaintiffs cannot
swap legal conclusions for specific factual allegations. See
Chhim, 836 F.3d at 469.

Accordingly, the Court GRANTS the Harahan Defendants’ motion
to dismiss any Louisiana-law conspiracy claims Wright may be
asserting. Because the Harahan Defendants have not shown that
amendment would be futile, and Wright has not yet amended his pro
se complaint, the Court grants him 21 days to amend his complaint
to attempt to state plausible Louisiana-law conspiracy claims. See
FED. R. CIV. P. 15(a); Brewster, 587 F.3d 764 at 767-68.

2.
Under Louisiana law, a claim for intentional infliction of
emotional distress has three elements: ”(1) that the conduct of
the defendant was extreme and outrageous; (2) that the emotional
distress suffered by the plaintiff was severe; and (3) that the
defendant desired to inflict severe emotional distress or knew
that severe emotional distress would be certain or substantially
certain to result from his conduct.” White v. Monsanto Co., 585

So. 2d 1205, 1209 (La. 1991). Conduct is not actionable unless it
is “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” Id.
at 1209.
Wright fails to allege facts sufficient to establish any
element of this tort as to any defendant. He alleges only that
“[t]he actions of” Chief Walker, Lieutenant Bronk, and Captain
Adams” are “acts of . . . intentional infliction of emotional

distress.” That is obviously inadequate. See Iqbal, 556 U.S. at
678.
Accordingly, the Court GRANTS the Harahan Defendants’ motion
to dismiss any intentional infliction of emotional distress claims
Wright may be asserting. Because the Harahan Defendants have not
shown that amendment would be futile, and Wright has not yet
amended his pro se complaint, the Court grants him 21 days to amend
his complaint to attempt to state plausible intentional infliction
of emotional distress claims. See FED. R. CIV. P. 15(a); Brewster,

587 F.3d 764 at 767-68.
3.

Under Louisiana law, “defamation is a tort involving the
invasion of a person’s interest in his or her reputation and good
name.” Kennedy v. Sheriff of East Baton Rouge, 2005-1418, p. 5
(La. 7/10/06); 935 So. 2d 669, 674. It consists of four elements:
“(1) a false and defamatory7 statement concerning another; (2) an
unprivileged publication to a third party; (3) fault (negligence
or greater) on the part of the publisher; and (4) resulting
injury.” Costello v. Hardy, 2003-1146, p. 12 (La. 1/21/04); 864
So. 2d 129, 139 (citation omitted).

Wright fails to state a defamation claim because he fails to
plausibly allege that any defendant made a false and defamatory
statement about him. He again offers only a conclusion: that “[t]he
actions of the defendants . . . are also acts of slander[.]” That
will not do; as the Court has explained, Wright must allege
specific facts to support the legal conclusions that litter his
complaint. See Iqbal, 556 U.S. at 678. Because he fails to do so,
the Court GRANTS the Harahan Defendants’ motion to dismiss Wright’s
defamation claim. The Harahan Defendants have not shown that

7 A statement is defamatory if “it tends to harm the reputation
of another so as to lower the person in the estimation of the
community, deter others from associated or dealing with the person,
or otherwise expose the person to contempt or ridicule.” Kennedy,
935 So. 2d at 674 (citing Costello, 864 So. 2d at 140).
amendment would be futile; so, the Court grants Wright 21 days to
amend his complaint to attempt to state plausible defamation
claims. See Frep. R. Civ. P. 15(a); Brewster, 587 F.3d 764 at 767-
68.

IV.

Accordingly, IT IS ORDERED: that Chief Tim Walker, Lieutenant
Thomas Bronk, Captain Manuel Adams, and the City of Harahan’s
motion to dismiss Michael Wright’s pro se complaint is GRANTED IN
PART and DENIED IN PART, as stated above. Wright is granted 21
days to amend his complaint to attempt to state the specific
plausible claims indicated herein. If he fails to timely amend,
the Court will dismiss the deficiently pleaded portions of his
complaint with prejudice and without further notice.

New Orleans, Louisiana, February 19, 2020

MARTIN . Cz. ELDMAN
UNITED STATES DISTRICT JUDGE

36

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185249. Public record. Not legal advice.