# Magee v. Reed

> District Court, E.D. Louisiana · February 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10185286

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** February 27, 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

ROGER D. MAGEE CIVIL ACTION

VERSUS NO. 14-1986

WALTER P. REED ET AL SECTION "B"(1)

ORDER AND REASONS
Defendant, Walter P. Reed, in his official capacity, filed a
motion to strike impertinent and immaterial matter from
plaintiff’s complaint and first amended complaint. Rec. Doc. 176.
Plaintiff timely filed a response in opposition. Rec. Doc. 185.
For the reasons discussed below,
IT IS ORDERED that the motion to strike is DISMISSED as MOOT.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of the March 28, 2014 arrest of Roger D.
Magee (“Plaintiff”). The facts surrounding the case are summarized
in a previously issued order (Rec. Doc. 88). However, the facts
and procedural history relevant to the instant motion are
summarized here.
Plaintiff, Roger Magee (“Magee”), filed suit on August 29, 2014
against several defendants including Walter Reed (“Reed”), the
former Washington Parish District Attorney for the 22nd Judicial
District, Jerry Wayne Cox (“Cox”), a Pentecostal Minister in
Franklinton, Louisiana, Randy Seal, Sheriff of Washington Parish,
and several Washington Parish Sheriff Officers, alleging a free
speech retaliation claim and false imprisonment pursuant to 42
U.S.C. §1983.

On March 13, 2015, Reed filed a rule 12E Motion for More Definite
Statement. Rec. Doc. 14. Later, parties filed a joint motion for
entry of consent order on the motion for more definite statement.
Rec. Doc. 21. As a result, this court granted the joint motion and
dismissed the motion for a more definite statement. Rec. Doc. 22.
Plaintiff filed a first amended complaint with jury demand on May
1, 2015. Rec. Doc. 23. On May 19, 2015, both Reed and Cox,
individually, filed and were granted an extension of time to answer
the amended complaint. Rec. Doc. 24,25,26. Cox answered the amended
complaint on June 9, 2015. Rec. Doc. 27.
On June 15, 2015, Reed filed a motion to dismiss for failure to
state a claim. Rec. Doc. 29. On August 19, 2015, this Court granted

the motion, dismissing all claims against Reed, finding (1)
plaintiff’s false arrest and First Amendment retaliation claims
were barred by Heck v. Humphrey, 512 U.S. 477 (1994), (2)
plaintiff’s excessive force claim failed to show that the actions
of the arresting officers were in some way caused by Reed and
plaintiff failed to satisfy his burden of showing that Reed was
not entitled to qualified immunity, (3) plaintiff’s due process
claim related to bond failed to show that Reed was “causally
connected” to plaintiff’s bail problems, and (4) plaintiff’s
Monell claim failed to show that any of the supposedly improperly-
trained district attorneys participated in the claims brought
against plaintiff. Rec. Doc. 37. Plaintiff appealed the Order and

Reasons. Rec. Doc. 40.
On July 22, 2015, defendant Officers and defendants Mike Haley,
Miller, and Seal filed a motion for partial judgment on the
pleadings or for partial summary judgment. Rec. Doc. 34. On August
31, 2015, the same defendants filed a motion for summary judgment.
Rec. Doc. 38. On October 19, 2015, this court granted both motions.
Rec. Doc. 49. Specifically, we found that the claims for false
arrest, false imprisonment, and free speech retaliation previously
dismissed against Reed must also be dismissed against these
defendants pursuant to Heck. Id. at 9-15. Similarly, plaintiff’s
Monell claims for false arrest and false imprisonment were found
to be Heck-barred and were accordingly dismissed. Id. at 18-20.

Nonetheless, we found that plaintiff’s excessive force claims,
including his Monell claims based on excessive force, were not
barred by Heck; therefore, the motion to dismiss/motion for summary
judgment was denied to the extent it sought to dismiss the
excessive force claims against these defendants. Id. at 15-17, 20.
The claims for battery and excessive force in violation of
Louisiana law were dismissed as duplicative with plaintiff’s §
1983 excessive force claims. Id. at 17-18. Finally, plaintiff’s
procedural due process claims for denial of bail were dismissed
because there was no evidence to suggest that defendants were in
any way related to plaintiff’s denial of bail. Id. at 20-24.
On September 14, 2015, Cox filed a motion for judgment on the

pleadings or, alternatively, a motion for summary judgment. Rec.
Doc. 39. On October 28, 2015, this court granted the motion and
dismissed plaintiff’s claims against Cox with prejudice. Rec. Doc.
54. Specifically, we found that plaintiff’s claims for false arrest
and imprisonment and for free speech retaliation were barred by
Heck. Id. at 10-15. Plaintiff’s claims for excessive force failed
because they did not show how Cox was “causally connected” to the
claim. Id. at 15-16. Finally, plaintiff’s claims for battery and
excessive force under Louisiana law were dismissed as duplicative.
Id. at 16-17. Plaintiff appealed the Order and Reasons. Rec. Doc.
56.
On December 9, 2015, this court granted plaintiff’s motion to

stay pending the outcome of his appeals (Rec. Docs. 40, 56). Rec.
Doc. 58. On January 22, 2016, the Fifth Circuit found that it
lacked jurisdiction over the appeals, because this court had not
disposed of all claims and parties before the appeals were filed.
Rec. Doc. 59 at 2. On March 17, 2016, the stay was lifted, and
trial was set for March 17, 2017. Rec. Doc. 63.
On December 29, 2016, a second motion for summary judgment
was filed by defendant officers and defendants Haley, Miller, and
Seal. Rec. Doc. 76. On March 9, 2017, this court granted the second
motion for summary judgment in part by dismissing with prejudice
the plaintiff’s claims for inadequate medical care because we
found that plaintiff failed to (1) allege a proper claim for

unconstitutional conditions of confinement or a sufficiently
serious injury; or (2) submit adequate evidence of deliberate
indifference. Rec. Doc. 88. This court further ordered that the
plaintiff’s claim for excessive force survived. Id.
On March 24, 2017, a joint stipulation of dismissal of
plaintiff’s claims against Officers Brumfield, Nesmith, and Miller
was filed. Rec. Doc. 112. A jury trial begun on March 27, 2017 and
ended on March 28, 2017. Rec. Doc. 115 and 116. This court entered
a final judgment in favor of all defendants dismissing all claims
pursuant to the jury verdict, Order and Reasons granting Reed’s
motion to dismiss, Order and Reasons granting Cox’s motion for
judgment on the pleading and the joint stipulation of dismissal

against Brumfield, Nesmith and Miller. Rec. Doc. 121.
On April 27, 2017, plaintiff appealed the Order and Reasons
granting Reed’s motion to dismiss for failure to state a claim,
the final judgment, and the Order and Reasons granting Cox’s motion
for judgment on the pleadings. Rec. Doc. 122. On January 30, 2019,
the Fifth Circuit reversed the judgment of this court as to the
plaintiff’s claims against Reed (in both his official and personal
capacitates) for false imprisonment, free speech retaliation and
procedural due process violations, and against Cox for free speech
retaliation. Rec. Doc. 132. The Fifth Circuit remanded the case to
this court for further proceedings and found that this court erred
in relying on Heck in dismissing the plaintiff’s free speech

retaliation claim against Cox and the plaintiff’s free speech
retaliation and false imprisonment claims against Reed because the
plaintiff’s claims stem not from his arrest but from his denial of
bail. Id. at 4. The Fifth Circuit further found this court erred
in dismissing the plaintiff’s procedural due process claim against
Reed by improperly resolving a genuine dispute of material fact at
the summary judgment stage. Id. at 5. Jury trial was set for
November 11, 2019 but was later continued to March 5, 2020 by
order granting a motion to continue. Rec. Doc. 136, 149, and 150.
Defendant, Reed (in his official capacity), filed the instant
Federal Rule of Civil Procedure Rule 12(F) motion to strike
impertinent and immaterial matter from plaintiff’s complaint and

first amended complaint alleging that the complaint and first
amended complaint embody claims that were dismissed by this court
and not appealed to the Fifth Circuit. Rec.Doc. 176. Plaintiff
filed a response in opposition arguing not only is the motion
untimely but that the information contained in the complaint is
justified. Rec. Doc. 185.
LAW AND ANALYSIS
Fed.R. Civ. Procedure 12(f) standard
A motion to strike filed pursuant to Federal Rule of Civil

Procedure 12(f) provides that a “court may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” Fed.R.Civ.P. 12(f). The decision to grant
or deny a motion to strike lies within the sound discretion of the
trial court. Admin'rs of the Tulane Educ. Fund v. Biomeasure,
Inc., 2011 WL 3268108, at *2 (E.D.La. July 28, 2011)(citing Tarver
v. Foret, 1996 WL 3536, at *1 (E.D.La. Jan. 3, 1996)). “[M]otions
to strike under Rule 12(f) are disfavored and ‘should be used
sparingly by the courts' because they are considered a ‘drastic
remedy to be resorted to only when required for the purposes of
justice.’ ” Id. (quoting Pan–Am. Life Ins. Co. v. Gill, 1990 WL
58133, at *2 (E.D.La. Apr. 27, 1990)); accord Harris v. USA Ins.
Companies, 2011 WL 3841869, at *1 (E.D.La. Aug. 30, 201). “A motion

to strike should be granted only when ‘the allegations are
prejudicial to the defendant or immaterial to the
lawsuit.’” Harris, 2011 WL 3841869, at *1(quoting Johnson v.
Harvey, 1998 WL 596745, at *7 (E.D.La.1998)). “[A] district
court's order striking pleadings does not control the issues of
materiality and relevancy that govern the admissibility of the
evidence.... The plaintiffs need not plead these matters.” Id.
Immateriality is established by showing that the challenged
allegations “can have no possible bearing upon subject matter of
the litigation.” Bayou Fleet P'ship, LLC v. St. Charles
Parish, 2011 WL 2680686, at *5 (E .D.La. Jul.
8, 2011)(quoting Sadler v. Benson Motors Corp., 1997 WL 266735, at

*1 (E.D.La.1997)). The court will not decide a disputed question
of fact on a motion to strike. Gonzalez v. State Farm Mut.
Auto. Ins. Co., 2011 WL 2607096, at *5 (E.D.La. July 1, 2011).
Defendants raise several arguments in its motion, arguing the
motion to strike is necessary and should be granted to promote
efficiency and judicial economy by narrowing discovery and
streamlining the issues for trial. Rec. Doc. 176-2 at 11. The only
claims before the Fifth Circuit were Magee’s § 1983 claims against
Reed (in both his official and personal capacities) for false
imprisonment, free speech retaliation, and procedural due process
violations, and against Cox for free speech retaliation. Magee v.
Reed, 912 F.3d 820, 822 (5th Cir. 2019). The issues before this

court are clear. Therefore, the motion to strike the complaint and
the first amended complaint are moot as the only issues before
this court are those that were appealed and subsequently remanded
by the Fifth Circuit.
New Orleans, Louisiana this 14th day of February, 2020

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185286. Public record. Not legal advice.