# Carney v. New Orleans City

> District Court, E.D. Louisiana · June 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10185614

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** June 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185614

## How later opinions describe it (automated extraction)

- finding that no seizure occurred where the plaintiff’s “termination of freedom of movement” was not accomplished “through means intentionally applied”
- affirming the district court’s finding that the defendants were entitled to qualified immunity and explaining that “[b]ecause we determine that the Does have failed to state a violation of [their child’s] constitutional rights, we need not further consider the qualified immuni…

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LATOYA CARNEY, ET AL. CIVIL ACTION

VERSUS No. 20-901

NEW ORLEANS CITY, ET AL. SECTION I

ORDER & REASONS
Plaintiffs Latoya Carney and Byron Wilson, Sr. filed this action on behalf of
their deceased son, B.W., who was killed in a vehicle chase involving officers of the
New Orleans Police Department (“NOPD”) on March 20, 2019.1 The plaintiffs have
asserted federal claims pursuant to 42 U.S.C. § 1983 and Louisiana state law claims
against the City of New Orleans (“City”), members of the NOPD in their individual
and official capacities,2 and “ABC Insurance Companies.”3
The City, NOPD Superintendent Shaun Ferguson (“Ferguson”), and NOPD
Sergeant Stephen Nguyen (“Nguyen”) move to dismiss the claims against them
pursuant to Federal Rule of Civil Procedure 12(b)(6).4 They argue that they cannot

1 R. Doc. No. 8.
2 The NOPD defendants are: NOPD Superintendent Shaun Ferguson; NOPD
Sergeant Stephen Nguyen; NOPD officers Alex Mikkelsen, Jonathan Broom, Jeffrey
Harrington, Alex Florian, William Hery, Colby Stewart; and “Doe District
Commander,” who oversaw the officers at the time of the pursuit and crash. Id. ¶¶
19–32. The plaintiffs also sued “Does 1-10,” who are “persons presently unknown to
Plaintiffs after diligent search and inquiry.” Id. ¶ 31.
3 The amended complaint asserts a direct action under Louisiana state law against
“ABC Insurance Companies,” which allegedly provide insurance coverage for one or
more of the other named defendants. Id. ¶¶ 167–71.
4 R. Doc. No. 17. The Court will refer to the City, Ferguson, and Nguyen collectively
as “defendants.”
be liable under 42 U.S.C § 1983 because the plaintiffs have failed to state a claim of
any constitutional violations or a policy, practice, or custom that caused the alleged
constitutional violations.5 The defendants further assert that the Court should

dismiss the claims against Ferguson and Nguyen in their individual capacities
because Ferguson and Nguyen are entitled to qualified immunity.6 The defendants
also ask that the Court decline to exercise supplemental jurisdiction over the
plaintiffs’ state law claims.7 For the following reasons, the motion is granted.
I.
According to the amended complaint, in the evening of March 20, 2019, sixteen-

year old B.W. and fourteen-year old C.C. were driving in the Broadmoor neighborhood
of New Orleans when four NOPD officers in two marked squad cars began to follow
the teenagers’ vehicle.8 Believing that the car was stolen, the officers activated their
lights and sirens to signal to B.W. and C.C. that they should pull over.9 B.W. and C.C.
accelerated, and the four officers decided to pursue the vehicle.10 Two additional
officers followed in pursuit in a third marked squad car.11
During the pursuit, the first two NOPD vehicles neared speeds of eighty miles

per hour, while the third vehicle drove in excess of fifty miles per hour, on a street

5 R. Doc. No. 17-1, at 1–2.
6 See id. at 2.
7 See id. at 23.
8 R. Doc. No. 8, ¶ 64. The factual allegations in the amended complaint are accepted
as true for the purpose of evaluating the sufficiency of the plaintiffs’ pleadings.
9 Id. ¶ 65.
10 Id. ¶ 66.
11 Id. ¶ 68. The Court will refer to the six officers who participated in the vehicle
pursuit as the “officers” or “officer-defendants.”
with a thirty-five mile per hour speed limit.12 The officers’ police lights were activated
throughout the pursuit.13
After an approximate one-mile high-speed chase, B.W. and C.C. lost control of

their vehicle and crashed into the Unity 1 Beauty Supply and Hair Salon at the
intersection of Washington Avenue and South White Street.14 Within seconds of
impact, the vehicle was engulfed in flames, causing the salon to catch fire.15 B.W.,
C.C., and a patron of the salon who was inside the building unfortunately did not
survive.
Following the incident, the NOPD Public Integrity Bureau conducted an

investigation and concluded that the NOPD officers acted in “purposeful” violation of
several NOPD policies.16 These included the vehicle pursuit policy, in-car camera
policy, and body-worn camera policy.17 Under NOPD policy, officers may engage in a
vehicle pursuit only when they have “a reasonable suspicion that a fleeing suspect
has committed or has attempted to commit a crime of violence . . . and the escape of
the subject would pose an imminent danger of death or serious bodily injury to the
officer or to another person.”18 Vehicle pursuits for property offenses and other non-

violent infractions are prohibited.19 Officers must receive supervisory approval before

12 Id. ¶¶ 67–69.
13 Id. ¶ 76.
14 There appears to be a typographical error in the amended complaint’s reference to
“Washington Street.” Id. ¶ 78.
15 Id. ¶ 79.
16 Id. ¶ 102.
17 Id.
18 Id. ¶ 41.
19 Id. ¶ 42.
initiating a pursuit.20 NOPD policy also requires activation of body-worn cameras
during all vehicle pursuits,21 and in-car cameras are installed in NOPD vehicles to
ensure officer compliance with constitutional requirements and NOPD policies.22

Vehicle chases and resulting crashes were a subject of the 2012 Consent Decree
between the United States Department of Justice and NOPD.23 A provision of the
Consent Decree prohibited vehicle pursuits except in specific circumstances and
provided that NOPD would track and analyze vehicle pursuits by officers.24 NOPD’s
implementation of the Consent Decree’s requirements is being evaluated by a
Monitor. In January 2019, the Monitor issued a Comprehensive Reassessment, which

reported that NOPD was not yet in full compliance with the “Performance
Evaluations” and “Supervision” sections of the Consent Decree.25 The report noted
that the quality of NOPD’s supervisor evaluations was an area of concern.26
During NOPD’s investigation of the March 20, 2019 incident, the four officers
who first approached B.W. and C.C.’s vehicle admitted that the suspect vehicle was
only wanted for a property offense and that the pursuit was in violation of NOPD

20 Id. ¶ 43.
21 Id. ¶ 73.
22 Id. ¶ 71.
23 Id. ¶ 38. The Consent Decree between the City and the United States Department
of Justice was approved on January 11, 2013, to remedy patterns or practices of
conduct by the NOPD that subjected individuals to excessive force in violation of the
Fourth Amendment, unlawful searches and seizures in violation of the Fourth
Amendment, discriminatory policing practices in violation of the Fourteenth
Amendment, and other federal statutes. See United States v. City of New Orleans,
947 F. Supp. 2d 601 (E.D. La.) (Morgan, J.), aff’d, 731 F.3d 434 (5th Cir. 2013).
24 R. Doc. No. 8, ¶ 38.
25 Id. ¶ 115.
26 Id. ¶ 116.
policies.27 The NOPD investigation determined that those four officers “purposefully
ensured the in-car camera in their vehicle was deactivated so as not to capture the
events of the incident,” and that all six officers failed to properly activate their body-

worn cameras.28 The investigation also found that the officers had engaged in
multiple unauthorized pursuits before March 20, 2019 without prior discipline.29
Following the investigation, the four officers who first approached and pursued
the vehicle were fired, and the other two officers who followed the pursuit were
suspended.30
II.

A. Rule 12(b)(6) Standard
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district
court may dismiss a complaint or part of a complaint when a plaintiff fails to set forth
well-pleaded factual allegations that “raise a right to relief above the speculative
level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Gonzalez v. Kay, 577
F.3d 600, 603 (5th Cir. 2009). The complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A facially plausible claim is one in which “the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for

27 Id. ¶¶ 47–48.
28 Id. ¶ 101.
29 Id. ¶ 56.
30 Id. ¶ 13.
the misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the
court to infer more than the mere possibility of misconduct,” then “the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679

(quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).
In assessing the complaint, the Court must accept all well-pleaded factual
allegations as true and liberally construe all such allegations in the light most
favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997). On a Rule 12(b)(6) motion to dismiss, “the factual
information to which the court addresses its inquiry is limited to the (1) the facts set

forth in the complaint, (2) documents attached to the complaint, and (3) matters of
which judicial notice may be taken under Federal Rule of Evidence 201.”31 Walker v.
Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019).
“Dismissal is appropriate when the complaint ‘on its face show[s] a bar to
relief.’” Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). Where applicable, qualified
immunity can operate as one such bar.

B. Qualified Immunity
The doctrine of qualified immunity “balances two important interests—the
need to hold public officials accountable when they exercise power irresponsibly and

31 Rule 201 provides that a court “may judicially notice a fact that is not subject to
reasonable dispute because it: (1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
the need to shield officials from harassment, distraction and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). In
striking this balance, qualified immunity shields “government officials performing

discretionary functions” from civil liability “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Ashcroft
v. al-Kidd, 563 U.S. 731, 743 (2011) (“Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments about open legal
questions.”).

Where a public official invokes qualified immunity as a defense to a civil action
against him, the plaintiff has the burden of establishing a constitutional violation
and overcoming the defense. Jackson v. Texas, 959 F.3d 194, 201 (5th Cir. 2020)
(citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)).
To meet this burden, a plaintiff must show “(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.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en

banc). The court has discretion to decide which of the two prongs of the qualified
immunity analysis to examine first. Jackson, 959 F.3d at 200.
At the 12(b)(6) stage, to hold that the defendant violated the law at step one of
the qualified immunity analysis is to say that, taking the facts in the light most
favorable to the plaintiff, the plaintiff has stated a claim upon which relief may be
granted—that is, that the alleged conduct violated a constitutional right. Morgan,
659 F.3d at 384; Lytle v. Bexar Cty., Tex., 560 F.3d 404, 410 (5th Cir. 2009).
As to the second step, “[f]or a right to be clearly established, ‘[t]he contours of

the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.’” Turner v. Lieutenant Driver, 848 F.3d 678, 685
(5th Cir. 2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alteration
in original). “In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Jackson, 959 F.3d at 201 (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). Once a plaintiff alleges that an official’s conduct

violated a clearly established right, the court must then determine “whether the
official’s conduct was objectively reasonable under the law at the time of the incident.”
Michalik v. Hermann, 422 F.3d 252, 258 (5th Cir. 2005); see also Thompson v. Upshur
Cnty., Tex., 245 F.3d 447, 457 (5th Cir. 2001).
An official’s conduct is not objectively unreasonable “unless all reasonable
officials in the [official’s] circumstances would have then known that the [official’s]
conduct violated the plaintiff’s rights.” Carroll v. Ellington, 800 F.3d 154, 169 (5th

Cir. 2015). When denying qualified immunity, a court must point to “controlling
authority—or a robust consensus of persuasive authority—that defines the contours
of the right in question with a high degree of particularity.” Wyatt v. Fletcher, 718
F.3d 496, 503 (5th Cir. 2013). Precedent existing at the time of the challenged conduct
“must have placed the statutory or constitutional question beyond debate.” al-Kidd,
563 U.S. at 741.
When the defense of qualified immunity is raised in a motion filed pursuant to
Rule 12(b)(6), “it is the defendant’s conduct as alleged in the complaint that is
scrutinized for ‘objective legal reasonableness.’” McClendon, 305 F.3d at 323

(emphasis in original) (quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)). A court
must determine that a plaintiff’s pleadings “assert facts which, if true, would
overcome the defense of qualified immunity.” Zapata v. Melson, 750 F.3d 481, 485
(5th Cir. 2014). A plaintiff seeking to overcome qualified immunity “must plead
specific facts that both allow the court to draw the reasonable inference that the
defendant is liable for the harm he has alleged and that defeat a qualified immunity

defense with equal specificity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
III.
As the parents of B.W., plaintiffs bring this action to “seek accountability” for
the decisions of the NOPD officers that allegedly resulted in the death of B.W.32
Pertinent to the instant motion, their claims against the City, Ferguson, and Nguyen
allege violations of the Fourth and Fourteenth Amendment protections from unlawful
seizure, excessive force, and denial of due process under 42 U.S.C. § 1983; violations

of the right to due process and the right to be free from unlawful seizure and excessive
force under the Louisiana Constitution; negligence and negligent infliction of
emotional distress under state law; failure to train and discipline under 42 U.S.C. §

32 R. Doc. No. 8, ¶ 7.
1983 and Monell; and vicarious liability under state law.33 Plaintiffs also seek
indemnity against the City under state law.34
The Court will first examine the plaintiffs’ federal claims of Fourth and

Fourteenth Amendment violations, as well as the failure to train and discipline; it
will then address its jurisdiction over the state law claims.
A. Constitutional Claims
The plaintiffs’ federal claims, which arise under 42 U.S.C. § 1983, allege that
the actions of the NOPD officers in connection with the pursuit of B.W. constituted
an illegal seizure, excessive force, and denial of due process in violation of the Fourth

and Fourteenth Amendments.35 Their actions were unconstitutional, plaintiffs claim,
because the officers “made a conscious decision to engage in a pursuit of B.W. despite
knowing that it was in violation of NOPD policy considering the suspected crime” and
“knowing that it was likely to result in injury or death to B.W. and/or innocent
bystanders.”36
The defendants do not dispute that the officers who pursued B.W. did not
comply with NOPD policies.37 However, they argue that the plaintiffs’ § 1983 claims

must be dismissed because the plaintiffs have failed to state a claim of any

33 See R. Doc. No. 8. The plaintiffs also bring a failure-to-intervene claim under § 1983
against the officer-defendants. Id. ¶¶ 128–35.
34 See id. ¶¶ 162–66.
35 Id. ¶¶ 14, 127.
36 Id.
37 See R. Doc. No. 17-1, at 11.
constitutional violations.38 They also assert that Ferguson and Nguyen are entitled
to qualified immunity.39
i. Section 1983

Section 1983 provides a private right of action against parties acting “under
color of any statute, ordinance, regulation, custom, or usage, of any State” to redress
the deprivation of rights secured by the United States Constitution or federal law.
Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003). “Section 1983 ‘is not itself a source
of substantive rights,’ but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.

McCollan, 443 U.S. 137, 144, n.3 (1979)).
“To state a section 1983 claim, ‘a plaintiff must (1) allege a violation of a right
secured by the Constitution or laws of the United States and (2) demonstrate that the
alleged deprivation was committed by a person acting under color of state law.’”
Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting James v. Tex. Collin
Cnty., 535 F.3d 365, 373 (5th Cir. 2008), cert. denied, 572 U.S. 1087 (2014). A
municipality may be liable under § 1983 when a plaintiff establishes that (1) an

official policy (2) promulgated by the municipal policymaker (3) was the moving force
behind the violation of a constitutional right. Peterson v. City of Fort Worth, Tex., 588
F.3d 838, 847 (5th Cir. 2009).
ii. Fourth Amendment Seizure

38 Id. at 3.
39 Id.
The Fourth Amendment protects the right to be secure from unreasonable
seizures. A person is seized by the police and thus entitled to challenge the
government’s action under the Fourth Amendment when the officer, “by means of

physical force or show of authority terminates or restrains his freedom of movement
through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254
(2007) (internal citations and quotation marks omitted). “Physical force is not
required to effect a seizure; however, absent physical force, ‘submission to the
assertion of authority’” is necessary. McLin v. Ard, 866 F.3d 682, 691 (5th Cir. 2017)
(quoting California v. Hodari D., 499 U.S. 621, 626 (1991)). A seizure occurs “only if,

in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that [he was] not free to leave.” Id.; Michigan v. Chesternut, 486
U.S. 567, 573 (1988).
The plaintiffs argue that the high-speed pursuit by the NOPD officers
constituted an unconstitutional seizure in violation of the Fourth Amendment.40
Fatal to their claim, however, is caselaw that dictates otherwise. In Brower v. County
of Inyo, the United States Supreme Court examined the precise issue in this case—

whether an unconstitutional seizure occurs when there is a “police chase in which the
suspect unexpectedly loses control of his car and crashes.” 489 U.S. 593, 595 (1989).
The Supreme Court explained:
[A] Fourth Amendment seizure does not occur whenever there is a
governmentally caused termination of an individual’s freedom of
movement (the innocent passerby), nor even whenever there is a
governmentally caused and governmentally desired termination of an

40 R. Doc. No. 8, ¶ 127; R. Doc. No. 22, at 7.
individual’s freedom of movement (the fleeing felon), but only when
there is a governmental termination of freedom of movement through
means intentionally applied.

Id. at 596–97. The reason why a suspect’s accidental crash in a police pursuit does
not constitute a seizure under the Fourth Amendment is that “[t]he pursuing police
car sought to stop the suspect only by the show of authority represented by flashing
lights and continuing pursuit; and though he was in fact stopped, he was stopped by
a different means—his loss of control of his vehicle and the subsequent crash.” Id. at
597.41 Similar facts are present in this case.
The amended complaint specifically states that B.W. and C.C., “while being
pursued” by NOPD officers whose police lights were activated throughout the pursuit,

41 The Supreme Court provided an illustrative distinction: “If, instead of that, the
police cruiser had pulled alongside the fleeing car and sideswiped it, producing the
crash, then the termination of the suspect’s freedom of movement would have been a
seizure.” Brower, 489 U.S. at 597. Here, the amended complaint does not allege that
the officers made any physical contact with B.W.’s vehicle that terminated its
movement.

The plaintiffs argue that a “non-contact vehicle chase” may constitute a seizure
“under certain circumstances.” R. Doc. No. 22, at 6–7. However, the case they cite,
Galas v. McKee, 801 F.2d 200 (6th Cir. 1986), lends further credence to the Court’s
finding that such circumstances are not present in this case. Id. at 7. The Sixth
Circuit explained in Galas:

Clearly, during the initial stages of the pursuit when the minor plaintiff
decided to flee rather than to obey the defendant officer’s directive to
stop, the minor plaintiff was not restrained. Just as clearly, when the
pursuit terminated in an accident with personal injury to the minor
plaintiff, he was not restrained by, or as a result of, the officer’s show of
authority. Rather, the minor plaintiff's inability to leave was because he
wrecked his automobile, and no seizure occurred.

Id. at 203.
“lost control of their vehicle and crashed into a beauty salon.”42 While the officers may
have engaged in the pursuit of B.W. and C.C.’s vehicle, “desiring” that the teenagers
terminate their movement, B.W. and C.C. were not stopped by the pursuit itself. See

Brower, 489 U.S. at 599; Cty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (“[A]
police pursuit in attempting to seize a person does not amount to a ‘seizure’ within
the meaning of the Fourth Amendment”) (citing California v. Hodari D., 499 U.S.
621, 626 (1991)) (emphasis added).
Although the plaintiffs allege that “vehicle pursuits are an instrumentality
which is likely to result in significant injury or death, as this particular pursuit did,”43

the allegations in the amended complaint present facts demonstrating that B.W. was
“stopped by a different means” than the pursuit itself—the loss of control of their
vehicle and the subsequent crash into the Unity 1 salon.44 See Brower, 489 U.S. at
597; see also Gorman v. Sharp, 892 F.3d 172, 175 (5th Cir. 2018) (finding that no
seizure occurred where the plaintiff’s “termination of freedom of movement” was not
accomplished “through means intentionally applied”).45 Rather than being stopped

42 R. Doc. No. 8, ¶¶ 76, 78.
43 Id. ¶ 126. The Supreme Court has also held that “[a] police officer’s attempt to
terminate a dangerous high-speed car chase that threatens the lives of innocent
bystanders does not violate the Fourth Amendment, even when it places the fleeing
motorist at risk of serious injury or death.” Scott v. Harris, 550 U.S. 372, 386 (2007).
44 Id. ¶ 78.
45 Gorman involved an “accidental fatal shooting during an officer training session”;
Mississippi Gaming Commission instructor Robert Sharp “forgot to replace his real
firearm with a ‘dummy’ firearm” and “accidentally discharged his real firearm”
against his fellow instructor John Gorman. 892 F.3d at 173. The Fifth Circuit found
that a Fourth Amendment violation was not established because the “shooting here
of Gorman—as tragic as it was—was not ‘willful[ly]’ performed by Sharp.” Id. at 175.
by the officers, B.W. and C.C. “lost control of their vehicle” and crashed, ending the
pursuit and, tragically, their lives.46 Because no seizure took place, no Fourth
Amendment violation of this right occurred.47

Accepting the well-pleaded allegations in the amended complaint as true, the
Court finds that the plaintiffs have failed to plausibly allege a violation of the Fourth
Amendment protection against unreasonable seizure pursuant to § 1983. Thus, this
claim against the City must be dismissed. See Baughman v. Hickman, 935 F.3d 302,
311 (5th Cir. 2019) (“[A]n underlying constitutional violation is required to impose
liability on the governmental body[.]”); Doe ex rel. Magee v. Covington Cty. Sch. Dist.

ex rel. Keys, 675 F.3d 849, 866–67 (5th Cir. 2012) (en banc) (“We have stated time and
again that ‘[w]ithout an underlying constitutional violation, an essential element of
municipal liability is missing.’”) (quoting Becerra v. Asher, 105 F.3d 1042, 1048 (5th
Cir. 1997)). In addition, this claim against Ferguson and Nguyen in their official
capacities must be dismissed because official capacities claims are treated as claims
against the municipality. Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268,
279–80 (5th Cir. 2015); see Goodman v. Harris Cty., 571 F.3d 388, 396 (5th Cir. 2009)

(“[O]fficial capacity suits are really suits against the governmental entity[.]”); Turner
v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (“In

46 R. Doc. No. 8, ¶ 78.
47 Plaintiffs also argue that a vehicle pursuit constitutes a seizure under the Fourth
Amendment because the NOPD Operations Manual provides that a “Level-4 use of
force” includes “all serious uses of force,” such as “[a]ny vehicle pursuit resulting in
death, serious physical injury, or injuries requiring hospitalization.” R. Doc. No. 22,
at 7. This argument is unavailing, as caselaw and Supreme Court precedent—not
NOPD policies—govern the contours of constitutional rights.
any case in which a defendant government official is sued in his individual and official
capacity, and the city or state is also sued . . . [t]he official-capacity claims and the
claims against the governmental entity essentially merge.”); see also Whitley, 726

F.3d at 639 n.3 (“To the extent Whitley asserts claims against Appellees in their
official capacities, we find such claims also fail for lack of an underlying constitutional
violation.”).
Because the plaintiffs have not plausibly alleged a Fourth Amendment claim
of an unconstitutional seizure, they have also failed to meet their burden to overcome
Ferguson’s and Nguyen’s defense of qualified immunity. See Magee, 675 F.3d at 869

(affirming the district court’s finding that the defendants were entitled to qualified
immunity and explaining that “[b]ecause we determine that the Does have failed to
state a violation of [their child’s] constitutional rights, we need not further consider
the qualified immunity analysis”); Hampton v. Oktibbeha Cty. Sheriff Dep’t, 480 F.3d
358, 363 (5th Cir. 2007) (“If the plaintiff fails to state a constitutional claim or if the
defendant’s conduct was objectively reasonable under clearly established law, then
the government official is entitled to qualified immunity.”).48 This claim against

Ferguson and Nguyen in their individual capacities must also be dismissed.

48 While the Court finds that the plaintiffs have failed to overcome the defense of
qualified immunity invoked by Ferguson and Nguyen because they have not plausibly
alleged a Fourth Amendment claim of an unconstitutional seizure, the Court notes
Fifth Circuit caselaw suggesting that the § 1983 claims against Ferguson and Nguyen
may be dismissed without reaching the qualified immunity issue. See Goodman., 571
F.3d at 396 (explaining that because the plaintiff failed to set forth a § 1983 claim,
“an analysis of [the defendant’s] defense of qualified immunity is unnecessary.
Qualified immunity is only applicable as a protective shield once a plaintiff has made
out a claim against an official acting in his individual capacity.”); Lytle, 560 F.3d at
iii. Fourteenth Amendment Due Process
The Fourteenth Amendment right to due process protects the individual
“against arbitrary action of government.” Lewis, 523 U.S. at 845. When faced with a

due process challenge, the court must determine whether the behavior of the
governmental officer “is so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906
(2018) (quoting Lewis, 523 U.S. at 847 n.8). The “shock the conscience” standard is
satisfied “where the conduct was ‘intended to injure in some way unjustifiable by any
government interest,’ or in some circumstances if it resulted from deliberate

indifference.” Id. (quoting Lewis, 523 U.S. at 849–50).
The plaintiffs claim that the actions of the pursuing officers “caused in [sic]
danger in a manner that shocks the conscience.”49 The amended complaint also
broadly alleges that the “actions and omissions” by the defendants in this case “were

410 (“If we determine that the alleged conduct did not violate a constitutional right,
our inquiry ceases because there is no constitutional violation for which the
government official would need qualified immunity.”).
49 R. Doc. No. 8, ¶ 127. The plaintiffs argue that B.W. and C.C.’s “speeding vehicle
was induced by Defendants’ behavior.” R. Doc. No. 22, at 8. According to the amended
complaint, this “behavior” would be the officers’ activation of their lights and sirens
“signaling to B.W. and C.C. to pull over”; B.W. and C.C. “accelerated” after the officers
signaled to them, and the officers decided to pursue the vehicle “[w]hen [B.W. and
C.C.] accelerated.” R. Doc. No. 8, ¶¶ 65–66. The plaintiffs’ attempt to distinguish
Lewis from the facts of this case is unavailing. See R. Doc. No. 22, at 8. Even if the
officers made a “conscious decision” to pursue B.W. and C.C.’s vehicle—which,
according to the amended complaint “accelerated” when the officers signaled to
them—the plaintiffs have not presented any facts that would support a reasonable
inference that the officers’ purpose was to cause harm. See Lewis, 523 U.S. at 854
(“[A] purpose to cause harm . . . ought to be needed for due process liability in a
pursuit case.”).
willful, wanton, reckless, malicious, oppressive, and/or done with a conscious
disregard for the constitutional rights of the deceased to a degree that shocks the
conscience.”50 The plaintiffs further argue that a Fourteenth Amendment violation

can be established based on the officers’ previous conduct of “similar pursuits” before
March 20, 2019 that allegedly violated NOPD policy and the Consent Decree.51
The Supreme Court has held that “high-speed chases with no intent to harm
suspects physically or to worsen their legal plight do not give rise to liability under
the Fourteenth Amendment, redress[a]ble by an action under § 1983.” Lewis, 523
U.S. at 854. In the amended complaint, the plaintiffs do not allege that the NOPD

officers intended to harm B.W. physically or worsen his legal plight. Nor is there any
allegation that their conduct intended to injure B.W. “in some way unjustifiable by
any governmental interest.” See Rosales-Mireles, 138 S. Ct. at 1906. Rather, the
amended complaint asserts that the officers “decided to pursue the vehicle” “when
B.W. and C.C. accelerated”—after the officers signaled to them to pull over.52
Although the vehicle pursuit violated NOPD policy, the reason the officers
approached B.W. and C.C.’s vehicle in the first place, according to the amended

complaint, was that they believed the vehicle was stolen.53
The facts alleged do not reflect an intent to injure B.W. or deliberate
indifference to B.W.’s rights. Thus, the plaintiffs have not set forth any allegations

50 R. Doc. No. 8, ¶ 123.
51 See R. Doc. No. 22, at 8–9.
52 R. Doc. No. 8, ¶¶ 65–66.
53 Id. ¶ 65.
that would support a reasonable inference that the officers’ behavior rises to the level
of conscience-shocking conduct. While the officers did not comply with NOPD policy,
“[a] failure to follow official policy, by itself shows, at most, negligence and cannot

support a finding of deliberate indifference.” Mason, 806 F.3d at 279. Moreover, a
claim concerning a violation of a consent decree “is not cognizable under § 1983
because, under the law of [the Fifth Circuit], a remedial decree does not create rights
secured by the laws within the meaning of § 1983.” Connall v. Collins, 71 F.3d 875
(5th Cir. 1995) (citing Galloway v. State of La., 817 F.2d 1154, 1157 (5th Cir. 1987));
see Green v. McKaskle, 788 F.2d 1116, 1124 (5th Cir. 1986) (“[A] remedial court order,

standing alone, does not serve as the basis for § 1983 liability.”). In addition, the fact
that the officers may have engaged in prior unauthorized vehicle pursuits of other
individuals does not demonstrate that the officers violated B.W.’s Fourteenth
Amendment rights in this case.
Accepting the well-pleaded factual allegations in the amended complaint as
true, the Court finds that the plaintiffs have failed to plausibly allege a violation of
the Fourteenth Amendment right to due process. Therefore, this claim against the

City, Ferguson in his official capacity, and Nguyen in his official capacity must be
dismissed.54 This claim against Ferguson and Nguyen in their individual capacities

54 As stated previously, a claim against Ferguson and Nguyen in their official
capacities is treated as a claim against the City.
must also be dismissed because, in the absence of a plausibly alleged constitutional
violation, the plaintiffs cannot overcome the defense of qualified immunity.55
iii. Excessive Force

The plaintiffs also bring a claim of excessive force, although they do not specify
whether this claim is asserted under the Fourth Amendment or the Fourteenth
Amendment.56 They broadly allege that the “actions” of the NOPD officers constituted
excessive force because, according to the plaintiffs, the officers “made a conscious
decision to engage in a pursuit of B.W. despite knowing it was in violation of NOPD
policy considering the suspected crime, knowing that it was likely to result in injury

or death of B.W. and/or innocent bystanders, and that their actions actually caused
in [sic] danger in a manner that shocks the conscience.”57
While “excessive-force claims are typically analyzed under the Fourth
Amendment,” the Fifth Circuit “ha[s] recognized that an excessive-force claim may
be asserted as a violation of due process” under the Fourteenth Amendment.
Hernandez v. United States, 757 F.3d 249, 267–68 (5th Cir. 2014); see Petta v. Rivera,
143 F.3d 895, 900 (5th Cir. 1998) (concluding that a plaintiff may bring a § 1983 claim

of excessive force in violation of the Fourteenth Amendment). Under both the Fourth
and Fourteenth Amendments, “an excessive force claim brought under § 1983 . . .

55 Again, the Court notes the Fifth Circuit’s guidance in Goodman and Lytle
suggesting that a court need not examine the qualified immunity question if it finds
that the alleged conduct did not violate a constitutional right. Goodman., 571 F.3d at
396; Lytle, 560 F.3d at 410.
56 R. Doc. No. 8, ¶ 127.
57 Id. The plaintiffs also allege that these same “actions” constitute an illegal seizure
and denial of the Fourteenth Amendment right to due process. Id.
begins by identifying the specific constitutional right allegedly infringed by the
challenged application of force.”). Graham v. Connor, 490 U.S. 386, 394 (1989). “The
validity of the claim must then be judged by reference to the specific constitutional

standard which governs that right[.]” Id.
Accepting the well-pleaded allegations in the amended complaint as true, the
Court finds that the plaintiffs have failed to state a claim of excessive force under
either the Fourth Amendment or the Fourteenth Amendment. Because the plaintiffs
have not plausibly alleged that B.W. was “seized” in violation of the Fourth
Amendment, they cannot state a claim of excessive force under the Fourth

Amendment. Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004) (“To bring a
§ 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show
that [he] was seized.”). Similarly, because the plaintiffs have not plausibly alleged a
violation of the Fourteenth Amendment right to due process, in the absence of an
intent to harm B.W., their excessive force claim under the Fourteenth Amendment
also fails. See Graham, 490 U.S. at 394; Petta, 143 F.3d at 914.
Accordingly, the plaintiffs’ claim of excessive force under the Fourth

Amendment and the Fourteenth Amendment must be dismissed against the City,
Ferguson in his official capacity, and Nguyen in his official capacity. The excessive
force claim under the Fourth and Fourteenth Amendment must also be dismissed
against Ferguson and Nguyen in their individual capacities because the plaintiffs
cannot overcome their defense of qualified immunity in the absence of a showing of a
constitutional violation.58
B. Failure to Train and Discipline

The plaintiffs claim that Ferguson, Nguyen, and the City failed to train and
discipline the NOPD officers who pursued B.W.’s vehicle and that the failure to
properly train and discipline the officers “was directly linked to B.W.’s death.”59 The
amended complaint also alleges that the failure to train and discipline “can only
demonstrate a deliberate indifference” to B.W.’s and the plaintiffs’ constitutional
rights.60 The amended complaint asserts that the City was responsible for the hiring,

training, and discipline of NOPD officers and that, through the NOPD, the City
created, instituted, and oversaw the enforcement of the policies and procedures at
issue in this case.61 The amended complaint also alleges that Ferguson, as
Superintendent of the NOPD, is responsible for the supervision, administration,
policies, practices, procedures, and customs of the NOPD, as well as for the hiring,
training, discipline, and control of NOPD staff, supervisors, and deputies.62

58 The Court again questions whether a qualified immunity analysis is necessary if
the Court finds that the plaintiffs have not plausibly alleged a violation of a
constitutional right. See Goodman., 571 F.3d at 396; Lytle, 560 F.3d at 410.
59 R. Doc. No. 8, at ¶ 158. The failure to train and discipline claim is also asserted
against the unidentified “Doe District Commander.” See id. ¶ 32.
60 Id. ¶ 159.
61 Id. ¶ 28.
62 Id. ¶ 19. The amended complaint also alleges Monell liability against Nguyen for
failure to train and discipline, but the plaintiffs subsequently conceded that Nguyen
is not a final policymaker, as required for a Monell claim, and that the official capacity
claims against Nguyen in that respect should be dismissed. R. Doc. No. 22, at 15.
Municipalities cannot be liable under § 1983 based on a theory of respondeat
superior. Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010); Monell v. Dep’t
of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). “A municipality is liable

only for acts directly attributable to it ‘through some official action or imprimatur.’”
Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010) (quoting Piotrowski v. City
of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). To state a Monell claim against a
municipality, the plaintiffs must plead facts “that plausibly establish: ‘a policymaker;
an official policy; and a violation of constitutional rights whose “moving force” is the
policy or custom.’” Ratliff v. Aransas Cty., Texas, 948 F.3d 281, 285 (5th Cir. 2020)

(quoting Piotrowski, 237 F.3d at 578).
Supervisory officials also cannot be liable under § 1983 for the actions of
subordinates on any theory of vicarious or respondeat superior liability. Estate of
Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005).
Rather, a plaintiff must show either that the supervisor “personally was involved in
the constitutional violation or that there is a ‘sufficient causal connection’ between
the supervisor’s conduct and the constitutional violation.” Evett v. DETNTFF, 330

F.3d 681, 689 (5th Cir. 2003) (quoting Thompkins v. Belt, 828 F.2d 298, 303–04 (5th
Cir. 1987)); see Estate of Davis, 406 F.3d at 381 (“Plaintiffs must show that the
conduct of the supervisors denied [the decedent] his constitutional rights.”).
In this case, because the plaintiffs have failed to plausibly state a Fourth
Amendment or Fourteenth Amendment violation, the City, Ferguson, and Nguyen
cannot be liable for any alleged failure to train or discipline based on these asserted
constitutional violations. See Romero v. City of Grapevine, Texas, 888 F.3d 170, 178–
79 (5th Cir. 2018) (“In order to confer liability on the City and [the police chief] for
deficient supervisory conduct, there must be ‘a sufficient causal connection between

[the City’s] conduct and the constitutional violation.’ ‘[I]t is facially evident that this
test cannot be met if there [are] no underlying constitutional violations.’”) (internal
citation omitted) (quoting Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006));
Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013) (“All of Whitley’s inadequate
supervision, failure to train, and policy, practice, or custom claims fail without an
underlying constitutional violation.”); Bustos v. Martini Club Inc., 599 F.3d 458, 467

(5th Cir. 2010) (“The Supreme Court has explained that a municipality cannot be
liable ‘[i]f a person has suffered no constitutional injury at the hands of the individual
police officer.’”) (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).
Accordingly, the plaintiffs’ failure to train and discipline claim must be
dismissed against the City, Ferguson in his official capacity, and Nguyen in his
official capacity. See Rios v. City of Del Rio, Tex., 444 F.3d 417, 426 (5th Cir. 2006)
(explaining that because there is no underlying constitutional violation, Rule 12(b)(6)

dismissal is proper, even assuming arguendo that “the allegations in the complaint
are sufficient to provide a substitute for the doctrine of respondeat superior as a basis
for imposing liability on the City for the tortious conduct of its agents.”) (quoting
Collins v. City of Harker Heights, Tex., 503 U.S. 115, 124 (1992)). This claim must
also be dismissed against Ferguson in his individual capacity and Nguyen in his
individual capacity because, in the absence of a plausibly alleged constitutional
violation, the plaintiffs have not met their burden to overcome the defense of qualified
immunity.
C. State Law Claims

A district court has wide discretion when deciding whether it should retain
jurisdiction over state law claims once all federal claims have been eliminated.
Enochs v. Lampasas Cty., 641 F.3d 155, 161 (5th Cir. 2011). The general rule in the
Fifth Circuit is to dismiss state claims when the federal claims to which they are
pendent are dismissed. Id.
Having concluded that the plaintiffs’ federal law claims should be dismissed,

only their state law claims remain. A district court may decline to exercise
supplemental jurisdiction over a state law claim if:
(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original
jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

28 U.S.C. § 1367(c). In addition to these factors, the Fifth Circuit has instructed
district courts to consider the common law factors of “judicial economy, convenience,
fairness, and comity.” Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008). “These
interests are to be considered on a case-by-case basis, and no single factor is
dispositive.” Id.
These factors weigh in favor of dismissal without prejudice of the Louisiana
state law claims so that the plaintiffs may assert those claims in Louisiana state
court. The Court has “dismissed all claims over which it has original jurisdiction.” 28

U.S.C. § 1367(c)(3). “Moreover, allowing Louisiana courts to rule on Louisiana law
encourages fairness between the parties by ‘procuring for them a surer-footed reading
of applicable law.’” Fountain v. New Orleans City, No. 18-145, 2018 WL 3475375, at
*2–3 (E.D. La. July 19, 2018) (Africk, J.) (quoting United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966) (citations omitted)). “[D]eference in this case with
respect to the state law issue[s] promotes the important interest of comity to state

courts.” Id. Furthermore, the parties will not be unduly prejudiced because the
litigation is still in its early stages.
Therefore, the Court declines to exercise supplemental jurisdiction over the
remaining state law claims.
IV.
For the foregoing reasons,
IT IS ORDERED that the motion to dismiss is GRANTED. The federal law

claims against the City of New Orleans, Shaun Ferguson in his individual and official
capacities, and Stephen Nguyen in his individual and official capacities are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the state law claims against the City of
New Orleans, Shaun Ferguson, and Stephen Nguyen are DISMISSED WITHOUT
PREJUDICE to their being timely asserted in state court.
New Orleans, Louisiana, June 24, 2020.

LAN . AFRICK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185614. Public record. Not legal advice.