Herbert v. New Orleans City

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ANTHONY HERBERT CIVIL ACTION

VERSUS No. 20-952

NEW ORLEANS CITY, ET AL. SECTION I

ORDER & REASONS

Plaintiff Anthony Herbert (“Herbert”) filed this action, pro se, on behalf of his

deceased mother, Schwann Herbert, who was killed on March 20, 2019, when a

vehicle being chased by officers of the New Orleans Police Department (“NOPD”)

crashed into a building where Ms. Herbert was a patron.1 The plaintiff has asserted

federal claims pursuant to 42 U.S.C. § 1983 and state law claims against the City of

New Orleans (the “City”), the NOPD, and members of the NOPD in their individual

and official capacities.2

1 See R. Doc. No. 1.

2 The NOPD defendants are: NOPD Superintendent Shaun Ferguson and six NOPD

officers, namely Alex Mikkelsen, Jonathan Broom, Jeffrey Harrington, Alex Florian,

William Hery, and Colby Stewart. Id. at 2–5 ¶ 4. The Court will refer to the NOPD

officers as the “defendant officers.”

It is unclear from the complaint whether Ferguson and the defendant officers are

named in their individual and/or official capacities. In light of the liberality with

which this Court interprets the pleadings of pro se litigants, Gressett v. New Orleans

City, 779 F. App’x 260, 261 (5th Cir. 2019), the Court interprets the complaint as

naming the defendants in both capacities. See Cousin v. Delaney, No. 14-76, 2015 WL

589972, at *2 (M.D. La. Feb. 11, 2015); Lewis v. Cain, No. 11-0118, 2011 WL 4577542,

at *2 (M.D. La. Sept. 8, 2011), report and recommendation adopted, No. 11-118, 2011

WL 4577386 (M.D. La. Sept. 30, 2011).

The City, the NOPD, NOPD Superintendent Shaun Ferguson (“Ferguson”),

and three of the defendant officers, Alex Mikkelsen (“Mikkelsen”), William Hery

(“Hery”), and Colby Stewart (“Stewart”), (collectively, the “defendants”) move to

dismiss the claims against them pursuant to Federal Rule of Civil Procedure

12(b)(6).3 They argue that they cannot be liable under § 1983 because plaintiff has

failed to state a claim adequately alleging any constitutional violations or a policy,

practice, or custom that caused the alleged constitutional violations.4 Ferguson and

the defendant officers who filed motions to dismiss—Hery, Stewart, and Mikkelsen—

also assert that the Court should dismiss the claims against them in their individual

capacities because they are entitled to qualified immunity.5 The defendants also ask

that the Court decline to exercise supplemental jurisdiction over the plaintiff’s state

law claim.6 For the following reasons, the motion is granted.7

I.

Accepting all of the factual assertions in the complaint as true, they are as

follows: on March 20, 2019, the defendant officers attempted to conduct a traffic stop

of a vehicle they believed to be stolen.8 The vehicle did not stop, and it instead

3 R. Doc. Nos. 10, 12, & 14.

4 R. Doc. No. 10-1, at 2; R. Doc. No. 12-1, at 3; R. Doc. No. 14-1, at 3.

5 R. Doc. No. 10-1, at 2; R. Doc. No. 12-1, at 3; R. Doc. No. 14-1, at 3.

6 R. Doc. No. 10-1, at 20; R. Doc. No. 12-1, at 16; R. Doc. No. 14-1, at 16.

7 The Court recently granted the defendants’ motion to dismiss in a related case,

Carney v. New Orleans City, No. 20-901, 2020 WL 3469835 (E.D. La. June 25, 2020)

(Africk, J.), which was a suit brought on behalf of one of the deceased vehicle

passengers.

8 R. Doc. No. 1, at 5 ¶ 5.

accelerated away from the defendant officers.9 The defendant officers proceeded to

engage in a high-speed pursuit of the vehicle.10 During the defendant officers’ pursuit

of the vehicle, the driver of the fleeing vehicle lost control and crashed into the Unity

I Beauty Supply & Hair Salon (the “Salon”), located at 4125 Washington Avenue in

New Orleans, Louisiana.11 The crash ignited a fire, engulfing the Salon in flames.12

Ms. Herbert, the plaintiff’s mother, was a patron at the Salon when the crash

occurred that caused the building to catch fire.13 Ms. Herbert was tragically unable

to escape from the Salon before sustaining fatal injuries, from which she later died.14

Following this incident, the NOPD Public Integrity Bureau conducted an

investigation and concluded that six officers, the defendant officers, violated the

NOPD’s Vehicle Pursuit Policy (the “Pursuit Policy”).15 According to the Pursuit

Policy, officers may engage in a vehicle pursuit only when they “can articulate a

suspect is attempting to evade arrest or detention for a crime of violence . . . ; [t]he

escape of the subject would pose an imminent danger of death or serious bodily injury

to the officer or to another person; and . . . [t]he suspect is fleeing in a vehicle after

having been given a signal to stop by a commissioned member who has identified

9 Id.

10 Id.

11 Id. at 5–6 ¶ 6.

12 Id.

13 Id. at 6 ¶ 7.

14 Id.

15 Id. 6–7 ¶¶ 8, 10.

themselves as a police officer[.]”16 Officers must also receive supervisory approval

before initiating a pursuit.17

The defendant officers violated the Pursuit Policy when they chased the vehicle

on March 20, 2019, as they did not suspect that the vehicle occupants had committed

a violent crime; they turned their video surveillance cameras off so that no video

evidence of the pursuit could be reviewed; and they lied about stopping the pursuit

prior to the fatal crash.18 As a result of these violations, four of the defendant officers

were terminated and two were suspended without pay.19 Namely, the NOPD fired

Mikkelsen, Jonathan Broom, Jeffrey Herrington, and Alex Florian, and it suspended

Stewart and Hery without pay.20

The defendant officers’ violations of the Pursuit Policy on March 20, 2019 were

not the first instances in which at least some of the defendant officers engaged in

similar conduct.21 For example, Stewart received a letter of reprimand in August

2016 after an internal investigation revealed that he had failed to record his response

to several 911 calls the year before.22 Ferguson has also stated that internal

investigators uncovered a pattern of officers deactivating their cameras during

16 Id. 6 ¶ 9. Section 9 of the Pursuit Policy is excerpted in the complaint. Id.

17 Id.

18 Id. at 7 ¶ 11. The complaint states that the entirety of the Pursuit Policy is attached

to the complaint as Exhibit 1. Id. at 6 ¶ 8. No exhibits are attached to the complaint.

However, the Court assumes, for the purpose of the instant motions, that these

violations are prohibited by the Pursuit Policy.

19 Id. at 7 ¶ 12.

20 Id.

21 Id. at 7 ¶ 13.

22 Id.

vehicle pursuits in the weeks leading up to the fatal March 20, 2019 pursuit.23 Stella

Cziment, the City’s deputy independent policy monitor, expressed that she found it

“concerning” that several unauthorized and unrecorded pursuits occurred in the

weeks preceding the March 20, 2019 pursuit.24 The defendant officers allegedly

engaged in this pattern of conduct in an effort to prevent their superiors from

discovering pursuits that may have violated the Pursuit Policy.25

The complaint further alleges that Ferguson and the NOPD knew of the

defendant officers’ pattern and practice of engaging in unauthorized and unrecorded

vehicle pursuits, but that they failed to take any corrective action to prevent such

violations from recurring.26

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).

23 Id. at 7 ¶ 14.

24 Id. at 7 ¶ 16.

25 Id. at 8 ¶ 15.

26 Id. at 8 ¶ 17.

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

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 v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999);

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.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir.

2019).

A pro se complaint is to be liberally construed. Gressett, 779 F. App’x at 261.

“Even a liberally construed pro se civil rights complaint,” however, “must set forth

facts giving rise to a claim on which relief may be granted.” Id. (citation omitted).

“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.27

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

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)).

27 The Court, upon the plaintiff’s request, continued the deadline to file a response in

opposition by two weeks to July 14, 2020. See R. Doc. No. 18. To date, the plaintiff

has not filed a response or requested another continuance. However, the Court must

still consider the sufficiency of the plaintiff’s complaint before granting the

defendants’ motions to dismiss. See Webb v. Morella, 457 F. App’x 448, 452 n.4 (5th

Cir. 2012).

To meet this burden, a plaintiff must show both “(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). A 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 a defendant violated the law under the first

prong 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 prong, “[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)). If a plaintiff alleges that an official’s conduct

violated a clearly established right, then a court must 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).

To deny 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.

Count one of the complaint asserts a claim pursuant to 42 U.S.C. § 1983

against the NOPD, Ferguson, and the defendant officers for violations of substantive

due process under the Fourth and Fourteenth Amendments.28 Count two asserts a

claim against the NOPD and Ferguson for failure to train and discipline the

defendant officers under 42 U.S.C. § 1983.29 Count three asserts a negligence claim

under state law against the City, the NOPD, Ferguson, and the defendant officers.30

Count four asserts vicarious liability under state law against the City, the NOPD,

and Ferguson.31

As a preliminary matter, the claims against the NOPD must be dismissed

because it is not recognized as a legal entity or person capable of being sued. Thomas

v. City of New Orleans, 883 F. Supp. 2d 669, 691 (E.D. La. 2012) (Feldman, J.); Banks

v. United States, No. 05-6853, 2007 WL 1030326, at *11 (E.D. La. Mar. 28, 2007)

(Beer, J.) (explaining that Louisiana law governs whether the NOPD is an entity that

can be sued, pursuant to Fed. R. Civ. P. 17(b), and that under Louisiana law, the

NOPD is not a juridical person capable of being sued).

The Court will first examine the plaintiff’s federal claims of Fourth and

Fourteenth Amendment violations, as well as the alleged failure to train and

discipline; it will then address its jurisdiction over the state law claims.

A. Constitutional Claims

Count one, which arises under 42 U.S.C. § 1983, alleges that the actions of the

defendant officers in connection with the March 20, 2019 pursuit violated Ms.

28 R. Doc. No. 1, at 8–11 ¶¶ 19–34.

29 Id. at 11–13 ¶¶ 35–41.

30 Id. at 13–15 ¶¶ 42–48.

31 Id. at 15 ¶¶ 49–51.

Herbert’s “clearly established constitutional rights under the Fourteenth

Amendment to bodily integrity and [to] be free from injury by law enforcement with

due process.”32 The complaint further alleges that the “[d]efendant officers’ actions

in instituting and carrying on an unreasonably dangerous high speed pursuit in

contravention of [the Policy] were objectively unreasonable in light of the facts and

circumstances confronting them and, thus, violated the Fourth and Fourteenth

Amendment rights” of Ms. Herbert.33 The plaintiff asserts that the defendant

officers’ actions amounted to “a shocking and willful indifference to” Ms. Herbert’s

rights and constitute “a malicious abuse of authority unmotivated by a legitimate

governmental interest.”34 The complaint further alleges that Ferguson’s actions “in

permitting the pursuit to continue in clear violation of [the Policy] . . . violated the

Fourth and Fourteenth Amendment rights” of Ms. Herbert.35

Liberally construing the well-pleaded factual allegations in the complaint,

count one alleges that Ferguson and the defendant officers’ actions constituted an

illegal seizure, excessive force, and denial of due process in violation of the Fourth

32 Id. at 9 ¶ 22.

33 Id. at 9 ¶ 24.

34 Id. at 10–11 ¶¶ 30, 32.

35 Id. at 9–10 ¶ 25. No other factual allegations in the complaint support the assertion

that Ferguson was aware of the March 20, 2019 pursuit as it was occurring and made

the decision not to order the officers to cease the pursuit. However, the Court assumes

this allegation is true for purposes of the instant motions.

and Fourteenth Amendments. Count one also appears to allege a failure to intervene

claim against Ferguson.36

Ferguson, Hery, Stewart, and Mikkelsen do not dispute that all six of the

defendant officers, including Hery, Stewart, and Mikkelsen, who were involved in the

March 20, 2019 pursuit, did not comply with the Pursuit Policy. Rather, they argue

that the plaintiff’s § 1983 claims must be dismissed because the complaint fails to

state a claim of any constitutional violation.37 They also assert that they are entitled

to qualified immunity.38

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.’”

36 As previously discussed, all claims asserted against the NOPD must be dismissed.

Therefore, the Court only considers the plaintiff’s first claim for relief with respect to

Ferguson and the defendant officers.

37 R. Doc. No. 10-1, at 6–7; R. Doc. No. 12-1, at 8; R. Doc. No. 14-1, at 8.

38 R. Doc. No. 10-1, at 12; R. Doc. No. 12-1, at 15; R. Doc. No. 14-1, at 15.

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).

To state a § 1983 claim against Ferguson and the defendant officers in their

official capacities, the allegations in the complaint must satisfy the elements required

to establish municipal liability. This is because § 1983 claims asserted against officers

in their official capacities are really claims against the government entity. 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 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.”). 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).

The Court next considers whether the plaintiff adequately alleges

constitutional violations necessary to establish claims under § 1983. The Court first

examines the allegations of illegal seizure, then substantive due process, and finally,

excessive force.

ii. Fourth Amendment Seizure

The Fourth Amendment protects the right to be secure from unreasonable

seizures. U.S. Const. amend. IV. 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 h[er] freedom

of movement, . . . through means intentionally applied.” Brendlin v. California, 551

U.S. 249, 254 (2007) (internal citations and quotation marks omitted) (emphasis in

original). “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 high-speed pursuit by the defendant officers did not constitute an

unconstitutional seizure of Ms. Herbert in violation of the Fourth Amendment. In

Brower v. County of Inyo, the United States Supreme Court examined a related

issue—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:

[I]f a parked and unoccupied police car slips its brake and pins a

passerby against a wall, it is likely that a tort has occurred, but not a

violation of the Fourth Amendment. . . .

[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

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.

Ms. Herbert, like the innocent passerby who is unintentionally pinned against

the wall by a police car, was not subject to a Fourth Amendment seizure when the

vehicle being chased by the defendant officers crashed into the Salon and trapped her

inside. See id. The defendant officers did not terminate her freedom of movement

through means intentionally applied. See id. Therefore, Ms. Herbert’s death, though

tragic, does not give rise to a Fourth Amendment violation. See 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”).39

Therefore, the plaintiff failed to allege a seizure that amounts to a

constitutional violation. Accordingly, the § 1983 claim must be dismissed against

Ferguson, Hery, Stewart, and Mikkelsen in both their official and individual

capacities. The lack of an underlying constitutional violation would be fatal to a claim

against a municipality and, therefore, it is fatal to a claim against Ferguson, Hery,

Stewart, and Mikkelsen in their official capacities. See Mason v. Lafayette City-Par.

Consol. Gov’t, 806 F.3d 268, 279–80 (5th Cir. 2015); see also Whitley, 726 F.3d at 639

n.3 (“To the extent [plaintiff] asserts claims against Appellees in their official

39 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.

capacities, we find such claims . . . fail for lack of an underlying constitutional

violation.”).

Because the plaintiff has not plausibly alleged a Fourth Amendment claim of

an unconstitutional seizure, he has also failed to meet his burden to overcome the

defense of qualified immunity asserted by Ferguson, Hery, Stewart, and Mikkelsen.

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.”).40 This claim, therefore, also must be dismissed against Ferguson, Hery,

Stewart, and Mikkelsen in their individual capacities.

40 While the Court finds that the plaintiff has failed to overcome the defense of

qualified immunity invoked by Ferguson, Hery, Stewart, and Mikkelsen because the

plaintiff has not plausibly alleged a Fourth Amendment claim of an unconstitutional

seizure, the Court notes Fifth Circuit caselaw suggesting that the § 1983 claims

against Ferguson, Hery, Stewart, and Mikkelsen 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 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.”).

iii. Fourteenth Amendment Due Process

The Fourteenth Amendment right to due process protects the individual

“against arbitrary action of government.” County of Sacramento v. Lewis, 523 U.S.

833, 845 (1998). When faced with a due process challenge, a 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 plaintiff claims that the actions of the defendant officers “shocks the

conscious [sic] and amounted to reckless, callous, and deliberate indifference to [Ms.]

Herbert’s federally protected rights.”41 The complaint also alleges that the defendant

officers violated Ms. Herbert’s rights by “fail[ing] to terminate the high-speed pursuit

when it was immediately evident, or should have been immediately evident to them,

that the risks of life and property far outweighed the benefit derived from the

immediate apprehension or continued pursuit of the suspect’s vehicle.”42 The

complaint asserts that the defendant officers, “after sufficient time for deliberation

and in violation of established policy, knowingly operated their vehicles at excessively

high rates of speed, in essence compelling the fleeing suspects to travel erratically

41 R. Doc. No. 1, at 10 ¶¶ 26, 30.

42 Id. at 10 ¶ 29.

and at dangerously high speeds.”43 The plaintiff alleges that the pursuit caused the

driver of the fleeing vehicle to lose control and crash into the Salon, igniting a fire

and causing Ms. Herbert’s fatal injuries—“the only scenario by which the case could

conclude: a violent collision on a high traffic road.”44 According to the complaint, the

“potential for serious harm to an innocent bystander was not only foreseeable, [but]

assured.”45

In Lewis, the Supreme Court articulated the standards to be applied when

determining whether a police pursuit resulting in harm violates the injured party’s

substantive due process rights. 523 U.S. at 833. The Supreme Court stated that the

“touchstone of the due process clause is protection of the individual against arbitrary

action of government,” and that with respect to abusive executive action, only

“conscience shocking” or “the most egregious official conduct” is so arbitrary as to

violate due process. Id. at 845–47 & n. 8. Lewis made clear that “liability for

negligently inflicted harm is categorically beneath the threshold of constitutional due

process.” Id. at 849.In addition, the Supreme Court held that in the context of high-

speed police chases, even deliberate indifference or recklessness would be insufficient

to state a claim under the due process clause. Id. at 852–53. Accordingly, Lewis

concluded 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.” Id. at 854 & n.13 (citing

43 Id. at 10–11 ¶ 31.

44 Id. at 11 ¶¶ 32–33.

45 Id. at 11 ¶ 32.

Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986) (“Where a citizen suffers physical

injury due to a police officer’s negligent use of his vehicle, no section 1983 claim is

stated. It is a different story when a citizen suffers or is seriously threatened with

physical injury due to a police officer’s intentional misuse of his vehicle.”)).

The allegations presented in the complaint are slightly different from those

considered in Lewis, as Ms. Herbert was an innocent bystander rather than a fleeing

suspect. However, Lewis’s reasoning still controls. The plaintiff does not allege that

the defendant officers intended to physically harm bystanders, such as Ms. Herbert,

when they engaged in the unauthorized police chase.46 At most, the complaint alleges

that the defendant officers knew or should have known that substantial harm could

occur to bystanders such as Ms. Herbert as a result of their actions, and that they

were negligent in their pursuit of the suspects.47 Such a claim for negligently inflicted

harm does not constitute a violation of Fourteenth Amendment due process. See

Lewis, 523 U.S. at 849.

46 While the officers did not comply with the Pursuit 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.

47 The complaint alleges that the defendant officers intentionally created a scenario

which could only end in a violent collision on a highly trafficked road. R. Doc. No. 1,

at 11 ¶ 32. This is not a factual assertion, and the plaintiff alleges no facts in his

complaint supporting this assertion. Accordingly, the Court cannot plausibly infer

from the face of the complaint that the defendant officers intended to harm

bystanders such as Ms. Herbert when they engaged in the unauthorized pursuit. See

Covington v. City of Madisonville, Texas, 812 F. App’x 219 (5th Cir. 2020)

(“[C]ourts ‘are not bound to accept as true a legal conclusion couched as a factual

allegation.’”) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Accepting the well-pleaded factual allegations in the amended complaint as

true, the Court finds that Herbert fails to plausibly allege a violation of the

Fourteenth Amendment right to due process. Therefore, the substantive due process

claim against Ferguson, Hery, Stewart, and Mikkelsen in their official capacities

must be dismissed. This claim against Ferguson, Hery, Stewart, and Mikkelsen in

their individual capacities must also be dismissed because, in the absence of a

plausibly alleged constitutional violation, the plaintiff cannot overcome the defense

of qualified immunity.

iv. Excessive Force

The complaint’s well-pleaded factual allegations also assert a claim of

excessive force. The complaint does not specify whether this claim is asserted under

the Fourth Amendment or the Fourteenth Amendment. The complaint broadly

alleges that the defendant officers’ conduct was “aggressive and unreasonable” and

“assured” serious harm against an innocent bystander, such as Ms. Herbert.48 The

plaintiff further alleges that the defendant officers engaged in the pursuit “after

sufficient time for deliberation and in violation of established policy.”49

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,

48 R. Doc. No. 1, at 11 ¶ 32.

49 Id. at 10–11 ¶ 31.

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 . . .

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 plaintiff has failed to state a claim of excessive force under either

the Fourth Amendment or the Fourteenth Amendment. Because the plaintiff has not

plausibly alleged that Ms. Herbert was “seized” in violation of the Fourth

Amendment, he 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

[she] was seized.”). Similarly, because the defendant officers’ actions, as previously

discussed, do not “shock the conscience,” the excessive force claim under the

Fourteenth Amendment also fails. See Graham, 490 U.S. at 394; Petta, 143 F.3d at

902 (holding that, to establish an excessive force claim under the Fourteenth

Amendment, a plaintiff must prove that an officer’s actions “caused them . . . injury,

were grossly disproportionate to the need for action under the circumstances and

were inspired by malice rather than merely careless or unwise excess of zeal so that

it amounted to an abuse of official power that shocks the conscience”).

Accordingly, the plaintiff’s claim of excessive force under the Fourth

Amendment and the Fourteenth Amendment must be dismissed against Ferguson,

Hery, Stewart, and Mikkelsen in their official capacities. The excessive force claim

under the Fourth and Fourteenth Amendment must also be dismissed against

Ferguson, Hery, Stewart, and Mikkelsen in their individual capacities because the

plaintiff cannot overcome their defense of qualified immunity in the absence of a

showing of a constitutional violation.

v. Failure to Intervene

An officer may be liable under § 1983 under a “failure to intervene” or

“bystander liability” theory where the officer “(1) knows that a fellow officer is

violating an individual’s constitutional rights; (2) has a reasonable opportunity to

prevent the harm; and (3) chooses not to act.” Whitley, 726 F.3d at 646 (citations

omitted). However, if no constitutional violation for excessive force is shown, there is

no bystander liability for failing to intervene. Davis v. Cannon, 91 F. App’x 327, 329

(5th Cir. 2004).

The complaint alleges that Ferguson “permit[ed] the pursuit to continue in

clear violation of the NOPD Pursuit Policy,” which “violated the Fourth and

Fourteenth Amendment rights” of Ms. Herbert.50

As discussed, supra, the defendant officers did not violate Ms. Herbert’s

constitutional rights. Accordingly, Ferguson cannot be held liable under a failure to

50 R. Doc. No. 1, at 9–10 ¶ 25. To be clear, Ferguson was not one of the six officers

involved in the unauthorized pursuit that led to Ms. Herbert’s death. See R. Doc. No.

1, at 6–7 ¶¶ 10–12.

intervene or bystander liability theory and this claim must be dismissed against

Ferguson in his official capacity. See id. The claim must also be dismissed against

Ferguson in his individual capacity because the plaintiff cannot overcome Ferguson’s

defense of qualified immunity in the absence of a showing of a constitutional

violation.

B. Failure to Train and Discipline

Count two alleges that Ferguson failed to train and discipline the defendant

officers, which “amounts to deliberate indifference.”51 According to the complaint,

Ferguson was aware of “a pattern and practice . . . of NOPD officers ignoring the

[Pursuit Policy] by turning off their video surveillance and pursuing suspects at high

speeds, even when those suspects were not suspected of . . . violent crime,” and

Ferguson “did nothing to prevent [these violations] or train officers to abide by the

[Pursuit Policy].”52 The plaintiff concludes that “Ferguson’s inaction lead [sic] to the

violation of Ms. Herbert’s constitutional rights[.]”53

Supervisory officials 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

51 R. Doc. No. 1, at 12 ¶¶ 39–40. The plaintiff also asserts this claim against the

NOPD. As previously discussed, the NOPD is not a suable entity and all claims

asserted against it must be dismissed.

52 Id. at 12–13 ¶ 41.

53 Id.

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.”).

Because the plaintiff has failed to plausibly state a Fourth Amendment or

Fourteenth Amendment violation, Ferguson 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, 726 F.3d at 648 (“All of

[the plaintiff’s] inadequate supervision, failure to train, and policy, practice, or

custom claims fail without an underlying constitutional violation.”). Accordingly,

the plaintiff’s failure to train and discipline claim must be dismissed against

Ferguson in his official capacity. See Rios v. City of Del Rio, Tex., 444 F.3d 417, 425–

26 (5th Cir. 2006). This claim must also be dismissed against Ferguson in his

individual capacity because, in the absence of a plausibly alleged constitutional

violation, the plaintiff has not met his burden to overcome Ferguson’s 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 practice 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 plaintiff’s federal law claims should be dismissed,

only his 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 plaintiff 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,54

IT IS ORDERED that the motion to dismiss is GRANTED. All claims

asserted against the NOPD are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the federal law claims asserted in counts

one and two against Shaun Ferguson in his individual and official capacities, William

Hery in his individual and official capacities, Colby Stewart in his individual and

official capacities, and Alex Mikkelsen in his individual and official capacities are

DISMISSED WITH PREJUDICE.

54 The Court finds that granting plaintiff leave to amend would be futile. F.D.I.C. v.

Conner, 20 F.3d 1376, 1385 (5th Cir. 1994) (“[L]eave to amend need not be granted

when it would be futile to do so.”).

IT IS FURTHER ORDERED that the state law claims asserted in counts

three and four against the City of New Orleans, Shaun Ferguson, William Hery,

Colby Stewart, and Alex Mikkelsen are DISMISSED WITHOUT PREJUDICE to

their being timely asserted in state court.

New Orleans, Louisiana, August 10, 2020.

so M. AFRICK

UNITED STA‘ES DISTRICT JUDGE

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