# Armstead v. Sewage & Water Board

> District Court, E.D. Louisiana · September 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10185962

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 29, 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

MILTON ARMSTEAD, III CIVIL ACTION

VERSUS NO: 19-11107

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

ORDER

Before the Court are multiple motions. Entergy New Orleans, LLC (“Entergy”) filed a
Motion to Dismiss against Milton Armstead, III (“Plaintiff”).1 Sewage & Water Board of New
Orleans (“Board”) filed a Motion to Dismiss against Plaintiff.2 Plaintiff has filed an opposition.3
Within his opposition, Plaintiff filed for a default judgment against Cox Cable of New Orleans
(“Cox”) and for summary judgment against all Defendants.4 For the following reasons, Plaintiff’s
Motion for Default Judgment and Summary Judgment5 is DENIED. Defendants’ Motions to
Dismiss6 are GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

On June 10, 2019, Plaintiff filed this pro se civil action alleging violations of his civil rights
pursuant to 42 U.S.C. § 1983 and conspiracy pursuant to 42 U.S.C. § 1985.7 On August 28, 2019,
this Court dismissed with prejudice Plaintiff’s § 1983 claims arising out of treatment of slaves and

1 R. Doc. 29.
2 R. Doc. 30.
3 R. Doc. 33.
4 Id.
5 Id.
6 R. Doc. 29; R. Doc. 30.
7 R. Doc. 1.
their descendants.8 This Court dismissed without prejudice all other claims.9 On September 16,
2019, with leave of Court, Plaintiff filed an amended complaint.10 On September 20, 2019,
Plaintiff filed the first of two supplements to his amended complaint.11 Additionally, on October
1, 2019, Plaintiff filed the second supplement to his amended complaint.12
In his amended complaint, Plaintiff alleges conspiracy pursuant to 42 U.S.C. § 1985.13

Plaintiff asserts that the Board, Entergy, Cox, and the City of New Orleans (“City”) (collectively,
“Defendants”) conspired to force African American residents out of New Orleans.14 Plaintiff has
filed at least four other complaints in this District seeking relief for alleged damages from
discrimination against the State of Louisiana, the City, its agencies, and several companies.15
Entergy has filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure
12(b)(6).16 Additionally, the Board has filed a Motion to Dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(6).17 Plaintiff has filed an opposition to both motions to dismiss.18 In his
opposition, Plaintiff filed a motion for summary judgment and default judgment pursuant to
Federal Rules of Civil Procedure 55.19

8 R. Doc. 21.
9 Id.
10 R. Doc. 22; R. Doc. 28.
11 R. Doc. 23.
12 R. Doc. 24.
13 R. Doc. 22, pp.1, 8-9.
14 R. Doc. 22, pp.21-22.
15 See 2:11-cv-00132, Armstead v. AT&T Louisiana; 2:11-cv-00437, Armstead v. Entergy New Orleans; 2:12-cv-
00600, Armstead v. City of New Orleans et al.; 2:16-cv-13629, Armstead v. New Orleans City et al.
16 R. Doc. 29.
17 R. Doc. 30.
18 R. Doc. 33.
19 Id.
LAW AND ANALYSIS
A. DEFAULT JUDGMENT
The Fifth Circuit has outlined a three-step process to obtain a default judgment pursuant to
Rule 55 of the Federal Rules of Civil Procedure: (1) a defendant’s default; (2) the clerk’s entry of
default; and (3) a plaintiff’s application for a default judgment.20 The service of a summons triggers

a duty to respond to a complaint and a failure to respond may result in the entry of default or default
judgment under Rule 55.21 Accordingly, when a party establishes by affidavit or some other
method that there has been a default, the Clerk of Court will enter the default.22 Thereafter, the
court may, upon motion by a plaintiff, enter a default judgment against that party.23
Default judgments are usually disfavored,24 and are considered a drastic remedy that should
only be available “when the adversary process has been halted because of an essentially
unresponsive party.”25 In determining whether a default judgment should be entered, the Fifth
Circuit has developed a two-part test. First, the court must determine whether the entry of default
judgment is appropriate under the circumstances.26 Factors relevant to this determination include:

(1) whether there are material issues of fact at issue; (2) whether there has been substantial
prejudice; (3) whether the grounds for default have been clearly established; (4) whether the default
was caused by excusable neglect or good faith mistake; (5) the harshness of default judgment; and
(6) whether the court would think itself obliged to set aside the default on a motion by a
defendant.27 Second, the court must assess the merits of a plaintiff’s claims and find a viable claim

20 See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996).
21 Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 937–39 (5th Cir. 1999).
22 Fed. R. Civ. P. 55.
23 Id.
24 Sun Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th Cir. 1989).
25 Sun Bank of Ocala, 874 F.2d at 276 (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432
F.2d 689, 691 (D.C. Cir. 1970)).
26 Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998).
27 Id.
for relief.28 “A default judgment is unassailable on the merits but only so far as it is supported by
well-pleaded allegations, assumed to be true.”29 Further, a defendant “is not held to admit facts
that are not well-pleaded or to admit conclusions of law.”30
Plaintiff asks the Court to enter a default judgment against Cox and 3501 Saint Claude
Avenue NOAMM (“NOAMM”) pursuant to FRCP 55(b)(2).31 First, Plaintiff erroneously seeks

relief from NOAMM. In his amended complaint, Plaintiff does not name NOAMM as a party to
this lawsuit.32 Further, pursuant to his amended complaint, Plaintiff did not serve NOAMM.33
Second, Plaintiff has not obtained or sought an entry of default from the clerk of court required
under FRCP 55(a). Additionally, examining Plaintiff’s amended complaint and submissions, the
Court finds that Plaintiff did not plead sufficient facts in his amended complaint, and Plaintiff’s
claims lack merit. Accordingly, the Court finds that Plaintiff is not entitled to default judgment.

B. SUMMARY JUDGMENT
Summary judgment is proper where “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.”34 When assessing
whether a dispute as to any material fact exists, the court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”35 All
reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to

28 Nishimatsu Constr. Co. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
29 Id. (citing Thomson v. Wooster, 1884, 114 U.S. 104, 5 S. Ct. 788, 29 L. Ed. 105).
30 Id.
31 R. Doc. 33, pp.8-9.
32 R. Doc. 22, pp.1, 25.
33 See R. Doc. 22, p.25.
34 Fed. R. Civ. P. 56(a).
35 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
either support or defeat a motion for summary judgment.”36 The party seeking summary judgment
bears the burden of demonstrating the absence of a genuine issue of material fact.37 “Once the
movant does so, the burden shifts to the nonmovant to establish an issue of fact that warrants
trial.”38

§ 1985 prohibits (1) preventing an officer from performing his or her duties; (2) obstructing
justice and intimidating a party, witness, or juror; and (3) depriving persons of rights or
privileges.39 Examining his amended complaint, the Court will assume Plaintiff brings his claim
pursuant to § 1985(3). To prevail on a § 1985(3) claim, a plaintiff must provide sufficient evidence
establishing that the defendants “conspired or otherwise agreed to deprive him of his rights.”40
Additionally, the plaintiff must establish that the conspiracy was motivated either by racial or
another impermissible class-based animus.41
Here, Plaintiff has failed to meet his burden. In arguing his entitlement to summary
judgment, Plaintiff points to fluctuations in the amount owed to Entergy and Cox.42 These
undisputed bills do not entitle Plaintiff to judgment as a matter of law. The fluctuations in the

amount owed do not establish that Defendants conspired or agreed to deprive Plaintiff of his rights.
Even assuming Plaintiff established a conspiracy, the undisputed facts do not show a racial or
impermissible class-based animus motivation. Therefore, the Court determines that Plaintiff is not
entitled to judgment as a matter of law.

36 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994).
37 Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
38 Smith v. Reg'l Transit Auth., 827 F.3d 412, 420 n.4 (5th Cir. 2016).
39 42 U.S.C. § 1985.
40 Jackson v. Biedenharn, 429 F. App’x. 369, 372 (5th Cir. 2011) (citing Crowe v. Lucas, 595 F.2d 985, 993 (5th
Cir. 1979)).
41 See Anderson v. City of Dallas, 116 F. App'x 19, 32 (5th Cir. 2004); Stringer v. McDaniels, 64 F. App'x 416 (5th
Cir. 2003).
42 R. Doc. 33, pp.9-10.
C. MOTIONS TO DISMISS
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for
failure to state a claim upon which relief can be granted.”43 Motions to dismiss for failure to state
a claim are viewed with disfavor and are rarely granted.44 To survive a motion to dismiss, a

“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’”45 In evaluating a complaint under Rule 12(b)(6), the district court should
confine itself to the pleadings,46 and the documents attached to the complaint.47 Therefore, the
Court determines that Plaintiff is not entitled to judgment as a matter of law.
A complaint need not contain detailed factual allegations, but it must offer more than mere
labels, legal conclusions, or formulaic recitations of the elements of a cause of action.48 The
complaint is construed in the light most favorable to plaintiff, accepting as true all well-pleaded
factual allegations and drawing all reasonable inferences in plaintiff's favor.49 On the other hand,
courts may not rely on “legal conclusions that are disguised as factual allegations.”50 If factual
allegations are insufficient to raise a right to relief above the speculative level, the claim should be

dismissed.51
Entergy argues that Plaintiff’s amended complaint neither contains factual allegations nor
states a cause of action, but simply contains the dates and amounts of bills from Entergy to Plaintiff

43 Fed. R. Civ. P. 12(b)(6).
44 Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
45 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
46 Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004).
47 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
48 Iqbal, 556 U.S. at 678.
49 Lovick v. Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004) (citing Herrmann Holdings Ltd. v. Lucent Techs.,
Inc., 302 F.3d 552, 558 (5th Cir. 2002)).
50 Jeanmarie v. United States, 242 F.3d 600, 603 (5th Cir. 2001) (citing Blackburn v. City of Marshall, 42 F.3d 925,
931 (5th Cir. 1995)).
51 Twombly, 550 U.S. at 555.
for utility service.52 The Board asserts that Plaintiff in his amended complaint fails to state a claim
for relief because Plaintiff states no sufficient facts to establish a conspiracy pursuant to 42 U.S.C.
§ 1985.53
Liability Under 42 U.S.C. § 1985

Plaintiff alleges a conspiracy under § 1985. To state a claim under 42 U.S.C. § 1985, a
plaintiff must allege: (1) a conspiracy involving two or more persons; (2) for the purpose of
depriving, directly or indirectly, a person or class of persons of the equal protection of the laws;
and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or
a deprivation of any right or privilege of a citizen of the United States.54 The Court determines that
Plaintiff has failed to meet his burden. Regarding a conspiracy, Plaintiff merely recites legal
conclusions; Plaintiff does not provide any operative facts that demonstrate an understanding or
agreement between Defendants to interfere with his civil rights. Accordingly, the Court determines
that Plaintiff’s § 1985 claim against all defendants must be dismissed.

CONCLUSION
For the reasons set forth above, the Court finds that Plaintiff is not entitled to default
judgment or summary judgment as a matter of law, and thus Plaintiff’s Motion for Default
Judgment and Summary Judgment55 is DENIED. The Court further finds that Plaintiff has failed
to state a claim in his Amended Complaint upon which relief can be granted as to his § 1985 claim,
in that Plaintiff did not set forth sufficient facts to establish an understanding or agreement between
Defendants. Accordingly,

52 R. Doc. 29-1, pp.1-2.
53 R. Doc. 30-1, pp.2-4.
54 Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994).
55 R. Doc. 33.
IT IS ORDERED that Defendants’ Motions to Dismiss the Amended Complaint*® are
GRANTED, and all claims of the Plaintiff against all Defendants are DISMISSED WITH
PREJUDICE.

New Orleans, Louisiana, on this 28th day of September, 2020.

ve GERARD GUIDRY
UNITED STATES DISTRICT JUDGE

°° R. Doc. 11.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185962. Public record. Not legal advice.