Rivera-Colon v. St. Bernard Parish

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IVAN JOSUE RIVERA- CIVIL ACTION

COLON, ET AL.

VERSUS 20-1101

PARISH OF ST. BERNARD, SECTION: “J” (5)

ET AL.

ORDER & REASONS

Before the Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction

and for Failure to State a Claim (Rec. Doc. 9) filed by Defendants, the State of

Louisiana through the Department of Public Safety and Corrections, Office of Motor

Vehicles (“OMV”) and Shanta Watkins. Plaintiffs Ivan Josue Rivera-Colon and

Fedmarie Calderon Santos oppose the motion (Rec. Doc. 10). Having considered the

motion and memoranda, the record, and the applicable law, the Court finds that the

motion should be GRANTED in part and DENIED in part, and that Plaintiffs

should be granted leave to amend their complaint.

FACTS AND PROCEDURAL BACKGROUND

On April 12, 2019, Plaintiff Rivera-Colon went to the OMV office in St. Bernard

Parish to obtain a Louisiana driver’s license. At the OMV, Rivera-Colon presented

his social security card, New York state driver’s license, Puerto Rican identification

card, and Puerto Rican birth certificate to Defendant Watkins, an OMV employee.

Watkins attempted to verify the authenticity of Rivera-Colon’s Puerto Rican

identification card but erroneously entered the card number as a driver’s license. As

a result, her “system check determined the documents to be fraudulent.”1 Watkins

then contacted John Doe and directed him to perform the same check. Then, without

asking Rivera-Colon for clarification, and despite his other documents being verified

as legitimate, Watkins called the St. Bernard Parish Sheriff’s Office and Defendant

Deputy C. Bordelon went to the OMV. “Without performing any investigation of the

facts alleged by Watkins,” Deputy Bordelon placed Rivera-Colon under arrest for

“Unlawful production, manufacturing, or distribution of fraudulent documents for

identification purposes” in violation of La. R.S. 14:70.7(C)(2) and “Identity Theft

greater than $1,000.00” in violation of La. R.S. 14:67.16(C)(1)(a).2 However, on

December 12, 2019, the St. Bernard Parish district attorney dismissed the charges

against Rivera-Colon.

Rivera-Colon and his wife, Plaintiff Calderon Santos, filed suit against the

OMV, Watkins, John Doe, Deputy Bordelon, St. Bernard Parish Sheriff James

Pohlmann, and the St. Bernard Parish Government on April 2, 2020. As relevant

here, Plaintiffs bring claims against the OMV and Watkins for false arrest under 42

U.S.C. § 1983 and for malicious prosecution under Louisiana law. The OMV and

Watkins then filed the instant motion to dismiss. The motion is before the Court on

the briefs and without oral argument.

LEGAL STANDARD

In deciding a motion to dismiss for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1), “the district court is ‘free to weigh the

1 (Rec. Doc. 1, at 4).

2 Id. at 5.

evidence and resolve factual disputes in order to satisfy itself that it has the power to

hear the case.’” Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005). The

party asserting jurisdiction must carry the burden of proof for a Rule 12(b)(1) motion

to dismiss. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir.

2011). The standard of review for a motion to dismiss under Rule 12(b)(1) is the same

as that for a motion to dismiss pursuant to Rule 12(b)(6). United States v. City of New

Orleans, No. 02-3618, 2003 WL 22208578, at *1 (E.D. La. Sept. 19, 2003). If a court

lacks subject matter jurisdiction, it should dismiss without prejudice. In re Great

Lakes Dredge & Dock Co., 624 F.3d 201, 209 (5th Cir. 2010). When “a Rule 12(b)(1)

motion is filed in conjunction with other Rule 12 motions, the court should consider

the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”

Id. (internal quotation marks and citation omitted).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead sufficient

facts to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is facially plausible when the plaintiff pleads facts that allow the court to

“draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. The factual allegations in the complaint “must be enough to raise a right

to relief above the speculative level.” Twombly, 550 U.S. at 555. “[D]etailed factual

allegations” are not required, but the pleading must present “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

The court must accept all well-pleaded facts as true and must draw all reasonable

inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232

(5th Cir. 2009). However, “‘conclusory allegations or legal conclusions masquerading

as factual conclusions will not suffice to prevent a motion to dismiss.’” Beavers v.

Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation omitted).

DISCUSSION

Defendants first contend that Plaintiffs’ claims against the OMV and Watkins

in her official capacity are barred by sovereign immunity. Next, Defendants contend

that Watkins is entitled to qualified immunity for Plaintiffs’ § 1983 false arrest claim

against her in her individual capacity. Finally, Defendants argue that Plaintiffs’

malicious prosecution claim should be dismissed because they have not alleged a lack

of probable cause or that Watkins acted with malice. In the alternative, Defendants

move for a more definite statement under Rule 12(e).

I. SOVEREIGN IMMUNITY

Defendants contend that both the OMV and Watkins, for the claims against

her in her official capacity, are entitled to sovereign immunity. Because the standards

for sovereign immunity differ for each Defendant, the Court considers them

separately.

A. The OMV

The Eleventh Amendment bars citizens’ suits in federal court against states

and their alter egos. E.g., Voisin’s Oyster House v. Guidry, 799 F.2d 183, 185 (5th Cir.

1986). To overcome sovereign immunity, there must be “a clear showing of

congressional intent” to abrogate it. Id. at 186. Whether an entity is covered by a

state’s Eleventh Amendment immunity turns on the entity’s (1) status under state

statutes and case law, (2) funding, (3) local autonomy, (4) primary focus on local

versus statewide problems, (5) ability to sue in its own name, and (6) “right to hold

and use property.” Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir.1999).

Of these factors, funding is considered the most important. Id. at 682.

The OMV is a division of the Louisiana Department of Public Safety and

Corrections (“LDPSC”). Plaintiffs concedes that the first, third, and fourth factors

weigh in favor of immunity but contends that the fifth and sixth factors weigh against

immunity, which comports with Fifth Circuit precedent. See Champagne v. Jefferson

Par. Sheriff’s Office, 188 F.3d 312, 313 (5th Cir. 1999) (per curiam). In Champagne,

the Fifth Circuit held that LDPSC was entitled to sovereign immunity because the

second factor, funding, also weighed in favor of immunity. Id. (citing Wilson v. State

of La. Through Dept. of Public Safety and Corrections, 576 So. 2d 490, 492 (La. 1991)

(state liable for judgments against LDPSC)). Despite this, Plaintiffs contend that this

factor weighs against immunity because “the OMV is funded, at least in part, by the

Federal government.”3

Plaintiffs fail to explain why this fact should weigh against immunity, as both

state and municipal agencies may receive federal funds. Moreover, the inquiry under

the funding factor is whether the state would be liable (1) “in the event there is a

judgment against the defendant,” and (2) “for the defendant’s general debts and

obligations.” Hudson, 174 F.3d at 687. Because the state would be liable for

3 (Rec. Doc. 10, at 6).

judgments against LDPSC, see Wilson, 576 So. 2d at 492, the balance of factors

weighs in favor of sovereign immunity, see Champagne, 188 F.3d at 313-14; Hanna

v. LeBlanc, 716 F. App’x 265, 268 (5th Cir. 2017) (per curiam) (dismissing claims

against OMV); cf. Hudson, 174 F.3d at 691 (holding, in a “close” case, that “the

balance ultimately tilts against Eleventh Amendment immunity” because “[m]ost

importantly, . . . public funds from the state treasury will not be used to cover an

adverse judgment against the entity”).

Further, Congress has not abrogated the OMV’s sovereign immunity with

respect to Plaintiffs’ claims. Section 1983 does not abrogate state sovereign immunity.

See Quern v. Jordan, 440 U.S. 332, 342-45 (1979). Nor has the State of Louisiana

waived its immunity and consented to suit in federal court. See La. R.S. 13:5106(A);

Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991). Accordingly,

Plaintiffs’ claims against the OMV should be dismissed.

B. Watkins (Official Capacity Claim)

Plaintiffs’ claim against Watkins in her official capacity as an employee of the

OMV are treated as claims against the OMV itself. See Kentucky v. Graham, 473 U.S.

159, 166 (1985). Accordingly, Plaintiffs claims against Watkins in her official capacity

seeking monetary damages are barred by sovereign immunity. See Brennan v.

Stewart, 834 F.2d 1248, 1252 (5th Cir. 1988). Further, Watkins is not the proper

defendant for an official-capacity claim because she does not possess “final

policymaking authority for the entity under state or local law.” Adams v. City of

Shreveport, 269 F. Supp. 3d 743, 753 (W.D. La. 2017) (citing Burge v. Parish of St.

Tammany, 187 F.3d 452, 468-70 (5th Cir. 1999)). Although Plaintiffs allege that

Watkins is “a policy-making official of the” OMV,4 the proper named defendant in an

official-capacity suit against the OMV is the OMV commissioner. See, e.g., Doe v.

Jindal, 851 F. Supp. 2d 995, 999 (E.D. La. 2012). The commissioner of the OMV is

Karen G. St. Germain, not Watkins.5 Accordingly, Plaintiffs’ claims against Watkins

in her official capacity should be dismissed.

II. FALSE ARREST

Next, the Court considers Plaintiffs’ § 1983 claim for false arrest against

Watkins in her individual capacity. Defendants contend that Watkins is entitled to

qualified immunity because she had an honest, although mistaken, belief that Rivera-

Colon was committing a crime.

To overcome qualified immunity, a plaintiff must establish that (1) the

allegations in the complaint show the defendant’s conduct violated the plaintiff’s

constitutional rights, and (2) the defendant’s conduct was objectively unreasonable in

light of clearly established law at the time of the incident. See Alexander v. Eeds, 392

F.3d 138, 144 (5th Cir. 2004). “The second prong of the qualified immunity test is

better understood as two separate inquiries: whether the allegedly violated

constitutional rights were clearly established at the time of the incident; and, if so,

whether the conduct of the defendants was objectively unreasonable in the light of

that then clearly established law.” Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir.

4 (Rec. Doc. 1, at 3).

5 Louisiana Office of Motor Vehicles Home Page, http://www.expresslane.org (last visited Jan. 29,

2021). The Court may take judicial notice of governmental websites. See, e.g., In re Katrina Canal

Breaches Consol. Lit., 533 F. Supp. 2d 615, 632 (E.D. La. 2008).

1998). Showing that the right was clearly established requires a plaintiff to point out

“a legislative directive or case precedent that is sufficiently clear such that every

reasonable official would have understood that what he is doing violates the law.”

Keller v. Fleming, 952 F.3d 216, 225 (5th Cir. 2020).

“The constitutional claim of false arrest requires a showing of no probable

cause.”6 Club Retro, LLC v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009). Thus, to

overcome qualified immunity for a claim of false arrest, “plaintiffs must allege facts

permitting an inference that defendants lacked arguable (that is, reasonable but

mistaken) probable cause for the arrests.” Id. at 207. Probable cause exists where the

facts and circumstances known to the officer at the time of arrest would warrant “a

reasonable belief that an offense was being committed, whether or not the officer

charged the arrestee with that specific offense.” Id. at 204. “Because probable cause

is an objective standard, an arrest is lawful if the officer had probable cause to arrest

for any offense, not just the offense cited at the time of arrest or booking.” District of

Columbia v. Wesby, 138 S. Ct. 577, 584 n.2 (2018).

Here, Plaintiffs allege that Watkins’ attempt to verify Rivera-Colon’s Puerto

Rican identification card returned a result that the card was “fraudulent.”7

Accordingly, she had reasonable grounds to believe that Rivera-Colon was

6 “A false arrest claim also requires a showing that any resulting ‘conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized

to make such determination, or called into question by a federal court’s issuance of a writ of habeas

corpus.’” Club Retro, 568 F.3d at 204 n. 18 (quoting Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)).

Defendants do not contend that Plaintiffs have failed to satisfy this element, as Plaintiffs allege that

the charges against Rivera-Colon were dismissed. (Rec. Doc. 1, at 9-10). Moreover, Defendants do not

contend that Plaintiffs have failed to adequately allege a violation of Rivera-Colon’s constitutional

rights. (See Rec. Doc. 9-1, at 11).

7 (Rec. Doc. 1, at 4).

committing an offense, and it is irrelevant that these grounds may not have provided

probable cause for the offenses for which Rivera-Colon was actually arrested. See

Wesby, 138 S. Ct. at 584 n.2; Club Retro, 568 F.3d at 204. To the extent Plaintiffs

assert different facts in their opposition, such as that Watkins’ check returned a “no

match” result8 rather than determining that his identification card was fraudulent,

the Court cannot consider these facts because they are not pleaded in the complaint.

See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (“In

considering a motion to dismiss for failure to state a claim, a district court must limit

itself to the contents of the pleadings, including attachments thereto.”). Because the

allegations in the complaint suggest that probable cause existed for Rivera-Colon’s

arrest, this claim should be dismissed.

III. MALICIOUS PROSECUTION

A claim for malicious prosecution requires a plaintiff to prove: “(1) the

commencement or continuance of an original criminal or civil judicial proceeding, (2)

its legal causation by the present defendant against the plaintiff who was defendant

in the original proceeding, (3) a bona fide termination in favor of the present plaintiff,

(4) the absence of probable cause for such proceeding, (5) the presence of malice

therein, and (6) damage.” Kelly v. W. Cash & Carry Bldg. Materials Store, 99-102 (La.

App. 4th Cir. 10/20/99), 745 So. 2d 743, 761. Defendants concede that Plaintiffs have

established the first, second, third, and sixth elements but contend that Plaintiffs

have failed to adequately allege the fourth and fifth elements. Specifically,

8 (Rec. Doc. 10, at 8).

Defendants contend that Plaintiffs have not alleged that Watkins did not have an

honest belief that his documentation was fraudulent or that she acted with malicious

intent.

“The crucial determination in regard to the absence of probable cause is

whether the defendants had an honest and reasonable belief in the allegations they

made.” Id. “Malice may be inferred from the lack of probable cause or inferred from a

finding that the defendant acted in reckless disregard of the other person’s rights.”

Id. (quoting Miller v. E. Baton Rouge Par. Sheriff’s Dept., 511 So. 2d 446, 453 (La.

1987)). Further, “[w]here the charges against the plaintiff were dismissed prior to

trial, lack of probable cause and malice are presumed[,] and the burden is on the

defendant to prove [s]he acted with probable cause and without malice.” Watson v.

Church’s Fried Chicken, Inc., 527 So. 2d 979, 981 (La. App. 4th Cir.), writ denied, 532

So. 2d 135 (La. 1988); accord McCoy v. Burns, 379 So. 2d 1140, 1142 (La. App. 2d Cir.

1980).

Here, Plaintiffs allege that the charges against Rivera-Colon were dismissed

by the St. Bernard Parish district attorney prior to trial, which raises a presumption

of malice and no probable cause and therefore satisfies Plaintiffs’ pleading burden.

Cf. Gordy v. Burns, No. CIV. A. 99-0698, 2000 WL 798499, at *4 (E.D. La. June 20,

2000) (denying motion for summary judgment where presumption existed and

defendants failed to present any evidence to overcome it). Further, unlike a claim for

false arrest, the Louisiana Supreme Court’s articulation of the elements of malicious

prosecution require only “[t]he absence of probable cause for such proceeding.”

Robinson v. Goudchaux’s, 307 So. 2d 287, 289 (La. 1975) (emphasis added) (quoting

Eusant v. Unity Indus. Life Ins. Ass’n, 196 So. 554 (La. 1940)). Defendants do not

explain how Rivera-Colon’s possession of a “fraudulent” identification card supports

probable cause for “Production, Manufacturing, or Distribution of a Fraudulent

Document for Identification Purposes” or “Identity theft greater than $1,000,”9 and

the Court finds that probable cause for those offenses does not exist under the facts

as pleaded by Plaintiffs. Therefore, Defendants’ motion will be denied as to this claim.

IV. LEAVE TO AMEND

When granting a motion to dismiss, a district court should freely grant leave

to amend the complaint unless amendment would be futile. See, e.g., United States ex

rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010). The Court finds

it appropriate to allow Plaintiffs an opportunity to amend their complaint and

address the deficiencies identified herein, except for the claims barred by sovereign

immunity (i.e., the claims against the OMV and Watkins in her official capacity).

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss for Lack of

Subject Matter Jurisdiction and for Failure to State a Claim (Rec. Doc. 9) is

GRANTED in part and DENIED in part. The motion is GRANTED as to

Plaintiffs’ claims against the OMV and Defendant Watkins in her official capacity,

and these claims are DISMISSED WITHOUT PREJUDICE for lack of subject

9 (Rec. Doc. 1, at 4-5).

matter jurisdiction. The motion is DENIED as to Plaintiffs’ malicious prosecution

claim against Watkins.

IT IS FURTHER ORDERED that Plaintiffs shall file an amended complaint,

addressing the deficiencies identified herein, within twenty-one (21) days of this

Order & Reasons, or Plaintiffs’ false arrest claim against Watkins in her individual

capacity will be dismissed with prejudice. Plaintiffs shall not re-plead any claims that

have already been dismissed.

New Orleans, Louisiana, this 2nd day of February, 2021.

(aha

Ql fa

UNITED SIATES DISTRICT JUDGE

12