Lightell v. Walker

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RONALD LIGHTELL CIVIL ACTION

VERSUS NO. 20-672

TIM WALKER, ET. AL. SECTION: "B"(1)

ORDER & REASONS

Before the court are defendants’ Rule 12(b)(6) motion to

dismiss (Rec. Doc. 14) and plaintiff’s opposition (Rec. Doc. 17).

For the reasons discussed below,

IT IS ORDERED that defendants’ motion to dismiss (Rec. Doc.

14) is GRANTED IN PART dismissing official capacity claims against

Chief Tim Walker; First Amendment petition claim against all

defendants; procedural due process claim against Assistant Chief

Keith Moody, Captain Manuel Adams, and Lieutenant Thomas Bronk;

state due process claim against all defendants; and defamation

claim against all defendants; and

IT IS FURTHER ORDERED that the motion to dismiss is DENIED IN

PART, retaining claims against Walker, Moody, Adams and Bronk in

their individual capacities; First Amendment retaliation claim

against all defendants; Monell claim against the City of Harahan;

federal and state constructive discharge claims against all

defendants; procedural due process claim against the City of

Harahan; substantive due process claim against all defendants;

state whistleblower claim against all defendants; and respondeat

superior claim under state law against the City of Harahan.1

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Ronald Lightell (“Lightell”), a former police

officer with the Harahan Police Department, initiated this action

on February 26, 2020, alleging various civil rights claims under

42 U.S.C. § 1983 and various other federal and state laws. Rec.

Doc. 1. After defendants filed its first motion to dismiss on April

24, 2020, Rec. Doc. 5, plaintiff filed an amended complaint on May

27, 2020 to “clarify” and add “factual details regarding some

claims”. Rec. Docs. 7, 11. The subject motion to dismiss the

amended complaint was filed on July 1, 2020. Rec. Doc. 14.

On March 23, 2009, Lightell began employment with the City of

Harahan as a commissioned police officer. Rec. Doc. 11 at 3. In

2013, Lightell received a promotion to Sergeant at the Harahan

Police Department (“HPD”) making him responsible for officers

under his command. Id. at 4. Lightell was subsequently re-promoted

to sergeant in August 2018 after having stepped down from his

previous duties to care for a family member. Id. Per Lightell,

prior to March 2019, other than a reprimand in 2009, Lightell never

1 Further review of retained claims will occur to promote a just and

inexpensive resolution of triable issues, including avoidance of jury

confusion that may lead to inconsistent or duplicative findings on certain

federal and state claims. Before the anticipated filings of summary judgment

motions, parties shall meet to address those concerns in a good faith effort

to achieve amicable results. Thereafter, the undersigned welcomes a joint

request to further assist that effort.

received a disciplinary action regarding his conduct as a Harahan

Police Officer. Id.

According to Lightell, after Tim Walker (“Chief Walker”) was

elected as Harahan Chief of Police in May 2014, Lightell began

hearing rumors of potential misconduct in Chief Walker’s

administration, including the mishandling of evidence,

falsification of reports, favoritism, protecting certain officers

from disciplinary actions, and the administration implantation of

a quota system. Id.

According to Lightell, in October 2018, Lightell wrote up

Officer Troy Gremillion (“Gremillion”), an officer under his

command. Id. at 5. However, Lightell alleges that he was told by

his superior, Lieutenant Thomas Bronk (“Lt. Bronk”) that this

infraction did not have to be reported to Chief Walker or placed

in Gremillion’s personal file. Id.

On January 26, 2019, Lightell and Gremillion were involved in

a vehicular pursuit of a suspect. Id. at 6. According to Lightell,

during the pursuit, over the HPD radio, Gremillion shouted “shots

fired” and reported that the suspect was shooting at the officers.

Id. Lightell alleges that after the chase ended with the

apprehension of the suspect, Gremillion reported to Lightell that

he saw a gun and muzzle flashes during the pursuit. Id. Lightell

alleges that when he later spoke with Gremillion, to get more

details to complete his report, Gremillion denied making the

original statements and claimed to have never seen a gun or muzzle

flashes. Id. Lightell claims he informed Lt. Bronk of the situation

and requested guidance from Bronk on how to handle the writing of

the report. Id. Lightell alleges that Bronk told him to “work it

out” with Gremillion, and failed to investigate Lightell’s

complaint, offer advice, or report the complaint through his chain

of command. Id. at 7. Lightell wrote the report based on

Gremillion’s remarks at the scene without including Gremillion’s

later retraction of his statements. Id.

Later, Lightell contacted the Assistant District Attorney

(“ADA”) who has handling the case about the vehicle pursuit and

advised the ADA of Gremillion’s inconsistencies. Id. On February

22, 2019, Lightell formally requested an investigation into

Gremillion’s conduct regarding the “shots fired” incident. Id.

According to Lightell, after Bronk received plaintiff’s request

and learned that Lightell made disclosures to the ADA, Bronk wrote

a “Critical Incident Form” that accused Lightell of violating

departmental policies and requested further investigation of the

matter. Id. Lightell alleges that the investigation into his

actions was part of an effort to retaliate against him and shield

Gremillion and that the effort was approved by Lt. Bronk, Captain

Adams and Chief Walker. Id.

According to Lightell, on February 19, 2019, a Harahan

resident made a complaint against an HPD officer to the HPD front

desk. Id. at 8. Lightell alleges that as the on-duty sergeant at

the time the complaint was received, Lightell started to

investigate the incident but learned the complainant was fearful

of making the complaint against the officer at the police station.

Id. Lightell followed up with the complainant at her residence.

Id. On February 24, 2019, Lightell sent an email to his superiors

detailing the facts of his investigation of the potential complaint

and withdrawing himself from further involvement with the

investigation, citing the seriousness of the allegations. Id. Per

Lightell, on or about February 25, 2019, members of the

administration, including defendants, learned of the complaint and

that Gremillion was in fact the officer against whom the complaint

had been made. Id.

On February 27, 2019, Lightell received notice that Chief

Walker had approved an investigation against the former concerning

the report submitted about the January 26, 2019 vehicular pursuit.

Id. Lightell was given a Notice of Investigation and a copy of

the Police Officer’s Bill of Rights. Id.

On March 14, 2019, Lightell was the only officer at a scene

inside a house with multiple suspects when one of the suspects

tried to flee and started to fight with Lightell. Id. at 9.

Lightell alleges he made multiple requests for immediate backup

but was ignored by HPD officers, specifically Lt. Bronk and

Gremillion. Id. Lightell alleges that officers from another agency

eventually appeared at the scene to support Lightell. Id. According

to Lightell, at the time of the incident, Lightell’s designated

back-up units were Gremillion and Lt. Bronk. Id. Lightell reported

the alleged failure to provide him back up to Chief Walker and to

Keith Moody (“Assistant Chief Moody”), but no action was taken by

the administration. Id.

On March 18, 2019, Chief Walker and Assistant Chief Moody

called Lightell into Walker’s office. Id. Aware of the

investigation against him, Lightell asserts he requested to have

an attorney present before speaking to Walker, which was

subsequently denied by Moody. Id. During this meeting, Lightell

alleges to have reported multiple instances of misconduct and

violations of law within the administration, including evidence

and departmental property going missing, falsified police reports,

the existence of a quota system for tickets, and the protection

and favoritism shown to certain officers within the department,

including Gremillion. Id. at 9-10. Lightell alleges telling Chief

Walker that forcing officers to write tickets or make arrests is

against the law and that he would not participate in such a scheme.

Id. at 10. Lightell alleges that Chief Walker told him he did not

need him working as a sergeant if he could not make his officers

write tickets. Id. At the conclusion of the meeting, Lightell was

informed that he was being placed on administrative leave and was

required to see a psychiatrist for an evaluation to “protect the

integrity” of the on-going Investigation. Id.

On or about March 20, 2019, Lightell informed a special agent

with the New Orleans office of the Federal Bureau of Investigation

of the implementation and administration of the quota system, the

mishandling of evidence, falsified reports, and other alleged

abuses of the HPD and administration. Id. Lightell also reported

alleged complaints of corruption, civil rights violations,

criminal acts, and other violations to the Louisiana State Attorney

General’s Office. Id.

On April 25, 2019, Chief Walker advised Lightell that he was

terminated from his position as a police officer, effective that

date for submitting a false police report and attempting to

persuade a member of the public to file a complaint against

Gremillion. Id. On or about April 25, 2019, Chief Walker advised

the Jefferson Parish District Attorney that Lightell had been found

to be untruthful as part of Lt. Bronk’s investigation. Id. at 11.

Lightell appealed his termination to the Harahan Civil

Service Board. Id. A public hearing was held in late June 2019, in

which Lightell characterized his termination as “unfair and

unjust, and the result of misconduct, double standards, and

favoritism that existed at the HPD under Walker’s administration.”

Id. at 11-12. Lightell alleges the hearing attracted widespread

attention that caused moving it to a larger venue, warranted a

Facebook livestream, and was attended by the press and the current

and former mayors of Harahan. Id. at 12. According to Lightell,

the vast interest in his hearing was prompted by allegations of

misconduct and favoritism within the HPD, which was of intense and

growing concern within the city. Id. at 12-13. According to

Lightell, officers who were listed as witnesses for Lightell during

his Civil Service appeal were retaliated against by Chief Walker,

Assistant Chief Moody, and others. Id. at 13. At the conclusion of

the hearing, the Board unanimously voted to overrule Chief Walker’s

termination decision. Id. Lightell was reinstated on July 1, 2019.

Id. at 14.

According to Lightell, Assistant Chief Moody and others

subjected him to continuous harassment post-hearing. Id. Assistant

Chief Moody frequently ordered Lightell to tell him the outside

agencies to which Lightell had reported misconduct at the HPD, and

what materials Lightell had provided to them. Id. Further, per

Lightell, Assistant Chief Moody constantly called Lightell into

his office to answer for alleged trivial matters that no other

officer would be required to address. Id. Chief Walker and

Assistant Chief Moody also allegedly followed Lightell on multiple

occasions and otherwise subjected him to unwarranted and excessive

scrutiny to find an excuse discipline him. Id. at 15. According to

Lightell, Moody repeatedly ordered him to give written statements

for various incidents. Id.

Shortly after Lightell returned to work, he was called to a

scene where a hospice death occurred. Id. at 16. The decedent had

signed a “do not resuscitate” order, and the Coroner determined

the death to be from natural causes. Id. Lightell filed a report

on the death but did not notify the detective bureau. Id. According

to Lightell, between the time when he was suspended and his

reinstatement, HPD implemented a new policy requiring notification

to the detective bureau for every death that occurred, regardless

of the cause. Id. Lightell asserts that he was not made aware of

the new policy. Id.

According to Lightell, in late July 2019, Lightell examined

departmental records regarding a DUI arrest where there were

concerns about Assistant Chief Moody’s administration of a field

sobriety tests. Id. Assistant Chief Moody learned that Lightell

had examined the records and required him to write memorandums and

answer questions on why he examined the records. Id.

On July 28, 2019, Assistant Chief Moody and Chief Walker

required Lightell to sign two “disciplinary memorandums” that

advised him that he had violated departmental policies. Id. The

first violation was for violating the new policy regarding reports

of deaths, and the second violation was for allegedly being nine

(9) minutes off on his communications log and failing to provide

an ending mileage on one occasion. Id. at 17. The memoranda stated

Lightell would be suspended for four (4) days because of the

violations. Id. Lightell appealed the disciplinary action to the

Harahan Civil Service Board, and a hearing was scheduled with

suspensions being deferred until the hearing could be held. Id.

Lightell noted in his application to the Civil Service Board that

the actions taken against him were retaliatory in nature in view

of the Walker Administration’s attempt to intimidate, harass and

eventually force him toward resignation. Id.

According to Lightell, on August 16, 2019, Assistant Chief

Moody ordered him to write a memorandum explaining [Lightell’s]

actions pertaining to your alleged appeal to Civil Service. Id.

The Civil Service hearing on Lightell’s suspensions was scheduled

for September 26, 2019. Id. at 18. However, on or about September

24, 2019, Moody wrote an email to the Civil Service Board stating

as follows: “By order of the Chief of Police [Walker], effective

immediately, Sgt. Lightell’s disciplinary actions outlined in

memorandum’s [sic] dated 7/28/19 are hereby dismissed with

prejudice. All documentation will be removed, destroyed and

stricken form Sgt. Lightell’s personnel file.” Id.

Shortly afterwards, according to Lightell, Assistant Chief

Moody demanded that Lightell write another statement - this time

about Lightell’s conversations with a former HPD officer and a

complaint Moody allegedly received about Lightell. Id. at 19. On

or about October 1, 2019, Lightell resigned from the HPD. Id.

On May 27, 2020, Lightell amended the complaint to clarify

his First Amendment and Whistleblower claims. Rec. Doc. 11 at 1.

However, he realleges fully each paragraph set forth in his

original complaint. Id.

Defendants filed the instant motion to dismiss all claims

pursuant to Federal Rule of Civil Procedure 12(b)(6). Rec. Doc. 5.

Plaintiff filed a response in opposition. Rec. Doc. 9. Plaintiff

filed an amended complaint. Rec. Doc. 11. Defendants then filed a

subsequent motion to dismiss for failure to state a claim pursuant

to Federal Rule of Civil Procedure 12(b)(6). Rec. Doc. 14.

Plaintiff timely filed an opposition to the defendant’s second

motion to dismiss. Rec. Doc. 17.

II. LAW AND ANALYSIS

a. Standard of Review

To survive a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a plaintiff’s complaint “must contain enough

facts to state a claim to relief that is plausible on its

face.” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)

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

(internal quotes omitted)). 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. A 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); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

However, the court is not bound to accept as true legal conclusions

couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). “[C]onclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice to prevent a

motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376,

378 (5th Cir. 2002). When deciding whether a plaintiff has met his

burden, a court “accept[s] all well-pleaded factual allegations as

true and interpret[s] the complaint in the light most favorable to

the plaintiff, but ‘[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements’ cannot

establish facial plausibility.” Snow Ingredients, Inc. v.

SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir. 2016)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiff brings claims against defendants for alleged

violations of First and Fourteenth Amendment rights, Monell

violations, defamation, Louisiana Whistleblower violations,

Louisiana constitutional law violations, and respondeat superior.

Defendants move for dismissal of all claims. Accordingly, each

claim will be separately addressed.

b. Claims against Chief Walker in his official capacity

In Kentucky v. Graham, the Supreme Court held that an official

capacity suit is “only another way of pleading an action against

an entity of which an officer is an agent” and is to be treated as

a suit against the entity. 473 U.S. 159, 165, 105 S.Ct. 3099, 87

L.Ed.2d 114 (1985). The Fifth Circuit has enforced an identical

rule and barred claims brought in a single action against official

capacity individuals and against the entity of which they are

members. In Sims v. Jefferson Downs Racing Association, Inc., the

Fifth Circuit held that, due to the nature of official capacity

suits, a judgment against a corporation and its officer would

“effectively make the corporation liable twice for the same act.”

778 F.2d 1068, 1081 (5th Cir. 1985). Moreover, a judgment against

an individual acting in an official capacity and against the entity

that employs him on the same claim is equivalent to a judgment

against the entity twice over and is therefore barred by virtue of

subjecting a defendant-entity to “duplicative” or “redundant”

liability. See Indest v. Freeman Decorating, Inc., 164 F.3d 258,

262 (5th Cir. 1999); see also Castro Romero v. Becken, 256 F.3d

349, 355 (5th Cir. 2001). However, separate claims brought against

an official and his entity in the same action are permitted and

governed by the general rules of pleading. Id.

To the extent plaintiff asserts Section 1983 claims against

Chief Walker in his official capacity, those claims appear to

mirror the Section 1983 claim against the City of Harahan — that

plaintiff's constitutional right to free speech was violated by

the Harahan Police Department's discipline and constructive

discharge of plaintiff for speaking out against misconduct, double

standards, and favoritism within the Harahan Police Department. As

previously stated, the Fifth Circuit has held that such actions

are barred by virtue of subjecting a defendant-entity to

“duplicative” or “redundant” liability. Indest, 164 F.3d at

262; Romero, 256 F.3d at 355. Accordingly, plaintiff was required

to clarify in his pleadings if he is in fact asserting different

claims against Chief Walker in his official capacity and the City

of Gretna; otherwise, dismissal of one of the duplicative claims

or sets of claims is appropriate.

Plaintiff concurs that official capacity claims against Chief

Walker are duplicative claims. Rec. Doc. 17 at 16. Therefore, the

court will dismiss the Section 1983 claims against Defendant Chief

Walker in his official capacity and proceed with analysis of

plaintiff's Section 1983 First Amendment claim against the City of

Harahan.

c. Section 1983 Claims

To bring a claim under 42 U.S.C. § 1983, a plaintiff is

required to allege facts demonstrating that: (1) the defendant

violated the Constitution or federal law; and (2) that the

defendant was acting under the color of state law while doing so.

See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir.

2005). Section 1983 reads, in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity,

or other proper proceeding for redress....

42 U.S.C. §1983.

Plaintiff brings claims for violations of his First Amendment

rights pursuant to Section 1983 against the City of Harahan, and

against Chief Walker, Assistant Chief Moody, Captain Adams, and

Lieutenant Bronk in their individual capacities. See Rec. Doc. 11.

Defendants seek dismissal of the Section 1983 claims because: (1)

Chief Walker, Assistant Chief Moody, Captain Adams, and Lieutenant

Bronk are entitled to qualified immunity on all claims against

them in their individual capacities; and (2) Plaintiff has failed

to allege that any “policy or custom” resulted in a violation of

a constitutional right to establish a claim against the City of

Harahan. Rec. Doc. 14-1 at 7-12. Accordingly, we will proceed to

address each of these issues in turn.

i. Assistant Chief Moody, Captain Adams, and

Lieutenant Bronk are not entitled to qualified

immunity on the Section 1983 claims brought against

them in their individual capacities.

The doctrine of qualified immunity protects government

officials “from liability for civil damages 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, 102 S.Ct. 2727,

73 L.Ed.2d 396 (1982). Qualified immunity is an “immunity from

suit rather than a mere defense to liability.” Pearson v. Callahan,

555 U.S. 223, 237, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In this

manner, “[o]ne of the most salient benefits of qualified immunity

is protection from pretrial discovery, which is costly, time-

consuming, and intrusive.” Backe v. LeBlanc, 691 F.3d 645, 648

(5th Cir. 2012). Once a defendant invokes the defense of qualified

immunity, the plaintiff carries the burden of demonstrating its

inapplicability. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194

(5th Cir. 2009).

In Saucier v. Katz, the Supreme Court set forth a two-part

framework for analyzing whether a defendant was entitled to

qualified immunity. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151,

150 L.Ed.2d 272 (2001). Part one asks the following question:

“Taken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer's conduct violated

a constitutional right?” Id. at 201, 121 S.Ct. 2151. Part two

inquires whether the allegedly violated right is “clearly

established” in that “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Id. at 202, 121 S.Ct. 2151. The court does not have to address

these two questions sequentially; it can proceed with either

inquiry first. See Pearson, 555 U.S. at 236, 129 S.Ct. 808 (“On

reconsidering the procedure required in Saucier, we conclude that,

while the sequence set forth there is often appropriate, it should

no longer be regarded as mandatory.”); see also Cutler v. Stephen

F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).

Commencing with the second prong of the Saucier framework,

the court must determine whether plaintiff has alleged a violation

of a clearly established constitutional right. When deciding

whether the right allegedly violated was “clearly established,”

the court asks whether the law so clearly and unambiguously

prohibited the conduct such that a reasonable official would

understand that what he was doing violated the law. May v. Strain,

55 F.Supp.3d 885, 897 (E.D. La. 2014) (Brown, J.) (citing Wyatt v.

Fletcher, 718 F.3d 496, 503 (5th Cir. 2013)). “Answering in the

affirmative requires the court to be able to 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. This requirement establishes a high bar.” Id.

When there is no controlling authority specifically prohibiting a

defendant's conduct, the law is not clearly established for the

purposes of defeating qualified immunity. Id.

The reasonableness of a defendant’s conduct depends on

whether he/she had “fair notice” that their conduct was unlawful

“judged against the backdrop of the law at the time of the

conduct.” Kiesla v. Hughes, 138 S.Ct. 1148, 1152 (2018). “Law

enforcement officers who reasonably but mistakenly commit a

constitutional violation are entitled to immunity.” Williams, 180

F.3d at 703 (quoting Bazan ex rel. Bazan v. Hidalgo County, 246

F.3d 481, 490 (5th Cir. 2001)). “Whether an official's conduct was

objectively reasonable is a question of law for the court, not a

matter of fact for the jury.” Brown, 623 F.3d at 253

(quoting Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004)).

The Fifth Circuit indicated in Shaw v. Villanueva that once

a defendant invokes qualified immunity at the pleadings stage, the

plaintiff “bears the burden of pleading facts that demonstrate

liability and defeat immunity.” 918 F.3d 414, 417 (5th Cir. 2019).

In doing so, a plaintiff must allege sufficient facts (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. Id.

Defendants dispute whether plaintiff has alleged violations

of his constitutional rights, or that his constitutional right to

free speech was clearly established at the time of the alleged

violation. Rec. Doc. 14-1. Defendants argue that plaintiff cannot

overcome the burden to defeat their assertion of

qualified immunity. Id.

Plaintiff generally alleges that defendants' discipline and

constructive discharge of plaintiff in retaliation for plaintiff’s

speech, petition and subsequent appeal to the Civil Service Board,

constitute a violation of clearly established First Amendment

rights to free speech and petition. Rec. Doc. 11 at 21. Therefore,

plaintiff argues that Chief Walker, Asst. Chief Moody, Capt. Adams

and Lt. Bronk are not entitled to qualified immunity because

Plaintiff had a clearly established right to free speech, which

they violated, and their actions were not objectively reasonable.

Rec. Doc. 17.

As further discussed below, this court finds that the

plaintiff has plausibly stated a First Amendment free speech claim

against noted defendants in their individual capacities.

ii. Plaintiff has stated a First Amendment

discrimination and retaliation claim

To establish a First Amendment retaliatory discharge claim,

plaintiff must prove that:

(1) he suffered an adverse employment action, (2) his

speech involved a matter of public concern, (3) his

interest in commenting on the matter of public concern

outweighed the defendant's interest in promoting

efficiency (balancing under Pickering v. Board of

Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811

(1968)), and (4) his speech was a substantial or

motivating factor behind the defendant's actions.

Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th

Cir.1999); James v. Texas Collin Cty., 535 F.3d 365, 375–76 (5th

Cir. 2008).

Plaintiff asserts suffering an adverse employment action,

specifically a campaign of retaliatory harassment amounting to

constructive discharge from HPD because he exercised his first

Amendment rights on two occasions. Rec. Doc. 11 at 21 ¶75, 76, 77.

First, plaintiff alleges engagement in First Amendment protected

speech on matters of public concern when he raised issues of

misconduct, double standards, and favoritism within HPD in the

public forum at civil service hearings in June 2019. Id. Second,

plaintiff asserts exercising First Amendment rights to petition

the government for redress of grievance when he appealed his

termination to the Civil Service Board and when he appealed his

suspension to the Civil Service Board. Id. We will analyze each

instance separately.

1. The Termination Hearing

Defendants argue that the plaintiff’s First Amendment claim

with reference to the termination hearing fails because plaintiff

did not suffer an adverse employment action, and his speech was

neither a matter of public concern nor was it directly identified

in plaintiff’s amended complaint. Rec. Doc. 14-1 at 15-20.

(1) Lightell suffered an adverse employment

action

To succeed in a First Amendment retaliation claim, pursuant

to 42 U.S.C. § 1983, plaintiff must show he suffered an adverse

employment action. Harris, 168 F.3d at 220. Employer actions that

can result in liability include more than just actual or

constructive discharge from employment. Sharp v. City of Houston,

164 F.3d 923, 933 (5th Cir. 1999). “Adverse employment actions can

include discharges, demotions, refusals to hire, refusals to

promote, and reprimands.” Id. An employer's activities may be

deemed to amount to a constructive discharge only if “the employer

made conditions so intolerable that the employee reasonably felt

compelled to resign.” Shawgo v. Spradlin, 701 F.2d 470, 481 (5th

Cir. 1983); Kelleher v. Flawn, 761 F.2d 1079, 1086 (5th Cir. 1985).

“[A] constructive discharge claim requires a greater severity or

pervasiveness of harassment than the minimum required to prove a

hostile work environment.” Benningfield v. City of Houston, 157

F.3d 369, 378 (5th Cir. 1998) (internal citation and quotation

marks omitted) (finding that the plaintiff failed to state a First

Amendment violation because her discharge resulted from an

independent psychiatric evaluation and not retaliation for her

grievances).

In Sharp, the Fifth Circuit upheld a jury verdict finding the

plaintiff’s transfer to another department constituted a

constructive demotion. Sharp, 164 F.3d at 934. The Fifth Circuit

held that the evidence supported the plaintiff’s argument that her

supervisors’ encouragement of retaliatory acts and even

participation in them drove her to initiate the transfer, to the

extent that it was no longer voluntary. Id.

Plaintiff Lightell asserts that defendants’ harassment

amounted to constructive discharge. Rec. Doc. 11 at 21 ¶ 77. More

specifically, he alleges that Chief Walker approved and encouraged

Moody’s acts of harassment, including demanding Lightell to inform

him of what agencies to whom he reported HPD’s misconduct,

following Lightell on multiple occasions to find grounds for

discipline, and repeatedly ordering Lightell to give written

statements for various incidents. Id. at 14-15.

Defendants argue that the alleged treatment does not rise to

the level of constructive discharge as they believe it does not

constitute harassment. Rec. Doc. 14-1 at 16. Specifically,

defendants do not find it unreasonable for Lightell’s superior

officers to question him about his decisions as it relates to his

job performance and competency as a police officer. Id. However,

defendants fail to address the other instances of allegedly

harassing conduct that plaintiff asserts drove him toward

resignation. Therefore, because plaintiff has set forth factual

allegations to support plausible claims of adverse employment

action, and accepting as we must those allegations as true in the

Rule 12 context, defendants’ argument fails at this stage.

(2) Lightell’s speech involved a matter of

public concern

The First Amendment, applicable to the states through the

Fourteenth Amendment, provides:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or the press; or the

right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

U.S. CONST. amend. I. There is no public-employee exception; the

First Amendment “protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of public

concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). To

determine whether a public employee’s First Amendment right has

been violated, courts “ask a threshold question: Was the employee’s

speech made pursuant to the employee’s duties or as a citizen on

a matter of public concern?” Cutler v. Stephen F. Austin State

Univ., 767 F.3d 462, 469 (5th Cir. 2014) (citing Garcetti, 547

U.S. at 418). If the employee spoke as a citizen, courts must then

“balance the employee’s speech interest with the government

employer’s interest in promoting the efficiency of the public

services it performs.” Cutler, 767 F.3d at 469 (quoting Lane v.

Franks, 573 U.S. 228, 231 (2014) (internal quotes omitted)).

In determining whether a public employee spoke as part of his

job duties or as a citizen, courts consider “factors such as job

descriptions, whether the employee communicated with coworkers or

with supervisors, whether the speech resulted from special

knowledge gained as an employee, and whether the speech was

directed internally or externally.” Johnson v. Halstead, 916 F.3d

410, 422 (5th Cir. 2019) (quoting Rogers v. City of Yoakum, 660 F.

App'x 279, 283 (5th Cir. 2016) (internal quotes omitted)).

Plaintiff alleges that speech during the June 2019 Civil

Service hearing was speech that involved a matter of public concern

because he raised issues of misconduct, double standards and

favoritism within the department at the hearing. Rec. Doc. 11 at

21 ¶75. Furthermore, he asserts the speech was a matter of public

concern because the hearing was largely attended by the public,

recorded by the news media, and livestreamed on social media. Rec.

Doc. 17 at 20. Plaintiff also alleges that the large attendance at

the hearing demonstrated his speech was a matter of great concern

to the people of Harahan. Id.

In support of his argument, plaintiff cites to the non-binding

Presley v. Graham case, wherein a city police officer brought First

Amendment retaliation claims against a city police department, its

attorney, and a city. Presley v. Graham, 936 F. Supp. 2d 1316.

(M.D. Ala. 2013) Considering a motion to dismiss those claims, the

court determined that the police officer's lawsuit against the

city alleging gender discrimination was speech by an employee on

a matter of public concern protected under the First Amendment.

While Presley alleged personal grievances, the complaint also

alleged a custom or policy of discrimination by city officials,

media attention, and was thereby considered a public grievance,

rather than an internal complaint. Id. at 1323. Moreover, the

lawsuit in question involved not only matters of personal interest

to Ms. Presley, as the city had denied her promotion and

disciplined her, but it also implicated concerns broader in scope

than ordinary workplace grievances because she further alleged

that the discrimination suffered was a result of an official custom

or policy of illegal gender discrimination. Id. The court

considered the content, form, and context of the speech in its

determination that the speech involved a matter of public concern.

Id. at 1324.

Defendants allege that plaintiff’s speech did not involve a

matter of public concern because the purpose of the Civil Service

Hearing was for the sole purpose of determining whether plaintiff

should be reinstated. Rec. Doc. 14-1 at 18. Defendants argue that

speech was made in the context of plaintiff’s employment status,

and that plaintiff was following the appropriate grievance

procedure by petitioning the Civil Service Board to appeal his

termination. Id.

It is immaterial whether the speech was made at a hearing to

appeal plaintiff’s termination, where the speech concerned alleged

misbehavior within the police department. The disclosure of

misbehavior by public officials is a matter of public interest and

therefore deserves constitutional protection, especially when it

concerns the operation of a police department. Brawner v. City of

Richardson, Tex., 855 F.2d 187, 191–92 (5th Cir. 1988) (finding in

favor of the plaintiff whose statements against the police chief

and others represented a matter of public concern). Because the

speech at issue complained of misconduct within the police

department, it should be classified as speech addressing a matter

of public concern.

Additionally, defendants argue the amended complaint

demonstrates the interest in the Civil Service Hearing but failed

to establish exactly what was said that was a matter of public

concern for which plaintiff was allegedly retaliated. Rec. Doc.

14-1 at 18. Defendants correctly state that plaintiff is required

to identify the speech at issue. To prove a claim, plaintiff must

precisely identify the “speech as to which First Amendment

protection is claimed, which would permit consideration of its

content, context, and form as required by the Supreme Court.”

Foley, 355 F.3d at 342. Plaintiff in claiming that a defendant

retaliated against him or her for making statements protected by

the First Amendment, is required to be specific as to when the

statement or statements were made, to whom the statements were

made, whether the statements were oral or written, and the content

of those statements. Id.

While plaintiff has not directly quoted what particular

statement to which First Amendment protection is claimed,

plaintiff has identified the speech. Plaintiff alleges the speech

concerned his allegations against the HPD administration regarding

a culture of misconduct and favoritism concerning not only the

plaintiff himself but also other HPD officers who had been forced

out of HPD or terminated. Rec. Doc. 11 at 12; Rec. Doc. 17 at 21.

Further, it is clear the plaintiff asserts the speech was made

orally at the Civil Service Hearing in June 2019 to the Civil

Service Board with the public as an audience. Id. Based on this

record, the plaintiff’s speech involved a matter of public

concern.2

(3) His interest in commenting on the matter

of public concern outweighed the

defendant's interest in promoting

efficiency.

As it relates to the third element, the Fifth Circuit has

held that it must “balance the employee's interest, as a citizen,

in commenting upon matters of public concern against the interest

of the State, as an employer, in promoting the efficiency of the

2 Discovery should reveal the identity of other HPD officers who were allegedly

similarly treated.

public services it performs through its employees.” Branton, 272

F.3d at 739 (quoting Rankin, 483 U.S. at 388, 107 S.Ct.

2891; Pickering, 391 U.S. at 568, 88 S.Ct. 1731) (internal quotes

omitted). This inquiry “involves whether the speech: (1) was likely

to generate controversy and disruption, (2) impeded the

department's general performance and operation, and (3) affected

working relationships necessary to the department's proper

functioning.” Brawner, 855 F.2d at 192. In Brawner, the defendants

argued that the police department's interest in conducting

thorough investigations outweighed the plaintiff's interest in

expressing dissatisfaction with his treatment during such an

investigation. Id. The Fifth Circuit rejected this argument,

holding that “if the allegations of internal misconduct are indeed

true, [the plaintiff's] statements could not have adversely

affected the proper functioning of the department since the

statements were made for the very reason that the department was

not functioning properly due to corruption. Id.

Neither plaintiff nor defendants put forth any argument that

plaintiff's interest in commenting on the misconduct, if found to

be a matter of public concern, is outweighed by the government's

interest in the efficient provision of public services. Given that

plaintiff has a legitimate interest in reporting misconduct within

HPD, and no government interest in promoting efficiency or

functionality has been identified that would suffer from

plaintiff's speech, the balancing of interests weighs in favor of

plaintiff's free speech.

(4) His speech was a substantial or

motivating factor behind the defendant's

actions.

Regarding the fourth and final element, plaintiff asserts

that his speech regarding the misconduct caused the discipline,

harassment and constructive termination against him. Rec. Doc. 11.

Plaintiff’s alleged speech about the misconduct took place at the

June 2019 Civil Service Board hearing. Id. Plaintiff has alleged

multiple instances of harassment including a suspension, that was

recalled, since the alleged speech was made. Id.

Defendants argue that termination of plaintiff's employment

was not precipitated by any adverse employment action, but that

plaintiff voluntarily resigned from HPD, and his working

conditions were not such that the resignation could be deemed a

constructive discharge. Rec. Doc. 14-1 at 16. Defendants assert

there were various instances in which plaintiff failed to follow

department policy. Id. However, taking plaintiff’s factual

allegations as true, given the factual allegations of incidents of

reprisal occurring soon after plaintiff criticized HPD at the

Civil Service hearing, plaintiff has plausibly established that

his speech regarding the misconduct precipitated the adverse

employment actions of discipline and constructive termination.

Thus, plaintiff has plausibly established all four elements

required to satisfy a Section 1983 First Amendment retaliation

claim. Accordingly, the First Amendment claims against defendants

Moody, Adams and Bronk in their individual capacities may not be

dismissed upon a Rule 12 motion to dismiss. There is no dispute

that their respective actions were taken under color of the law,

and it is plausible they collectively violated plaintiff's

constitutional rights.

2. The Appeal of Suspension

The First Amendment’s Petition Clause “protects ‘the right of

the people ... to petition the Government for a redress of

grievances.’” Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379,

382, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011) (quoting U.S. CONST.

AMEND I.).

It appears plaintiff attempts to bring a “petition” claim

based on the Civil Service Board not hearing his suspension

grievance because Chief Walker dismissed the disciplinary action

against plaintiff before the hearing could be held, thereby

relinquishing the need for such hearing. Rec. Doc. 11 at 21 ¶76.

Plaintiff alleges that Chief Walker’s dismissal violated his right

to petition the government. Id. at 21 ¶77.

Plaintiff’s argument fails because that attempted grievance

claim did not involve a matter of public concern and instead was

a matter of private concern. Indeed, “[i]f a public employee

petitions as an employee on a matter of purely private concern,

the employee’s First Amendment interest must give way, as it does

in speech cases.” Harmon v. Dallas Cty., Texas, 927 F.3d 884, 894–

95 (5th Cir. 2019), as revised (July 9, 2019) (quoting Borough of

Duryea, Pa. v. Guarnieri, 564 U.S. 379, 398 (2011)).

Just as the court was clear in Harmon, to be clear, the

plaintiff’s speech — his reporting of misconduct within the HPD

which is a matter of public concern — is not at issue here. Rather,

the issue concerns the plaintiff’s grievance. “By its very nature,

however, an employee’s grievance from termination will not

ordinarily constitute a matter of public concern.” Id.; See

Borough of Duryea, 564 U.S. at 398 (“A petition filed with an

employer using an internal grievance procedure in many cases will

not seek to communicate to the public or to advance a political or

social point of view beyond the employment context.”); Gibson v.

Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel

disputes and management decisions are rarely a matter of public

concern.”).

There is no factual support to find that plaintiff was using

the petition appealing his suspension as a platform to publicly

restate his concerns of misconduct within the HPD. He, instead,

was merely using the petition to appeal his suspension as any

employee, private or public, would do. In other words, the point

of the plaintiff’s appeal was not to present concerns about

misconduct within the HPD but to appeal his suspension. Therefore,

because the allegations surrounding the plaintiff’s appeal does

not constitute a matter of public concern, his Section 1983 First

Amendment claim as it pertains to the appeal fails and is hereby

dismissed.

iii. Plaintiff has stated a Monell claim against the

City of Harahan

With respect to a Section 1983 claim against an entity, the

Supreme Court held in Monell v. Department of Social Services of

City of New York, “when execution of a government's policy or

custom, whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy, inflicts the

injury [ ] the government as an entity is responsible under §

1983.” 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Moreover, “[a] § 1983 plaintiff [ ] may be able to recover from a

municipality without adducing evidence of an affirmative decision

by policymakers if able to prove that the challenged action was

pursuant to a state ‘custom or usage.’” Pembaur v. City of

Cincinnati, 475 U.S. 469, 484, 106 S.Ct. 1292, 89 L.Ed.2d 452

(1986). In order to establish a Section 1983 claim against a

municipality, the official policy must be the cause and moving

force of the constitutional violation. Monell, 436 U.S. at 694, 98

S.Ct. 2018. Finally, the “policymaker must have either actual or

constructive knowledge of the alleged policy.” Cox v. City of

Dallas, 430 F.3d 734, 748–49 (5th Cir. 2005) (citing Piotrowski v.

City of Houston, 237 F.3d 567, 579 (5th Cir. 2001)).

A municipality, like Harahan, is a “person” suable under §

1983. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S.

658, 690 (1978). But a municipality is not vicariously liable for

the misconduct of its employees; it is liable only for its own

misconduct. Connick v. Thompson, 563 U.S. 51, 60 (2011). So, a

plaintiff cannot recover against a municipality under § 1983

unless he proves that “action pursuant to official municipal

policy” caused his injury. Monell, 436 U.S. at 691. This is known

as a “Monell” claim. See Id. To state a Monell claim, a plaintiff

must plead facts that plausibly establish (1) a policymaker; (2)

an official policy; and (3) a violation of constitutional rights

whose “moving force” is the policy or custom. Ratliff v. Aransas

Cty., Tex., 948 F.3d 281, 285 (5th Cir. 2020)(citing Piotrowski v.

City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).

The policy element “includes the decisions of a government’s

law-makers, the acts of its policymaking officials, and practices

so persistent and widespread as to practically have the force of

law.” Connick, 563 U.S. at 61 (citation omitted). To survive a

motion to dismiss, “a complaint’s description of a policy or custom

and its relationship to the underlying constitutional violation

cannot be conclusory; it must contain specific facts.” Pena v.

City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018)

(quoting Spiller v. City of Tex. City, Police Dep't, 130 F.3d 162,

167 (5th Cir. 1997) (internal quotes omitted)).

Plaintiff argues that Chief Walker as an official policy maker

for the Harahan Police Department, an agency of the City of

Harahan, engaged in a pattern of retaliation, false accusations,

double standards, and harassment against officers who were not

favored by Chief Walker and other authority figures in Chief

Walker’s administration. Rec. Doc. 11. Plaintiff's Section

1983 First Amendment discrimination and retaliation claim against

the City of Harahan relies on the same facts asserted in support

of the Section 1983 First Amendment discrimination and retaliation

claims against all other defendants in their individual

capacities, with the addition of the allegation that Chief Walker

was the final policymaker. Id. Specifically, in plaintiff’s First

Amendment discrimination and retaliation claim against all other

defendants, plaintiff alleges an unlawful pattern and practice at

the HPD. Id. Plaintiff alleges that favoritism, misconduct, and

retaliatory actions that have resulted in fifteen (15) officers,

almost 75% of the force, either resigning or being fired over the

last two years. Rec. Doc. 11 at ¶ 17. Plaintiff provides a summary

of his allegations to indicate the defendants’ policy or custom of

favoritism and misconduct:

•

The Plaintiff’s superiors ordered him not to file the

October 2018 discipline in Gremillion’s personnel

file because they were personal friends with

Gremillion;

•

The Plaintiff was placed on leave during the

investigation of the “shots fired” incident while

Gremillion was not;

•

The Plaintiff was required to have a psychiatric

evaluation during the investigation while Gremillion

was not;

•

Defendant Bronk was placed in charge of the “shots

fired” investigation despite his personal friendship

with Gremillion and predetermined belief that the

Plaintiff had violated policy;

•

The Plaintiff was terminated after the “shots fired”

incident for allegedly writing a false report, but

Captain Adams, who knew of the alleged discrepancy in

the report, received no discipline and was never

investigated even though he approved the report as

written;

•

The Plaintiff was terminated after the “shots fired”

incident but Gremillion — whose statements on the

scene had caused a citizen to be wrongfully charged

with a serious crime — received no discipline and was

in fact promoted;

•

Officer David Louque, who was perceived to be

supportive of the Plaintiff during the “shots fired”

investigation, was terminated for bogus reasons,

including the allegation that he engaged in conduct

that Gremillion had engaged in on multiple occasions;

•

Walker and Moody refused to hire Calvin Olivier, a

reserve officer, because he was viewed as aligned with

the Plaintiff;

•

Like the Plaintiff, Officer David Darwin was

terminated based on untrue accusations in retaliation

for speaking up about misconduct at HPD;

•

After the Plaintiff was reinstated by the Civil

Service Board, Defendants Walker and Moody continued

their pattern of harassing the Plaintiff in an attempt

to get him to resign, including by filing bogus

disciplinary charges against him which they then

dismissed rather than attempt to defend them at a

public hearing.

Rec. Doc. 17 at 17.

Further, he identified Walker as the policymaker for purposes

of stating the Monell claim and noted that defendants did not

dispute Walker’s role as such. Id. at 18. Lastly, plaintiff asserts

that defendants’ custom of provoking favoritism, misconduct, and

retaliatory acts served as “the moving force” behind the violations

of his First Amendment rights. Id.

Furthermore, Lightell relies on LeBeouf v. Manning, wherein

the Fifth Circuit reviewed the district court’s grant of the

defendant’s motion to dismiss for failure to state a claim. 575

Fed.Appx. 374, 375 (5th Cir. 2014) (per curiam). In granting the

defendant’s 12(b)(6) motion, the lower court found that the facts

did not plausibly suggest that the defendant had an improper motive

in requiring the plaintiff to participate in a three-day inpatient

psychiatric treatment. Id. at 378. However, the Fifth Circuit

reversed the lower court’s decision because “it is inappropriate

to attribute a benign intent to [the defendant]” when deciding a

Rule 12(b)(6) motion. Id.

Defendants argue that allegations provided by Lightell to

evidence HPD’s policy or custom are too conclusory and lack

sufficient facts to withstand their motion to dismiss. Rec. Doc.

14-1 at 11. As such, defendants cite to the Colle case, in which

the Fifth Circuit stated, “a plaintiff may not infer a policy

merely because harm resulted from some interaction with a

governmental entity.” Colle v. Brazos County, Tex., 981 F.2d 237,

245 (5th Cir. 1993) (holding that the plaintiffs have adequately

stated a claim against the defendants under Section 1983).

Following this statement, the Fifth Circuit cited to Oklahoma City

v. Tuttle, in which the Supreme Court held that jurors may not

infer the existence of improper policies from a single

unconstitutional act. Id. at n.39; Oklahoma City v. Tuttle, 471

U.S. 808, 105 S.Ct. 2427 (1985).

Unlike the issues raised in Colle and Tuttle, plaintiff has

provided sufficient facts in his amended complaint that plausibly

suggest a repeated practice of improper policies by the defendants

beyond “some interaction” with Walker and HPD. Just as the

defendants correctly state that a policy may not be inferred from

an isolated interaction, their allegedly neutral intent to review

plaintiff’s job performance may likewise not be inferred when it

is plausible they placed Lightell under greater and unjustified

scrutiny post-reinstatement. As discussed throughout, plaintiff

has asserted sufficient facts that make it plausible that

defendants’ alleged misconduct occurred more than as a mere

isolated interaction. Therefore, the Rule 12(b)(6) motion to

dismiss as it relates to the Monell claim is denied.

d. Federal Constructive Discharge Claim & Louisiana

Constructive Discharge Claim

To prove constructive discharge, a plaintiff must show that

a “reasonable person in [his] shoes felt compelled to resign.”

Benningfield, 157 F.3d at 378. “[A] constructive discharge claim

requires a greater severity or pervasiveness of harassment than

the minimum required to prove a hostile work environment.” Id.

In Benningfield v. City of Houston, the Fifth Circuit held that

the plaintiff's fear of future retaliation was not sufficient to

support her claim of constructive discharge. Id.

Establishing constructive discharge generally requires a

plaintiff to show that his employer made his “working conditions

so intolerable that a reasonable employee would feel compelled to

resign.” See Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555,

562 (5th Cir.2003). In other words, a plaintiff may be

constructively discharged when she is placed “between the Scylla

of voluntary resignation and the Charybdis of forced termination.”

Fowler v. Carrollton Pub. Library, 799 F.2d 976, 981 (5th Cir.1986)

(relying on Findeisen v. N.E. Indep. Sch. Dist., 749 F.2d 234 (5th

Cir.1984) and Bueno v. City of Donna, 714 F.2d 484 (5th Cir.1983)).

While the determination of whether a reasonable employee would

feel compelled to resign depends on the facts of each case, we

have observed that it can be shown where an employee is subjected

to badgering, harassment, or humiliation calculated to encourage

the employee to resign. See Barrow v. New Orleans S.S. Ass'n, 10

F.3d 292, 297 (5th Cir.1994). Further, “[c]onstructive discharge

in a procedural due process case constitutes a § 1983 claim only

if it amounts to forced discharge to avoid affording pretermination

hearing procedures.” Fowler, 799 F.2d at 981; see also Rutland v.

Pepper, 404 F.3d 921, 923 (5th Cir.2005).

In the instant case, plaintiff alleges defendants engaged in

a campaign of harassment that resulted in his transfer to a less

desirable position, the current job at the Jefferson Parish

Sheriff’s Office. Rec. Doc. 11 at ¶ 67. Plaintiff asserts the

transfer involved a loss of rank and training status as well as a

lower salary. Id. Plaintiff avers that defendants’ harassment

began with the investigation of the “shots fired” incident in which

the defendants were set on making the plaintiff’s working life as

a police officer miserable and dangerous. Rec. Doc 17 at 24.

Further, he asserts defendants required him to undergo a

psychiatric evaluation for no reason and placed him on

administrative leave unjustifiably. Id. Plaintiff cites to LeBeouf

v. Manning in support of his argument that the request for him to

undergo psychiatric evaluation is enough for constructive

discharge. See LeBeouf, 575 F. App'x 374 (5th Cir. 2014).

In LeBeouf, the Fifth Circuit ruled that a former nurse's

allegations were sufficient to state a § 1983 claim that the

hospital's human resources director constructively discharged her

from employment with the hospital without procedural due process

of law, where the nurse alleged that the director informed her

that if she did not resign or agree to immediate involuntary

commitment to a three-day psychiatric hospitalization she would be

fired, and that the director failed to provide her with an

explanation as to why she would be committed or why such commitment

was necessary in light of the fact that she was not protesting a

drug test or suspension. Id. The Fifth Circuit noted that

commitment to a hospital for psychiatric care is a “massive

curtailment of liberty” and that an objectively reasonable

employee in LeBeouf's position could feel an intolerable working

environment was created when informed that she would be immediately

involuntarily committed to a three-day psychiatric

hospitalization. Id.

Further, plaintiff alleges defendants’ harassment became

dangerous when Gremillion failed to respond when the plaintiff

called for back-up while fighting with a violent subject. Rec.

Doc. 17 at 24. Additionally, plaintiff alleges defendant Chief

Walker unjustifiably terminated him based on the “shots fired”

incident, promoted Gremillion and failed to discipline Captain

Adams. Id. Plaintiff avers that following his successful appeal of

his termination, Chief Walker and Assistant Chief Moody persisted

with their harassment of plaintiff by constantly questioning his

actions, undermining his authority with the officers he

supervised, and filing false disciplinary charges against him,

which they then dismissed rather than having to publicly defend

the discipline. Id.

Defendants argue that the treatment alleged does not rise to

the level necessary to assert a constructive discharge claim. Rec.

Doc. 14-1 at 16. They contend that while all of Plaintiff’s factual

allegations must be accepted as true, plaintiff’s conclusion that

the allegations constitute harassment does not have to be taken as

true. Id. Defendants argue that it is not unreasonable for

plaintiff’s superior officers to question plaintiff about his

decisions that are relevant to his job performance and his ability

to competently serve as a police officer. Id. Further, defendants

argue it is unclear how Chief Walker’s dismissal of plaintiff’s

suspension constitutes harassment. Id.

For a resignation to constitute constructive discharge, an

employer's actions must make conditions so intolerable that the

reasonable employee would feel compelled to resign. Shawgo v.

Spradlin, 701 F.2d 470, 481 (5th Cir. 1983) (finding that the

plaintiff’s resignation following his demotion resulted from his

own personal reaction to his demotion and was not constructive

discharge); Kelleher v. Flawn, 761 F.2d 1079, 1086 (5th Cir. 1985)

(finding that change in teacher’s duties was not so intolerable).

Plaintiff asserts that he felt compelled to resign because he

was “exhausted and demoralized” by the harassment and he feared he

would be disciplined and put under investigation in the future

without cause. Rec. Doc. 11 at 19 ¶65. As evidence that termination

would adversely affect his ability to secure employment at another

police department, plaintiff cites to Swear v. Lawson in which the

court determined whether interference with future employment

opportunities constitutes conditions so intolerable that a

reasonable employee would feel compelled to resign requires a

factual determination. Swear v. Lawson, 288 F. Supp. 3d 669, 695-

96 (E.D.La. 2018) (Brown, J.)

Whether or not the actions of defendants, including alleged

reprimands against plaintiff were of a “greater severity or

pervasiveness of harassment” than that of a hostile work

environment is a question of material fact. Id. Viewing the facts

and drawing all inferences in the light most favorable to

plaintiff, we are compelled to conclude that the complaint

plausibly establishes a constructive discharge claim. Finch, 333

F.3d at 562; Fowler, 799 F.2d at 981.

Pursuant to Louisiana law, the inquiry into a constructive

discharge claim is case-and-fact specific, and the relevant

factors which may be present singularly or in combination include:

(1) demotion; (2) reduction in salary; (3) reduction in

job responsibilities; (4) reassignment to menial or

degrading work; (5) reassignment to work under a younger

(or less experienced/qualified) supervisor; (6)

badgering, harassment, or humiliation by the employer

calculated to encourage the employee's resignation; or

(7) offers of early retirement (or continued employment

on terms less favorable than the employee's former

status).

Robinson v. Bd. of Supervisors for Univ. of Louisiana Sys., 2016-

2145 (La. 6/29/17), 225 So. 3d 424, 431. Because Louisiana courts

consider similar factors as federal claims for constructive

discharge, the plaintiff’s constructive discharge claim brought

pursuant to Louisiana law is also plausibly established.

e. Due Process Claim

The Due Process Clause of the Fourteenth Amendment forbids

any State from “depriv[ing] any person of life, liberty, or

property, without due process of law[.]” U.S. CONST. amend. XIV,

§ 1. This provision requires that the government give an

“opportunity to be heard ‘at a meaningful time and in a meaningful

manner’” before depriving any person of “life, liberty, or

property.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

When an employee’s “good name, reputation, honor or integrity

is at stake due to an action by the government, he is entitled to

notice and an opportunity to be heard.” Sims v. City of

Madisonville, 894 F.3d 632, 642 (5th Cir. 2018) (citing Wisconsin

v. Constantineau, 400 U.S. 433, 437 (1971)). But an employee’s

constitutionally protected liberty interest “‘is implicated only

if [he] is discharged in a manner that creates a false and

defamatory impression about him and thus stigmatizes him and

forecloses him from other employment opportunities.’” Sims, 894

F.3d at 642 (quoting White v. Thomas, 660 F.2d 680, 684 (5th Cir.

1981)). The proper defendant in a deprivation-of-liberty suit is

the government employer — not a government employee or

official. Sims, 894 F.3d at 642 (citing Harris v. City of Balch

Springs, 9 F. Supp. 3d 690, 700 (N.D. Tex. 2014)).

It is undisputed that plaintiff is a classified civil service

employee with permanent status who has a property interest in his

position and therefore is entitled to due process

protection. See Lange v. Orleans Levee Dist., 56 So.3d 925, 930

(La.2010) (observing that a permanent, classified civil service

employee has a property interest in her job and cannot be

terminated without due process of law); see also Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 545–46, 105 S.Ct. 1487, 84

L.Ed.2d 494 (1985) (explaining that procedural due process

requires notice and an opportunity to respond before one can be

deprived of a protected property interest). However, the parties

disagree as to whether the complaint demonstrates that the

plaintiff was constructively discharged. As explained above,

plaintiff’s complaint plausibly shows a constructive discharge

claim. An employer who causes a constructive discharge is liable

for failing to provide the due process protections that the

employee would have received if he was formally discharged.

See Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir.1990).

Accordingly, the complaint plausibly establishes a due process

claim.

However, plaintiff’s claims against the officers fail as a

matter of law because “[a] deprivation of liberty claim lies

against the government employer, not a government employee or

official.” Sims, 894 F.3d at 642 (citing Harris, 9 F. Supp. 3d at

700). Accordingly, we grant the Harahan defendants’ motion to

dismiss procedural due process claims that Plaintiff may be

asserting against all defendants except the City of Harahan.

Because any such claims against the officers are deficient as a

matter of law, amendment would be futile.

Although the plaintiff addresses a substantive due process

claim, the defendants do not address the claim in its motion to

dismiss. Therefore, the Court will not give an analysis of

Plaintiff’s substantive due process claim since the defendant does

not expressly request that Plaintiff’s claim be dismissed. See

Wayne v. City of San Antonio, No. SA-06-CV-551-XR, 2006 WL 3487022,

at *2 (W.D.Tex. Nov. 30, 2006)(because defendant did not separately

address plaintiff’s section 1983 claim in his motion to dismiss,

the court neither dismissed the claim nor addressed the claim’s

merits in its order); see also Bowman v. Collier, 2021 WL 818385,

at *2, n. 1 (E.D.Tex. Jan. 19, 2021)(treating defendants’ motion

to dismiss as a motion for partial dismissal because their motion

did not address plaintiff’s claims under the First and Fourteenth

Amendments).

f. State Due Process Claim

Louisiana Revised Statute § 40:2531 provides procedures for

conducting administrative investigations of police officers. La.

Stat. Ann. § 40:2531. Whenever a police employee or law enforcement

officer is under investigation, the statute provides the minimum

standards that shall apply. Id. There shall be no discipline,

demotion, dismissal, or adverse action of any sort taken against

a police employee or law enforcement officer unless the

investigation is conducted in accordance with the minimum

standards provided for in this Section. Any discipline, demotion,

dismissal, or adverse action of any sort whatsoever taken against

a police employee or law enforcement officer without complete

compliance with the foregoing minimum standards is an absolute

nullity. Id.

The amended complaint alleges that the defendants violated

La. R.S. 40:2531. It does not give specific details under the claim

for “State Constitutional Law” as the complaint only states,

“Defendants violated his right to due process under the State

Constitution when they constructively discharged him from his

employment through a pattern of retaliatory harassment.” Rec. Doc.

11 at 22 ¶87. Plaintiff’s factual allegations cite two disciplinary

actions imposed on him by HPD, the original termination in April

2019 and the suspension in July 2019. See id. However, plaintiff

alleges no specific facts in the amended complaint as to how the

minimal standards were not met. “’Threadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements’ cannot establish facial plausibility.” SnoWizard,

Inc., 833 F.3d at 520 (quoting Iqbal, 556 U.S. at 678. Therefore,

the plaintiff’s state due process claim is hereby dismissed.

g. Defamation Claim

In Louisiana, “defamation is a tort involving the invasion of

a person’s interest in his or her reputation and good

name.” Kennedy v. Sheriff of East Baton Rouge, 2005-1418, p. 5

(La. 7/10/06); 935 So. 2d 669, 674. It consists of four elements:

“(1) a false and defamatory statement concerning another; (2) an

unprivileged publication to a third party; (3) fault (negligence

or greater) on the part of the publisher; and (4) resulting

injury.” Costello v. Hardy, 2003-1146, p. 12 (La. 1/21/04); 864

So. 2d 129, 139 (citation omitted). Fault within defamation “is

generally referred to in the jurisprudence as malice, actual or

implied.” Id. In Kennedy, the court stated:

In Louisiana, defamatory words have traditionally been

divided into two categories: those that are defamatory

per se and those that are susceptible of a defamatory

meaning. Words which expressly or implicitly accuse

another of criminal conduct, or which by their very

nature tend to injure one's personal or professional

reputation, without considering extrinsic facts or

circumstances, are considered defamatory per se. When a

plaintiff proves publication of words that are

defamatory per se, falsity and malice (or fault) are

presumed, but may be rebutted by the defendant. Injury

may also be presumed. When the words at issue are not

defamatory per se, a plaintiff must prove, in addition

to defamatory meaning and publication, falsity, malice

(or fault) and injury.

Kennedy, 935 So.2d 674-75 (citing Costello, 864 So.2d at 140)

(internal citations omitted).

Plaintiff alleges defendants repeatedly defamed his

reputation as a police officer by making false accusations against

him. Rec. Doc. 11 at 22 ¶82. More specifically, he alleges that

Chief Walker made statements to the Jefferson Parish District

Attorney that plaintiff was “found to be untruthful.” Rec. Doc. 11

at 11 ¶36. However, Plaintiff’s argument that Chief Walker’s

statements could be construed as falsely accusing him of the crime

of perjury or falsifying a police report is without factual

support. Considering the facts of the plaintiff’s amended

complaint in the light most favorable to the plaintiff, he has not

alleged factual support for that conclusion. Plaintiff’s amended

complaint offers only conclusions that “[t]he Defendants

repeatedly defamed the Plaintiff’s reputation as a police officer

by making false accusations against him. This pattern of defamation

contributed to the constructive discharge of the Plaintiff.” Id.

at 22 ¶ 82. Plaintiff must allege specific facts to support the

legal conclusions that litter his complaint relative to

defamation. See Iqbal, 556 U.S. at 678. Because he fails to do so,

the defamation claim is hereby dismissed.

h. Louisiana Whistleblower Claim

The Louisiana Whistleblower statute provides certain

protections to employees who disclose or threaten to disclose an

employer's unlawful activity:

A. An employer shall not take reprisal against an

employee who in good faith, and after advising the

employer of the violation of law:

(1) Discloses or threatens to disclose a workplace act

or practice that is in violation of state law.

(2) Provides information to or testifies before any

public body conducting an investigation, hearing, or

inquiry into any violation of law.

(3) Objects to or refuses to participate in an employment

act or practice that is in violation of law.

La. R.S. § 23:967(A)(1–3). In Crowe v. Se. Cmty. Health Sys., the

court explained:

Louisiana courts state that the statute targets serious

employer conduct that violates the law. And it offers

protection only to those employees who face reprisals

from their employers based solely upon an

employee's knowledge of an illegal workplace practice

and his refusal to participate in the practice or

intention to report it. The plaintiff bears the burden

of proof in making a claim under the whistleblower

statute. Because Plaintiff has the burden of proof as to

this claim, Defendant need not negate the claim but, as

stated above, must show the Plaintiff lacks evidence

sufficient to enable it to survive a motion for directed

verdict at trial.

Crowe v. Se. Cmty. Health Sys., No. CIV.A. 10-2838, 2014 WL

1456352, at *6 (E.D. La. Apr. 15, 2014) (Duval, J.) (internal

quotes and citations omitted).

Louisiana courts have interpreted the statute as requiring

certain elements. See, e.g., Krielow v. R & H Supply, Inc., 123

So.3d 1235, 1239 (La.App. 3 Cir. 10/9/13); Hale v. Touro

Infirmary, 886 So.2d 1210, 1215 (La.App. 4 Cir. 11/3/04), writ

denied, 896 So.2d 1036 (La.3/24/05). While the Louisiana Supreme

Court has not directly addressed whether a plaintiff must prove an

actual violation of state law, the appellate courts have

consistently determined that the statute requires proof of an

actual violation. See, e.g., Accardo v. Louisiana Health Servs. &

Indem. Co., 943 So.2d 381, 383 (La.App. 1 Cir. 6/21/06); Hale v.

Touro Infirmary, 886 So.2d 1210 (La.App. 4 Cir. 11/3/04), writ

denied, 896 So.2d 1036 (La.3/24/05); Goldsby v. State, Dep't of

Corr., 861 So.2d 236 (La.App. 1 Cir. 11/7/03), writ denied, 0328

870 So.2d 271 (La.4/8/04), and writ denied, 870 So.2d 271

(La.4/8/04). Therefore, as part of the plaintiff's prima facie

case, “the plaintiff must prove an actual violation of a state

law, not just a good faith belief that a law was broken.” Mabry v.

Andrus, 34 So.3d 1075, 1081 (La.App. 2 Cir. 4/14/10), writ

denied, 45 So.3d 1079 (La.9/24/10) (citations omitted). “Moreover,

the employee must first ‘advis[e] the employer of the violation of

law’ before the statutory remedies take effect.” Id. (citation

omitted); see Fondren, 871 So.2d at 691.

Accordingly, plaintiff must prove that: (1) HPD violated the

law through a prohibited workplace act or practice; (2) Plaintiff

advised HPD of the practice; (3) Plaintiff then refused to

participate in the prohibited practice or threatened to disclose

the practice; and (4) Plaintiff was fired as a result of his

refusal to participate in or threat to disclose the

practice. See Hale, 886 So.2d at 1216.

Plaintiff alleges (1) that the HPD mishandled evidence and

HPD property, falsified reports, and implemented a quota system;

(2) that in a meeting on March 18, 2019 Plaintiff advised Chief

Walker and Asst. Chief Moody of the quota system and other

violations; (3) that Plaintiff told Chief Walker and Asst. Chief

Moody he refused to participate in the illegal practices; and that

(4) Plaintiff was constructively discharged from HPD as reprisal

for these actions. Rec. Doc. 17 at 31. Plaintiff also alleges he

reported the practices to a special agent of the FBI on March 20,

2019. Rec. Doc. 11 at 10 ¶ 34. As further support of his claim, he

alleges that during the March 18, 2019 meeting, Chief Walker told

plaintiff that he “did not need him working as a Sergeant if he

could not make his officers write tickets.” Id.

Viewing the facts and drawing all inferences in the light

most favorable to plaintiff, the complaint has raised a plausible

claim pursuant to the Louisiana Whistleblower statute.

i. Respondeat Superior

Lastly, we will address whether it is proper to apply the

doctrine of respondeat superior to plaintiff’s claims. As noted by

the defendants, the Supreme Court stated in Monell:

. . .the language of § 1983, read against the background

of the same legislative history, compels the conclusion

that Congress did not intend municipalities to be held

liable unless action pursuant to official municipal

policy of some nature caused a constitutional tort. In

particular, we conclude that a municipality cannot be

held liable solely because it employs a tortfeasor – or,

in other words, a municipality cannot be held liable

under § 1983 on a respondeat superior theory.

Monell, 436 at 691. Defendant states and plaintiff concedes that

the plaintiff may not apply the theory of respondeat superior to

his claims under § 1983, but they dispute whether it may be applied

to his state claims. Rec. Doc. 14-1 at 24; Rec. Doc. 17 at 33.

Defendants rely on the Louisiana Fifth Circuit Court of

Appeal’s decision in Stein, wherein the plaintiff-patient sought

to have the court apply respondeat superior against the City of

Gretna for failure to train its EMTs employees. Stein v. City of

Gretna, 17-554 (La. App. 5 Cir. 5/30/18), 250 So.3d 330. The court

declined to apply the doctrine in that case because the plaintiff

failed to prove that the city was required to train or supervise

its employees on the use of seatbelts by EMTs. Id. at 337.

Defendants assert that the theory should likewise not be

applied in the present case because there is no fault of the

individual defendants that can be imputed to the City of Harahan.

Rec. Doc. 14-1 at 24. However, as stated above, plaintiff has set

forth factual allegations under Louisiana law that would permit

applying respondeat superior to those respective state claims.

Therefore, defendants’ argument that respondeat superior is

inapplicable to instant claims under state law fails. Subject to

further review after discovery, summary judgment motion, or at

trial, dismissal at this stage is premature to consider under

Federal Rule of Civil Procedure 12(b).

New Orleans, Louisiana this 18th day of March 2021

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE