Velazquez v. Westwego City

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TATIANA MARIE VELAZQUEZ CIVIL ACTION

VERSUS No. 20-2332

CITY OF WESTWEGO, ET AL. SECTION I

ORDER & REASONS

Plaintiff Tatiana Marie Velazquez (“Velazquez”) was arrested at the Office of

Motor Vehicles in Westwego, Louisiana for possessing a fraudulent passport, after

the U.S. Passport Verification System (“USPVS”) returned a “No Match” result on

her valid U.S. passport. On August 21, 2020, Velazquez sued the following

defendants: the City of Westwego (the “City”), Dwayne J. Munch, Sr. in his official

capacity (“Chief Munch”), and Kyle Flettrich in his individual and official capacities

(“Flettrich” and, together with Chief Munch and the City, the “City Defendants”), as

well as the State of Louisiana via the Department of Public Safety and Corrections,

Public Safety Services, Office of Motor Vehicles (the “OMV”), Amanda Cailleteau in

her individual and official capacities (“Cailleteau”), and Britney Young in her

individual and official capacities (“Young” and, together with the OMV and

Cailleteau, the “State Defendants”). Velazquez asserts a number of claims pursuant

to 42 U.S.C. § 1983, as well as Louisiana state law.

Each set of defendants has filed a motion to dismiss,1 arguing that Velazquez’s

allegations are insufficient to state a claim for relief and should be dismissed

pursuant to Federal Rule of Civil Procedure 12(b)(6).2 The State Defendants have

also moved to dismiss Velazquez’s claims pursuant to Federal Rule of Civil Procedure

12(b)(1), arguing that sovereign immunity bars Velazquez from securing a judgment

against the OMV and its employees (in their official capacities).3 For the reasons that

follow, the motions are granted.4

I.

Velazquez was born and spent most of her life in Puerto Rico.5 On or about

August 22, 2019, she visited the OMV’s Westwego office to obtain a Louisiana driver’s

license.6 She presented her U.S. passport, social security card, a copy of her Puerto

Rican driver’s license, and other Puerto Rican identification documents to Cailleteau,

an OMV employee.7

Cailleteau attempted to verify the authenticity of Velazquez’s U.S. passport

through the USPVS, an online service provided by a non-governmental third-party

vendor, the American Association of Motor Vehicle Administrators (“AAMVA”).8 But

1 The earlier motions to dismiss filed by each set of defendants were dismissed

without prejudice to allow Velazquez to amend her complaint. R. Doc. No. 34; see R.

Doc. No. 33.

2 The individual defendants also argue that the claims against them are barred by

qualified immunity. R. Doc. No. 35, at 9–11; R. Doc. No. 39, at 10–18.

3 R. Doc. No. 39, at 6–9.

4 For the purposes of the instant motions, the Court accepts Velazquez’s factual

allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

5 R. Doc. No. 33, at 1 ¶ 1.

6 Id. at 4 ¶ 4.

7 Id.

8 Id. at 4 ¶ 5.

when Cailleteau entered the passport number into the system, she received a “No

Match” response.9

Critically, while a “No Match” response means that a passport cannot be

verified using the system, it does not indicate that the passport is fraudulent.10

AAMVA policies and procedures do not provide that law enforcement should be called

in response to a “No Match” result.11 Moreover, OMV’s own policy for passport

verification, Section 1, Number 6.05, provides only that when the system returns a

“No Match” result, “the [proffered] passport cannot be accepted as an identification

document and the customer must submit other identification documents.”12

Cailleteau then phoned her supervisor, Young, at OMV headquarters in Baton

Rouge; Young immediately attempted to verify the passport using the same system.13

Young confirmed the “No Match” result and (incorrectly, as it turns out) advised

Cailleteau that the passport was “fraudulent.”14 Velazquez alleges that Young “chose

not to instruct Cailleteau to request another form of identification . . . [and instead]

chose to advise Cailleteau to call the police . . . and press charges” against her.15

9 Id. at 5 ¶ 5.

10 Id. at 5 ¶ 7.

11 Id.

12 Id.

13 Id. at 5 ¶ 5.

14 Id.

15 Id. at 8 ¶ 17. The Court accepts Velazquez’s allegation regarding Young’s advice

as true. But her allegation regarding Young’s willfulness is conclusory and

unsupported by any further allegations. The Court need not credit such allegations.

See Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).

Cailleteau then called the Westwego Police Department and reported that

Velazquez had attempted to obtain a Louisiana driver’s license by submitting a

fraudulent passport as a means of identification.16 The Westwego Police Department

dispatched Officer Flettrich to investigate.17 Flettrich did not conduct an

independent investigation into the passport, instead relying solely on Cailleteau’s

report.18 After Flettrich interviewed Cailleteau, he arrested Velazquez for violating

La. Rev. Stat. § 14:70.7, “Possession of Fraudulent Documents,” at which point she

was transported to the Jefferson Parish Prison and charged with the crime.19

But the charge did not stick; the District Attorney for Jefferson Parish

dismissed it in late May 2020.20 By that time, though, the damage was done—

Velazquez had already paid bail and incurred attorney’s fees,21 and allegedly suffered

“mental anguish, emotional distress, damage to her reputation, and financial

hardship.”22

Velazquez brings four claims pursuant to 42 U.S.C. § 1983. First, she alleges

that the defendants deprived her of her right to be free from unreasonable seizures,

false arrests, and excessive force under the Fourth and Fourteenth Amendments.23

Specifically, she alleges that Cailleteau, acting under color of state law, falsely

16 R. Doc. No. 33, at 5 ¶ 8.

17 Id.

18 Id. at 5–6 ¶ 9. Velazquez suggests Flettrich could have independently checked the

passport—or asked Velazquez to explain herself. Id.

19 Id. at 6 ¶ 9.

20 Id. at 6 ¶ 12.

21 Id. at 6 ¶ 11.

22 Id. at 8 ¶ 18.

23 Id. at 9 ¶ 20.

reported the crime and that Young either directed Cailleteau to do so or, in the

alternative, approved or condoned of Cailleteau’s choice to falsely report the crime.24

Furthermore, she alleges that Flettrich lacked probable cause to arrest her because

he was presented with her facially valid passport.25

Second, Velazquez alleges that Flettrich, Cailleteau, and Young, acting in their

individual capacities, deprived her of her right to due process and her right to be free

from unreasonable seizures and false arrests under the Fourth, Fifth, and Fourteenth

Amendments.26 The Court hoped that granting Velazquez leave to amend would

yield a more coherent complaint. But, unfortunately, this claim is virtually identical

to Velazquez’s first claim, apart from the reference to the Fifth Amendment and an

added allegation that, while Cailleteau and Young did not place her under arrest,

they are still liable under the Fourth Amendment because they utilized their

positions under color of state law to falsely report criminal activity and press charges

against her.27

Velazquez also brings an equal protection claim under the Fourteenth

Amendment against all named defendants, alleging that she was arrested based

“solely and exclusively upon [her] status and characteristics as a Puerto Rican.”28

And, finally, she claims that the City and Chief Munch (as a policymaker of the

24 Id. at 10 ¶¶ 24–25.

25 Id. at 12 ¶ 35.

26 Id. at 12–13 ¶¶ 39, 41.

27 Id. at 13 ¶ 42.

28 Id. at 16 ¶ 56.

Westwego Police Department) are liable for Flettrich’s conduct, under § 1983 and

Monell.29

In addition to the constitutional claims, Velazquez brings a Louisiana state

law claim for malicious prosecution against all defendants.30

II.

“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.” Ramming v. United States, 281 F.3d 158, 161

(5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)).

“Under Rule 12(b)(1), a claim is ‘properly dismissed for lack of subject-matter

jurisdiction when the court lacks the statutory or constitutional power to adjudicate’

the claim.” Sureshot Golf Ventures, Inc. v. Topgolf Int’l, Inc., 754 F. App’x 235, 239

(5th Cir. 2018) (quoting In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 668

F.3d 281, 286 (5th Cir. 2012)).

When ruling on a Rule 12(b)(1) motion, a court may dismiss an action for lack

of subject matter jurisdiction “on any one of three separate bases: (1) the complaint

alone; (2) the complaint supplemented by undisputed facts evidenced in the record;

29 Id. at 17–20 ¶¶ 64–67.

30 Id. at 16 ¶ 58. The Court notes that Velazquez’s amended complaint includes a

“Prayer for Relief” seeking, among other things, attorney’s fees, punitive damages, a

declaratory judgment, and injunctive relief. Id. at 15 ¶ 49; id. at 20–21. Velazquez

does not explain which claims support which relief and does not explain what such

relief would look like. Nor has she offered any argument in response to the motions

to dismiss that any non-monetary relief she is seeking should be construed as an

independent claim. Therefore, any such claims are not properly before the Court.

or (3) the complaint supplemented by undisputed facts plus the court’s resolution of

disputed facts.” Spotts v. United States, 613 F.3d 559, 565–66 (5th Cir. 2010) (quoting

St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307,

315 (5th Cir. 2009)). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on

the party asserting jurisdiction.” Ramming, 281 F.3d at 161.

Velazquez has sued the State of Louisiana through the OMV, a division of the

Department of Public Safety and Corrections, Public Safety Services.31 The OMV

asserts that it is entitled to sovereign immunity pursuant to the Eleventh

Amendment of the United States Constitution.32

“The Eleventh Amendment grants a State immunity from suit in federal court

by citizens of other States, and by its own citizens as well.” Union Pac. R.R. Co. v.

La. Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011) (quoting Lapides v. Bd. of

Regents, 535 U.S. 613, 616 (2002)). Absent exceptions not relevant here, then,

sovereign immunity generally bars a federal court from exercising jurisdiction over a

suit against a non-consenting state. See id.33

That sovereign immunity “extends to any state agency or entity deemed an

‘alter ego’ or ‘arm’ of the state.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318,

326 (5th Cir. 2002) (citing Vogt v. Bd. of Comm’rs, 294 F.3d 684, 688–89 (5th Cir.

31 Id. at 3 ¶ 1(d).

32 R. Doc. No. 39-1, at 6.

33 Velazquez does not argue that Louisiana has consented to suit. See R. Doc. No. 45,

at 5–8. Nor does she argue that she is seeking injunctive relief that might be

addressed by Ex Parte Young, 209 U.S. 123 (1908).

2002)). To determine whether an agency is an arm of the state, courts in the Fifth

Circuit employ a six-factor test, which examines:

(1) whether state statutes and case law view the entity as an arm of the

state; (2) the source of the entity’s funding; (3) the entity’s degree of local

autonomy; (4) whether the entity is concerned primarily with local, as

opposed to statewide, problems; (5) whether the entity has the authority

to sue and be sued in its own name; and (6) whether the entity has the

right to hold and use property.

Id. at 326–27. “An entity need not show that all of the factors are satisfied; the factors

simply provide guidelines for courts to balance the equities and determine if the suit

is really one against the state itself.” Id. at 327 (citing Hudson v. City of New Orleans,

174 F.3d 677, 682 (5th Cir. 1999)). Notably, the Fifth Circuit has held that “[the

Department of Public Safety and Corrections], as a Louisiana executive department,

and [the] OMV, as a division within that department, are entitled to the Eleventh

Amendment’s protection.” Hanna v. LeBlanc, 716 F. App’x 265, 268 (5th Cir. 2017)

(applying the factors and citing Fifth Circuit precedent).

Velazquez argues that the OMV (1) can sue and be sued; (2) can hold

property;34 and (3) has accepted federal grants to comply with the requirements of

the federal Real ID Act, rendering it, in part, funded by the federal government.35

She argues that these factors militate against a finding that immunity applies.36

While the Court is not required to accept the factual underpinnings of

Velazquez’s argument,37 it will do so arguendo. The Fifth Circuit has already

34 R. Doc. No. 45, at 6 (citing La. Rev. Stat. § 36.401(A)–(B)).

35 Id.

36 Id.

37 Because sovereign immunity was raised in the defendants’ Rule 12(b)(1) motion.

concluded that the DPSC and OMV are entitled to sovereign immunity. And even if

the acceptance of Real ID Act funds post-dates the Fifth Circuit’s last expression of

this conclusion (in 2017), that is not enough. Velazquez has not offered enough

evidence to convince the Court to break with precedent. She does not argue, for

example, that the federal government (rather than the State of Louisiana) would be

responsible for any judgment issued in this case. And just how much of the OMV’s

funding comes from the federal government? Velazquez does not say. The burden

here is Velazquez’s, see Ramming, 281 F.3d at 161—and she has not carried it.

The Court concludes that the OMV is still entitled to sovereign immunity. This

immunity extends to OMV personnel sued in their official capacity. See Hafer v. Melo,

502 U.S. 21, 25 (1992) (“Suits against state officials in their official capacity . . . should

be treated as suits against the State.”). Accordingly, the claims against the State of

Louisiana via the OMV and Defendants Cailleteau and Young in their official

capacities are dismissed.

III.

A. Rule 12(b)(6) Standard

A complaint must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). Under Rule 12(b)(6),

a district court may dismiss a complaint, or any part of it, when the plaintiff fails to

set forth well-pleaded factual allegations that would entitle him or her to relief.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Sullivan, 503

F.3d 397, 401 (5th Cir. 2007).

To survive a Rule 12(b)(6) motion, a complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)). A

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.

Consequently, a plaintiff need not allege detailed factual allegations but must raise

a right to relief beyond mere speculation. Id.

A court reviews the complaint in the light most favorable to the plaintiff.

Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010). However, courts “do not accept

as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”

Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citing Southland Sec. Corp.

v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)). Furthermore, a

court should not look beyond the pleadings to determine whether relief should be

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

B. Qualified Immunity Standard

The doctrine of qualified immunity “balances two important interests—the

need to hold public officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).

Qualified immunity shields government officials from civil liability so long as

“their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); see also Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“Qualified

immunity gives government officials breathing room to make reasonable but

mistaken judgments about open legal questions.”). This protection applies

“regardless of whether the government official’s error is ‘a mistake of law, a mistake

of fact, or a mistake based on mixed questions of law and fact.’” Pearson, 555 U.S. at

231 (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)).

Once the qualified immunity defense is raised, the plaintiff bears the burden

of proving the defendants are not entitled to qualified immunity. Shaw v. Villanueva,

918 F.3d 414, 416-17 (5th Cir. 2019). “[A] plaintiff seeking to overcome qualified

immunity must plead specific facts that both allow the court to draw the reasonable

inference that the defendant is liable for the harm he has alleged and that defeat a

qualified immunity defense with equal specificity.” Backe v. LeBlanc, 691 F.3d 645,

648 (5th Cir. 2012).

The plaintiff “must show: ‘(1) that the official violated a statutory or

constitutional right, and (2) that the right was “clearly established” at the time of the

challenged conduct.’” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)

(quoting al-Kidd, 563 U.S. at 735). A court may address these prongs in whichever

order it sees fit. Id. (citing Pearson, 555 U.S. at 236). Each defendant’s actions must

be considered individually, even if they act in unison. Meadours v. Ermel, 483 F.3d

417, 421–22 (5th Cir. 2007).

At the Rule 12(b)(6) stage, then, the first prong of the qualified immunity

analysis requires the Court—viewing the facts in the light most favorable to the

plaintiff—to determine whether the plaintiff has alleged a violation of her

constitutional or statutory rights. See Trevino v. Hinz, 751 F. App’x 551, 553 (5th

Cir. 2018).

“When deciding whether the right allegedly violated was ‘clearly established,’

[a] court asks whether the law so clearly and unambiguously prohibited the conduct

that every reasonable official would understand that what he is doing violates the

law.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013) (emphasis in original); see

also Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015) (“A government official’s

acts are not objectively unreasonable unless all reasonable officials in the defendant’s

circumstances would have then known that the defendant’s conduct violated the

plaintiff’s rights.”). In other words, precedent existing at the time of the challenged

conduct “must have placed the statutory or constitutional question beyond

debate.” al-Kidd, 563 U.S. at 741.

C. Section 1983

“Section 1983 provides a private right of action against parties acting ‘under

color of any statute, ordinance, regulation, custom, or usage, of any State’ to redress

the deprivation of rights secured by the United States Constitution or federal law.”

Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003) (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 121 (1988)). “Section 1983 ‘is not itself a source of

substantive rights,’ but merely provides ‘a method for vindicating federal rights

elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979)). To recover under § 1983, a plaintiff must

allege (1) the deprivation of a federally protected right, and (2) “that the deprivation

was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988).

While municipalities can be liable under § 1983, they are not liable under a

respondeat superior theory. Webb v. Town of Saint Joseph, 925 F.3d 209, 214 (5th

Cir. 2019) (citing Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir. 2017)).

Instead, “the unconstitutional conduct must be directly attributable to the

municipality through some sort of official action or imprimatur; isolated

unconstitutional actions by municipal employees will almost never trigger liability.”

Id. (quoting Piotrowski, 237 F.3d at 578). Therefore, “[m]unicipal liability under

§ 1983 requires proof of 1) a policymaker; 2) an official policy; 3) and a violation of

constitutional rights whose ‘moving force’ is the policy or custom.” Rivera v. Houston

Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (quoting Piotrowski, 237 F.3d at

578).

IV.

As a preliminary matter, the claims against Chief Munch and Flettrich in their

official capacities must be dismissed as duplicative of the same claims made against

the City because “[a] claim against an officer in his official capacity is treated as a

claim against the municipality.”38 Jordan v. Brumfield, 687 F. App’x 408, 415 (5th

Cir. 2017) (citing Brooks v. George Cnty., 84 F.3d 157, 165 (5th Cir. 1996)).

38 Velazquez sued Chief Munch only in his official capacity, so all federal claims

against him are dismissed. R. Doc. No. 33, at 2 ¶ 1. The Court notes that the City

Defendants raised this argument in both their first and second motions to dismiss;

A. Constitutional Claims

Velazquez’s remaining constitutional claims are against the City of

Westwego39 and against Flettrich, Cailleteau, and Young in their individual

capacities for violating: (1) her right not to suffer excessive force under the Fourth

and Fourteenth Amendments; (2) her right to due process afforded by the Fifth

Amendment; (3) her right to equal protection under the Fourteenth Amendment; and

(4) her right to protection from unreasonable seizures and false arrest under the

Fourth and Fourteenth Amendments.

1. Fourth Amendment Excessive Force

To bring a Fourth Amendment excessive force claim under § 1983, Velazquez

must show that, when she was seized, “she suffered (1) an injury that (2) resulted

directly and only from the use of force that was excessive to the need and (3) that the

force used was objectively unreasonable.” Flores v. City of Palacios, 381 F.3d 391,

396 (5th Cir. 2004). While there is no requirement “that [a plaintiff’s] injury be

significant, serious, or more than minor,” they must allege to have suffered “more

than de minimis physical injury.” Benoit v. Bordelon, 596 F. App’x 264, 269 (5th Cir.

2015); see Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999) (quoting Jackson v.

R.E. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993)).

Velazquez did not respond. R. Doc. No. 13, at 16–17; R. Doc. No. 35, at 17–18. The

Court warned Velazquez that such a failure might be taken as a lack of opposition.

R. Doc. No. 34, at 1 n.3. The Court therefore takes her non-response to indicate a

lack of opposition.

39 Velazquez brings claims against the City of Westwego under Monell v. Dep’t Soc.

Serv., 436 U.S. 658 (1978); see R. Doc. No. 33, at 17–20 ¶¶ 63–67.

Despite amending her complaint, Velazquez has failed to allege anything from

which a reasonable inference could be drawn that the defendants used excessive

force.40 Most notably, Velazquez does not allege that, when arrested, she suffered

any type of injury—a requirement of an excessive force claim. See Bramer, 180 F.3d

at 703. Further, Velazquez does not allege that any force was used to arrest her.

Velazquez offers only a conclusory statement that the conduct of the defendants

violated her right to be free from excessive force under the Fourth and Fourteenth

Amendments.41 Such allegations are not enough to survive a 12(b)(6) motion to

dismiss. See Plotkin, 407 F.3d at 696. Accordingly, the excessive force claim will be

dismissed.

2. Fifth Amendment Due Process

Velazquez also appears to assert a Fifth Amendment due process claim against

Flettrich, Cailleteau, and Young in their individual capacities.42 However, the due

process clause of the Fifth Amendment applies only to actions of the federal

government. See Arnold v. Williams, 979 F.3d 262, 270 (5th Cir. 2020) (holding that

the plaintiff failed to state a claim under the Fifth Amendment due process clause

because the defendant “was an officer of the state of Louisiana rather than of the

federal government”); id. at 265 n.2 (“The district court correctly observed that only

40 And her opposition failed to respond to the defendants’ arguments on this point.

See R. Doc. No. 41; R. Doc. No. 45; see also R. Doc. No. 34, at 1 n.3 (noting that such

a failure might lead the Court to treat the defendants’ motion as unopposed).

41 See R. Doc. No. 33, at 9 ¶ 20.

42 R. Doc. No. 33, at 12–13 ¶ 39. She did not, however, attempt to defend the claim

in her opposition to the instant motions. See R. Doc. No. 41; R. Doc. No. 45.

the Fourteenth Amendment’s Due Process Clause, and not the Fifth Amendment's,

applies to state law enforcement officers[.]”); Morin v. Caire, 77 F.3d 116, 120 (5th

Cir. 1996) (noting that the Fifth Amendment does not apply “to the actions of a

municipal government”).

Velazquez’s Fifth Amendment claim fails because the officers and actors

involved were employees of the State of Louisiana and the City. These claims will

therefore be dismissed.

3. Fourteenth Amendment Equal Protection

Next, Velazquez alleges that the actions of Flettrich, Cailleteau, and Young

were carried out based upon her characteristics and status as a Puerto Rican and/or

because she spoke with a heavy Spanish accent, which amounts to a violation of her

right to equal protection under the Fourteenth Amendment.43

“The Equal Protection Clause of the Fourteenth Amendment commands that

no State shall ‘deny to any person within its jurisdiction the equal protection of the

laws,’ which is essentially a direction that all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985) (quoting Plyler v. Doe, 457 U.S. 202, 212 (1982)). “[A] violation of equal

protection occurs only when the government treats someone differently than others

similarly situated; if the challenged government action does not appear to classify or

distinguish between two or more relevant groups, then the action—even if

43 R. Doc. No. 33, at 15–16 ¶¶ 53–54, 56. In her opposition to the City Defendants’

motion to dismiss, Velazquez clarified that her position is that she “was treated

differently than others because of her nationality/ethnicity.” R. Doc. No. 45, at 12.

irrational—does not deny them equal protection of the laws.” Brennan v. Stewart,

834 F.2d 1248, 1257 (5th Cir. 1988).

To assert an equal protection claim on the basis of membership in a protected

class, Velazquez must allege that “a state actor intentionally discriminated against

[her] because of [her] membership in a protected class.”44 Gibson v. Tex. Dep’t of Ins.,

700 F.3d 227, 238 (5th Cir. 2012) (quoting Bramer, 180 F.3d at 705). Classifications

based on race or national origin “are subjected to strict scrutiny and will be sustained

only if they are suitably tailored to serve a compelling state interest.” Cleburne

Living Ctr., 473 U.S. at 440.

According to the amended complaint, Velazquez is from Puerto Rico and speaks

English with a heavy Spanish accent.45 These characteristics, she explains, were the

reason that Cailleteau and Young “instituted criminal charges” against her46 and the

sole reason that she was arrested by Flettrich47—though her amended complaint

offers no evidence in support of the assertion. In her opposition to the State

Defendants’ motion, Velazquez argues that she “is aware of at least one other Puerto

Rican who was also arrested, and later had the charges dismissed, after presenting a

valid U.S. passport in an effort to obtain a Louisiana driver’s license.”48

44 Velazquez does not appear to be pursuing a claim that she was “intentionally

treated differently from others similarly situated and that there is no rational basis

for the difference in treatment,” as she offers no allegations that anyone else was

treated differently. Gibson, 700 F.3d at 238.

45 R. Doc. No. 33, at 15 ¶ 53.

46 Id.

47 Id. at 16 ¶ 56.

48 Id. (citing Rivera-Colon v. Parish of St. Bernard, No. 20-1101, 2021 WL 354432, at

*1, *3 (E.D. La. Feb. 2, 2021) (Barbier, J.)) (finding that the facts suggested there was

Both sets of defendants argue that Velazquez’s allegations that their conduct

was motivated by her Spanish accent and her Puerto Rican citizenship are merely

conclusory and, therefore, insufficient to state a claim.49 And the State Defendants

add that Velazquez’s assertion in her opposition regarding a similar case is not

properly before the Court, as it is not included in the original or amended complaint.50

Velazquez’s claim fails because her allegations that the defendants’ actions

constituted intentional discrimination are entirely conclusory.51 See Fennell v.

Marion Indep. Sch. Dist., 804 F.3d 398, 412 (“Allegations [of discriminatory intent]

that are merely conclusory, without reference to specific facts, will not suffice.”)

(alterations in original) (quoting Priester v. Lowndes Cty., 354 F.3d 414, 420 (5th Cir.

2004)); Jabary v. City of Allen, 547 F. App’x 600, 605 (5th Cir. 2013) (holding that the

plaintiff’s allegations that the defendants undertook their wrongful activities because

of his membership in certain protected classes were inadequate because “he fail[ed]

to elaborate on the causal connection between his alleged mistreatment and his

membership in those protected classes”).

Velazquez did not include her statement regarding the OMV’s treatment of

another Puerto Rican in her initial complaint. The Court granted her leave to amend

probable cause to arrest the plaintiff after he presented a New York driver’s license

along with a Puerto Rican identification card to obtain a Louisiana driver’s license,

but the OMV employee erroneously entered the number of the identification card to

verify the license instead of the license number and the verification system

determined it was fraudulent).

49 R. Doc. No. 39-1, at 16–17; R. Doc. No. 35-1, at 14–15.

50 R. Doc. No. 54, at 1–2.

51 See R. Doc. No. 33, at 15–16 ¶¶ 50–56.

the complaint, and she did, but still failed to make any such allegation. The Court

suspects the omission of the statement from the complaints was intentional, as

Velazquez effectively acknowledges that her pleadings as to this claim are

insufficient, arguing instead that discovery will turn up evidence to support the

claim—without offering the Court any hint as to what that evidence might be.52

Velazquez had the opportunity—twice—to make sufficient allegations to defeat a

motion to dismiss and reach discovery. She did not do so. In these circumstances,

the Court will not consider such a statement, made for the first time in opposition to

a motion.53 See Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir.

2019) (“In determining whether a plaintiff’s claims survive a Rule 12(b)(6) motion to

dismiss, the factual information to which the court addresses its inquiry is limited to

the (1) the facts set forth in the complaint, (2) documents attached to the complaint,

and (3) matters of which judicial notice may be taken under Federal Rule of Evidence

201.”); cf. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (“not[ing]

approvingly” the practice of considering documents attached to a motion to dismiss

“if they are referred to in the plaintiff’s complaint and are central to her claim”

52 R. Doc. No. 45, at 12 (“Based upon her experience and that of the plaintiff in the

other lawsuit, Velazquez believes that the evidence will show that she was treated

differently than non-Puerto Ricans who present a U.S. Passport that receives a ‘No

Match’ response. However, the support for this belief can only be obtained through

discovery.”).

53 The Court does not intend to suggest that, were this assertion included in the

amended complaint, Velazquez’s claim would survive. Indeed, the Court suspects

otherwise; “[a]lthough [Velazquez’s statement is] consistent with an equal protection

claim, [it] fail[s] to ‘nudge [her] claim of purposeful discrimination across the line

from conceivable to plausible.’” Jabary, 547 F. App’x at 605 (quoting Iqbal, 556 U.S.

at 683)).

(quotation omitted)). Accordingly, Velazquez’s equal protection claims will be

dismissed.

4. Fourth Amendment Unreasonable Seizure and False Arrest

Velazquez further alleges that Flettrich, Cailleteau, and Young violated her

right to be free from unreasonable seizure and false arrest under the Fourth

Amendment.54 She also argues that they are not entitled to qualified immunity

because they knew or should have known that she was not in violation of the law

because her passport was valid.55

The Fourth Amendment protects the right to be secure from unreasonable

seizures. U.S. Const. amend. IV. To state a claim under § 1983 for unreasonable

seizure, Velazquez must demonstrate that (1) she was seized within the meaning of

the Fourth Amendment and (2) such seizure was unreasonable. See Brower v. Cnty.

of Inyo, 489 U.S. 593, 599 (1989). It is undisputed that Velazquez, who was arrested,

was seized for purposes of the Fourth Amendment. See, e.g., United States v.

Brignoni-Ponce, 422 U.S. 873, 878 (1975). With regard to the reasonableness of her

arrest, “the general rule [is] that [such a] Fourth Amendment seizure[] [is] reasonable

only if based on probable cause.” Bailey v. United States, 568 U.S. 186, 192 (2013)

(internal quotations and citation omitted). And, if probable cause exists, the claim

fails. See Clark v. Thompson, No. 20-10568, 2021 WL 911293, at *6 (5th Cir. Mar. 9,

2021) (“The ‘constitutional torts’ of false arrest, unreasonable seizure, and false

54 Id. at 9 ¶ 20, 12 ¶ 39.

55 Id. at 7–8 ¶¶ 16–17, 12 ¶ 35.

imprisonment also require a showing of no probable cause.” (quoting Brown v. Lyford,

243 F.3d 185, 189 (5th Cir. 2001)) (emphasis in original)).

Similarly, to prevail on her false arrest claim, Velazquez “must sufficiently

allege (1) that [she] was arrested, and (2) the arrest did not have the requisite

probable cause.” Rhodes v. Prince, 360 F. App’x 555, 558 (5th Cir. 2010) (citing

Haggerty v. Tex. S. Univ., 391 F.3d 653, 655–56 (5th Cir. 2004)). Accordingly, to

establish a constitutional violation of her Fourth Amendment right to be free from

false arrest and from unreasonable seizure, she must show that there was no probable

cause to arrest her. See Haggerty, 391 F.3d at 655–56. If her arrest was supported

by probable cause, her claims under the Fourth Amendment fail before the

defendants’ qualified immunity defense ever rears its head—though the existence of

probable cause also entitles the defendants to qualified immunity. See id.; Marks v.

Hudson, 933 F.3d 481, 483 (5th Cir. 2019).

“Probable cause exists when the totality of facts and circumstances within a

police officer’s knowledge at the moment of arrest are sufficient for a reasonable

person to conclude that the suspect had committed or was committing an offense.”

United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996). The belief that an offense

was committed need not “be correct or more likely true than false.” Piazza v. Mayne,

217 F.3d 239, 246 (5th Cir. 2000). Rather, the probable cause analysis requires only

that the officer believed “to a fair probability that a violation occurred.” Id. (internal

quotations omitted). In deciding whether probable cause exists, police officers are

not required to be perfect, nor must they “err on the side of caution out of the fear of

being sued.” Martin v. Thomas, 973 F.2d 449, 453 (5th Cir. 1992); see also Nerio v.

Evans, 974 F.3d 571, 576 (5th Cir. 2020) (noting in the context of a mistaken identity

case that the Supreme Court has stated “the ‘Constitution does not guarantee that

only the guilty will be arrested’ nor does it require officials ‘to perform an error-free

investigation’” (quoting Baker v. McCollan, 443 U.S. 137, 145–46 (1979))).

Furthermore, “[w]hether the crime actually occurred or whether a suspect is

eventually convicted is irrelevant to the probable cause analysis.” Morris v. Dillard

Dep’t Stores, Inc., 277 F.3d 743, 754 n.10 (5th Cir. 2001); see also Deville v. Marcantel,

567 F.3d 156, 165 (5th Cir. 2009) (“[E]vidence that the arrestee was innocent of the

crime is not necessarily dispositive of whether the officer had probable cause to

conduct the arrest[.]”).

The Fifth Circuit has consistently recognized that officers may have probable

cause to make an arrest when they reasonably rely solely on first-hand information

from third parties who have specialized knowledge regarding the alleged criminal

conduct. See United States v. Hernandez, 825 F.2d 846, 849–50 (5th Cir. 1987);56

United States v. Maryland, 479 F.2d 566, 569 (5th Cir. 1973) (finding probable cause

for an arrest where a liquor store clerk conveyed to police that he had received

counterfeit bills and described the individuals who he believed were responsible);

United States v. Lowery, 436 F.2d 1171, 1173–74 (5th Cir. 1970) (finding probable

56 In Hernandez, the Fifth Circuit found probable cause for an arrest where a carnival

vendor identified individuals to the police who had attempted to pass him a

counterfeit bill. 825 F.2d at 849. The Court noted that it was known to the police

that the carnival vendor “necessarily dealt with currency.” Id. at 850.

cause for an arrest where a hotel manager told police that an individual possessed a

fraudulent credit card after the manager called the company issuing the card and

was informed the card had been reported as stolen).

Velazquez was charged with violating La. Rev. Stat. § 14:70.7. That statute

makes it “unlawful for any person to knowingly or intentionally produce,

manufacture, distribute, or possess fraudulent documents for identification

purposes.” La. Rev. Stat. § 14:70.7(A) (emphasis added). “Fraudulent documents”

are defined under the statute as documents “presented as being bona fide documents

which provide personal identification information[,] but which are, in fact, false,

forged, altered, or counterfeit.” La. Rev. Stat. § 14:70.7(B)(2). The provision explicitly

covers passports. La. Rev. Stat. § 14:70.7(B)(3)(m).

i. Velazquez has Failed to State a Claim for Relief Under the Fourth Amendment

Against Flettrich.

In alleging that Flettrich lacked probable cause to arrest her, Velazquez argues

that Flettrich performed an inadequate investigation by failing to do anything beyond

“simply interviewing Cailleteau.”57 Velazquez makes no argument that probable

cause was lacking to arrest her based on the language of the criminal statute she was

charged with violating. Instead, in her opposition, she suggests that Flettrich’s

investigation was inadequate because he did not make any inquiry into the

significance of the “No Match” result nor did he contact the U.S. State Department or

the local field office of the Diplomatic Security Service to determine if the passport

57 R. Doc. No. 33, at 7 ¶ 15.

was legitimate.58 Velazquez also argues, without support, that because the District

Attorney dismissed the charge against her, there is a “presumption of [a] lack of

probable cause.”59

Flettrich argues that probable cause existed to detain Velazquez for possession

of fraudulent documents because he interviewed and spoke with Cailleteau, an

employee of the OMV, which is “a State department that routinely verifies forms of

identification when issuing driver’s licenses.”60 In response, Velazquez argues that

Flettrich was not presented with an obviously fraudulent document that supported

the eyewitness account; instead, he was presented with a facially, and factually, valid

passport accompanied by additional documentation establishing Velazquez’s

identity.61 Still, he chose not to conduct any investigation whatsoever.62

Velazquez also likens her case to Wheeler v. Cosden Oil & Chemical Co., 734

F.2d 254 (5th Cir. 1948).63 In Wheeler, the Fifth Circuit reversed the district court’s

dismissal of a false arrest claim, concluding that the plaintiffs stated a claim where

they alleged that they were arrested “based on information which the state knew to

be false” because a Railroad Commission agent had intentionally tampered with the

monitoring equipment that produced the evidence. Id. at 256, 260.64

58 R. Doc. No. 41, at 7.

59 R. Doc. No. 33, at 14 ¶ 44.

60 R. Doc. No. 35-1, at 9.

61 R. Doc. No. 41, at 7.

62 Id.

63 Id. at 7–8.

64 Id. (citing Wheeler, 734 F.2d at 260–61). Velazquez also directs the Court’s

attention to Barnes v. McQueen, No. 14-2636, 2016 WL 866710 (E.D. La. Mar. 7,

2016), a case in which a district court denied a motion to dismiss a claim for false

The Court has little difficulty concluding that probable cause existed. Based

on the facts alleged by Velazquez, Officer Flettrich reasonably relied on the OMV

employees’ report and the AAMVA search results to conclude that there was probable

cause to suspect that the passport was illegitimate. And—far from clearly

establishing that this was unconstitutional—Fifth Circuit precedent makes clear that

an officer is generally entitled to do this.

Flettrich—like the officers in Hernandez—interviewed and spoke with

Cailleteau, who necessarily deals with passports by virtue of her position at the OMV.

Additionally, the Court in Hernandez noted that the carnival vendor had “displayed

confidence” in his ability to recognize the bill as counterfeit when he immediately

rejected the bill and promptly notified the police. Id. Velazquez does not allege that

Young or Cailleteau communicated any uncertainty to Flettrich regarding the

validity of the passport. And, distinguishing this case from Wheeler, Velazquez does

not allege that the OMV employees tampered with the USPVS system to produce the

“No Match” result—or that Flettrich was aware of any such impropriety. At best,

Velazquez conclusorily alleges that the OMV employees “knew or should have known”

that a “No Match” result does not necessarily mean that a document is illegitimate,

and that they are not required to report such a result to the police.

arrest after a police officer allegedly battered and ordered the arrest of his wife’s ex-

husband, claiming he was violating a protective order by attempting to pick up his

children. McQueen is not precedential—and even if it were, the allegations are easily

distinguishable. Velazquez offers no non-conclusory allegations that Cailleteau or

Young had malicious intentions in filing their report. There is no substantive

allegation of any pre-existing relationship or racial animus. The case is inapposite.

Similarly, Velazquez’s focus on whether her passport was “obviously

fraudulent” misses the mark. It was the carnival vendor in Hernandez who conveyed

to the officers that the bill in question was an “obviously counterfeit twenty-dollar

bill.” Hernandez, 825 F.2d at 850. The officers relied on this statement and the

carnival vendor’s relevant expertise; the police themselves did not identify the bill as

“obviously fraudulent.” Id. Therefore, whether Flettrich was presented with a facially

legitimate passport is not the focus here; the key is that he relied on Cailleteau’s and

Young’s statements, as well as their expertise in assessing the legitimacy of

passports.

Velazquez’s possession of additional corroborating documents changes

nothing. First, the documents’ existence does not preclude the possibility that her

passport was fraudulent. Furthermore, an officer is not required to perform a perfect

investigation by eliminating all possible explanations of suspected criminal activity

to support a finding of probable cause. See McCollan, 443 U.S. at 145–46; Thomas,

973 F.2d at 453.

Velazquez’s argument that the District Attorney’s dismissal of her case creates

a presumption of probable cause is similarly misplaced. It is true that some Louisiana

courts have concluded that, under Louisiana law, when charges against a malicious

prosecution plaintiff are dropped, a presumption of no probable cause arises, shifting

the summary judgment burden on that point to defendants. See, e.g., Smith v. City

Bank & Trust Co., 271 So. 3d 263, 270 (La. Ct. App. 3d Cir. 2019).65 That may matter

for purposes of Velazquez’s state law malicious prosecution claim. But Velazquez

offers the Court no reason to think it is at all relevant to the qualified immunity

analysis—or to her federal claims generally.

Flettrich, reasonably relying on the OMV employees’ report, had probable

cause to “believe to a fair probability” that Velazquez possessed an illegitimate

passport. Piazza, 217 F.3d at 246. That the passport ultimately proved legitimate is

irrelevant to the determination. See id.; Morris, 277 F.3d at 754 n.10; Deville, 567

F.3d at 165. Although one might argue that officers presented with such a scenario

should dig a little deeper, the law does not require them to do so. See Martin, 973

F.2d at 453; Nerio, 974 F.3d at 576; see also Barfield v. Louisiana, 325 F. App’x 292,

296 (5th Cir. 2009) (noting that officers are not required to “perform a perfect

investigation that uncovers all readily available exculpatory evidence”).

Because Flettrich had probable cause, no constitutional violation occurred and

Velazquez’s claim against him fails. And, even if Flettrich did not have probable

cause, he would almost certainly still be entitled to qualified immunity. The Fifth

Circuit has made clear that law enforcement officials who reasonably but mistakenly

conclude that probable cause is present are entitled to immunity, as “[q]ualified

immunity gives ample room for mistaken judgments.” Mendenhall v. Riser, 213 F.3d

65 Though the Fifth Circuit and the Louisiana Supreme Court have observed that

“malicious-prosecution actions are ‘[n]ever favored in [Louisiana] law.’” James v.

Woods, 899 F.3d 404, 408–09 (5th Cir. 2018) (quoting Kennedy v. Sheriff of E. Baton

Rouge, 935 So. 2d 669, 690 n.20 (La. 2006)).

226, 230 (5th Cir. 2000). “[I]f a reasonable officer could have concluded that there

was probable cause upon the facts then available to him, qualified immunity will

apply.” McCoy v. Housing Auth. of New Orleans, 714 F. App’x 322, 326 (5th Cir. 2017)

(quoting Lyford, 243 F.3d at 190). The Court has already stated that it has little

difficulty concluding that probable cause existed. It finds it even easier to conclude

that a reasonable officer would think the same.

Because Velazquez has failed to state a claim for unreasonable seizure or false

arrest under the Fourth Amendment, her claim against Flettrich fails; Flettrich is

“entitled to qualified immunity.” Marks, 933 F.3d at 483.

ii. Velazquez has Failed to State a Claim for Relief Under the Fourth Amendment

Against Cailleteau and Young.

Next, Velazquez argues that Cailleteau and Young caused her false arrest by

“utiliz[ing] their positions under color of state law to falsely report criminal

activity.”66 But the Fifth Circuit has held that “causing charges to be filed without

probable cause will not[,] without more[,] violate the constitution.” Castellano v.

Fragozo, 352 F.3d 939, 953 (5th Cir. 2003).

Velazquez’s opposition argues that a violation occurred because Cailleteau and

Young failed to adhere to OMV policy.67 She adds that her argument is not that the

OMV defendants violated the Constitution by failing to “investigate further.”68

66 R. Doc. No. 33, at 13 ¶ 42.

67 R. Doc. No. 45, at 10.

68 Id. Moreover, the Fifth Circuit has repeatedly concluded that negligence cannot

support a claim under § 1983. See, e.g., Brown v. Wackenhut Corp., 8 F.3d 23, 23 (5th

Cir. 1993) (per curiam) (“Negligence does not support a claim under 42 U.S.C. §

1983.”).

Rather, her argument is that Cailleteau and Young “ignored clear OMV policy as well

as published information regarding the use of the USPVS.”69 She argues that the

OMV policy regarding a “No Match” response “calls for the rejection of the passport

as a means of identification,” but “does not call for a report of criminal activity.”70

She adds that USPVS guidelines “do not support a conclusion that the ‘No Match’

response equates to a fraudulent passport.”71 In response, the State Defendants

argue that a violation of internal policies does not in and of itself establish a

constitutional violation.72

As an initial matter, the State Defendants are correct; a failure to follow policy

is not in and of itself a constitutional violation. See Pratt v. Harris Cnty., 822 F.3d

174, 183–84 (5th Cir. 2016) (noting that the constitutionality of an official’s actions is

“neither guided nor governed . . . by [her] adherence to the policies of the department

under which [she] operates”); see also Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th

Cir. 1986) (“The claim is that the mere failure . . . to follow their [departmental]

regulations was a constitutional violation. There is no such controlling constitutional

principle.”). But even if it were, Velazquez does not actually allege that a particular

policy was violated, just that it did not require the defendants to do what they did.

For these reasons (and others the Court need not reach), Velazquez has failed

to allege that the State Defendants violated the Fourth Amendment. And “because

69 Id.

70 Id. at 9.

71 Id.

72 R. Doc. No. 54, at 3.

there was no constitutional violation,” the State Defendants are “entitled to qualified

immunity.” Marks, 933 F.3d at 483.

5. Municipal Liability

Finally, Velazquez asserts that the City of Westwego is liable under Monell.

To prevail on this claim, Velazquez must allege (1) a policymaker; (2) an official policy;

and (3) a constitutional violation whose “moving force” is the policy or custom.

Rivera, 349 F.3d at 247. The existence of a policy may be shown by “[a] persistent,

widespread practice of City officials or employees . . . so common and well-settled as

to constitute a custom that fairly represents municipal policy.” Webster v. City of

Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). However, “[a]llegations of an

isolated incident are not sufficient.” Fraire v. City of Arlington, 957 F.2d 1268, 1278

(5th Cir. 1992). Moreover, “[t]he description of a policy or custom and its relationship

to the underlying constitutional violation . . . cannot be conclusory; it must contain

specific facts.” Spiller v. City of Texas City, 130 F.3d 162, 167 (5th Cir. 1997) (internal

quotations and citation omitted).

Importantly, in the absence of any underlying constitutional violation, there

can be no municipal liability under Monell. See Albert v. City of Petal, 819 F. App’x

200, 203 (5th Cir. 2020) (noting that because there was no constitutional violation,

there can be no Monell claims); Brown v. Wilkinson Cnty. Sheriff Dep’t, 742 F. App’x

883, 884 (5th Cir. 2018) (holding that because the plaintiff failed to demonstrate an

underlying constitutional violation the claims against the county and the officers in

their official capacities failed); Harris v. Serpas, 745 F.3d 767, 774 (5th Cir. 2014)

(upholding the district court’s dismissal of the Monell claims because the plaintiffs

had not shown there was a constitutional violation).

Velazquez argues that the City and Chief Munch have “policies, procedures,

customs and practices which violate the constitutional rights of residents.”73 She lists

a number of policies that relate to the City’s failure to adequately train and discipline

officers, as well as practices that cover up acts of misconduct.74 In return, the City

Defendants argue the Velazquez has put forth only conclusory allegations regarding

the existence of an official policy or custom.75 They also add that Velazquez has

alleged the occurrence of only an isolated incident.76

The Court has dismissed Velazquez’s claims under the Fourth and Fourteenth

Amendments for failure to show a constitutional violation. Without a properly

alleged constitutional violation, there can be no municipal liability for the City. See

Albert, 819 F. App’x at 203; Brown, 742 F. App’x at 884; Serpas, 745 F.3d at 774; see

also Hicks-Fields v. Harris Cnty., 860 F.3d 803, 808 (5th Cir. 2017) (noting that it is

well established that “every Monell claim requires an underlying constitutional

violation”) (internal quotations and citation omitted). And, even if Velazquez had

properly alleged a violation, she has failed to plead anything beyond the most

conclusory of allegations regarding City policy. The relevant section of her Amended

Complaint is a laundry list of high-level descriptions of potentially unconstitutional

73 R. Doc. No. 33, at 18 ¶ 66.

74 Id.

75 R. Doc. No. 35, at 21.

76 Id. at 20.

policies, many of which seem irrelevant to the instant case, and all of which are

completely unsupported by any detail.77 Both of these problems doom Velazquez’s

Monell claim.

B. State Law Malicious Prosecution Claim

Only Velazquez’s state law malicious prosecution claim remains. A district

court may decline to exercise supplemental jurisdiction over a state law claim if the

court “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §

1367(c)(3). When all federal claims have been dismissed, a district court has “wide

discretion” in deciding whether to exercise jurisdiction over remaining state law

claims. Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir. 1999). In the Fifth Circuit,

“the general rule is to dismiss state law claims when the federal claims to which they

are pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser Indus., 972

F.2d 580, 585 (5th Cir. 1992). Courts in the Fifth Circuit also consider judicial

economy, convenience, fairness, and comity. Mendoza v. Murphy, 532 F.3d 342, 346

(5th Cir. 2008). These factors, as well as the statutory factors set out in § 1367(c),

weigh in favor of dismissing the Louisiana state law claim, without prejudice, so that

Velazquez may assert this claim in a state court.

“[D]eference in this case with respect to the state law issue[s] promotes the

important interest of comity to state courts” and “encourages fairness between the

parties by ‘procuring for them a surer-footed reading of applicable law.’” Bitte v. EMC

77 R. Doc. No. 33, at 17–20 ¶¶ 63–67. In fact, given the repeated use of “plaintiffs” (as

opposed to “plaintiff”) in this section of the Amended Complaint, the Court suspects

it may have been pulled from a template or an unrelated case. See id.

Mortg. Corp., No. 07-9273, 2009 WL 1950911, at *2 (E.D. La. July 1, 2009) (Africk,

J.) (citations omitted) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966)). Furthermore, the litigation in this case is still in its early stages so the

parties will not be prejudiced. See Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 351

(1988) (noting that when federal claims are eliminated at an “early stage” of the

litigation, “the District Court ha[s] a powerful reason to choose not to continue to

exercise jurisdiction”).

Therefore, the Court declines to exercise supplemental jurisdiction over the

remaining state law claim.

V.

Accepting the facts alleged by Velazquez as true, the Court finds that she has

failed to state a claim for relief. Separately, the Court notes that Velazquez’s

opposition to the motions to dismiss includes a one-sentence request for leave to

amend her complaint.78 “Although leave to amend under Rule 15(a) is to be freely

given, that generous standard is tempered by the necessary power of a district court

to manage a case.” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 177 (5th

Cir. 2016) (quoting United States ex rel. Willard v. Humana Health Plan of Tex., Inc.,

336 F.3d 375, 387 (5th Cir. 2003)). The Fifth Circuit has previously stated that “[a]

bare request in an opposition to a motion to dismiss—without any indication of the

particular grounds on which the amendment is sought—does not constitute a motion

[within] the contemplation of Rule 15(a).” Id. (quoting Confederate Mem’l Ass’n, Inc.

78 R. Doc. No. 41, at 13; R. Doc. No. 45, at 14.

v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993)). Moreover, Velazquez has already been

afforded such leave once—and warned that the Court was not inclined to give her

another opportunity absent a reason to do so.79 And Velazquez has identified no such

reason. Accordingly, to the extent Velazquez’s opposition briefs might be construed

to request leave to amend, such relief is denied. Therefore,

IT IS ORDERED that the motions to dismiss are GRANTED; the federal

claims against all defendants are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the state law claim against the above-

named defendants is DISMISSED WITHOUT PREJUDICE to its being timely

asserted in state court.

IT IS FURTHER ORDERED that Velazquez’s unopposed motion®® to

continue trial and associated deadlines is DISMISSED AS MOOT.

New Orleans, Louisiana, March 31, 2021.

LANCE M. AFRICK

UNITED STATES DISTRICT JUDGE

79 See R. Doc. No. 28 (noting that, during a status conference, the Court ordered

plaintiff to file an Amended Complaint and informed counsel that “there would not

be further opportunity to amend”); R. Doc. No. 34 (dismissing the original motions to

dismiss without prejudice and warning counsel for Velazquez that “should [her]

opposition not substantively address defendants’ arguments as to certain claims,”

that the Court might treat the motions as unopposed for purposes of those claims).

80 R. Doc. No. 57.

34