# Vega v. Gusman

> District Court, E.D. Louisiana · May 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10186678

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

OLIVIA VEGA CIVIL ACTION

VERSUS NO. 20-1931

MARLIN GUSMAN, ET AL. SECTION D (2)

ORDER AND REASONS
Before the Court is the Motion to Dismiss filed by Defendants Sheriff Marlin
Gusman, Deputy Michelle Johnson, Deputy Floyd Stevenson, and Deputy Alvis
Favorite (collectively, the “OPSO Defendants”).1 Plaintiff has filed an Opposition,2
and the OPSO Defendants have filed a Reply.3 Before the Court is also Defendant
Jason Williams’s Motion to Dismiss.4 The Motion is opposed,5 and Williams has filed
a Reply.6 After careful consideration of the parties’ memoranda, the record, and the
applicable law, the Court grants OPSO Defendants’ Motion in part, grants Williams’s
Motion, and grants Plaintiff leave to amend her Complaint.
I. FACTUAL BACKGROUND
This case arises from an altercation and subsequent arrest at Harrah’s Casino.
On July 8, 2019, Plaintiff Olivia Vega was attending an event sponsored by Larry

1 R. Doc. 11.
2 R. Doc. 14.
3 R. Doc. 22.
4 R. Doc. 36.
5 R. Doc. 37.
6 R. Doc. 40.
Morrow Events at the Masquerade night club in Harrah’s Casino.7 At one point,
deputies approached Vega and requested her identification card.8 Plaintiff alleges
that when Vega followed the deputies to gain information regarding their request and

entered the lobby of Harrah’s Casino, she was forcefully knocked to the ground by
three to four deputies, including Deputy Michelle Johnson and Deputy Floyd
Stevenson.9 She claims that she was then handcuffed and wrongfully detained in a
holding room in the casino.10
Vega was arrested on three charges: Battery of a Police Officer, Resisting by
Force, and Disturbing the Peace.11 She was then transported to the Orleans Parish

Justice Complex.12 Vega alleges that at the jail, staff took various items from her
which were never returned, that she was forced to strip and wear a jumpsuit and
underwear so tight that they bruised her, and that she was injected with an unknown
substance that caused her to lose consciousness.13
Vega was released during the afternoon on July 8 after posting bail.14 She
then attended a court appearance.15 She alleges that the Orleans Parish District
Attorney’s Office (“OPDA”) pursued charges against her based on false reports

7 R. Doc. 1 at 4 ¶ 12.
8 Id. at 5 ¶ 19.
9 Id. at 5 ¶ 19.
10 Id. at 5-6 ¶¶ 19-20.
11 R. Doc. 1 at 6 ¶ 23.
12 Id. at 6 ¶ 24.
13 Id. at 6-7 ¶¶ 25-28.
14 R. Doc. 1 at 7 ¶ 29.
15 Id. at 7 ¶ 30.
written by Deputy Floyd Stevenson, without properly screening the case.16 The case
was ultimately dismissed on March 3, 2020.17
Plaintiff then filed suit against Defendant Marlin Gusman as Sheriff of

Orleans Parish in his official capacity, Defendant Leon Cannizzaro as District
Attorney for Orleans Parish in his official capacity,18 Deputies Michelle Johnson,
Floyd Stevenson, and Alvis Favorite in their official and individual capacities, various
John and Jane Doe Deputies, Harrah’s Casino, and Larry Morrow Events, LLC.19
Plaintiff alleges a Section 1983 claim against Defendants Gusman, Stevenson,
Johnson, Favorite, and Does arising out of her arrest and detention at Orleans Jail

Center, as well as against Defendant Cannizzaro for her prosecution.20 Vega also
brings a claim for negligent supervision against Defendants Harrah’s Casino and
Larry Morrow Events,21 and a claim for negligence under Louisiana Civil Code article
2315 against Defendants Johnson, Stevenson, Favorite and Does.22
Defendants Gusman, Johnson, Stevenson, and Favorite move to dismiss
Plaintiff’s claims.23 Defendants argue that Gusman is not liable in his official
capacity because he was not the “final policymaker” on the date of the incident as an

Independent Jail Compliance Director had been appointed. Defendants further argue

16 Id. at 7 ¶¶ 31, 39.
17 Id. at 7 ¶ 32.
18 The Court notes that Jason Williams has been sworn in to succeed Mr. Cannizzaro as Orleans Parish
District Attorney and therefore Mr. Williams, in his official capacity, is the proper party. The parties
recognize as much. See R. Docs. 36 and 37.
19 See generally R. Doc. 1.
20 R. Doc. 1 at 10-11 ¶¶ 48-55.
21 Id. at 11-12 ¶¶ 56-61.
22 Id. at 12 ¶¶ 62-65.
23 R. Doc. 11.
that even if Gusman were liable, Plaintiff has failed to state facts that support an
official capacity claim against Gusman (or Johnson, Stevenson, or Favorite).
Defendants also contend that Plaintiff cannot maintain a Section 1983 claim against

Stevenson for drafting a false report, and that Plaintiff does not allege sufficient
factual detail to maintain a claim against Favorite. Finally, Defendants argue that
Johnson, Stevenson, and Favorite are entitled to qualified immunity.
Plaintiff has filed an Opposition.24 She argues that Gusman is liable in his
official capacity notwithstanding the appointment of the compliance director and that
the events giving rise to the need for a compliance director in fact support her official

capacity claim against Gusman and the other named deputies. She further argues
that she has alleged sufficient facts to maintain a claim against Favorite, and that
her claim against Stevenson survives because while his falsification of a report is part
of her Section 1983 claim against him, it is not the entire basis for the claim. Finally,
she contends that she has alleged sufficient facts by which the Court could find the
deputies’ actions to be objectively unreasonably, and therefore the Court should not
dismiss her claims against the deputies on the basis of qualified immunity.

Defendants have filed a Reply25 in which they largely reiterate the arguments made
in their opening Motion.
Defendant Jason Williams, in his official capacity as Orleans Parish District
Attorney, also moves to dismiss the case.26 Williams argues that Vega has not

24 R. Doc. 14.
25 R. Doc. 22.
26 R. Doc. 36.
identified a constitutional right violated by OPDA or that such a right was violated
pursuant to an official policy of his office. He also argues that any claim for malicious
prosecution is not cognizable under Section 1983.

Vega has filed an Opposition to Williams’s Motion.27 Vega argues that she has
adequately stated a claim against Williams for malicious prosecution under
Louisiana state law. Vega also argues that William’s office lacked probable cause to
bring claims against her. With respect to her Section 1983 claim, Vega contends that
her allegations are “sufficient to allow the Court to reasonably infer that the OPDA
[Orleans Parish District Attorney’s Office] has a practice of failing to properly screen

and investigate cases, which led to the violation of Ms. Vega’s constitutional rights.”28
In his Reply29 Williams argues that Vega’s Complaint contains no mention of
any state-law claim for malicious prosecution and that, in any event, the facts alleged
undermine such a claim. Further, Williams argues that any state-law claim is barred
by absolute prosecutorial immunity. Finally, Williams reiterates that the Complaint
lacks any facts establishing a violation of Vega’s constitutional rights by his office.
II. LEGAL STANDARD

To overcome a defendant’s motion to dismiss, a plaintiff must plead a plausible
claim for relief.30 A claim is plausible if it is pleaded with factual content that allows
the court to reasonably infer that the defendant is liable for the misconduct alleged.31

27 R. Doc. 37.
28 Id. at 7.
29 R. Doc. 41.
30 Romero v. City of Grapevine, Tex., 888 F. 3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
31 Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S. at 678).
But, no matter the factual content, a claim is not plausible if it rests on a legal theory
that is not cognizable.32 In ruling on a motion to dismiss, the Court accepts all well-
pleaded facts as true and views those facts in the light most favorable to the

plaintiff.33 However, the allegations must be enough to raise a right to relief above
the speculative level on the assumption that all of the complaint’s allegations are
true.34 “[C]onclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.”35
III. ANALYSIS

A. Final Policymaker
OPSO Defendants’ first argument is that Gusman cannot be sued in his official
capacity because he was not the “final policymaker” at the time of the alleged
incidents giving rise to Plaintiff’s claims. In order to state a Section 1983 claim
against Gusman, 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.36 State law determines whether an official is a
“policymaker.”37 Under Louisiana law, the sheriff is the “final policymaker” for the

public jail of his parish.38

32 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010)
(per curiam).
33 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
34 Bell Atlantic v. Twombly, 550 U.S. 544, 545 (2007).
35 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal citations omitted).
36 Raliff v. Aransas Cnty., Tex., 948 F.3d 281, 285 (5th Cir. 2020) (citing Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001)).
37 Webb v. Town of St. Joseph, 925 F.3d 209, 215 (5th Cir. 2019).
38 See La. R.S. 15:704; 13:5539(c).
OPSO Defendants argue that Gusman is not the “final policymaker” because
in Jones et al. v. Gusman, a separate section of this Court issued an order appointing
a compliance director for Orleans Parish Prison in connection with a consent decree

entered into by the prison.39 That order provides the compliance director with a broad
range of powers, and he is answerable only to the Court.40 Moreover, the compliance
director functions as a court-appointed receiver, and therefore enjoys judicial
immunity.41
The question, though, is not whether the compliance director is entitled to
judicial immunity, but rather whether the compliance director (and not Gusman) is

the “final policymaker” at Orleans Parish Prison. The answer to that question is no.
As an initial matter, the district court’s order in Jones is not “state law” and therefore
cannot be the basis for a determination that the director is a “policymaker.”42
Moreover, OPSO Defendants overread the order appointing the compliance director.
Other sections of this Court have found that the under the order the “compliance
director's authority is limited to implementing the Consent Judgment”43 and have
noted that the compliance director must seek advice and/or approval from Gusman.44

Indeed, the other sections of this Court which have considered this question have

39 See Docket No. 12-859, R. Doc. 1082. The current compliance director is Darnley Hodge. See Docket
No. 12-859, R. Doc. 1151.
40 See generally id.
41 See, e.g., Crawford v. Gusman, No. 17-3397, 2018 WL 3773407, at *3 (E.D. La. Aug. 9, 2018).
42 Webb, 925 F.3d at 215.
43 Oliver v. Gusman, No. 18-7845, 2020 WL 1303493, at *9-10 (E.D. La. Mar. 19, 2020).
44 See Docket No. 12-859, R. Doc. 1082 at 3.
similarly found that Gusman, not the compliance director, is the “final policymaker”
for the purpose of a Section 1983 claim.45
Moreover, the cases OPSO Defendants cite to are not to the contrary. Rather,

they stand only for the undisputed proposition that the compliance director is entitled
to judicial immunity; they do not stand for the proposition that the compliance
director is a “final policymaker.”46 Indeed, at least one case went on to consider
claims against Gusman in his official capacity.47 Accordingly, the Court rejects
Defendants’ arguments that the claims against Gusman must be dismissed because
he is not a “final policymaker.”

B. Official Capacity Claims
Defendants next argue that Plaintiff’s official capacity claims against Sheriff
Gusman must be dismissed because Plaintiff fails to adequately allege an “official
policy” that led to the alleged constitutional violation. As described above, to state a
claim against Gusman in his official capacity, 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.48 The question here deals with

whether Vega has met the second and third elements of the test.
To establish an official policy that would give rise to liability, a plaintiff may
(1) rely on written policy statements, ordinances, or regulations; (2) show a

45 Johnson v. Gusman, No. 19-13949, 2020 WL 2475809, at *3-4 (E.D. La. May 13, 2020); Oliver, 2020
WL 1303493, at *9-10.
46 See Crawford, 2018 WL 3773407, at *2-3; Short v. Gusman, No. 18-3174, 2019 WL 1326645, at *3-4
(E.D. La. Mar. 25, 2019).
47 See Crawford, 2018 WL 3773407, at *3-4.
48 Raliff v. Aransas Cnty., Tex., 948 F.3d 281, 285 (5th Cir. 2020) (citing Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001)).
widespread practice that is so common and well-settled as to constitute a custom that
fairly represents municipal policy; or (3) in rare circumstances, demonstrate that a
single decision that forms the basis of the Section 1983 claim was made by someone

with final policymaking authority.49 “The description of a policy or custom and its
relationship to the underlying constitutional violation, moreover, cannot be
conclusory; it must contain specific facts.”50 Plaintiff does not cite to any written
policy statements, ordinances, or regulations, nor does Plaintiff argue that Gusman
made a single decision that gives rise to her Section 1983 claim. Instead, Plaintiff
argues that a policy exists because of practices that are so widespread as to constitute

a custom. “A customary municipal policy cannot ordinarily be inferred from single
constitutional violations.”51 As noted by the Fifth Circuit, “[i]solated violations are
not the persistent, often repeated, constant violations, that constitute custom and
policy as required for municipal section 1983 liability.”52
Here, Plaintiff’s Complaint lacks any allegation regarding an official policy of
Orleans Parish Sheriff’s Office that would give rise to an official capacity claim
against Gusman. Similarly, the Complaint lacks any facts by which the Court could

infer any policy or custom in place that would give rise to an official capacity claim.
Although Plaintiff alleges that Gusman was a final policymaker,53 she fails to allege
any policy at issue that gave effect to her constitutional violation. Additionally, while

49 Webb v. Town of St. Joseph, 925 F.3d 209, 214-15 (5th Cir. 2019) (citations omitted).
50 Spiller v. City of Texas City, Police Dept.,30 F.3d 162, 167 (5th Cir. 1997).
51 Piotrowski v. City of Houston, 237 F.3d 567, 581 (5th Cir. 2001).
52 Id. (quoting Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984)).
53 See R. Doc. 1 at 2 ¶ 2.
Vega’s Complaint contains numerous allegations regarding the July 8, 2019 incident,
these allegations regarding a single incident do not give rise to liability for Gusman
in his official capacity.54 In her Opposition, Plaintiff argues that an official policy,

practice, or custom of use of excessive force exists at Orleans Parish Sheriff’s Office
and that she can prove such a custom exists by citing to the Department of Justice’s
consent decree and the Jones matter.55 But even were these assertions sufficient to
state an official capacity claim against Gusman, they are absent from Vega’s
Complaint. Accordingly, Vega’s official capacity claim against Gusman must be
dismissed.

Regarding leave to amend a Complaint, the Federal Rules provide that “[t]he
court should freely give leave when justice so requires.”56 That is particularly true
where, as here, Plaintiff has suggested facts in her Opposition that she did not plead
in her Complaint, and therefore has not necessarily pleaded her best case.
Accordingly, the Court will grant Vega leave to amend her Complaint as to her official
capacity claim against Gusman within fourteen days of this Order.
The Court also dismisses the official capacity claims asserted against

Defendants Johnson, Stevenson, and Favorite for similar reasons and because Vega
fails to allege that these three defendants are policymakers of any sort. Plaintiff’s
Complaint is silent regarding any facts to support these official capacity claims.
Additionally, Plaintiff does not present any facts whatsoever in her Opposition that

54 Piotrowski, 237 F.3d at 581.
55 R. Doc. 14 at 9.
56 Fed. R. Civ. P. 15(a)(2).
Defendants Johnson, Stevenson, or Favorite are policymakers for OPSO. Finding
that any amendment would be futile based on the above, the Court will dismiss the
official capacity claims against Johnson, Stevenson, and Favorite with prejudice, and

will not grant Plaintiff leave to amend her Complaint as to those Defendants.
C. Claim Against Deputy Stevenson
OPSO Defendants next argue that Plaintiff’s claims against Deputy Stevenson
arising from the allegedly false police report should be dismissed. As part of her claim
against Stevenson, Vega alleges that “Deputy Floyd Stevenson wrote a report (Item
No. G-10-208-19) in connection with Ms. Vega’s arrest falsely stating that Ms. Vega

punched Deputy Keppard in the back of her head while Deputy Keppard was
escorting Ms. Simmons off the stage, which is wholly inconsistent with the eyewitness
accounts of the incident.”57 Vega also alleges that this falsified report was the basis
for the charges brought against her.58
As OPSO Defendants correctly point out, courts have held that a plaintiff does
not have a constitutional right to a correct police report. The Fifth Circuit has held
that “[t]here is no right to a completely accurate police report.”59 Similarly, the Third

Circuit has held that “the mere existence of an allegedly incorrect police report fails
to implicate constitutional rights.”60 Indeed, confronted with allegations not unlike
those here, the Fifth Circuit held in Rich v. Palko,61 that “an inaccurate post-incident

57 R. Doc. 1 at 8 ¶ 39.
58 Id. at 8 ¶ 38.
59 Smith v. Patri, 99 F. App’x 497, 498 (5th Cir. 2004) (per curiam).
60 Jarrett v. Town of Bensalem, 312 F. App’x 505, 507 (3d Cir. 2009).
61 920 F.3d 288.
report . . . designed to provide probable cause to support a warrantless detention” did
not give rise to a Section 1983 claim, nor did it “serve as a continuing constitutional
violation.”62 A series of non-binding cases have held that when an inaccurate police

report is the cause of other harms, the police report may be the basis for a Section
1983 claim.63 The Fifth Circuit’s rulings in Smith and Rich are in direct tension with
such authority. But in any event, this non-binding caselaw focuses on whether a
plaintiff “suffered any consequences implicating [her] constitutional rights.”64 The
consequence of the false police was Plaintiff’s subsequent prosecution. And as
discussed below, that prosecution does not implicate Vega’s constitutional rights

under Fifth Circuit law. Accordingly, Vega may not pursue a Section 1983 claim
against Stevenson based on the false police report.
In her Opposition, Vega emphasizes her other allegations against Stevenson
giving rise to her Section 1983 claim, including her allegation that Stevenson knocked
her to the ground.65 Although Defendants separately argue that Stevenson is entitled
to qualified immunity, Defendants’ Motion does not address the other claims against
Stevenson in arguing that any claim based on the false police report should be

dismissed. The Court therefore finds that while Vega may not pursue her Section
1983 claim against Stevenson based on the allegedly false police reports, she may still

62 Id. at 297.
63 See, e.g., Landrigan v. City of Warwick, 628 F.2d 736, 745 (1st Cir. 1980); Comfort v. Town of
Pittsfield, 924 F.Supp. 1219, 1230 (D. Me. 1996).
64 Cruz v. Fulton, No. 14-2015, 2016 WL 4543613, at *5 (E.D. La. Aug. 31, 2016).
65 R. Doc. 1 at 5 ¶ 19.
pursue her Section 1983 claim against Stevenson based on her other allegations of
violations of other constitutional rights.
D. Claim Against Deputy Favorite

Defendants next contend that Plaintiff’s claims against Favorite should be
dismissed because Plaintiff has failed to plead with specificity any actions that could
hold him liable.66 In her Complaint, Vega alleges that Favorite was “acting under
the direction and supervision of Defendant Gusman” and that he “was on the scene
when Ms. Vega was wrongfully arrested and played a role in wrongfully detaining
Ms. Vega on the night of the incident.”67 Favorite is again mentioned in the factual

allegations of the Complaint as a person who “individually assisted and willfully
acted maliciously towards Ms. Vega, both at Harrah’s Casino/Club Masquerade and
at the OJC.”68 No other factual allegations against Favorite are contained in the
factual background of the Complaint. The question before the Court is whether the
facts alleged regarding Favorite’s involvement in the alleged misconduct against
Plaintiff are sufficient to survive a motion to dismiss.
When addressing the liability of an officer, the Fifth Circuit has drawn a

distinction between a Defendant who is an active participant and one who is a
bystander to the alleged misconduct. For example, in James by James v. Sadler, the
Fifth Circuit concluded the district court improperly granted summary dismissal
against officers because, although they did not perform the alleged wrongful pat-

66 R. Doc. 11-1 at 9-10.
67 R. Doc. 1 at ¶ 6.
68 Id. at 9 ¶ 46.
down of the defendant, they remained armed on the premises throughout the search
and detained customers outside the shop while the search and arrest proceeded.69
Similarly, the Fifth Circuit found that an officer who stood armed at the door while a

search was proceeding was “a full, active participant in the search, not a mere
bystander,” and that “[b]oth men thus performed police functions that were integral
to the search.”70 In contrast, this Court has stated “mere presence” is not sufficient
to establish liability under Section 1983.71
Here, Vega has alleged sufficient facts, viewed in the light most favorable to
her, to survive a motion to dismiss. Rather than allege that he was merely present

at the incident, she alleges that Favorite “individually assisted” with the acts against
her and that he “played a role” in the unreasonable force of use against her. Courts
have found that Section 1983 claims lie against officers in similar circumstances.72
At a minimum, Vega’s allegations give rise to a bystander liability claim. “To state a
bystander liability claim, a plaintiff must show that an officer ‘(1) knows that a fellow
officer is violating an individual's constitutional rights; (2) has a reasonable
opportunity to prevent the harm; and (3) chooses not to act.’”73 Such elements may

69 909 F.2d 834, 837 (5th Cir. 1990).
70 Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir. 1989); see also Creamer v. Porter, 754 F.2d 1311 (5th
Cir. 1985).
71 Douglas v. DePhillips, No. 17-2305, 2017 WL 4574422, at *14 (E.D. La. Oct. 13, 2017), aff'd, 740 F.
App'x 403 (5th Cir. 2018) (quoting Jones v. Williams, 297 F.3d 930, 939 (9th Cir. 2002); see also Back
v. Tex. Dep’t of Crim. Justice Inst’l Div., 684 Fed. App’x 356, 359 (5th Cir. 2017) (“Without any personal
involvement by those two defendants, [plaintiff's] § 1983 claims could not succeed as a matter of law.”).
72 See, e.g., Boquet v. Belanger, No. 14-2228, 2015 WL 1650255, at *3-*4 (E.D. La. Apr. 15, 2015);
Stewart v. Stadler, No. 05-416, 2007 WL 84892, at *4 n.1 (W.D. La. Jan. 19, 2007).
73 Douglas v. DePhillips, No. 17-2305, 2017 WL 4574422, at *11 (E.D. La. Oct. 13, 2017) (quoting
Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013)).
be reasonably inferred from the facts alleged against Favorite. Accordingly, the Court
denies Defendants’ Motion to Dismiss as to Favorite.
E. Qualified Immunity

Finally, Defendants argue Plaintiff’s individual claims against Johnson,
Stevenson, and Favorite should be dismissed because they are entitled to qualified
immunity. “A public official is entitled to qualified immunity unless the plaintiff
demonstrates that (1) the defendant violated the plaintiff’s constitutional rights and
(2) the defendant’s actions were objectively unreasonable in light of clearly
established law at the time of the violation.”74 Asserting a qualified immunity

defense initiates a “procedure under which a district court may defer its qualified
immunity ruling if further factual development is necessary to ascertain the
availability of that defense.”75 A district court must first conclude “that the plaintiff’s
pleadings assert facts which, if true, would overcome the defense of qualified
immunity.”76 After the court finds a plaintiff has so pleaded, the court may issue a
discovery order “narrowly tailored to uncover only those facts needed to rule on the
immunity claim” if the court remains “unable to rule on the immunity defense

without further clarification of the facts.”77
Accepting the facts as true, the Court finds that Plaintiff has sufficiently
pleaded facts that would overcome Defendants’ assertion of qualified immunity. Vega

74 Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011) (citing Freeman v. Gore, 483 F.3d 404, 410-11 (5th
Cir. 2007)).
75 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
76 Id. (quoting Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986).
77 Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. 1987).
has alleged that “without any justification, provocation, or prior warning” she was
“knocked to the ground by three or four deputies, including Deputy Michelle Johnson
and Deputy Floyd Stevenson” and that they “pulled [her] hair and knocke[d] her to

the ground with such force that [her] clothes were removed, leaving her breasts
exposed in public.”78 She further alleges that during her allegedly improper
detention, “at least two of the deputies directed verbal attacks at [her] as well as
physical abuse, including but not limited to prohibiting her from using the restroom,
threatening her, accusing her of attempting escape from the handcuffs, and overly
tightening the handcuffs.”79 Use of excessive force is a violation of a person’s

constitutional rights.80 Similarly, her alleged wrongful arrest is also a violation of
her constitutional rights.81
Defendants do not seriously allege that the allegations by Vega do not assert a
violation of her constitutional rights. Rather, they argue that Plaintiff’s Complaint
fails to establish that the Deputy’s actions were not objectively reasonable. They
contend that Plaintiff’s Complaint alleges only that “she was treated poorly,
wrongfully detained, and wrongfully arrested.”82 But, as described above, Vega’s

Complaint alleges facts that, when viewed in the light most favorable to Vega, would
lead a jury to conclude that the Deputies acted unreasonably. These facts include the
force used to knock her to the ground, which she alleges was use without provocation,

78 R. Doc. 1 at 5 ¶ 19.
79 Id. at 6 ¶ 22.
80 Flores v. City of Palacious, 381 F.3d 391, 396 (5th Cir. 2004).
81 Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001).
82 R. Doc. 11-1 at 11.
her allegedly wrongful arrest, and the Deputies’ aggressive behavior towards her
while she was detained. Vega has therefore pleaded facts that overcome the defense
of qualified immunity.

Although Plaintiff has alleged facts that overcome the defense of qualified
immunity, after more factual development the deputies may prove they are entitled
to such immunity. On this record, the Court cannot determine whether Stevenson,
Favorite, and Johnson are entitled to a qualified immunity defense. Accordingly, the
Court finds more factual discovery is needed to determine the “objective
unreasonableness” of the deputies in light of established law. The Court will

therefore issue a discovery order limiting discovery against Stevenson, Favorite, and
Johnson to this issue.
F. Jason Williams’s Motion to Dismiss
Vega asserts that the “Orleans Parish District Attorney’s Office pursued the
charges in the case in light of the false reports written by Deputy Floyd Stevenson
without properly screening the case, without thoroughly investigating the case, and
failing to obtain the readily obtainable statement of Deputy Keppard.”83 According

to Vega, as a result of OPDA’s improper prosecution her case “languished” in Orleans
Parish Criminal District, but was ultimately dismissed “after the judge was

83 R. Doc. 1 at 8 ¶ 38. See also id. at 7 ¶ 31 (“The Orleans Parish District Attorney’s Office pursued
charges in the case in light of the false reports written by Defendant Deputy Floyd Stevenson.”); id. at
9 ¶ 42 (“The Orleans Parish District Attorney and/or his employees pursued charges and wrongfully
prosecuted Ms. Vega for at least seven months without justification and a proper screening of the
case.”).
presented with clear and unequivocal evidence that Ms. Vega committed no
wrongdoing.”84
The question before the Court is whether these allegations give rise to a claim

by Vega against Williams. To the extent Vega seeks to allege a malicious prosecution
claim under Section 1983, no such a claim exists under Fifth Circuit jurisprudence.
“There is no constitutional right to be free of malicious prosecution.”85 Accordingly,
Plaintiff’s Section 1983 claim against Williams must be dismissed.
In her Opposition, Vega argues that she also alleges a Louisiana state-law
claim of malicious prosecution. Vega’s Complaint lacks any reference to such a state-

law cause of action. In any event, such a cause of action is not supported by the facts
Vega alleged, as the Louisiana Fourth Circuit has held that a district attorney is
afforded absolute immunity—even in his official capacity—for actions taken in his
role as a prosecutor in the judicial phase of the criminal process.86 As the law is clear
that the Orleans Parish District Attorney’s Office is entitled to absolute immunity,
the Court finds that any amendment to the Complaint would be futile. Accordingly,
the Court shall not grant leave to Plaintiff to amend her Complaint to include a state-

law claim against Williams.87

84 Id. at 7-8 ¶¶ 32-33.
85 Morgan v. Chapman, 969 F.3d 238, 246 (5th Cir. 2020). See also Castellano v. Fragozo, 352 F.3d
939, 945 (5th Cir. 2003) (en banc) (“[W]e conclude that no such freestanding constitutional right to be
free from malicious prosecution exists.”).
86 Tickle v. Ballay, 259 So. 3d 435, 438 (La. App. 4 Cir. 2018); Accord Singleton v. Cannizzaro, 956 F.3d
773, 779-781 (5th Cir. 2020).
87 Stripling v. Jordon Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) (“It is well within the
district court’s discretion to deny leave to amend if it is futile.”).
IV. CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss is
GRANTED IN PART AND DENIED IN PART. Plaintiffs claim against Marlin
Gusman is DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to
amend her Complaint as to her claim against Defendant Gusman within fourteen
days. Plaintiffs official capacity claims against Stevenson, Johnson, and Favorite are
DISMISSED WITH PREJUDICE. Plaintiffs claim against Stevenson arising from
the police reportis DISMISSED WITH PREJUDICE. Plaintiffs claim against
Jason Williams, in his official capacity, is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, May 17, 2021.

Chnd & Vetter
Cenk
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186678. Public record. Not legal advice.