Howard v. Ferrand

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

D. DOUGLAS HOWARD, JR. CIVIL ACTION

VERSUS NO. 22-701

PAUL FERRAND, ET AL. SECTION “R” (2)

ORDER AND REASONS

Before the Court is defendants’ motion to dismiss plaintiff’s

federal civil rights claims pursuant to Fed. R. Civ. P. 12(b)(6).1 Plaintiff

opposes defendants’ motion.2 For the following reasons, the Court

grants defendants’ motion to dismiss and declines to exercise

jurisdiction over plaintiff’s pendent state law claims.

I. BACKGROUND

This case arises from an alleged altercation in Orleans Parish

Civil District Court. Plaintiff D. Douglas Howard is a practicing

attorney.3 On the day of the alleged altercation, Howard was attending

a hearing, on behalf of a client, in Orleans Parish Civil District Court.

1 R. Doc. 10.

2 R. Doc. 13.

3 R. Doc. 1 ¶ 11.

He asserts that the court’s bailiff, later identified as defendant Deputy

Paul Ferrand, approached Howard during the proceeding and warned

him—without cause or provocation—that Howard needed to “respect

this court and respect this judge.”4 Howard alleges that after the

presiding judge and her staff left the courtroom for a recess, Ferrand

approached Howard once more and admonished him, saying, “the next

time you disrespect my judge, you’re not going to like what’s going to

happen to you, because I am going to take matters into my own

hands.”5 Howard asserts that while Ferrand made this statement, he

simultaneously placed his hand on his holstered weapon.6 Howard

further alleges that, upon asking Ferrand who he was talking to,

Ferrand remarked that “ain’t no old, white mother fucker gonna come

into Orleans Parish and tell us what to do.”7 Additionally, Howard

alleges that his law firm’s office manager advised him that Ferrand

made an improper gesture during the hearing by pulling his finger

across his throat in a manner that signaled to the testifying witness,

who was adverse to Howard’s client, that he should stop answering

4 Id. ¶ 15.

5 Id. ¶ 18.

6 Id.

7 Id. ¶ 19.

questions or disclosing information harmful to the witness’s case.8

Howard asserts that after this incident, Ferrand refused to give

Howard his name or identification.9

On July 13, 2021, Howard sent correspondence to defendant

Chief Deputy Craig McGehee regarding the May 25, 2021 incident.10 In

the letter, Howard explained what purportedly happened in the

courtroom, articulated how Howard was in fear of Ferrand and felt that

the altercation was racially motivated, informed McGehee that the

correspondence would serve as Howard’s formal complaint regarding

the incident, and advised that if Ferrand was not investigated and

disciplined, Howard would file suit.11 On July 20, 2021, Howard

allegedly received a phone call from defendant Sheriff Marlin

Gusman.12 Gusman assertedly told Howard: “Doug, you know me[,

and] I won’t tolerate this kind of stuff.”13 Howard alleges that Gusman

also advised him that Gusman would conduct an investigation

regarding the May 25, 2021 incident, that the investigation should

8 Id. ¶ 30.

9 Id. ¶¶ 22-24.

10 Id. ¶ 32.

11 Id. ¶¶ 32-42.

12 Id. ¶ 44.

13 Id. ¶ 45.

conclude in about two weeks, and that Gusman would contact Howard

at the conclusion of the investigation.14 Howard asserts that he never

heard back from the Orleans Parish Sheriff’s Office, and accordingly

sent an additional correspondence to Sheriff Gusman on October 13,

2021, which received no reply.15 Following the October 13

correspondence, Howard was allegedly contacted by Detective Julian

A. Augustus via telephone.16 Detective Augustus travelled to

Howard’s office in late October of 2021 and obtained statements from

Howard and his office manager regarding the incident.17 Augustus

assertedly advised Howard that he would subsequently receive a copy

of the official statements, which Howard never did.18 Howard further

represents that he never received any subsequent communication from

the Orleans Parish Sheriff Office, despite following up several times.19

Howard asserts that the previously described conduct amounted

to a violation of his rights under the First, Fourth, and Fourteenth

Amendments to the United States Constitution. Howard also alleged

14 Id. ¶¶ 46-47.

15 Id. ¶¶ 52-54.

16 Id. ¶ 58.

17 Id. ¶ 59.

18 Id.

19 Id. ¶ 66.

that the department improperly failed to investigate and discipline

Ferrand, amounting to a denial of equal protection and a conspiracy to

violate Howard’s constitutional rights. Accordingly, Howard brought

this action alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986.

Now, defendants move to dismiss Howard’s federal civil rights

claims, contending that he has failed to state a claim and that

defendants are entitled to qualified immunity.20 Howard opposes the

motion.21

The Court considers the motion below.

II. LEGAL STANDARD

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

plead enough facts to “state a claim to relief that is plausible on its

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

Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is

facially plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. at 678. The Court must accept all well-

20 R. Doc. 10.

21 R. Doc. 13.

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, 239,

244 (5th Cir. 2009). But the Court is not bound to accept as true legal

conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

On a Rule 12(b)(6) motion, the Court must limit its review to the

contents of the pleadings, including attachments. Brand Coupon

Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir.

2014). The Court may also consider documents attached to a motion

to dismiss or an opposition to that motion when the documents are

referred to in the pleadings and are central to a plaintiff’s claims. Id.

“In addition to facts alleged in the pleadings, however, the district court

‘may also consider matters of which [it] may take judicial notice.’” Hall

v. Hodgkins, 305 F. App’x 224, 227 (5th Cir. 2008) (citing Lovelace v.

Software Spectrum, Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996)).

III. DISCUSSION

A. Personal Capacity § 1983 Claims Against Ferrand

Howard asserts that Ferrand is liable in his personal capacity

under 42 U.S.C. § 1983. Section 1983 provides a cause of action for

plaintiffs whose federal rights are violated under the color of state law.

42 U.S.C. § 1983; Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th

Cir. 1998). To state a claim under section 1983, a plaintiff must first

show a violation of the Constitution or of federal law, and then show

that the violation was committed by someone acting “under color of

state law.” Id. The qualified-immunity defense to such claims shields

government officials who perform discretionary functions from suit

and liability under section 1983, “unless their conduct violates clearly

established statutory or constitutional rights of which a reasonable

person would have known.” Babb v. Dorman, 33 F.3d 472, 477 (5th

Cir. 1994) (internal quotation marks omitted). Qualified immunity

may “be raised in a Rule 12(b)(6) motion to dismiss.” Nguyen v.

Louisiana State Bd. of Cosmetology, No. 14-80, 2015 WL 1281959, at

*1 (M.D. La. Mar. 20, 2015). At the motion-to-dismiss stage, the Court

looks to “defendant’s conduct as alleged in the complaint” to determine

whether a defendant is entitled to qualified immunity. Behrens v.

Pelletier, 516 U.S. 299, 309 (1996).

“Once a defendant invokes the qualified immunity defense, the

plaintiff carries the burden of demonstrating its inapplicability.” Floyd

v. City of Kenner, 351 F. App’x 890, 893 (5th Cir. 2009) (citing Club

Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)). To satisfy

that burden at the motion-to-dismiss stage, the plaintiff must allege

facts sufficient to demonstrate (1) that the defendant violated a

constitutional right, and (2) that the violated right was “clearly

established” at the time of defendants’ alleged actions. Pearson v.

Callahan, 555 U.S. 223, 231 (2009). Thus, an “officer will be entitled

to qualified immunity if no constitutional violation occurred or if the

conduct ‘did not violate law clearly established at the time.’” Davis v.

Hodgkiss, 11 F.4th 329, 333 (5th Cir. 2021), cert. denied, 142 S. Ct. 1127

(2022). It is within the Court’s discretion to decide which prong to

address first. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)

(citing Pearson, 555 U.S. 223, 236 (2009)). The Court addresses each

section 1983 claim against Ferrand in his personal capacity below.

1. Fourth Amendment Excessive Force Claim

At the outset, the Court notes that Howard does not explicitly

claim a Fourth Amendment violation in his complaint. Instead,

Howard largely fixates on his allegations that Ferrand purportedly

assaulted him under Louisiana criminal and tort law, and alleges a

violation of his purported “right” to be free from intimidation.22 But

because of the nature of a section 1983 claim, Howard must allege a

violation of a specific constitutional or statutory federal right to be

entitled to relief under section 1983. Morales v. State, No. 94-1194,

1996 WL 442225, at *1 n.3 (E.D. La. Aug. 2, 1996). Thus, in his

opposition to defendants’ motion, Howard attempts to shoehorn the

purported verbal assault into a Fourth Amendment claim, presumably

on the basis of excessive use of force.23 Setting aside the propriety of

raising the Fourth Amendment contention for the first time in an

opposition brief, Howard has failed to allege facts that could support

liability for a use of excessive force in violation for the Fourth

Amendment.

“To bring a § 1983 excessive force claim under the Fourth

Amendment, a plaintiff must first show that she was seized.” Flores v.

City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004) (citing Graham v.

Connor, 490 U.S. 386, 388 (1989)). “An officer seizes a person when

he, ‘by means of physical force or show of authority, has in some way

restrained the liberty of a citizen.’” Id. (quoting Terry v. Ohio, 392 U.S.

22 R. Doc. 1 ¶¶ 80-87.

23 R. Doc. 13 at 11.

1, 19 n. 16 (1968) (emphasis added)). Here, Howard has not alleged

any use of physical force by Ferrand. Cf. California v. Hodari D., 499

U.S. 621, 625 (1991) (noting that no physical force was applied where

the criminal defendant was untouched by the police officer). But a

seizure may nevertheless occur without physical contact.

The second type of seizure “occurs when someone submits to a

governmental show of authority that would cause a reasonable person

to believe that she was not free to leave.” United States v. Morris, 40

F.4th 323, 327 (5th Cir. 2022) (citing California v. Hodari D., 499 U.S.

621, 627–28 (1991)). “[T]he test for existence of a ‘show of authority’

is an objective one: not whether the citizen perceived that he was being

ordered to restrict his movement, but whether the officer’s words and

actions would have conveyed that to a reasonable person.” Hodari D.,

499 U.S. at 628. Put simply, Howard’s alleged facts cannot support a

finding that Ferrand’s words and actions would have conveyed to a

reasonable person that he was being ordered to restrict his movement.

Indeed, Ferrand did not order Howard to do anything—he merely

admonished him. Nor did he otherwise imply that Howard was not

free to leave. Accordingly, Ferrand has failed to allege a Fourth

Amendment claim for excessive use of force against Ferrand.

2. First Amendment Retaliation Claim

Howard also alleges that Ferrand violated his First Amendment

rights by retaliating against Howard for protected speech. Howard did

not press this issue in his opposition to defendants’ motion, and

therefore has abandoned the claim. See Black v. N. Panola Sch. Dist.,

461 F.3d 584, 588 n.1 (5th Cir. 2006) (concluding that plaintiff’s failure

to defend a claim in response to the defendant’s motion to dismiss

constituted abandonment of the claim). This abandonment is

particularly fatal in the section 1983 context because of the burden

imposed on Howard. See Floyd, 351 F. App’x at 893 (once a defendant

invokes qualified immunity, the burden shifts to the plaintiff show its

inapplicability, which includes establishing an actual violation of a

federal right).

Nevertheless, the alleged facts cannot support such a claim even

if Howard had briefed the issue in his opposition. To state a First

Amendment retaliation claim, Howard must show that: (1) he was

engaged in constitutionally protected activity; (2) Ferrand’s actions

caused him to suffer an injury that would chill a person of ordinary

firmness from continuing to engage in that activity; and (3) Ferrand’s

actions were substantially motivated against Howard’s exercise of

constitutionally protected conduct. Keenan v. Tejeda, 290 F.3d 252,

258 (5th Cir. 2002). The Court need not engage in extended analysis

because Howard’s claim, on its face, fails to establish the third element.

Howard does not allege facts which, if true, would support a finding

that Ferrand’s actions were driven by the “forbidden motive” of

retaliation against Howard’s speech. Nieves v. Bartlett, 139 S. Ct. 1715,

1722 (2019). To the contrary, Howard contends that he was “sitting

quietly at his table, ‘minding his own business,’”24 when Ferrand

approached him. There is no nexus between Ferrand’s actions and

Howard’s speech. Indeed, Howard himself asserts that the altercation

occurred because of his status as a white man.25 Accordingly, Howard’s

First Amendment retaliation claim must be dismissed as well.

3. Equal Protection Claim

24 R. Doc. 1 ¶ 27.

25 Id. ¶¶ 37, 96 & 97. The Court also notes that Howard alleges he

has continued to engage in courtroom speech in Orleans Parish

Civil District Court despite the altercation, albeit while suffering

from “emotional distress.” See id. ¶ 69. While this may not, by

itself, prove fatal to Howard’s First Amendment claim, it does

call into question whether Howard suffered an injury which

would chill an ordinary person’s speech.

Howard also alleges in his complaint that Ferrand’s actions

constituted a violation of the Fourteenth Amendment’s Equal

Protection Clause. As with the First Amendment claim, discussed in

Section III.A.2, supra, Howard has failed to press this claim in his

opposition brief—he offers no law or argument on the issue of

Ferrand’s violation of the Equal Protection Clause. Therefore, he has

abandoned the claim and failed to meet his burden of showing a

constitutional violation in response to defendants’ invocation of

qualified immunity. Floyd, 351 F. App’x at 893. Nevertheless, Howard

did not allege facts which could support an equal protection claim.

Here, Howard asserts that he was verbally abused because of his

race, in violation of the Fourteenth Amendment’s guarantee of equal

protection. In order to state a claim under the Equal Protection Clause,

“a § 1983 plaintiff must either allege that (a) a state actor intentionally

discriminated against [him] because of membership in a protected

class, or (b) he has been intentionally treated differently from others

similarly situated and there is no rational basis for the difference in

treatment.” Gibson v. Tex. Dep’t of Ins., 700 F.3d 227, 238 (5th Cir.

2012) (internal citations omitted). When a litigant specifically brings

“a claim of racial discrimination under the Equal Protection Clause and

§ 1983, a plaintiff must demonstrate that the governmental official was

motivated by intentional discrimination on the basis of race.” Coleman

v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997) (citing

Washington v. Davis, 426 U.S. 229, 238–42 (1976)).

Howard’s equal protection claim, like his other constitutional

claims, fails. The Fifth Circuit has explained that when an officer’s

conduct “consists solely of speech, there is no equal protection

violation.” Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999).

Specifically, the Bramer court held that “an officer’s use of a racial

epithet, without harassment or some other conduct that deprives the

victim of established rights, does not amount to an equal protection

violation.” Id. To start, it is questionable whether Ferrand’s single,

brief interaction with Howard can be fairly construed as harassment,

as that term ordinarily connotes conduct that is repetitive or

continuous in nature. For example, Black’s Law Dictionary notes that

harassment is usually understood as conduct that is “repeated or

persistent” in nature. Harassment, Black’s Law Dictionary (11th ed.

2019) (defining harassment as “[w]ords, conduct, or action (usu.

repeated or persistent) that, being directed at a specific person, annoys,

alarms, or causes substantial emotional distress to that person and

serves no legitimate purpose; purposeful vexation”). But in this

instance, it was Howard who continued to engage Ferrand by asking,

apparently rhetorically, who Ferrand was speaking to and what it was

that Ferrand had said to him. Further, it was Ferrand that ended the

altercation by walking away.

Yet even if Ferrand’s remarks can be fairly viewed as harassment,

Howard has failed to show how this was the type of harassment that

the Fifth Circuit intimated might be actionable—that is, harassment

that deprives a plaintiff of established rights. Bramer, 180 F.3d at 706.

In this case, Ferrand began with a statement that merely admonished

Howard that he needed to respect the court and the presiding judge.

Later, Ferrand made a conditional statement that if Howard did not

respect the judge, Ferrand would “take matters into his own hands.”

The qualification that Howard would suffer adverse consequences if he

disrespected the judge, combined with the unspecific nature of the

threatened consequences, persuades the Court that the allegedly

threatening conduct did not amount to harassment that deprived

plaintiff of a constitutional or statutory right. Indeed, the parties have

not cited, and the Court has not found, any authorities sustaining an

equal protection claim when the only malfeasance was a verbal threat

by a police officer. Cf. Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir.

1993) (noting, in appellate review of excessive force action brought by

pre-trial detainee, that “allegations of verbal abuse do not present

actionable claims under § 1983”); Williams v. Milligan, No. 05-905,

2006 WL 1867327, at *4 (N.D. Tex. July 6, 2006) (“Verbal abuse by a

police officer is not sufficient to state a constitutional claim under §

1983.”); Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992)

(affirming directed verdict for defendant on a section 1983 excessive

force claim where defendant “uttered a racial slur, and threatened to

‘knock [plaintiff’s] remaining teeth out of his mouth’ if he remained

silent”).

Additionally, Ferrand’s placement of his hand on his holstered

weapon while making his abusive remarks does not transform an

unactionable, verbal threat into a cognizable section 1983 claim. See,

e.g., Gressett v. City of New Orleans, No. 17-16628, 2018 WL

3642008, at *3 (E.D. La. Aug. 1, 2018), aff’d sub nom. Gressett v. New

Orleans City, 779 F. App’x 260 (5th Cir. 2019) (dismissing a Section

1983 claim alleging a Fourteenth Amendment violation where an

“officer stepped into [plaintiff’s] path, with one hand on his holstered

gun and the other on his holstered Taser, and [called plaintiff] ‘an

asshole’”). Indeed, the Supreme Court has recognized, in the Fourth

Amendment context, that an officer’s holstered weapon is a non-factor.

See United States v. Drayton, 536 U.S. 194, 195 (2002) (“[T]he

presence of a holstered firearm is unlikely to be coercive absent active

brandishing of the weapon.”). The Court fails to see how an officer’s

mere placement of his hand on his holster meaningfully changes the

circumstances. Howard also fails to make any showing that the “throat

cut” gesture by Ferrand to a testifying witness, which was not observed

by Howard and was relayed to him by another after the fact, violated

any constitutional or statutory federal right of Howard’s.

Lastly, even if the Court were persuaded that Ferrand’s conduct

violates the Equal Protection Clause, Ferrand is nonetheless entitled to

qualified immunity because Howard has not shown that the right was

“clearly established” under Fifth Circuit law at the time of the

altercation. To determine whether a right is clearly established, a

plaintiff “must 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.” Morgan v.

Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (cleaned up).

“Although this does not mean that ‘a case directly on point’ is required,

‘existing precedent must have placed the statutory or constitutional

question beyond debate.’” Trammell v. Fruge, 868 F.3d 332, 339 (5th

Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The

precedent must also be at “a sufficiently high level of specificity to put

a reasonable official on notice that his conduct is definitively unlawful.”

Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). As can

be seen from the Court’s discussion of whether Howard’s equal

protection rights were violated, existing precedent does not place the

question “beyond debate.” al-Kidd, 563 U.S. at 741. To the contrary,

the Court has not found any binding authorities that squarely address

the issue in the context presented here. Accordingly, Ferrand is

entitled to qualified immunity and Howard’s equal protection claim

must be dismissed.

In finding no equal protection liability, the Court by no means

condones conduct of the type alleged. Ferrand’s alleged verbal threat

was unprofessional, excessive, and a clearly improper response to any

perceived disrespect shown to the court, and his use of racially charged

language is reprehensible. The Court’s ruling is simply that the

incident does not rise to the level of an equal protection violation and

does not defeat qualified immunity.

4. § 1983 Conspiracy Claim

Howard also brings a section 1983 conspiracy claim against

Ferrand. “[T]o prove a conspiracy under § 1983, a plaintiff must allege

facts that indicate (1) there was an agreement among individuals to

commit a deprivation, and (2) that an actual deprivation occurred.”

Jabary v. City of Allen, 547 F. App’x 600, 610 (citing Cinel v. Connick,

15 F.3d 1338, 1343 (5th Cir. 1994)). Howard’s claim therefore fails

because a section 1983 conspiracy claim is not actionable without an

underlying violation of a federally protected right, which did not occur

in this case.26 Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995).

Accordingly, this claim is likewise dismissed.

B. Personal Capacity § 1983 Claims Against McGehee

1. Equal Protection Claim

Howard asserts that the motion should be denied as to claims

against Chief Deputy McGehee in his personal capacity because he

26 The Court addresses why there was no equal protection violation

in the Sheriff’s Office’s investigation or lack thereof in Section

III.B.1, infra, negating that basis for an underlying constitutional

violation as well.

deprived Howard of his Fourteenth Amendment right to equal

protection by not properly investigating the Ferrand incident. As the

Court explains below, Howard’s claims against McGehee are also

deficient because there is no legal basis for a finding that Howard’s

constitutional rights were violated by McGehee’s failure to investigate

the incident.

Absent an improper, discriminatory motive guiding law

enforcement’s decision, “[f]ailure to investigate or prosecute an offense

does not give rise to § 1983 liability.” Rolen v. City of Brownfield, Tex.,

182 F. App’x 362, 364 (5th Cir. 2006) (citing Piotrowski v. City of

Houston, 237 F.3d 567, 582 (5th Cir. 2001)); see also Oliver v. Collins,

904 F.2d 278, 281 (5th Cir. 1990) (finding that even if the defendant-

sheriff was the person with authority to decide whether or not to

pursue criminal charges, he could not be held liable for failure to

pursue criminal charges against the officers involved in the alleged

assault of the plaintiff). Here, although Howard alleges that Ferrand’s

actions were racially motivated, he does not allege that racial animus

or some other similar prohibited discriminatory reasoning guided law

enforcement’s decision to handle the investigation into the alleged

altercation the way that it did. Rather, he contends that the Orleans

Parish Sheriff’s Office turned a blind eye to Ferrand’s conduct because

of Ferrand’s status as a deputy. The facts before the Court are

altogether different from a situation where the government denies

protective services to certain disfavored minorities. Cf. DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197 n.3 (1989)

(citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)).

The only case Howard cites in support of his position is Donahue

v. Strain, an unpublished decision by another section of this court. No.

15-6036, 2017 WL 3311241, at *14 (E.D. La. Aug. 3, 2017). He urges

the Court to follow the approach in Donahue and contends that, like

the defendants in that case, McGehee is liable for intentionally failing

to investigate Ferrand’s actions.27 But Donahue is inapposite.

Donahue involved police denying protection to a plaintiff because of

her status as the wife of an allegedly abusive officer. Id. In stark

contrast, Howard essentially contends that the Orleans Parish Sheriff’s

Office denies police protection to all victims of crime at the hands of

27 See R. Doc. 13 at 13 (“Defendant Ferrand’s status as a law

enforcement officer and his relationship with Defendant

Gusman and Defendant McGehee led to a conspiracy to deprive

Plaintiff of his Constitutional right to equal protection and a

thorough investigation of his claims in order to protect ‘one of

their own’ from disciplinary action.”).

deputies. Thus, Howard’s version of the facts conveys that he was

treated the same as other similarly situated individuals. Accordingly,

this claim must be dismissed as well.

2. § 1983 Conspiracy Claim

Howard also asserts a section 1983 conspiracy claim against

McGehee. As with the conspiracy claim against Ferrand discussed in

Section III.A.4, supra, this claim must be dismissed because there was

no underlying violation of Howard’s federal rights.

C. Personal Capacity Claims § 1983 Against Gusman

The claims against Sheriff Gusman in his personal capacity stem

from the investigation of Ferrand or lack thereof, so they must be

dismissed for the same reasons as those asserted against McGehee,

discussed in Section III.B.1, supra. As to Gusman’s potential liability

from the Ferrand altercation itself, “[s]upervisory officials cannot be

held liable under section 1983 for the actions of subordinates . . . on

any theory of vicarious or respondeat superior liability.” Est. of Davis

ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir.

2005). Howard has not alleged any personal involvement by Gusman

other than in the investigation, which is not actionable as explained

above. Accordingly, the Court dismisses Howard’s claims against

Gusman in his personal capacity.

D. Official Capacity § 1983 Claims

Howard also sues the officers in their official capacities. Because

claims against officers in their professional capacities are really claims

against the government entity, these claims require that a policy or

custom of the Orleans Parish Sheriff’s Office directly led to the

constitutional violation found. Estate of Davis ex rel. McCully v. City

of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). Accordingly,

Howard must plead facts that plausibly establish: (1) a policymaker,

(2) an official policy or custom of the Sheriff’s office, and (3) a violation

of constitutional rights whose “moving force” is the violation of that

policy or custom. Railiff 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)). Further, the description of a policy or custom “cannot be

conclusory; it must contain specific facts.” Spiller v. City of Texas City,

Police Dept., 30 F.3d 162, 167 (5th Cir. 1997).

As discussed previously, there has been no violation of Howard’s

constitutional rights, requiring dismissal of the official-capacity claims

for this reason alone. But Howard also fails to meet other elements of

the test. His claims against Ferrand in his official capacity must fail

because the bailiff was not a policymaker—there is no indication that

he was responsible for the actions of anyone besides himself. Railiff,

948 F.3d at 285. While Chief Deputy McGehee may or may not have

been delegated policymaking authority for the purposes of section

1983, those claims must fail for the same reasons as the claims against

Gusman—Howard has not adequately alleged the existence of a

relevant policy or custom. Here, Howard merely reiterates that “[i]t

was the policy and practice of Defendant, Sheriff Gusman, to employ

certain deputies, detectives, and staff members, including Defendants,

Deputy Ferrand, and Chief Deputy McGehee,”28 and that “it was the

custom and policy of Defendants, Sheriff Gusman and Chief Deputy

McGehee, and unknown supervisors who supervised the deputies who

unlawfully violated Petitioner’s rights, to tolerate the practices

described in the foregoing paragraphs.”29 He also adds that defendants

28 R. Doc. 1 ¶ 111.

29 Id. ¶ 116.

“refused adequately train, direct, supervise or control Defendant

officers, detectives, and staff members to prevent the violation of

Petitioner’s constitutional rights.”30

But to find official-capacity liability, the Court must determined

that a specific policy was the “moving force behind the constitutional

violation at issue, or that the Plaintiff’s injuries resulted from the . . .

policy.” Spiller, 130 F.3d at 167 (internal quotation marks and citation

omitted). Further, courts may not infer that a policy was responsible

“merely because harm resulted from some interaction with a

government entity,” and instead must identify a policy or custom that

actually caused the violation. Colle v. Brazos Cnty., Tex., 981 F.2d 237,

245 (5th Cir. 1993). And, with respect to the failure to train allegation,

a single incident, standing alone, is generally insufficient to establish a

violation. See Connick v. Thompson, 131 S.Ct. 1350, 1361–62 (2011).

In this case, the single, alleged failure by the Orleans Parish

Sheriff’s Office to adequately investigate the incident cannot give rise

to official-capacity section 1983 liability, as it does not show a policy or

custom. Nor does the allegation that the Sheriff’s Office failed to train

30 Id.

Ferrand, which is based on the one altercation mentioned in the

complaint. These two isolated incidents “are not the persistent, often

repeated, constant violations, that constitute custom and policy as

required for municipal section 1983 liability.” Bennett v. City of Slidell,

728 F.2d 762, 768 n.3 (5th Cir.1984), cert. denied, 472 U.S. 1016

(1985). Further, “it is nearly impossible to impute [a] lax disciplinary

policy to the [defendant] without showing a pattern of abuses that

transcends the error made in a single case.” Piotrowski v. City of

Houston, 237 F.3d 567, 582 (5th Cir. 2001) (citing Bryan County, 520

U.S. at 410–11). Howard has not done so here. Plaintiff’s bare

allegation that “[t]his matter is bigger than this one incident”31 does

not make up for the wholesale lack of facts alleged on which a court

could find this to be a recurrent issue. Instead, plaintiff focuses on the

prospective conjecture of what might happen if his action is not

successful.32 This type of forward-looking, speculative concern is not

the basis of a section 1983 action. Plaintiff’s claims against defendants

in their official capacities are therefore dismissed.

31 R. Doc. 1 ¶ 77.

32 Id.

E. §§ 1985 and 1986 Claims

Howard also brings a conspiracy claim against the defendants

under 42 U.S.C. § 1985(3). “To state a claim under 42 U.S.C. § 1985(3),

a plaintiff must allege: (1) a conspiracy involving two or more persons;

(2) for the purpose of depriving, directly or indirectly, a person or class

of persons of the equal protection of the laws; and (3) an act in

furtherance of the conspiracy; (4) which causes injury to a person or

property, or a deprivation of any right or privilege of a citizen of the

United States.” Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir.

1994). Additionally, “[i]n order to assert a claim under § 1985(3), a

plaintiff must allege some class-based animus.” Burns-Toole v. Byrne,

11 F.3d 1270, 1276 (5th Cir. 1994). While Howard alleges that

Ferrand’s own actions were racially charged, he has not alleged that

anyone else’s actions were motivated by racial animus, or that the

purported conspiracy was based on racial or otherwise improper

discrimination towards him. Accordingly, plaintiff’s conspiracy claim

under section 1985 must be dismissed. See Morales v. State, No. 94-

1194, 1996 WL 442225, at *1 (E.D. La. Aug. 2, 1996) (noting that “the

Court dismissed plaintiff's § 1985 claims because he failed to allege that

defendants’ actions were motivated by race or class-based animus as

required by the statute.”).

Lastly, because a section 1986 claim is predicated on liability

under section 1985, Galloway v. Johnson, 817 F.2d 1154, 1159 n. 2 (5th

Cir. 1987), and Howard has failed to state a cause of action under

section 1985, Howard’s claims under section 1986 must also be

dismissed. See Hagardon v. Hingle, No. 03-607, 2003 WL 22174273,

at *3 (E.D. La. Sept. 11, 2003) (“Because plaintiffs failed to state a

cognizable claim under Section 1985, they may not recover under the

interrelated, dependent cause of action under Section 1986.”).

F. Leave to Amend

Howard asks the Court for leave to amend should the Court grant

defendants’ motion to dismiss.33 Generally, the Court should “freely

give” leave to amend “when justice so requires.” Fed. R. Civ. P.

15(a)(2); Leal v. McHugh, 731 F.3d 405, 417 (5th Cir. 2013). When

deciding whether leave to amend should be given, the Court considers

several factors, including “undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by

33 R. Doc. 13 at 15.

amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, [and] futility of the

amendment.” Forman v. Davis, 371 U.S. 178, 182 (1962). The Court

finds that amendment would be futile here, as further detail of the

alleged altercation would not transform the incident into an actionable

claim. Nor would amendment cure the claims stemming from the

investigation of the altercation, as Howard would have to present a

new, significantly different narrative. And, the other claims essentially

rise and fall with the section 1983 allegations stemming from the

altercation and subsequent investigation. In sum, to correct the

deficiencies in his complaint, plaintiff would need to allege a whole new

set of facts amounting to different incidents altogether, which the

Court will not entertain. Plaintiff’s federal claims are therefore

dismissed with prejudice.

G. Jurisdiction Over Remaining Claims

The Court, having dismissed Howard’s federal claims, has the

discretion to decline to exercise jurisdiction over the state law claims.

28 U.S.C. § 1367(c)(3); see also Burns-Toole v. Byrne, 11 F.3d 1270,

1276 (5th Cir. 1994) (“When all federal claims are dismissed . . . the

district court enjoys wide discretion in determining whether to retain

jurisdiction over the remaining state law claims.”). The Court exercises

that discretion here and dismisses plaintiffs remaining claims without

prejudice.

IV. CONCLUSION

For all of the foregoing reasons, defendants’ motion is

GRANTED. Plaintiff's claims under 42 U.S.C. 88 1983, 1985, and 1986

are DISMISSED WITH PREJUDICE. Plaintiffs remaining claims are

DISMISSED WITHOUT PREJUDICE.

New Orleans, Louisiana, this 20th _ day of January, 2023.

herek Vevee_

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

30