Causer v. Ard

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LISA CAUSER, ET AL

CIVIL ACTION

VERSUS

18-779-SDD-RLB

SHERIFF JASON ARD, ET AL

RULING

This matter is before the Court on the Motion to Dismiss Pursuant to Rule 12(b)(6)1

filed by Defendant, Deputy Cory Winburn (“Deputy Winburn”). Plaintiffs, Lisa Causer,

Glenn Causer, and Brandi Causer (“Plaintiffs”) filed an Opposition2 to this motion, to which

Deputy Winburn filed a Reply.3 For the reasons set forth below, the Defendant’s motion

shall be granted, and Plaintiffs shall be given leave to amend their Complaint.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 21, 2018, Plaintiffs Glenn and Lisa Causer were engaged in a dispute

at their home with their adult daughter, Brandi, who “suffers from a bi-polar disorder and

was angry because she was unable to obtain a ride to a substance abuse support group

meeting.”4 The Causers called 911, requesting police assistance. Livingston Parish

Sheriff’s Deputies Dakota Naquin (“Deputy Naquin”) and Cory Winburn were dispatched

to the Causers’ residence in Denham Springs, Louisiana. In their Complaint, the Causers

allege that the deputies’ response to the call for assistance played out as follows. When

the deputies arrived on scene, they found Glenn Causer standing in front of the home.

1 Rec. Doc. No. 17.

2 Rec. Doc. No. 24-1 (incorrectly styled as a Reply).

3 Rec. Doc. No. 33.

4 Rec. Doc. No. 1, p. 3, ¶ 9.

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Deputy Naquin asked him to step toward the street, which he did.5 Lisa Causer was

allegedly standing in the middle of the front porch “in a calm and nonthreatening posture.”6

Deputy Naquin asked Lisa Causer where the “other party” was, and she replied, “in there,

crying because she thinks she’s going to jail.”7 After climbing the porch steps to look in a

window, where he observed Brandi Causer “pacing back and forth,” Deputy Naquin asked

Lisa Causer to step off of the front porch, stating, “Ma’am, come down here,” and waited

at the bottom of the steps for her to descend.8

Plaintiffs allege that Deputy Naquin “used his arm to signal to Mrs. Causer to walk

forward,” as she remained on the front porch. Deputy Naquin then allegedly stated again,

“Ma’am, come down here. Stand over here,” indicating that she should stand by a vehicle

in the front yard.9 Lisa Causer replied, “no, I want to stand right here.”10 Plaintiffs allege

that, “before [Lisa Causer] finished her sentence,” Deputy Naquin “shouted in a loud and

angry manner ‘Ma’am, come stand right here. I ain’t going to tell you . . . okay’ and then

aggressively charged up the stairs.”11 As Deputy Naquin came toward her, Lisa Causer

allegedly said, “I’m not even dressed.”12

Then, Plaintiffs allege, Deputy Naquin grabbed Lisa Causer’s left wrist and

“manhandl[ed] [her] towards him while placing his right hand on top of her left shoulder in

what is known as an ‘arm bar takedown.’”13 At this point, Glenn Causer allegedly told the

5 Rec. Doc. No. 1, p. 3, ¶ 11-12.

6 Rec. Doc. No. 1, p. 3, ¶ 13.

7 Rec. Doc. No. 1, p. 3, ¶ 14-15.

8 Rec. Doc. No. 1, p. 3, ¶ 18.

9 Rec. Doc. No. 1, p. 4, ¶ 20.

10 Rec. Doc. No. 1, p. 4, ¶ 21.

11 Rec. Doc. No. 1, p. 4, ¶ 22.

12 Rec. Doc. No. 1, p. 4, ¶ 23.

13 Rec. Doc. No. 1, p. 4, ¶ 25.

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deputy to “watch her shoulder, she had it replaced five times.”14 Nevertheless, Plaintiffs

claim, Deputy Naquin “ignored Mrs. Causer’s pleas”15 and “was violently forcing [her] to

the ground and attempting to force her left arm behind her back” as she “was screaming

with complaints of pain to her shoulder.”16 The Causers’ daughter Brandi exited the home

and walked out onto the porch “to advise the deputy that because of the previously

mentioned shoulder surgeries Mrs. Causer’s arm would not go behind her back.”17

Plaintiffs allege that Deputy Naquin “violently pushed Brandi Causer backwards on at

least two occasions” after she touched him “in effort [sic] to get his attention.”18 Deputy

Winburn, the other deputy who responded to the call for assistance, then “placed Brandi

Causer into handcuffs without incident.”19

While Lisa Causer’s hands were cuffed behind her back, Deputy Naquin allegedly

forged her signature to indicate that she had refused medical treatment, despite the fact

that she allegedly made multiple requests for an ambulance and medical treatment.20

When Lisa Causer asked the Deputy “what she did wrong,” he allegedly told her, “you

didn’t listen.”21 Per Plaintiffs, the above-described events of February 21, 2018 amounted

to Lisa Causer being “falsely arrested.”22

Plaintiffs filed this lawsuit against multiple Defendants pursuant to 42 U.S.C.

§1983, alleging that Lisa Causer suffered constitutional violations arising out of her

14 Rec. Doc. No. 1, p. 5, ¶ 27.

15 Rec. Doc. No. 1, p. 5, ¶ 28.

16 Rec. Doc. No. 1, p. 5, ¶ 28.

17 Rec. Doc. No. 1, p. 5, ¶ 29.

18 Rec. Doc. No. 1, p. 5, ¶ 31-32.

19 Rec. Doc. No. 1, p. 5, ¶ 32.

20 Rec. Doc. No. 1, p. 5, ¶ 34, 35.

21 Rec. Doc. No. 1, p. 6, ¶ 38.

22 Rec. Doc. No. 1, p. 6, ¶ 36.

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“unlawful arrest” and the allegedly excessive use of force by Defendants. Lisa Causer

also asserts a litany of state law claims, including battery, assault, false imprisonment,

intentional infliction of emotional distress, cruel treatment, and failing to provide medical

attention. For his part, Glenn Causer asserts a claim for loss of consortium pursuant to

Louisiana Civil Code article 2315.6,23 while both Glenn and Brandi Causer assert

“bystander” claims under the same article, arising out of suffering caused by witnessing

the arrest of Lisa Causer.24

The instant Motion seeks to dismiss the all of Causers’ claims against Deputy Cory

Winburn, who argues that the “Complaint is devoid of any facts that would give rise to

liability.”25 In fact, Deputy Winburn notes, the factual allegations set forth at Paragraphs

32 and 43 in the Complaint (“Deputy Winburn then placed Brandi Causer into handcuffs

without incident” and “Pursuant to the manual Deputy Winburn should have also prepared

a report of the incident, but he did not,” respectively) give no indication that he “used any

force upon any plaintiff.” Therefore, he contends, “[P]laintiffs’ claims for assault, battery,

cruel treatment, excessive use of force, and unreasonable use of force cannot possibly

stand.”26

Apart from those factual allegations, the Complaint contains only two other

mentions of Deputy Winburn, at Paragraphs 45 and 46:

45. Deputy Winburn, who was at all times present, failed to intervene

and protect Plaintiffs upon witnessing the careless and aggressive

acts of Deputy Naquin.

46. Deputy Winburn further escalated the violence by acting in an

overly aggressive manner throughout the incident, by using vulgar

23 Rec. Doc. No. 1, p. 8, ¶ 51.

24 Rec. Doc. No. 1, p. 8, ¶ 50-51.

25 Rec. Doc. No. 17-1, p. 3.

26 Rec. Doc. No. 17-1, p. 4.

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and threatening language throughout the incident, and by failing

to protect citizens of Livingston Parish during another officer’s

obviously [sic] violation of state and federal law.

Deputy Winburn characterizes these allegations as merely “legal conclusions.”27

In their Opposition, Plaintiffs argue that the above-quoted allegations at

Paragraphs 45 and 46 establish that Winburn “was on the scene, that he either acted or

failed to act in violation of both policy and procedure of LPSO and the Constitution, and

that his actions caused or contributed to the injuries suffered by Plaintiffs.”28 Because the

“failure to protect a suspect from the use of excessive force by other officers is a basis for

a Section 1983 claim,”29 Plaintiffs believe that their allegations against Deputy Winburn

should survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The

Court will address the claims in turn.

II. LAW AND ANALYSIS

A. Motion to Dismiss Standard

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”30 The Court

may consider “the complaint, its proper attachments, documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.”31 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

a claim to relief that is plausible on its face.’”32 In Twombly, the United States Supreme

27 Rec. Doc. No. 17-1, p. 5.

28 Rec. Doc. No. 24-1, p. 2.

29 Rec. Doc. No. 24-1, p. 4.

30 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

31 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

32 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area

Rapid Transit, 369 F.3d at 467).

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Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)

motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.”33 A complaint is also insufficient if it

merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”34 However,

“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the

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

alleged.”35 In order to satisfy the plausibility standard, the plaintiff must show “more than

a sheer possibility that the defendant has acted unlawfully.”36 “Furthermore, while the

court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable

to the plaintiff.’”37 On a motion to dismiss, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.”38

B. Section 1983 Claims and Qualified Immunity

To state a claim under Section 1983, a plaintiff must (1) allege a violation of rights

secured by the Constitution or laws of the United States and (2) demonstrate that the

alleged deprivation was committed by a person acting under color of state law.39 Plaintiffs

33 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets

omitted)(hereinafter Twombly).

34 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations

omitted)(hereinafter “Iqbal”).

35 Twombly, 550 U.S. at 570.

36 Iqbal, 556 U.S. at 678.

37 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire

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

38 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d

209 (1986)).

39 See Lefall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994).

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allege that Deputy Winburn violated their Fourth Amendment right to be free from

excessive force and false arrest. The Court turns to these claims.

1. Excessive Force

“To prevail on an excessive force claim, a plaintiff must establish: (1) injury (2)

which resulted directly and only from a use of force that was clearly excessive, and (3)

the excessiveness of which was clearly unreasonable.”40 Plaintiffs do not allege that

Deputy Winburn used force at any time. In fact, the only physical action that he is alleged

to have taken is placing Brandi Causer in handcuffs, which, by Plaintiffs’ own admission,

took place “without incident.”41 Plaintiffs urge the court to consider their allegation that

“the two officers responded together to the call out”42 and to conclude that there is nothing

in the Complaint that would allow Deputy Winburn to “somehow factually remove himself

for any liability for what transpired while he was present on the scene.”43 However,

Plaintiffs’ allegations involving the use of force all concern Deputy Naquin, and the Court

will not infer that Deputy Winburn participated in that use of force without some plausible

factual allegations suggesting such. Therefore, to the extent that Plaintiffs intended to

bring a claim under § 1983 for excessive use of force against Deputy Winburn, that claim

is dismissed without prejudice for failure to plead facts in support of the cause of action.44

40 Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (internal quotations and citations omitted).

41 Rec. Doc. No. 1, p. 5, ¶ 32.

42 Rec. Doc. No. 24-1, p. 5.

43 Rec. Doc. No. 24-1, p. 5.

44 Plaintiffs’ claim for cruel treatment shall be dismissed without prejudice for the same reasons, given that

Plaintiffs cite no independent authority for this cause of action and this Court has previously recognized

cruel treatment as derivative of a § 1983 claim for excessive force. See Rice v. Reliastar Life Ins. Co., No.

CIV.A. 11-111-BAJ, 2015 WL 3456622 at *1, n. 2 (M.D. La. May 29, 2015).

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2. Bystander Liability

Plaintiffs assert that Deputy Winburn is liable under § 1983 for “fail[ing] to intervene

and protect [them] upon witnessing the careless and aggressive acts of Deputy Naquin.”45

The Fifth Circuit has held that “an officer may be liable under § 1983 under a theory of

bystander liability where the 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.”46 In his Motion to Dismiss, Deputy Winburn correctly notes

that Plaintiffs make no allegation “establishing that he made a deliberate choice not to

act”47 or showing Deputy Winburn’s “relative position to Deputy Naquin when the alleged

force was used [or] whether Deputy Winburn could clearly see that use of force.”48

Plaintiffs contend that they lack factual allegations to plead in support of their

bystander liability claim because Deputy Winburn did not file a police report, in

contravention of LPSO policy. Therefore, they argue, “the allegation that Deputy Winburn

failed to make a report is the factual allegation that the defendant failed in his duties as

an officer, that he was complacent and cooperating with the actions of Deputy Naquin.”49

The Court is not persuaded by this line of argument. Deputy Winburn’s alleged failure to

file a report does not relieve Plaintiffs of the requirement to plead in a manner that gives

rise to more than a sheer possibility that Deputy Winburn acted unlawfully. It would be

unreasonable for the Court to infer liability for constitutional violations based on the lack

45 Rec. Doc. No. 1, p. 7, ¶ 45.

46 Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (quoting Randall v. Prince George's Cty., 302 F.3d

188, 204 (4th Cir. 2002)).

47 Rec. Doc. No. 17-1, p. 8.

48 Id.

49 Rec. Doc. No. 24-1, p. 5.

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of a police report, and it is not sufficient under the motion to dismiss standard for Plaintiffs

to conclusorily state that it is plausible that Deputy Winburn was necessarily “working with

. . . communicating . . . and was thus sanctioning the actions of or participating in the

actions of Deputy Naquin.”50 Moreover, Plaintiffs have cited no authority in support of this

argument. The Court agrees with Deputy Winburn; pleading that he was on the scene

and that he “failed to intervene” constitutes only a bare bones recitation of the elements

of a claim for bystander liability. Accordingly, Plaintiffs’ bystander liability claim is

dismissed without prejudice.

3. False Arrest

Deputy Winburn moves to have the § 1983 claim for false arrest dismissed

because, he argues, “there are absolutely no facts pled in the Complaint to establish an

absence of probable cause for [him] to have handcuffed”51 any of the Plaintiffs. Indeed,

the Fifth Circuit has held that, in order to prevail on a claim for false arrest, the plaintiff

must show that she was arrested without probable cause.52 The only person that Deputy

Winburn is alleged to have arrested is Brandi Causer, who he “placed into handcuffs

without incident.”53 Brandi Causer has not asserted a § 1983 claim for false arrest,

however; only Lisa Causer has. There is no allegation that Deputy Winburn arrested Lisa

Causer, and to the extent that Plaintiffs are attempting to assert a claim for bystander

liability with respect to Lisa Causer’s allegedly false arrest, that claim fails for the same

reason described above with respect to the bystander liability claim for excessive force;

50 Rec. Doc. No. 24-1, p. 6.

51 Rec. Doc. No. 17-1, p. 10.

52 Thomas v. Pohlmann, 681 F. App'x 401, 406 (5th Cir. 2017) (citing Burge v. Par. of St. Tammany, 187

F.3d 452, 480 (5th Cir. 1999)).

53 Rec. Doc. No. 1, p. 5.

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namely, Plaintiffs have not pled with specificity Deputy Winburn’s knowledge of a

violation, his opportunity to prevent it, or his affirmative decision not to act. Accordingly,

Plaintiffs’ false arrest claim under § 1983 is dismissed without prejudice as to Deputy

Winburn.

4. Qualified Immunity

In his Motion to Dismiss, Deputy Winburn asserts that he “is entitled to and hereby

pleads qualified immunity with respect to all claims asserted by plaintiffs under § 1983.”54

When the defense of qualified immunity is raised in a Rule 12(b)(6) motion, “it is the

defendant's conduct as alleged in the complaint that is scrutinized for ‘objective legal

reasonableness’.”55 The plaintiff must support his claim with “sufficient precision and

factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the

time of the alleged acts.”56 When greater detail is required to address the defense of

qualified immunity, the Court may insist that a plaintiff file a reply pursuant to Federal Rule

of Civil Procedure 7(a) tailored to an answer pleading the defense of qualified immunity.57

The Court does not reach the qualified immunity analysis on this motion, because

it finds that all of Plaintiffs’ claims pursuant to 42 U.S.C. § 1983 shall be dismissed for

failure to meet the pleading standard required to survive a Rule 12(b)(6) motion to

dismiss. However, if Plaintiffs choose to amend their Complaint in accordance with the

leave to amend granted below, they will also be required to file a reply pursuant to FRCP

7(a) that answers the asserted defense of qualified immunity.

54 Rec. Doc. No. 17-1, p. 10.

55 McClendon, 305 F.3d at 323 (quoting Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773

(1996)).

56 Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir.1995) (en banc).

57 Id. at 1433–34.

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C. State Law Claims58

1. Intentional Infliction of Emotional Distress

Lisa Causer has asserted a claim for international infliction of emotional distress.59

The Louisiana Supreme Court has held that:

in order to recover for intentional infliction of emotional distress, a plaintiff

must establish (1) that the conduct of the defendant was extreme and

outrageous; (2) that the emotional distress suffered by the plaintiff was

severe; and (3) that the defendant desired to inflict severe emotional

distress or knew that severe emotional distress would be certain or

substantially certain to result from his conduct.60

In the Complaint, Lisa Causer asserts that she was “very surprised and overcome with

fear”61 during her interaction with Deputy Naquin, and she was “screaming with

complaints of pain to her shoulder” while the Deputy “ignored [her] pleas without

acknowledging or seeming to care the damage he was causing.”62 Those allegations are

specific to Deputy Naquin and cannot give rise to liability for intentional infliction of

emotional distress (IIED) as to Deputy Winburn. Plaintiffs argue that their allegation that

Deputy Winburn used vulgar language during Lisa Causer’s arrest suffices to make out a

claim for IIED.63 As Deputy Winburn notes in his Reply, however, the Louisiana Supreme

Court has held that “rough language” is not an appropriate basis for an IIED claim.64 In

fact, the Louisiana Supreme Court has further held that “[t]he conduct must be so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds

58 The Court exercises supplemental jurisdiction over Plaintiff’s state law claims pursuant to 28 U.S.C. §

1367.

59 Rec. Doc. No. 1, p. 7.

60 Nicholas v. Allstate Ins. Co., 1999-2522 (La. 8/31/00), 765 So. 2d 1017, 1022 (quoting White, 585 So.2d

at 1209).

61 Rec. Doc. No. 1, p. 4.

62 Rec. Doc. No. 1, p. 5.

63 Rec. Doc. No. 24-1, p. 5.

64 White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991).

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of decency, and to be regarded as atrocious and utterly intolerable in a civilized

community. Liability does not extend to mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities.”65 Plaintiffs have not pleaded factual allegations

that would allow the Court to infer that that Deputy Winburn intended to cause emotional

distress, or that his use of language rose to the “utterly intolerable” level that can give rise

to IIED liability. Accordingly, Lisa Causer’s claim for intentional infliction of emotional

distress is hereby dismissed without prejudice as to Deputy Winburn.

2. Bystander Tort Claims

Glenn and Brandi Causer, Lisa Causer’s husband and daughter, have asserted

bystander claims under Louisiana Civil Code article 2315.6 for their own alleged injuries

that occurred due to witnessing the arrest of their wife and mother. In Louisiana, to

sustain a bystander claim, “a plaintiff must establish: (1) that he or she ‘view[ed] an event

causing injury to another person, or ... [came] upon the scene soon thereafter’; (2) a

sufficiently close relationship to the direct victim as defined by the relevant code article;

(3) that ‘the injured person ... suffer[ed] such harm that one can reasonably expect a

person in the claimant's position to suffer serious mental anguish or emotional distress

from the experience’; and (4) ‘the claimant's mental anguish or emotional distress must

be severe, debilitating, and foreseeable.’”66 “A non-exhaustive list of examples of serious

emotional distress includes neuroses, psychoses, chronic depression, phobia, and

shock.”67

65 Id.

66 Curran v. Aleshire, 67 F.Supp.3d 741, 768 (quoting La. C.C. art. 2315.6.).

67Jenkins, 986 So.2d at 252-53 (citing Lejeune, supra; Norred v. Radisson Hotel Corporation, 950748

(La.App. 1st Cir.12/15/95), 665 So.2d 753).

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Neither Glenn nor Brandi Causer has gone beyond merely reciting the elements

of a bystander claim. Although both have a sufficiently close relationship to recover under

the code article, and both allege to have been on the scene at the time of Lisa Causer’s

injury, both parties simply claim to have “suffered damages,” or, in Brandi’s case,

“suffered damages of mental anguish.”68 Such allegations are both overly general;

moreover, Louisiana courts have held that the type of serious emotional distress for which

recovery is available under La. C. c. art 2315.6 “goes well beyond simple mental pain and

anguish. Compensation for mental pain and anguish over injury to a third person should

only be allowed where the emotional injury is both severe and debilitating.”69 Because

there has been no allegation of severe and debilitating mental anguish, nor any

allegations that the Causers’ mental anguish was foreseeable, Glenn and Brandi

Causer’s claims under La. C. C. art. 2315.6 are hereby dismissed without prejudice.

3. Loss of Consortium

Under Louisiana law, a cause of action exists for “loss of consortium, service, and

society” for the spouse of an injured victim.70 “The compensable elements of a claim for

loss of consortium ... include loss of love and affection, loss of companionship, loss of

material services, loss of support, impairment of sexual relations, loss of aid and

assistance, and loss of felicity.”71 Glenn Causer asserts a claim for loss of consortium,

alleging that he “suffered a loss of consortium and a loss of love, affection and support

due to the injuries to his wife.”72 In order to avoid dismissal for failure to state a claim, a

68 Rec. Doc. No. 1, p. 8.

69 Nelson v. Ruston Longleaf Nurse Care Center, Inc., 32,718 (La. App. 2 Cir. 2/1/00), 751 So.2d 436, 438.

70 See e.g. Ferrell v. Fireman's Fund Ins. Co., 696 So.2d 569, 573 (La.1997).

71 Id. (citing Choyce v. Sisters of Incarnate Word, 642 So.2d 287 (La. 2nd Cir.1994)).

72 Rec. Doc. No. 1, p. 8.

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plaintiff must plead specific facts, which Glenn Causer here has failed to do; his claim is

merely a recitation of the elements of loss of consortium. Should Plaintiffs amend their

Complaint in accordance with this Court’s Ruling (see below), more circumstances and

facts surrounding the loss of consortium must be pled if the claim is to avoid dismissal.

On this motion, however, the loss of consortium claim is dismissed without prejudice.

4. Assault and Battery

Lisa Causer asserts a claim for assault and battery against Deputy Winburn.73

Under Louisiana law, “[a] harmful or offensive contact with a person, resulting from an act

intended to cause him to suffer such a contact, is a battery.”74 Based on the allegations

in the Complaint, the only person with whom Deputy Winburn made contact is Brandi

Causer. As such, he cannot be liable for battery with respect to Lisa Causer. Likewise, an

assault is “the imminent threat of a battery.”75 Plaintiffs do not assert that Lisa Causer

experienced such a threat from Deputy Winburn or plead facts that suggest that she did.

Accordingly, Plaintiffs’ state law claims for assault and battery are dismissed without

prejudice with respect to Deputy Winburn.

5. False Imprisonment

Lisa Causer also asserts a claim for false imprisonment. Under Louisiana law,

“[f]alse imprisonment is the unlawful and total restraint of the liberty of the person.”76 It

“consists of the following two essential elements: (1) detention of the person; and (2) the

73 Rec. Doc. No. 1, p. 7, ¶ 49.

74 Caudle v. Betts, 512 So. 2d 389, 390 (La. 1987)

75 Bulot v. Intracoastal Tubular Servs., Inc., 98–2105, p. 13 (La.App. 4 Cir. 2/24/99); 730 So.2d 1012, 1018,

abrogated on other grounds by Bulot v. Intracoastal Tubular Servs., Inc., 2004–1376 (La.App. 4 Cir.

11/3/04); 888 So.2d 1017.

76 Kelly v. W. Cash & Carry Bldg. Materials Store, 745 So.2d 743, 750 (La. Ct. App. 1999) (emphasis

omitted) (quoting Crossett v. Campbell, 122 La. 659, 48 So. 141, 143 (1908)).

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unlawfulness of the detention.”77 As discussed above, Deputy Winburn is only alleged to

have arrested Brandi Causer. There has been no allegation that he detained Lisa Causer.

Even if there was such an allegation, Plaintiffs fail to plead with specificity that such a

detention would have been unlawful. Thus, the false imprisonment claim against Deputy

Winburn is dismissed without prejudice for failure to plead facts in support of the claim.

6. Failing to Provide Medical Attention

It is unclear from Plaintiffs’ Complaint whether the claim styled as “failing to provide

medical attention”78 is intended as an alleged federal constitutional violation pursuant to

42 U.S.C. § 1983, or as a state law claim sounding in negligence. Because the Complaint

does not mention the Eighth Amendment, deliberate indifference, or any of the other

trappings of a claim related to inadequate medical care under 42 U.S.C. § 1983, the Court

presumes the claim is a state law claim for negligent medical treatment.

Louisiana courts evaluate negligence claims using the duty/risk analysis. The

duty/risk analysis consists of the following factors: (1) did the defendant owe a duty to the

plaintiff; (2) was the duty breached; (3) was the conduct in question a substantial factor

in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which

occurred; (4) was the risk, and harm caused, within the scope of protection afforded by

the duty breached; and (5) actual damage.79 For liability to be found, Plaintiff must prove

all five separate factors.80 Plaintiffs’ Complaint lacks any reference to the above elements;

77 Kennedy v. Sheriff of E. Baton Rouge, 935 So.2d 669, 690 (La. 2006).

78 Rec. Doc. No. 1, p. 7.

79 See Williams v. Domino's Pizza, Inc., 2001 WL 6724, at *4 (E.D.La. Jan. 2, 2001); Roberts v. Benoit, 605

So.2d 1032, 1041 (La.1991); see also Wiltz v. Bayer CropScience, Ltd. P'ship, 645 F.3d 690, 698 (5th Cir.

2011).

80 Mathieu, 646 So.2d at 322.

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moreover, Plaintiffs allege that Lisa Causer “made multiple requests for an ambulance”

and that “an ambulance did arrive.”81 When a nurse at the jail where Lisa Causer was

booked “advised that Mrs. Causer needed medical attention,” Plaintiffs allege that she

was “taken for medical treatment.”82 Because the elements of negligence cannot be

gleaned from the Complaint, and because Plaintiffs’ own allegations suggest Lisa Causer

was indeed given medical attention, Deputy Winburn is entitled to dismissal of any state

law claims against him for failing to provide medical attention, without prejudice.

D. Leave to Amend

When a complaint fails to state a claim, the court should generally give the plaintiff

at least one chance to amend before dismissing the action with prejudice unless it is clear

that the defects in the complaint are incurable.83 Accordingly, Plaintiffs are granted leave

to amend their Complaint in accordance with this Court’s Ruling.

81 Rec. Doc. No. 1, p. 6.

82 Rec. Doc. No. 1, p. 6.

83 See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002); see

also United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004) (“Leave

to amend should be freely given, and outright refusal to grant leave to amend without a justification ... is

considered an abuse of discretion.”) (internal citation omitted).

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III. CONCLUSION

For the reasons set forth above, the Motion to Dismiss is GRANTED, and all of

Plaintiffs’ claims against Defendant Cory Winburn are dismissed without prejudice.

Plaintiffs are hereby granted leave to file an Amended Complaint and a Rule 7(a) answer

to the defense of qualified immunity within thirty (30) days of the date of this Ruling.

Signed in Baton Rouge, Louisiana on August 15, 2019.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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