The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CARMEN HAMMOND CIVIL ACTION
VERSUS
ANTHONY BURNS ET AL. NO.: 18-803-BAJ-RLB
RULING AND ORDER
Before the Court in this 42 U.S.C. § 1983 action is the Motion to Dismiss
(Doe. 21) filed by Defendants Anthony Burns, Andrew Poe, Kevin McDonald, Robert
Myer, and the City of New Roads. For the reasons that follow, the Motion (Doc. 21)
is GRANTED IN PART and DENIED IN PART.
I, BACKGROUND
Officers of the New Roads Police Department arrested Carmen Hammond for
committing battery of a police officer. (Doc. 1). Hammond contends the arrest was
bogus. (/d.). She sued the arresting officers, Anthony Burns and Andrew Poe; the City
of New Roads Police Department’s Chief of Police, Kevin McDonald; the City of New
Roads’ then-Mayor, Robert Myer; and the City of New Roads. (/d.). The well-pleaded
facts of her complaint, accepted as true and viewed in her favor, follow. See Midwest
Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 518 (5th Cir. 2018).
Hammond’s house caught fire on August 28, 2017. (Doc. 1 at { 10). Seeking
help, Hammond called the fire department and her father, a former firefighter with
a heart condition. (fd. at § 11). By the time her father arrived, the firefighting was
well underway. (/d. at {| 12). But Hammond’s father grew concerned: the house looked
“too smoky” and the electrical supply had not been shut off ([d.). He feared the fire
would spread “due to [an] electrical short circuit[.]” (id.). So he asked the firefighters
“several times’ to shut off the electrical supply. (id. at [ 13). The firefighters ignored
him. (dd. at [§ 13-14).
At some point, Hammond’s father asked the firefighters “what their problem
was.” Ud. at | 15). One of the firefighters responded by calling the City of New Roads
Police Department. Ud.). Hammond tried to escort her father away from the
firefighters; before she could do so, however, Officer Burns “pepper sprayed” her
father and then threw him to the ground. (/d. at 17). Officers Burns and Poe then
arrested Hammond because she had tried to help her father. (/d. at J 22). They
charged her with battery of a police officer, handcuffed her “so tightly as to leave a
mark on her wrist,” “forced” her to sit in the police cruiser for “nearly two hours,” and
then transported her to jail. (id. at | 28).
The following day, Hammond was released. Ud. at 9 24). Officers later
dismissed the charge against her. (/d.). This lawsuit followed.
Hammond purports to allege (1) § 1983 claims for “unlawful arrest or
detention” against all Defendants (Doc. 1 at §{ 30-37); (2) § 1983 claims for abuse of
process and malicious prosecution against all Defendants (/d. at J 38-50); (3) § 1983
excessive-force claims against unspecified Defendants (Ud. at (4 51-52); (4) assault
and battery claims against Officers Burns and Poe (Ud. at □ 53-56); (5) a Monell
claim against the City of New Roads (/d. at {| 57-66); and (6) intentional infliction
of emotional distress claims against all Defendants (Id. at J 67—70).
Now, Defendants invoke qualified immunity and move to dismiss Hammond’s
complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. 21). Hammond
opposes. (Doc. 25).
II. LEGAL STANDARD
To overcome Defendants’ Rule 12(b)(6) motion, Hammond must plead plausible
claims for relief. See Romero v. City of Grapevine, Tex., 888 F.3d 170, 176 (5th Cir.
2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is plausible ifitis —
pleaded with factual content that allows the Court to reasonably infer that
Defendants are liable for the misconduct alleged. See Hdionwe v. Bailey, 860 F.3d
287, 291 (6th Cir. 2017) (citing Iqbal, 556 U.S. at 678). The Court accepts as true the
well-pleaded facts of Hammond’s complaint and views those facts in the light most
favorable to her. See Midwest Feeders, Inc., 886 F.3d at 513.
I. DISCUSSION
Defendants move to dismiss Hammond’s federal claims as barred by qualified
immunity and her state-law claims as deficiently pleaded. (Doc. 21), Qualified
immunity is not merely a defense to liability; it is an immunity from suit. Pearson v.
Callahan, 555 U.S. 228, 231 (2009). It is “effectively lost if a case is erroneously
permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). So “qualified
immunity questions should be resolved ‘at the earliest possible stage in litigation.”
Porter v, Epps, 659 ¥.3d 440, 445 (5th Cir. 2011) (quoting Pearson, 555 U.S. at 232).
Accordingly, the Court evaluates the federal claims, along with the qualified
immunity defenses, first. See Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011).
A. Federal Claims
Hammond purports to allege § 1983 claims of unlawful arrest, abuse of process,
malicious prosecution, and excessive force. (Doc. 1). She also seeks an award of
punitive damages. (id. at {{[ 73-74). Defendants invoke qualified immunity in
response, (Doc. 21).
Qualified immunity protects government officials from civil liability so long as
their conduct “does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Pearson, 555 U.S. at 281 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because Defendants invoke qualified
immunity, Hammond “bears the burden of pleading facts that demonstrate liability
and defeat immunity.” Shaw v. Villanueva, 918 F.3d 414, 416 (5th Cir. 2019). To meet
that burden, Hammond must allege facts showing that (1) Defendants violated a
statutory or constitutional right and (2) the right was clearly established at the time
of the conduct. See id. at 416.
1, Unlawful Arrest
At the time of the alleged misconduct, Hammond enjoyed a clearly established
right not to be arrested without probable cause. See Westfall v. Luna, 903 F.8d 534,
542 (5th Cir. 2018). A police officer has probable cause “when the totality of the facts
and circumstances within [the] police officer’s knowledge at the moment of arrest are
sufficient for a reasonable person to conclude that the suspect had committed or was
committing an offense.” Id. at 542-43 (quoting Glenn v. City of Tyler, 242 F.3d 307,
313 (6th Cir. 2001)).
a. Officers Burns and Poe
Hammond alleges that Officers Burns and Poe arrested her without probable
cause. (Doc. 1 at § 32). Defendants contend the allegations of Hammond’s complaint,
considered cumulatively, establish probable cause. (Doc. 21-1 at pp. 7-8). The Court
disagrees.
The well-pleaded allegations of Hammond’s complaint, accepted as true and
viewed in her favor, establish that Officers Burns and Poe arrested Hammond
because she was “attempting to tend to her ailing father.” (Doc. 1 at. § 22). No factual
allegation supports the inference Defendants urge the Court to draw—-that Officers
Burns and Poe had within their knowledge at the moment of arrest sufficient facts to
conclude that Hammond had committed or was committing battery of an officer. See
Westfall, 903 F.3d at 542-43.
Accordingly, Hammond alleges facts sufficient to show that Officers Burns and
Poe violated her clearly established Fourth Amendment right not to be arrested
without probable cause. See id. at 542. The Court therefore denies Defendants’ motion
as to Hammond’s § 1983 unlawful-arrest claims against Officers Burns and Poe.
b. Chief McDonald
Hammond purports to allege a § 1988 supervisor-liability claim against Chief
McDonald. (Doc. 1 at { 25). She alleges that Chief McDonald “employed, controlled,
and supervised” Officers Burns and Poe, who violated her rights “at [Chief
McDonald’s] behest.” (Dec. 1 at 7 25, 32). .
There are two species of § 1983 supervisor-liability claims. See Pefia v. City of
Rio Grande City, 879 F.3d 618, 620 (5th Cir. 2018). The first requires that the
supervisor “affirmatively participate” in the acts causing the constitutional
deprivation. Id. at 620. The second requires that the supervisor “implement
unconstitutional policies that causally result in the constitutional injury.” /d. But no
matter the species of claim, “to establish supervisor lability for constitutional
violations committed by subordinate employees, plaintiffs must show that the
supervisor acted, or failed to act, with deliberate indifference to violations of others’
constitutional rights committed by their subordinates.” 7d. (citation omitted).
Deliberate indifference “is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.” Board of
Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997).
Hammond has not adequately alleged a § 1983 supervisor-liability claim
against Chief McDonald. (Doc. 1 at [] 80-87). Specifically, she has not alleged facts,
taken as true and viewed in her favor, showing that Chief McDonald acted with
deliberate indifference. Ud.). Granted, Hammond alleges that “[eJach and all the acts
of the individual Defendants alleged herein were committed ... with deliberate
indifference and/or gross negligence.” Ud. at 6). But that is a legal conclusion—not
a factual allegation; it is therefore not presumed true. Iqbal, 556 U.S. at 678.
Accordingly, the Court grants Defendants’ motion as to Hammond’s § 1983
supervisor-liability claim against Chief McDonald and dismisses the claim without
prejudice. Because it is not clear that amendment would be futile, the Court grants
Hammond 14 days to amend her complaint to attempt to allege a plausible § 1983
supervisor-hability claim against Chief McDonald.
c. Mayor Myer
Hammond has not alleged any facts establishing that Mayor Myer violated any
of her federally protected rights. (Doc. 1 at 1-74). Accordingly, Hammond fails to
plead any plausible claims against Mayor Myer. See Shaw, 918 F.8d at 416. The Court
therefore grants Defendants’ motion as to all claims against Mayor Myer and
dismisses those claims without prejudice. Because it is not clear that amendment
would be futile, the Court grants Hammond 14 days to amend her complaint to
attempt to allege a plausible claim against Mayor Myer.
2. Abuse of Process
Hammond purports to allege § 1983 abuse-of-process claims against all
Defendants. (Doc. 1 at 38-41). She alleges that Defendants abused the legal
process by “procur[ing] a prosecution” against her with knowledge that she was
innocent. (Doc. 1 at § 39). And she alleges that Defendants did so “to somehow justify
their own unlawful actions.” (fd.),
Hammond must identify a federally protected right to support her § 1983
abuse-of-process claim. See Audeef v. Royal Bank of Scotland, P.L.C., 616 F. App’x
665, 675 (6th Cir. 2015) (per curiam). But she does not have a free-standing federally
protected right to be free from abuse of process. See Sisk v. Levings, 868 F.2d 159,
161-62 (5th Cir. 1989). Accordingly, she cannot bring a § 1983 abuse-of-process
claim.! See Audeef, 616 F. App’x at 675. The Court therefore grants Defendants’
motion as to Hammond’s § 1983 abuse-of-process claims against all Defendants and
dismisses those claims with prejudice.
3. Malicious Prosecution
Hammond attempts to allege § 1983 malicious-prosecution claims against
Officers Burns and Poe, Chief McDonald, and the City of New Roads. (Doc. 1 at 4
42-50). She alleges that Officers Burns and Poe, acting “under the direct supervision”
of Chief McDonald, “falsely criminally charged” her with battery of a police officer.
(id. at {| 48). And she alleges that Defendants acted with malice by initiating “the
proceeding” without probable cause. (Ud. at | 45-50).
Hammond fails to allege a plausible § 1983 malicious-prosecution claim for the
same reason she failed to allege a plausible § 19883 abuse-of-process claim: She fails
to identify a federally protected right. See Audeef, 616 F. App’x at 675. Hammond has
no free-standing federally protected right to be free from malicious prosecution. See
Castellano v. Fragozo, 352 F.2d 939, 942 (5th Cir. 2008) (en banc). So she cannot bring
1 She could, however, attempt to allege a Louisiana-law abuse-of-process claim. See, eg.,
Guillory v. City of New Orleans, 2016-0638 (La. App. 4th Cir, 8/2/17); 224 So. 3d 1035, 1042 (listing
the elements of the Louisiana tort of abuse of process).
a § 1983 malicious-prosecution claim.2 The Court therefore grants Defendants’
motion as to Hammond’s § 1983 malicious-prosecution claims against all Defendants
and dismisses those claims with prejudice.
A, Excessive Force
Hammond purports to allege a § 1983 excessive-force claim against an
unspecified Defendant. (Doc. 1 at □□ 51-52). She alleges, without elaboration, that
“the amount of force used upon [her] was unjustified, unreasonable[,] and excessive
under the circumstances.” (fd. at ¥ 52).
A § 1983 excessive-force claim requires proof of “(1) an injury that (2) resulted
directly and only from the use of force that was excessive to the need and that (3) the
force used was objectively unreasonable.” Johnson v. Thibodaux City, 887 F.3d 726,
73l (5th Cir. 2018) (quoting Flores v. City of Palacios, 381 F.8d 391, 396 (5th Cir.
2004)). The alleged injury “must be more than de minimis.” Tarver v. City of Edna,
410 F.3d 746, 752 (Sth Cir. 2005) (citing Williams v. Bramer, 180 F.3d 699, 703 (5th
Cir. 1999)). For example, “handcuffing too tightly, without more, does not amount to
excessive force.” Id. at 752 (quoting Glenn v. City of Tyler, 242 F.3d 807, 314 (th Cir.
2001)).
Hammond has not plausibly alleged that Officers Burns and Poe used
excessive force against her. (Doc. 1 at 51-52). Only one factual allegation speaks
to the force these officers used: the allegation that Hammond “was handcuffed so
2 She could, however, attempt to allege a Louisiana-law malicious-prosecution claim. See
Lemoine v. Wolfe, 2014-1546 (La. 3/17/15); 168 So. 3d 362, 367 (listing the elements of the Louisiana
tort of malicious prosecution).
tightly as to leave a mark on her wrist.” Ud.)}. That measure of force is not “excessive”
under the law of this Circuit. Tarver, 410 F.3d at 752.
Accordingly, the Court grants Defendants’ motion as to Hammond’s § 1983
excessive-force claims against all Defendants and dismisses those claims without
prejudice. Because it is not clear that amendment would be futile, the Court grants
Hammond 14 days to amend her complaint to attempt to allege plausible § 1983
excessive-force claims.
5. Monell
Hammond attempts to allege a Monell claim against the City of New Roads.
(Doc. 1 at {{ 57-66). She alleges that the City of New Roads has policies of (1)
“detainling] people even though there is no reasonable suspicion or probable cause”
and (2) “us[ing] force which is excessive, unreasonable[,] and unwarranted. (Id, at
64). She alleges that these policies “demonstrate deliberate indifference” to her
constitutional rights. Ud. at 4 62).
As a municipality, the City of New Roads is “not liable for the unconstitutional
actions of [its] employees under respondeat superior.” Groden v City of Dallas, Tex.,
826 F.3d 280, 283 (5th Cir, 2016) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978)). Instead, to establish the City of New Roads’ liability under § 1983,
Hammond must show that “(1) an official policy (2) promulgated by the municipal
policymaker (3) was the moving force behind the violation of a constitutional right.”
Groden, 826 F.3d at 283 (citation omitted). She need not allege the identity of the
policymaker, See Groden, 826 F.3d at 284. She must, however, allege “specific facts”
10
describing the policy and “its relationship to the underlying constitutional violation.”
Spiller v. City of Tex, City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997).
Hammond adequately alleges a Monell claim. (Doc. 1 at | 57-66). The well-
pleaded allegations of her complaint, accepted as true and viewed in her favor,
establish that the City of New Roads promulgated official policies calling for
suspicionless detention and the use of excessive force, and that these policies were
the moving force behind the violation of her constitutional rights. Ua. at ¥{] 64-65).
The Court therefore denies Defendants’ motion as to Hammond’s Monell claim
against the City of New Roads.
6. Punitive Damages
Hammond seeks awards of punitive damages against Chief McDonald, Mayor
Myer, and Officers Burns and Poe. (Doc. 1 at {| 738-74). She does not specify whether
she does so under the auspices of Louisiana law, federal law, or both. (fd.). Defendants
contend that Hammond fails to allege facts showing she is entitled to punitive
damages under § 1983. (Doc. 21-1 at pp. 18-19). The Court disagrees.
“Under §1988, punitive damages may be awarded only if the official conduct is
‘motivated by evil intent’ or demonstrates ‘reckless or callous indifference’ to a
person’s constitutional rights.” Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir, 1994)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
Hammond has alleged facts, taken as true and viewed in her favor,
establishing that Officers Burns and Poe arrested her for “tending to her ailing
father.” (Doc. 1 at {| 22). Such conduct “demonstrates reckless or callous indifference”
11
to Hamond’s constitutional rights. See Sockwell, 20 F.3d at 192. The Court therefore
denies Defendants’ motion as to Hammond’s punitive-damages claims.
B. State-Law Claims
1. Assault and Battery
Hammond purports to allege Louisiana-law claims for “assault and battery”
against all Defendants. (Doc. 1 at 58-56). But she simply concludes that Officers
Burns and Poe “assaulted and battered” her; she offers no factual allegation tailored
to any element of either tort. Ud. at J] 53-55).
Accordingly, Hammond fails to plead a plausible claim for “assault and
battery.” The Court therefore grants Defendants’ motion as to Hammond’s claim for
“assault and battery” and dismisses the claim without prejudice. Because it is not
clear that amendment would be futile, the Court grants her 14 days to amend her
complaint to attempt to allege an assault claim, a battery claim, or both claims.
2. Intentional Infliction of Emotional Distress
Hammond attempts to allege a Louisiana-law claim for intentional infliction
of emotional distress. (Doc. 1 at 4] 67-70). She alleges that “[t]he malicious actions,
lack of actions, breach of duties, negligence[,] and gross negligence of defendants”
caused her “physical and emotional harm.” (/d, at §] 68).
The tort of intentional infliction of emotional distress requires proof “(1) that
the conduct of [Defendants] was extreme and outrageous; (2) that the emotional
distress suffered by [Hammond] was severe; and (8) that [Defendants] desired to
inflict severe emotional distress or knew that severe emotional distress would be
12
certain or substantially certain to result from [their] conduct.” White v. Monsanto,
585 So. 2d 1205, 1209 (La. 1991).
Hammond fails to allege any fact tailored to any element of the tort of infliction
of emotional distress. (Doc. 1 at 67-70). Accordingly, she fails to allege plausible
claims for intentional infliction of emotional distress. The Court therefore grants
Defendants’ motion as to Hammond’s claims for intentional infliction of emotional
distress and dismisses the claims without prejudice. Because it is not clear that
amendment would be futile, the Court grants her 14 days to amend her complaint to
attempt to allege plausible claims for intentional infliction of emotional distress.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Dismiss (Doe. 21) is GRANTED IN
PART, as follows: Hammond’s § 1983 supervisor-liability claims against Chief
McDonald are DISMISSED WITHOUT PREJUDICE; all of Hammond’s claims
against Mayor Myer are DISMISSED WITHOUT PREJUDICE; Hammond's §1983
excessive-force claims against all Defendants are DISMISSED WITHOUT
PREJUDICE; Hammond’s § 1983 abuse-of-process claims against all Defendants
are DISMISSED WITH PREJUDICE; Hammond’s § 1983 malicious-prosecution
claims against all Defendants are DISMISSED WITH PREJUDICE; Hammond’s
“assault and battery” claims against all Defendants are DISMISSED WITHOUT
PREJUDICE; Hammond’s intentional infliction of emotional distress claims are
13
DISMISSED WITHOUT PREJUDICE. The Motion (Doc. 21) is otherwise
DENIED.
IT IS FURTHER ORDERED that Hammond is granted 14 days to amend
her complaint to attempt to allege plausible claims for (1) supervisor-liability under
§ 1983; (2) excessive force under § 1983; (3) assault or battery or both; and (4)
intentional infliction of emotional distress. If Hammond fails to timely amend, the
Court will dismiss these claims with prejudice and without further notice.
Baton Rouge, Louisiana, this aay of August, 2019.
JUDGE BRIAN
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
14