# James v. City of Plaquemine, Louisiana

> District Court, M.D. Louisiana · September 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10191083

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** September 17, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ETHAN JAMES
CIVIL ACTION
VERSUS
NO. 18-858-JWD-EWD
CITY OF PLAQUEMINE, LOUISIANA,
ET AL.

RULING AND ORDER

This matter comes before the Court on Defendants’ Motion to Dismiss (Doc. 8) filed by
Defendants City of Plaquemine, Christopher Graves, Dustin Hebert, and Kenny Payne
(collectively, “Defendants”). Plaintiff Ethan James (“Plaintiff”) opposes the motion. (Doc. 14.)
Defendants have filed a reply. (Doc. 19.) Oral argument is not necessary. The Court has carefully
considered the law, facts in the record, and arguments and submissions of the parties and is
prepared to rule. For the following reasons, Defendants’ Motion to Dismiss is granted.
I. Factual and Procedural Background1
At all relevant times, Officers Christopher Graves and Dustin Hebert were employed by
the City of Plaquemine Police Department. (Doc. 1 at 1–2.) Kenny Payne was the Chief of Police
in Plaquemine, Louisiana. (Id. at 1.)
On or about April 30, 2016,2 Ethan James was approached by two officers, Graves and
Hebert, while asleep in the driver’s seat of his vehicle in a McDonalds drive through lane in
Plaquemine. (Doc. 1 at 2–3.) After Plaintiff exited his vehicle pursuant to a request from Officer

1 The following facts are drawn from the operative complaint (“Complaint,” Doc. 1) and are assumed to be true for
the purposes of this motion. Thompson v. City of Waco, Tex., 764 F.3d 500, 502-03 (5th Cir. 2014.)
2 Plaintiff’s complaint does not state the date of the incident. (See Doc. 1.) However, Plaintiff states in a status report
that the officers approached Plaintiff’s car “on or about April 30, 2016.” (Doc. 17 at 2.) Defendants rely on this date
in briefing. (Doc. 19 at 3.) Thus, the Court assumes April 30, 2016, is the date of the incident. Should he file an
amended complaint, Plaintiff should clarify this ambiguity.
Hebert, Officer Graves claimed that he noticed a bag of crack cocaine sitting within the front left
cupholder of the vehicle in plain view. (Doc. 1 at 3.) Plaintiff’s vehicle was searched, and he was
subsequently arrested for possession of cocaine with intent to distribute. (Id. at 2–3.)
At the time of the search of Plaintiff’s vehicle, both officers wore body cameras, which
allegedly contain exculpatory footage showing that there was no cocaine in the cupholder. (Id.) It

can be heard in the body camera footage that Plaintiff requested to watch as his vehicle was
searched, but his request was denied. (Id. at 5.) The footage further shows that during the officers’
search, Officer Graves stated that “he had not yet found anything in the vehicle.” (Id. at 3.)
In his state criminal proceedings, Plaintiff was originally represented by a public defender.
(Id. at 4.) On July 6, 2016, Plaintiff’s attorney requested exculpatory information from the
prosecutor, including, the video footage of the search of his vehicle. (Id. at 3.) Plaintiff alleges
that the prosecutor did not turn over the video to his counsel until his new attorney filed a discovery
motion on November 30, 2018, “over two years after Plaintiff’s arrest.”3 (Id. at 4–5.) On February
27, 2018, the prosecutor dismissed the charges against Plaintiff. (Id. at 1–2.)

Plaintiff filed suit on September 21, 2018. (Doc. 1.) Among the defendants named are
Officers Christopher Graves and Dustin Hebert, sued in both their official and individual capacities
under 42 U.S.C. § 1983. (Id. at 1–2.) Plaintiff also asserts claims against Chief of Police Kenny
Payne4 and the City of Plaquemine Police Department. (Id. at 1.)

3 Plaintiff states in a status report that “the body camera footage was not turned over to the prosecutor nor the defense
until December 8, 2017, over a year and a half later.” (Doc. 17 at 2.) However, he states in briefing that he received
the exculpatory evidence on or about December 11, 2017. (Doc. 14 at 3.) Plaintiff’s complaint states that he did not
receive the evidence until November 2018. (Doc. 1 at 4–5.) Thus, it is unclear when Plaintiff received the exculpatory
evidence, but the Court will use the date in the Complaint.
4 Plaintiff sues Defendant Payne “in both his individual and personal capacities.” (Doc. 1 at 1.) As Plaintiff makes
official-capacity arguments in a later filing, (see Doc. 14 at 6–7), the Court assumes that he intended to sue Chief
Payne in both his individual and official capacities.
II. Rule 12(b)(6) Standard
In ruling on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court must accept all well-pled factual allegations in the complaint as true and
construe them in the light most favorable to the plaintiff. Gonzalez v. Kay, 577 F.3d 600, 603 (5th
Cir. 2009). To defeat a motion to dismiss, a complaint must contain “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is “plausible on its face” if “the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The complaint “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Factual allegations need not be detailed, but “must be enough to raise a right to relief above the
speculative level,” id., and “unadorned, the-defendant-unlawfully-harmed-me accusation[s]” are
not sufficient. Iqbal, 556 U.S. at 678.
III. Pleading Deficiencies

The Court notes at the outset of its analysis that Plaintiff’s complaint suffers from several
distinct pleading deficiencies and fails to meet the requirements of the pleading standards
established by Rules 8 and 10 of the Federal Rules of Civil Procedure,5 tasking both Defendants
and the Court with sorting through an amalgamation of potential claims “interwoven in a
haphazard fashion.” Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir.
2015) (quoting T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1544 n.14 (11th Cir. 1985)). In
Weiland, the Eleventh Circuit identified four types of “shotgun pleadings”–– imprecise complaints

5 Rule 8 provides, among other things, that a complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 10 requires a complaint to “state its claims . . . in
numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b).
that fail “to give the defendants adequate notice of the claims against them and the grounds upon
which each claim rests.” Id. at 1323.
Specifically, the complaint here fails to separate Plaintiff’s claims into distinct causes of
action or clearly differentiate between his state and federal claims. Thus, it is unclear to both
Defendants and the Court (1) exactly which claims Plaintiff is asserting; (2) which claims are

brought under federal law, which are brought under state law, and which are both state and federal
claims; and (3) which claims are asserted against which Defendants. This is an example of a
“shotgun complaint” which fails to “give the defendants adequate notice of the claims against them
and the grounds upon which each claim rests.” Weiland, 792 F.3d at 1323. By failing to separate
each claim into a separate cause of action with the corresponding factual support for that claim
only and failing to differentiate between the state and federal claims, the complaint violates the
letter and spirit of Rules 8 and 10. To the extent Plaintiff wishes to amend his complaint, he must
state his claims in separate causes of action in accord with the pleading requirements of the Federal
Rules of Civil Procedure.

Nevertheless, based on the facts alleged and the named defendants, the Court construes
the complaint as containing alleged violations of Plaintiff’s rights under the Fourth, Fifth, and
Fourteenth Amendments under 42 U.S.C. § 1983, which includes claims against the individual
defendants in both their official and individual capacities. Additionally, the complaint appears to
assert several claims under state law.
IV. Discussion
A. Prescription of Fourth Amendment Claims
1. Parties’ Arguments
Defendants argue that Plaintiff’s claim for unreasonable search and seizure has prescribed.
(Id. at 4.) They state that the Plaintiff had knowledge of his injury on the date of the search, April
30, 2016, starting the clock on the statute of limitations over two years before the present action
was filed. (Doc. 8-1 at 4; Doc. 19 at 3.) Because federal courts borrow the forum state’s personal
injury prescriptive period, Defendants state that Louisiana’s one-year prescriptive period applies,
and as a result, the alleged Fourth Amendment violation prescribed on April 30, 2017. (Doc. 8-1

at 5; Doc. 19 at 3.)
Plaintiff contends that his claim for unreasonable search or seizure did not accrue until his
criminal charges were dismissed or the date that his attorney received the body camera footage
because there was no proof that the search of James’ vehicle was unjust or unsupported by probable
cause until that point. (Doc. 14 at 1.) He argues that the doctrine of contra non valentem applies
because there was a legal impediment to bringing his claim until his charges were dismissed and
because his Fourth Amendment cause of action was not reasonably knowable by the Plaintiff until
he received the exculpatory body camera footage. (Id. at 2.) Plaintiff asserts that under the
continuing tort theory of negligence, prescription could not accrue until after the body camera

footage was provided to his attorney. (Id. at 5.) Furthermore, he could not pursue his malicious
prosecution claim until there was “bona fide termination in the plaintiff’s favor.” (Id.) Thus, he
concludes that this claim could not have begun to run until the charges were dismissed. (Id. at 6.)
2. Analysis
a. Vehicle Search
Plaintiff alleges that Officers Graves and Hebert conducted an unlawful search of his
vehicle, unsupported by probable cause, in violation of the Fourth Amendment. (Doc. 1 at 3.)
While the limitations period is determined state law, the accrual of a § 1983 claim is a matter of
federal law. Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). “Under federal law, the
limitations period begins to run the moment the plaintiff becomes aware that he has suffered an
injury or has sufficient information to know that he has been injured.” Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir. 2001) (internal quotation marks omitted). The prescriptive
period for a claim under § 1983 in Louisiana is one year. Jacobsen v. Osborne, 133 F.3d 315, 319
(5th Cir. 1998). In the case of an alleged illegal search, prescription begins to run at the time of

the search, as that is the moment the plaintiff “becomes aware that he has suffered an injury.”
Piotrowski, 237 F.3d at 576; see also McLin v. Ard, No. 13-538, 2016 WL 482046, at *2 (M.D.
La. Feb. 5, 2016), aff’d, 866 F.3d 682 (5th Cir. 2017) (“[T]he law clearly states that prescription
begins to run at the time of the search in the case of an alleged illegal search.”). Additionally, and
of particular note here, “[a] federal court applying a state statute of limitations should give effect
to the state’s tolling provisions as well.” Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992).
In the present case, Officers Graves and Hebert searched Plaintiff’s vehicle “on or about”
April 30, 2016. (Doc. 17 at 2.) Plaintiff should have been aware that he suffered an injury and that
there was a connection between his injuries and the officers’ actions, as Plaintiff alleges that the

officers essentially lied about the presence of contraband in the cupholder of his vehicle. (Doc. 1
at 3.) Thus, as his allegations currently stand, the statute of limitations for Plaintiff’s Fourth
Amendment claim began to run on April 30, 2016. Because Plaintiff filed suit over two years later
on September 21, 2018, his Fourth Amendment claim arising out of the purportedly illegal search
of his vehicle is time-barred.
Plaintiff argues that Louisiana’s doctrine of contra non valentem applies here to toll the
prescriptive period. (Doc. 14 at 2.) The four situations in which contra non valentem can apply are
as follows:
(1) Where there was a legal cause which prevented the courts or their officers from
taking cognizance of or acting on the plaintiff's action; (2) where some condition
coupled with the proceedings prevented the creditor from suing or acting; (3) where
the debtor has done an act to prevent the creditor from using the cause of action;
(4) where the cause of action is not known or reasonably knowable by the plaintiff,
even though he is not induced by the defendant.

Burge v. Par. of St. Tammany, 996 F.2d 786, 788 (5th Cir. 1993) (quoting Minor v. Casten, 521
So.2d 465, 467 (La. Ct. App. 1988)). Plaintiff contends that the first and fourth scenarios are
applicable here. (Doc. 14 at 2). Plaintiff states that the prosecution of his case was a legal
impediment to bring his § 1983 claim, and that he “did not know and could not reasonably have
known that a cause of action existed until he was provided with the exculpatory evidence.” (Id.)
Though Plaintiff asserts that there was a legal impediment to bring his lawsuit, his
argument relies upon the contention that he could not have reasonably brought his claim while
being prosecuted. “Contra non valentem cannot apply merely where as a practical matter, filing
suit is difficult or the prospects of success on the merits are slight due to a given plaintiff's
situation.” Sincox v. Blackwell, 525 F. Supp. 96, 99 (W.D. La. 1981). And Plaintiff pointed to no
legal authority standing for the proposition that an ongoing criminal prosecution acts as a legal
impediment and tolls the statute of limitations. Thus, although the plaintiff’s prospects of success
on his § 1983 claims grew with his acquisition of the exculpatory footage, he did not show that
there was a legal impediment preventing him from bringing suit.
Further, the other category of contra non valentem cannot save Plaintiff’s Fourth
Amendment Claim. “As a judicial exception to the statutory rule of prescription, Louisiana courts
strictly construe this doctrine and only extend its benefits up to ‘the time that the plaintiff has actual
or constructive knowledge of the tortious act.’” Eldredge v. Martin Marietta Corp., 207 F.3d 737,
743 (5th Cir. 2000) (quoting Bergeron v. Pan Am. Assurance Co., 98-2421 (La. App. 4 Cir. 4/7/99);
731 So. 2d 1037, 1042)). The Fifth Circuit defines this as “the time at which the plaintiff has
information sufficient to excite attention and prompt further inquiry.” Id. On April 30, 2016,
officers searched Plaintiff’s vehicle and supposedly found cocaine in plain view, prompting
Plaintiff’s arrest. (Doc. 17 at 2.) Plaintiff denied having cocaine in his vehicle. (Doc. 1 at 5.) Thus,
at this point, Plaintiff had “information sufficient to excite attention and prompt further inquiry.”
Eldredge, 207 F.3d at 743. Because Plaintiff should have then had “actual or constructive
knowledge of a tortious act,” id., his argument that he could not have reasonably known of the

existence of his cause of action is unpersuasive, and the doctrine of contra non valentem cannot
apply to toll the statute of limitations on this basis. Thus, Plaintiff’s Fourth Amendment search
claim has prescribed.
b. Seizure
To determine the accrual date of a plaintiff’s § 1983 claim based upon a Fourth
Amendment seizure, the Fifth Circuit has analogized the plaintiff’s claim to the common law of
torts to determine whether it more closely resembles a claim for false imprisonment or malicious
prosecution. Winfrey v. Rogers, 901 F.3d 483, 492–93 (5th Cir. 2018). The Supreme Court has
also noted the difference. The Winfrey court explains that detainment without legal process more

closely resembles a false imprisonment claim, which accrues once the plaintiff is “detained
pursuant to legal process.” Id. at 492. Alternatively, “detention accompanied by wrongful
institution of legal process” more closely resembles malicious prosecution, which accrues once
prosecution terminates in the plaintiff’s favor. Id. (internal quotation marks omitted). In Winfrey,
this determination was based on whether officers conducted a warrantless arrest, or whether they
conducted an arrest pursuant to a warrant supported by fabricated evidence. Id.
The Supreme Court has also noted the difference in false imprisonment and malicious
prosecution. “Reflective of the fact that false imprisonment consists of detention without legal
process, a false imprisonment ends once the victim becomes held pursuant to such process—when,
for example, he is bound over by a magistrate or arraigned on charges.” Wallace v. Kato, 549 U.S.
384, 389, 127 S. Ct. 1091, 1096 (2007) (emphasis in original). Further, “unlawful detention forms
part of the damages for the ‘entirely distinct’ tort of malicious prosecution, which remedies
detention accompanied, not by absence of legal process, but by wrongful institution of legal
process.” Id. at 390 (emphasis in original.)

Here, Plaintiff was arrested following a warrantless search of his vehicle after the officers
had received an anonymous tip. Thus, a natural inference from Plaintiff’s allegations is that he
was subjected to a warrantless arrest.6 Accordingly, as currently pled, his Fourth Amendment
claim more closely resembles a false imprisonment claim which accrued once he was detained
pursuant to legal process––i.e., once he was arraigned. Plaintiff failed to provide this timeline in
his complaint, but in any event, his detention likely commenced when he was arrested on April 30,
2016. (Doc. 1 at 2.) In Louisiana, a defendant must be indicted within sixty days of an arrest if the
defendant is being held for a felony. La. Code Crim. Proc. Art. 701.B(1)(a). Further, upon
indictment, the defendant must be arraigned within thirty days unless just cause is shown. La. Code

Crim. Proc. Art. 701.C. Therefore, if Plaintiff was arrested on April 30, 2016, the latest he would
have been arraigned would likely have been July 29, 2016. Because he did not file suit until
September 21, 2018, his Fourth Amendment seizure claim is time-barred as it is currently pled.
B. Fourteenth Amendment Due Process Violations
1. Parties’ Arguments
Defendants contend that Plaintiff has not met his burden to bring § 1983 claims against
Chief Payne in his individual capacity, as he did not allege any personal conduct by Chief Payne

6 This is one of several omissions in Plaintiff’s complaint. Should Plaintiff file an amended complaint, he must
explicitly allege whether he was arrested pursuant to a valid warrant or in the absence of a warrant following a
warrantless search.
giving rise to a constitutional violation. (Doc. 8-1 at 6–7.) Defendants argue that the Plaintiff has
not identified “an unconstitutional municipal policy or custom” that caused his injury. (Id. at 9.)
As a result, the official-capacity claims against Chief Payne and the City of Plaquemine Police
Department are inadequately pled. (Id. at 11.) Further, Defendants assert that § 1983 claims against
Officers Graves and Hebert should be dismissed as the Plaintiff has “failed to allege that they are

final decision makers or policy makers within the Plaquemine Police Department.” (Id.)
Plaintiff contends that his constitutional right “to be free from prosecution not grounded in
probable cause under the Fourteenth Amendment” was violated due to the unlawful suppression
of exculpatory evidence by Officers Graves and Hebert. (Doc. 1 at 6.) Specifically, he alleges that
he was subject to a malicious prosecution from the date of his arrest until the charges were
dismissed on March 26, 2018. (Id. at 2.) He also alleges that the withholding of the body camera
footage by Officers Graves and Hebert was a Brady violation. (Doc. 1 at 3–4.)
2. Malicious Prosecution
This Court has previously stated that there is no independent tort for malicious prosecution

under § 1983:
Section 1983 is not a source of substantive rights; it simply provides a vehicle for
vindicating federal rights secured elsewhere. Albright v. Oliver, 510 U.S. 266, 270
(1994) (citing Baker v. McCollan, 443 U.S. 137, 144 (1979)). Thus, in any Section
1983 action, “[t]he first step ... is to identify the specific constitutional right
allegedly infringed.” Id. (citing Graham v. Connor, 490 U.S. 386, 394 (1989);
Baker, 443 U.S. at 140). There is no freestanding constitutional right to be free from
malicious prosecution. Castellano v. Fragozo, 352 F.3d 939, 942, 945 (5th Cir.
2003) (“ ‘malicious prosecution’ standing alone is no violation of the United States
Constitution[;] ... to proceed under [Section 1983] such a claim must rest upon a
denial of rights secured under federal and not state law.”) A claim for malicious
prosecution brought under Section 1983 must be judged against the strictures of the
Fourth Amendment. Albright, 510 U.S. at 270. Courts tasked with evaluating a
malicious prosecution claim under Section 1983 “must insist on clarity in the
identity of the constitutional violations asserted” so as to avoid the adjudication of
claims that are “embedded, but float unspecified, undefined, and hence unconfined
inside a general claim of malicious prosecution.” Castellano, 352 F.3d at 945.
At the heart of a federal claim of malicious prosecution brought under Section 1983
is the “initiation of charges without probable cause”. Id. (citation omitted). It
“occurs when one citizen initiates or procures the initiation of criminal proceedings
against an innocent person, for an improper purpose and without probable cause
therefor, if the proceedings terminate favorably for the person thus prosecuted.” Id.
(citing Fowler V. Harper et al., The Law of Torts § 4.1 (3d ed.1996)).

The Fifth Circuit has also described the claim for malicious prosecution as not
“independently cognizable” under § 1983. Deville v. Marcantel, 567 F.3d 156,
169–70 (5th Cir. 2009); Golden v. Columbia Cas. Co., 2015 WL 3650761 at *28
(M.D. La. June 11, 2015) (citing Deville). Instead, the court has explained:

it must be shown that the officials violated specific constitutional
rights in connection with a “malicious prosecution.” For example,
“the initiation of criminal charges without probable cause may set
in force events that run afoul of the ... Fourth Amendment if the
accused is seized and arrested ... or other constitutionally secured
rights if a case is further pursued.” However, these “are not claims
for malicious prosecution.” Accordingly, plaintiffs' claim under §
1983 for “malicious prosecution” in respect to the May 2006 arrest
is not independently cognizable[.]

Deville, 567 F.3d at 169 (citations omitted) (emphasis added).

Laird v. State Farm Fire & Cas. Co., No. 16-707, 2017 WL 2239578, at *8 (M.D. La. May 22,
2017).
Here, this Court holds that Plaintiff has failed to state a claim for malicious prosecution
because he has failed to allege another plausible constitutional violation. Although Plaintiff has
alleged a Brady violation, as will be discussed below, the claim shall be dismissed. Because there
is no independently cognizable tort of malicious prosecution, Plaintiff’s claim must be dismissed.
3. Brady Violation
“The Fifth Circuit has repeatedly recognized the existence of a § 1983 cause of action for
a police officer's suppression of material exculpatory evidence.” Bibbins v. City of Baton Rouge,
489 F. Supp. 2d 562, 573 (M.D. La. 2007) (citing Mowbray v. Cameron Cty., Tex., 274 F.3d 269,
278 (5th Cir. 2001); Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992); Geter v. Fortenberry,
849 F.2d 1550, 1559 (5th Cir. 1988)).
“[T]o establish a Brady violation, a defendant must make the following showing: ‘The
evidence at issue must be favorable to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.’” Powell v. Quarterman, 536 F.3d 325, 335 (5th
Cir. 2008) (quoting Strickler v. Green, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999)).
Plaintiff here has sufficiently alleged how the evidence would be exculpatory to him, but he has
not shown that he was prejudiced in violation of his due process rights. Because the charges were
dismissed prior to trial, he cannot show that the withholding of evidence affected the outcome of
his trial, and thus, Plaintiff’s alleged Brady violation is not cognizable under § 1983. See Matthew
v. Johnson, 201 F.3d 353, 361 (5th Cir. 2000) (“The Brady rule’s focus on protecting the integrity
of trials suggests that where no trial is to occur, there may be no constitutional violation.”); see
also Strickler, 527 U.S. at 281–82 (“[T]here is never a real ‘Brady violation’ unless the

nondisclosure was so serious that there is a reasonable probability that the suppressed evidence
would have produced a different verdict.”); Professor Martin A. Schwartz, The Supreme Court’s
Unfortunate Narrowing of the Section 1983 Remedy for Brady Violations, CHAMPION, May 2013,
at 57, 62 (“Because Brady is a trial right, the great weight of lower court authority holds that a
criminal defendant who did not have a criminal trial because the criminal charges were dropped
cannot base a § 1983 claim on a Brady violation.”).
4. Defamation
In Paul v. Davis, the Supreme Court held that an interest in reputation is not a liberty or
property interest protected by the Fourteenth Amendment’s Due Process Clause. 424 U.S. 693,
712, 96 S. Ct. 1155, 1166 (1975). Plaintiff relies upon Marrero v. City of Hialeah, in which the
Fifth Circuit stated that the Paul Court “did not even suggest that injuries to personal and business
reputations flowing from a violation of a protected right are not compensable under § 1983.” 625
F.2d 499, 514 (5th Cir. 1980). Plaintiff further states that because he alleged a Fourth Amendment
violation, injuries related to defamation are “compensable as an element of damages flowing from

the unlawful conduct.” (Doc. 14 at 9.)
Despite Plaintiff’s contention, the case law is unequivocal that defamation alone does not
constitute the constitutional violation necessary to support a § 1983 claim. See, e.g., Aeronautics
& Space Admin. v. Nelson, 562 U.S. 134, 161; 131 S. Ct. 746, 765; 178 L.Ed.2d 667 (2011) (“we
have held that a government act of defamation does not deprive a person ‘of any “liberty” protected
by the procedural guarantees of the Fourteenth Amendment.’ ”) (quoting Paul, 424 U.S. at 709);
San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991) (“This circuit has consistently
applied Paul by requiring that a section 1983 claimant show a stigma plus an infringement of some
other interest.”). The Fifth Circuit has made clear that “reputation alone is not a protected liberty

interest—a plaintiff must show a stigma plus an infringement on some other interest.” Phillips v.
Vandygriff, 711 F.2d 1217, 1221 (5th Cir. 1983) (emphasis in original). “To satisfy the ‘stigma’
part of the test, ‘a claimant must prove that the stigma was cause by a false communication.’ ”
Lewis v. Locicero, No. 15-129, 2016 WL 831939, at *4 (M.D. La. Feb. 29, 2016) (quoting San
Jacinto Sav. & Loan, 928 F.2d at 701-02 (quoting Codd v. Velger, 429 U.S. 624 (1977)). To show
“infringement,” a claimant must “establish that the state sought to remove or significantly alter a
life, liberty, or property interest recognized and protected by state law or guaranteed by one of the
provisions of the Bill of Rights that has been ‘incorporated.” Id. (quoting San Jacinto Sav. & Loan,
928 F.2d at 701-02 (citing Paul, 424 U.S. at 710-11 & n.5.))
Here, Plaintiff fails to satisfy the either portion of the test. Plaintiff has not alleged the
“concrete, false factual representations or assertions, by a state actor, of wrongdoing” necessary to
allege a “stigma.” San Jacinto Sav. & Loan, 928 F.2d at 701. Additionally, Plaintiff fails to
establish plausible claims to show “infringement” of a “life, liberty, or property interest.” Lewis,
2016 WL 831939, at *4. Thus, because Plaintiff’s other claims are dismissed, his defamation claim

may not stand alone.
C. Fifth Amendment Violation
Plaintiff argues that the allegedly unlawful suppression of exculpatory evidence was a
violation of his procedural due process rights under the Fifth Amendment. (Doc. 1 at 6.) It is well
established, however, that “the Fifth Amendment applies only to the actions of the federal
government, and not the actions of a municipal government.” Morin v. Caire, 77 F.3d 116, 120
(5th Cir. 1996). Because Plaintiff has brought claims against municipal police officers and not
federal officials, he cannot state a plausible claim under the Fifth Amendment.
D. Official-Capacity Claims

1. Parties’ Arguments
Defendants argue that the Plaintiff has not identified “an unconstitutional municipal policy
or custom” that caused his injury. (Doc. 8-1 at 9.) As a result, the official-capacity claims against
Chief Payne and the City of Plaquemine Police Department are inadequately pled. (Id. at 11.) They
further argue that § 1983 claims against Officers Graves and Hebert should be dismissed as the
Plaintiff has “failed to allege that they are final decision makers or policy makers within the
Plaquemine Police Department.” (Id.).
In the “Individual Capacities” section of his brief, Plaintiff only sets forth official-capacity
arguments, stating that he has established a sufficient claim against Officer Payne in his “official
capacity.” (Doc. 14 at 6–7.) He supports this by pointing to a change in the official policy of the
police department regarding body cameras, as well as a television interview in which Chief Payne
allegedly condoned the officers’ actions as official policy. (Id.)
2. Analysis
Official capacity suits are treated as an action against the entity for which the official

serves. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 362 (1991). Accordingly, Plaintiff’s
official-capacity claims against the individual Defendants are akin to claims against the City of
Plaquemine itself.
a. Municipal Liability
“Municipal liability under 42 U.S.C. § 1983 requires proof of (1) a policymaker; (2) an
official policy; and (3) a violation of constitutional rights whose ‘moving force’ is the policy or
custom.” Davis v. Tarrant Cty., Tex., 565 F.3d 214, 227 (5th Cir. 2009). The Fifth Circuit has
defined an “official policy” as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted
and promulgated by the municipality's lawmaking officers or by an official to
whom the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees, which, although
not authorized by officially adopted and promulgated policy, is so common and
well settled as to constitute a custom that fairly represents municipal policy. Actual
or constructive knowledge of such custom must be attributable to the governing
body of the municipality or to an official to whom that body had delegated policy-
making authority. Actions of officers or employees of a municipality do not render
the municipality liable under § 1983 unless they execute official policy as above
defined.

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984), on reh'g, 739 F.2d 993 (5th Cir.
1984). As Plaintiff has not alleged any official policy in his complaint that resulted in the
violation of his constitutional rights, his official-capacity § 1983 claims must be dismissed.
Plaintiff further alleges that the Plaquemine Police Department is liable under § 1983 for
the alleged unconstitutional acts of its agents. (Doc. 1 at 7.) But it is a bedrock principle of § 1983
law that “government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.
Ct. 1937, 194 (2009). Thus, any federal claim based on a theory of respondeat superior liability

is dismissed.
b. Failure to Hire/Train/Supervise
To make out a viable § 1983 claim for failure to train or supervise, a plaintiff must allege
that: “(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link
exists between the failure to train or supervise and the violation of the plaintiff’s rights; and (3)
the failure to train or supervise amounts to deliberate indifference.” Goodman v. Harris Cty., 571
F.3d 388, 395 (5th Cir. 2009). “Proof of deliberate indifference generally requires a showing of
more than a single instance of the lack of training or supervision causing a violation of
constitutional rights.” Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008) (internal quotation marks

omitted). Furthermore, “for liability to attach based on an ‘inadequate training’ claim, a plaintiff
must allege with specificity how a particular training program is defective.” Roberts v. City of
Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (emphasis added). Finally, and importantly, “the
pleadings must have sufficient precision and factual detail to reveal that more than guesswork is
behind the allegation.” Floyd v. City of Kenner, 351 F. App’x 890, 898 (5th Cir. 2009).
Plaintiff has fallen well short of these standards by asserting only the conclusory, barebones
allegation that Chief Payne failed to “properly hire, train, supervise, and monitor the officers,
and/or deputies employed by or acting as agents of the Plaquemine Police Department.” (Doc. 1
at 7). Crucially, he did not allege factual detail to show (1) how Chief Payne failed to supervise
or train the officers, (2) that a causal link existed between the specific failure to train and the
alleged violations of Plaintiff’s rights, or (3) how Chief Payne was deliberately indifferent.
Plaintiff did not allege a pattern of violations nor did he provide any specificity regarding how,
exactly, the training program in place was defective. This is plainly insufficient for a § 1983 claim
based on a failure to train or supervise.

Moreover, though it is possible for an official to be liable for his deliberately indifferent
hiring of an officer who violates the constitution, a plaintiff must allege that the hired officer “was
highly likely to inflict the particular injury suffered by the plaintiff.” Bd. of Cty. Comm'rs of Bryan
Cty., Okla. v. Brown, 520 U.S. 397, 412, 117 S. Ct. 1382, 1392 (1997) (emphasis in orginal). “The
connection between the background of the particular applicant and the specific constitutional
violation alleged must be strong.” Id. Plaintiff here has failed to plead any facts suggesting that
the backgrounds of the officers in this case had any connection to the injury of which he complains.
For all these reasons, this claim must be dismissed.
E. Punitive Damages

1. Parties’ Arguments
Defendants argue that the Plaintiff cannot recover punitive damages against Defendants in
their official capacities, as Ҥ 1983 does not allow for recovery of punitive damages against a
governmental agency.” (Doc. 8-1 at 15.)
Citing case law, Plaintiff argues that contrary to Defendants’ assertion that § 1983 does not
allow punitive damages against officials sued in their municipal capacity “punitive damages are
recoverable against municipal employees who are sued in their individual capacities pursuant to a
§ 1983 claim.” (Doc. 14 at 9 (quoting Kennerson v. City of Sunset, No. 6:12-cv-2191, 2013 WL
1681434 (W.D. La. Apr. 17, 2013)).)
2. Analysis
Municipalities are immune from punitive damages under § 1983. City of Newport v. Fact
Concerts Inc., 453 U.S. 247, 271, 101 S. Ct. (1981). However, punitive damages are recoverable
against municipal employees sued in their individual capacity. Kennerson v. City of Sunset, No.
12-2191, 2013 WL 1681434 (W.D. La. Apr. 17, 2013). To recover punitive damages, Plaintiff

must show that Defendants’ conduct was “motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protect rights of others.” Smith v. Wade, 461 U.S.
30, 56, 103 S. Ct. 1625, 1640 (1983). However, the Court does not need to reach the issue of
whether the officers’ conduct was “motivated by evil intent” because all other § 1983 claims have
been dismissed, so Plaintiff’s punitive damage claim is also dismissed.
F. State Law Claims
1. Parties’ Arguments
Defendants argue that the Plaintiff has failed to establish state-law claims by Chief Payne
or the City of Plaquemine. (Doc. 8-1 at 15.) They argue that the claim that Chief Payne “failed to

‘properly hire, train, supervise, and monitor’ the officers” is a conclusory allegation without the
requisite factual support. (Id. at 15 (quoting Doc. 1).) They further argue that Payne is shielded
from liability pursuant to Louisiana Revised Statute § 9:2798.1 because the “hiring, training, and
supervision policy of the Plaquemine Police Department is a discretionary function.” (Doc. 8-1 at
16.)
Plaintiff argues that the case relied upon by Defendants in support of their contention that
Chief Payne is shielded by Louisiana Revised Statute § 9:2798.1 is inapplicable. (Doc. 14 at 9.)
This is because the deputy in that case was not in the course and scope of his employment when
he violated the law, while Defendants Graves and Hebert were in the course and scope of their
employment here when they committed a tort against the Plaintiff. (Id. (citing Smith v. Lafayette
Parish Sheriff’s Dept., 2003-517 (La. App. 3 Cir. 4/21/04); 874 So.2d 863)).
2. Discretionary Function Immunity
Defendants move for the dismissal of the state-law claim for “failure to properly hire, train,
supervise, and monitor officers . . . due to the immunity provided by La. R.S. § 9:2798.1.” (Doc.

8-1 at 16.) That statute provides that “[l]iability shall not be imposed on public entities or their
officers or employees based upon the exercise or performance or the failure to exercise or perform
their policymaking or discretionary acts[.]” La. R.S. § 9:2798.1.
This Court finds that the discretionary function immunity provided by La. R.S. §
9:2798.1 is not available as an affirmative defense in the motion to dismiss stage because it is a
fact-intensive question. See Abbott v. Town of Livingston, No. 16-188, 2018 WL 1095557, at *5
(M.D. La. Feb. 27, 2018) (“Discretionary function immunity is not available to a sheriff as an
affirmative defense at the motion to dismiss stage because it is a fact-intensive question.”);
Bouchereau v. Gautreaux, No. 14-805, 2015 WL 5321285, at *15 (M.D. La. Sept. 11, 2015)

(“[D]iscretionary function immunity is not available to [sheriff] as an affirmative defense at the
motion to dismiss stage.”); O’Quin v. Gautreaux, No. 14-98, 2015 WL 1478194, at *11-12
(M.D. La. Mar. 31, 2015). However, this Court notes that “[i]t is appropriate for a court to grant
a party discretionary function immunity if it decides on a summary judgment motion that there is
no dispute concerning a matter of fact such as a whether the government official’s decisions was
‘grounded in “social, economic, or political policy.” ’ ” O’Quin, 2015 WL 1478194 at *12
(quoting Johnson v. Orleans Parish Sch. Bd., 06-1223 (La. App. 4 Cir. 1/30/08); 975 So. 2d 698,
709).

3. Failure to Hire, Train, and Supervise
Although Defendants cannot claim discretionary function immunity, Plaintiff’s claim for
negligent hiring, training, and supervising must still be dismissed. Plaintiff has failed to allege any
of the elements necessary to state a negligence claim in Louisiana.
Louisiana courts analyze failure to hire, train, and supervise claims under the same duty-

risk analysis used for all negligence cases in Louisiana. Jackson v. Ferrand, 94-1254 (La. App. 4
Cir. 12/28/94); 658 So.2d 691. “For Plaintiff[] to recover on [his] state law negligence claims [he]
must show that (1) the Defendants' conduct was the cause in fact of the harm, (2) the Defendants
owed a duty of care to [Plaintiff], (3) the duty was breached, and (4) the risk was in the scope of
harm afforded by the duty.” Batiste v. Theriot, 458 F. App’x. 351, 360 (5th Cir. 2012) (citing Syrie
v. Schilhab, 693 So.2d 1173, 1177 (La. 1997)).
Here, Plaintiff has only made the barebones assertion that “Kenny Payne, Chief of Police
of the City of Plaquemine, as supervising authority, is liable for his failure to properly hire, train,
supervise, and monitor the officers, and/or deputies employed by or acting as agents of the

Plaquemine Police Department.” (Doc. 1 at 7.) This assertion fails to show how Chief Payne
breached his duty of reasonable care. Without more, Plaintiff’s claim for negligent hiring, training,
and supervising must be dismissed. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”)
To the extent Plaintiff desires to bring any other claims under Louisiana law, he must do
so clearly and precisely by articulating his claims unambiguously and separating those claims into
distinct causes of action.
V. Leave to Amend
“[A] court ordinarily should not dismiss the complaint except after affording every
opportunity to the plaintiff to state a claim upon which relief might be granted.” Byrd v. Bates,
220 F.2d 480, 482 (5th Cir. 1955). The Fifth Circuit has further stated:

In view of the consequences of dismissal on the complaint alone, and the pull to
decide cases on the merits rather than on the sufficiency of pleadings, district courts
often afford plaintiffs at least one opportunity to cure pleading deficiencies before
dismissing a case, unless it is clear that the defects are incurable or the plaintiffs
advise the court that they are unwilling or unable to amend in a manner that will
avoid dismissal.

Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
One leading treatise has further explained:
As the numerous case[s] ... make clear, dismissal under Rule 12(b)(6) generally is
not immediately final or on the merits because the district court normally will give
the plaintiff leave to file an amended complaint to see if the shortcomings of the
original document can be corrected. The federal rule policy of deciding cases on
the basis of the substantive rights involved rather than on technicalities requires that
the plaintiff be given every opportunity to cure a formal defect in the pleading. This
is true even when the district judge doubts that the plaintiff will be able to overcome
the shortcomings in the initial pleading. Thus, the cases make it clear that leave to
amend the complaint should be refused only if it appears to a certainty that the
plaintiff cannot state a claim. A district court's refusal to allow leave to amend is
reviewed for abuse of discretion by the court of appeals. A wise judicial practice
(and one that is commonly followed) would be to allow at least one amendment
regardless of how unpromising the initial pleading appears because except in
unusual circumstances it is unlikely that the district court will be able to determine
conclusively on the face of a defective pleading whether the plaintiff actually can
state a claim for relief.

5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.
2016).
Here, although Plaintiff has not requested leave to amend to cure any deficiencies, the
Court will act in accordance with the “wise judicial practice” and general rule and grant Plaintiff
leave. The Court notes Plaintiff’s Rule 11 obligations, particularly in light of the numerous
pleading deficiencies detailed above.
VI. Conclusion
Accordingly,

IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 8) is GRANTED. The
claims asserted by Plaintiff Ethan James are DISMISSED WITHOUT PREJUDICE. Plaintiff
is given twenty-eight (28) days in which to amend his complaint to cure the deficiencies therein.
If Plaintiff fails to do so, the insufficient claims will be dismissed with prejudice. Defendant is
hereby instructed to contact the Court if Plaintiff has not timely amended the operative complaint
to cure the above deficiencies.

Signed in Baton Rouge, Louisiana, on September 17, 2019.

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191083. Public record. Not legal advice.