Dorosan v. Stewart

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SAM DOROSAN CIVIL ACTION

VERSUS 18-181-SDD-RLB

OFFICER JOHNATHAN STEWART;

OFFICER YUSEF HAMADEH; and

OFFICER DUSTIN JOHNSON

RULING

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

Defendant Officer Dustin Johnson (“Officer Johnson”). Defendant Officers Yusef

Hamadeh (“Officer Hamadeh”) and Johnathan Stewart (“Officer Stewart”) have filed a

Motion for Judgment on the Pleadings.2 Plaintiff Sam Dorosan3 (“Plaintiff”) has filed an

Opposition4 to these motions to which Defendants filed a Reply.5 For the following

reasons, the Court finds that the Defendants’ motion to dismiss and motion for judgment

on the pleadings should be GRANTED.

I. FACTUAL BACKGROUND

Plaintiff alleges that, on April 9, 2017, Plaintiff was a patron at the Corner Store on

Highland Road and W. Johnson Street in Baton Rouge, Louisiana, when Officer Stewart

approached him in a marked police car and, for allegedly no reason, ordered Plaintiff to

1 Rec. Doc. 26.

2 Id.

3 The Court notes that Plaintiff signed and printed his name on the Motion to Proceed in Forma Pauperis

as “Sam Dorosan” (Rec Doc. 2, p. 2). Attached to that motion is an Inmate Account Detail Report which

spells Plaintiff’s name as “Sam Dorasan” (Rec. Doc. 2, p. 3). In a third variation, Plaintiff’s name is spelled

“Sam Dorosan” throughout his Complaint.

4 Rec. Doc. 27.

5 Rec. Doc. 28-1.

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place his hands on the car.6 Officer Stewart allegedly told Plaintiff to not do anything

“stupid,” and called Officer Johnson “to aid him in performing the Terry Pat.”7 Upon Officer

Johnson’s arrival, Plaintiff alleges that “a struggle ensued.”8 Plaintiff further alleges that

Officer Johnson used a taser on him while Officer Stewart kicked, kneed, and punched

him.9 Plaintiff claims that the officers turned him on his chest as Officers Stewart and

Hamadeh repeatedly punched him in his head and back trying, to get him to “spit

something up,” as Officer Johnson held Plaintiff’s legs.10 According to Plaintiff, the

Defendant Officers took him to the ground, and Officer Stewart “repeatedly kicked Sam

Dorosan in his head, placed his knee over his head and neck, and punched him in his

chest while [Officer Johnson] tased Sam Dorosan.”11 The Defendant Officers allegedly

observed Plaintiff “put something in his mouth,” and ordered him to “spit it out.”12 The

chronology of Plaintiff’s allegations is unclear, but Plaintiff concludes by alleging Officer

Hamadeh “arrived on the scene,”13 and repeats his allegation that he punched and tased

Plaintiff while Officer Johnson held Plaintiffs legs.14

Based on the foregoing, Plaintiff brings several claims against the Defendant

officers pursuant to 42 U.S.C. § 1983 for alleged violations of Plaintiff’s rights secured by

the Fourth Amendment to the United States Constitution “to be free from false arrest.”15

6 Rec. Doc. 1, ¶8

7 Rec. Doc. 1, ¶9.

8 Id.

9 Id. at ¶10.

10 Id.

11 Id. at ¶11.

12 Id. at ¶¶12-13.

13 In Paragraph 10 of the Complaint, Plaintiff alleged that “OFFICER H. YSEFF [sic] repeatedly punched

SAM DOROSON in his head and back attempting to make him ‘spit something up.’” Later, in Paragraph 14

of the Complaint, Plaintiff alleges that “OFFICER YUSEF HAMADEH arrived on the scene ...”.

14 Rec Doc. 1, ¶14.

15 Id. at ¶22.

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Plaintiff also brings Section 1983 claims for excessive force, false imprisonment, and

failure to intervene.16 Additionally, Plaintiff asserts a claim for the alleged retaliation for

the exercise of his First Amendment rights, as well as several state law claims.17

II. APPLICABLE LAW

A. Motion to Dismiss Under Rule 12(b)(6)

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.’”18 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.”19 “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.’”20 In Twombly, the United States Supreme

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.”21 A complaint is also insufficient if it

merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”22 However,

16 Rec. Doc. 1, ¶¶27-29.

17 Id. at ¶¶26, 33-39.

18 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)).

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

20 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).

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

omitted)(hereinafter Twombly).

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

omitted)(hereinafter “Iqbal”).

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

a sheer possibility that the defendant has acted unlawfully.”24 “Furthermore, while the

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

to the plaintiff.’”25 On a motion to dismiss, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.”26 On a Motion to Dismiss, the inquiry is

whether the allegations in the Complaint plausibly state a claim for relief.

B. Motion for Judgment on the Pleadings

According to Rule 12(c) of the Federal Rules of Civil Procedure: “After the

pleadings are closed–but early enough not to delay trial–a party may move for judgment

on the pleadings.”27 “A motion for judgment on the pleadings under Rule 12(c) is subject

to the same standard as a motion to dismiss under Rule 12(b)(6).”28

III. ANALYSIS

A. Individual Capacity Claims against the Arresting Officers

As a preliminary matter, on a motion to dismiss, “a district court generally must

limit itself to the contents of the pleadings, including attachments thereto.”29 District courts

23 Twombly, 550 U.S. at 570.

24 Iqbal, 556 U.S. at 678.

25 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).

26 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)).

27 Fed. R. Civ. P. 12(c).

28 Ackerson v. Bean Dredging, LLC, 589 F.3d 196, 209 (5th Cir. 2009) (quoting Doe v. MySpace, Inc., 528

F.3d 413, 418 (5th Cir. 2008)).

29 Brand Coupon Network, LLC v. Catalina Marketing Group, 748 F.3d 631, 635 (5th Cir. 2014) (citing

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000) (internal quotations omitted)).

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“may also consider documents attached to either a motion to dismiss or an opposition to

that motion when the documents are referred to in the pleadings and are central to a

plaintiff’s claims.”30 Here, Plaintiff attached photographic exhibits and an affidavit to

Plaintiff’s Opposition, but these documents were not referred to in Plaintiff’s Complaint,

and the Court declines to consider them for purposes of this motion.

Plaintiff asserts the following claims against the Defendant Officers ostensibly in

their individual capacities:31 Excessive force, false arrest/imprisonment, First Amendment

retaliation, bystander liability/failure to intervene, as well as state law negligence. The

Court will address Plaintiff’s claims in turn.

1. Excessive Force

“To prevail on an excessive-force claim, [a plaintiff] must show ‘(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.’”32

Excessive force claims are necessarily fact intensive and “whether the force used

is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each

particular case.’”33 Facts to consider include “the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the officer or others, and whether

he is actively resisting arrest or attempting to evade arrest by fight.”34 Additionally, “the

30 Id. (citing Collins, 224 F.3d 496, 498).

31 Defendants move to dismiss official capacity claims against the Defendant Officers, however, Plaintiff’s

Complaint does not state that the officers are being sued in their official capacity, nor does Plaintiff address

official capacity in Opposition to this motion. Accordingly, the Court considers only individual capacity

claims.

32 Darden v. City of Fort Worth, Texas, 880 F.3d 722, 728-29 (5th Cir. 2018) (quoting Cooper v. Brown, 844

F.3d 517, 522 (5th Cir. 2016)).

33 Deville v. Mercantel, 567 F.3d 156, 167 (5th Cir. 2009).

34 Id.

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extent of the injury required to demonstrate that the force used was excessive depends

on the context in which the injury occurs.’”35

Here, however, Plaintiff has failed to plead facts which give any context or detail

the circumstances of the incident. Plaintiff alleges that Officer Stewart pulled up and, “for

no reason,” ordered Plaintiff to put his hands on the car.36 Next, Plaintiff alleges that

Officer Stewart called Officer Johnson “to aid him in performing the Terry Pat. Upon

[Officer Johnson’s] arrival, a struggle ensued.”37 The “struggle” is when the alleged

excessive force took place, yet Plaintiff does not allege any facts concerning how the

struggle precipitated or what led to the “Terry Pat.”

Additionally, Defendants have asserted the defense of qualified immunity. 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.’”38 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.”39

In Jackson v. City of Beaumont Police Dept., the plaintiff asserted a Section 1983

claim for excessive force against the arresting officers.40 The plaintiff merely alleged that

he was assaulted by the officers “without justification” and in “bad faith.”41 The court found

35 Goffney v. Sauceda, 340 F. App'x 181, 184 (5th Cir. 2009) (per curiam) (unpublished) (citing Ikerd v.

Blair, 101 F.3d 430, 434 (5th Cir. 1996)).

36 Rec. Doc. 1, ¶8.

37 Id. at ¶9.

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

(1996)).

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

40 958 F.2d 620, 621 (5th Cir. 1992).

41 Id.

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these allegations did not overcome the defense of qualified immunity because the plaintiff

“does not plead any facts regarding his own conduct during the incident, the reasons

given, if any, by the officers for being called to the scene, or any other factors relating to

the circumstances leading to, and surrounding, his arrest and the other alleged actions

by the officers.”42

Similarly, in Hughey v. Tippah County, Miss., the plaintiff “merely allege[d] that he

was ‘beaten’ by [the officer] for unknown reasons, and that he suffered certain injuries as

a result.”43 The court noted that the “pleadings [were] completely devoid of any facts

regarding his conduct leading up to the alleged beating and arrest. Hughey further fail[ed]

to identify the circumstances prompting officers being called to the scene.”44 Because of

those deficiencies, the court found that the plaintiff had failed to plead facts to overcome

the qualified immunity defense.

Like Jackson and Hughey, Plaintiff herein merely alleges that officers were doing

a Terry pat-down when “a struggle ensued.” Plaintiff has similarly failed to plead facts

regarding the circumstances or his own conduct leading up to the incident. At this stage

in the proceedings, Plaintiff has failed to overcome the Defendants’ asserted defense of

qualified immunity. However, when greater detail is required to address the defense of

qualified immunity, the Court may require 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. Here, Plaintiff has not had an opportunity to amend his Complaint and “leave

42 Id.

43 2018 WL 3232795, at *2 (N.D. Miss. 2018).

44 Id.

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to amend shall be freely given when justice so requires.”45 The Court will allow Plaintiff

21 days to file an amended complaint and a Rule 7(a) response tailored to the defense

of qualified immunity.

2. False Arrest and False Imprisonment

To prevail on a false arrest claim, a plaintiff must show that the officer did not have

probable cause to arrest [him].46 “The Supreme Court has defined probable cause as the

‘facts and circumstances within the officer's knowledge that are sufficient to warrant a

prudent person, or one of reasonable caution, in believing, in the circumstances shown,

that the suspect has committed, is committing, or is about to commit an offense.’”47 “This

is necessarily a ‘fact specific … inquiry,’ and the Court has cautioned that it requires an

inquiry into the specific situation confronting the public officials.”48 As with the excessive

force claim, however, without factual allegations regarding the circumstances leading up

to Plaintiff’s arrest, it is impossible for the Court to conclude that the officers lacked

probable cause to arrest Plaintiff. Plaintiff supports this claim by copy-and-pasting the

applicable legal standard then concluding, without argument or application, that “the

Complaint meets the pleading requirements to state a claim for false arrest/false

imprisonment.”49

In Torns v. City of Jackson, the Fifth Circuit affirmed the district court’s dismissal

of a false arrest claim for failure to state a claim when the complaint provided little context

45 Fed. R. Civ. P. 15(a).

46 Evans v. City of Meridian Mississippi, 630 Fed. App'x 312, 315 (5th Cir. 2015).

47 Piazza v. Mayne, 217 F.3d 239, 245–46 (5th Cir.2000) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37,

99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)).

48 Torns v. City of Jackson, 622 Fed.Appx. 414, 417 (5th Cir. 2015) (quoting Melear v. Spears, 862 F.2d

1177, 1184 (5th Cir.1989)).

49 Rec. Doc. 27, p. 5.

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to the arrest.50 There, the court reiterated that false arrest claims “require[] an inquiry in

to the specific situation confronting the public officials.”51 The court affirmed dismissal of

the false arrest claim because “[t]he complaint says little about the context or scope of

the interactions between the [plaintiff] and the officers. To defeat a qualified immunity

claim, the plaintiffs must specifically plead facts that show that the officers lacked

probable cause to detain them, and, without more, we cannot conclude that their

complaint crosses that bar.”52

Like Torns, Plaintiff herein merely alleges that that officers were doing a Terry pat-

down when “a struggle ensued.”53 Plaintiff’s Complaint does not allege what led to the

“Terry Pat,” and provides very little facts or details about the context or circumstances

surrounding the alleged incident. There are no facts alleged from which the Court can

determine that the officers lacked probable cause. As with the excessive force claim

however, Plaintiff will be given 21 days leave to amend his complaint and file a Rule 7(a)

response to each Defendant Officers’ assertion of the qualified immunity defense to the

false arrest claims.

3. First Amendment Retaliation

To state a First Amendment retaliation claim, Plaintiff must sufficiently allege that

“(1) [he] [was] engaged in constitutionally protected activity, (2) the defendants' actions

caused them to suffer an injury that would chill a person of ordinary firmness from

continuing to engage in that activity, and (3) the defendants' adverse actions were

50 Torns v. City of Jackson, 622 Fed.Appx. 414, 417 (5th Cir. 2015).

51 Id. citing Anderson v. Creighton, 483 U.S. 635, 640–41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

52 Id.

53 Rec. Doc. 1, ¶9.

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substantially motivated against the plaintiff's exercise of constitutionally protected

conduct.”54

Here, Plaintiff alleges that:

The words used by SAM DOROSON to try and stop the beating were not

fighting words nor was there disorderly conduct. SAM DOROSON was

engaged in constitutionally protected activity and the Defendants’ actions

caused SAM DOROSON to suffer an injury that would chill a person of

ordinary firmness from continuing to engage in that activity and the

Defendants’ adverse actions were substantially motivated against SAM

DOROSON’s protected speech.55

Apart from being a conclusory recitation of the elements, Plaintiff’s claim appears to be

based on unspecified words that were presumably said during the alleged use of

excessive force and arrest. Plaintiff has failed to elucidate any facts about the nature and

substance of the alleged speech or how the “defendant’s adverse actions were

substantially motivated against [Plaintiff’s] exercise of constitutionally protected conduct,”

nor could he, considering the alleged speech was used to “try and stop the beating.”

Plaintiff fails to plead factual allegations to support a finding that the officers’ actions were

motivated by any speech.

Additionally, Plaintiff argues in his Opposition, for the first time, that Plaintiff “was

properly exercising his First Amendment Right to gather,” and he summarily concludes

that “he was retaliated against for exercising that right and he suffered serious injuries.”56

Plaintiff fails to allege any facts regarding this claim, and these conclusory allegations

also do not state a plausible claim for relief. There are no facts alleged to infer a First

54 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).

55 Rec. Doc. 1, ¶26.

56 Rec. Doc. 27, p. 4.

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Amendment protected “gathering.” Accordingly, the First Amendment retaliation claims

against the Defendant Officers are dismissed. As with the previous claims, this claim is

dismissed without prejudice with the right to file an amended complaint to plead a

plausible claim for relief.

4. Bystander Liability

To state a claim for bystander liability or failure to intervene, the plaintiff must allege

that the “(1) the bystanding officer knew that a fellow officer was violating an individual's

constitutional rights, (2) had a reasonable opportunity to prevent violation, and (3) chose

not to act.”57

In this case, Plaintiff argues that:

OFFICER JONATHAN STEWART; OFFICER YUSEF HAMADEH and

OFFICER DUSTIN JOHNSON each had duty to protect SAM DOROSON

from use of excessive force by an officer and none intervened and each

breached their duty under law to protect with deliberate indifference to SAM

DOROSON’S 4th Amendment rights.58

In support of dismissal, Defendants contend that “it has not been alleged that any officer

had an affirmative duty to intervene or prevent another officer from executing Plaintiff’s arrest

given that, Plaintiff himself concedes that a struggle ensued as he failed to comply with law

enforcement orders.”59 Instead of addressing Defendants’ arguments, Plaintiff merely copy-

and-pastes, without citation, the bystander liability standard articulated by the Fifth Circuit in

Whitley v. Hannah.60 Plaintiff fails to present argument or application to the facts alleged.

57 Khansari v. City of Houston, 14 F.Supp.3d 842, 853 (5th Cir. 2014) (quoting Whitley v. Hanna, 726 F.3d

631, 646 (5th Cir. 2013)).

58 Rec. Doc. 1, ¶29.

59 Rec. Doc. 28-1, p. 5.

60 726 F.3d 631, 646-47 (5th Cir. 2013).

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Nevertheless, Plaintiff has failed to allege any element of a bystander liability claim.

Plaintiff’s conclusory allegations fail to plausibly state a claim and are merely a barebone

recitation of the elements without any factual analysis or factual enhancement whatsoever.

Accordingly, Plaintiff’s bystander liability claim is dismissed without prejudice with the right to

file amended complaint filed within 21 days and a Rule 7(a) response to the Defendant

Officers’ asserted defense of qualified immunity.

5. Malicious Prosecution

It is unclear from Plaintiff’s Complaint if he is asserting a claim for malicious

prosecution. Plaintiff does not state that malicious prosecution is a claim under the “Cause of

Action” section but addresses a federal malicious prosecution claim in his Opposition. Plaintiff

randomly, and utterly without context, alleges in his Complaint that “[t]he drug tests for

synthetic marijuana were negative.”61 There are no allegations that Plaintiff possessed

synthetic marijuana, was under the influence of synthetic marijuana, or any facts regarding

how synthetic marijuana fits in to the facts alleged whatsoever. Next, Plaintiff states with equal

obfuscation that “[p]hotographs were taken of Sam Dorosan.”62 Again, Plaintiff fails to state

why the photographs were taken, why the photographs were relevant, who took the

photographs, or any facts regarding any photograph other than that one was taken. “Thus,”

continues Plaintiff, “a prosecution in State Court was initiated against [Plaintiff]” for

possession of marijuana, resisting an officer by force or violence and for obstruction of

justice.”63 According to Plaintiff, “[the] charge was false …” and there “was no probable cause

to arrest [Plaintiff], charge him or jail him.”64 Plaintiff alleges that the charges for “possession

61 Rec. Doc. 1, ¶17.

62 Id. at ¶18.

63 Id. at ¶19.

64 Id. at ¶20.

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of marijuana, resisting an officer force or violence [sic] and obstruction of justice were

dismissed ….”65 Then, in his Opposition, Plaintiff again borrows word-for-word language,

without citation, outlining the malicious prosecution standard and states that this malicious

prosecution “was accompanied by the violation of the 4th and 1st Amendment rights.”66

Defendants contend that this claim should be dismissed because Plaintiff has failed to plead

facts establishing an essential element, malice.

The Fifth Circuit “has held that the federal Constitution does not include a

‘freestanding’ right to be free from malicious prosecution.”67 However, courts have

recognized that “a plaintiff may state an actionable claim under the Fourth Amendment arising

out of a pretrial detention resulting from initiation of a prosecution without probable cause.”68

“Such a claim, then relies on a finding that Defendants lacked probable cause for [Plainitff’s]

arrest.”69 Because the Court has already determined that Plaintiff has failed to allege plausible

facts that the Defendant Officers, beyond a sheer possibility, lacked probable cause, this

claim must fail. Accordingly, Plaintiff's claim for malicious prosecution under § 1983 is

dismissed without prejudice, and he will be granted leave to amend his Complaint to state a

claim upon which relief can be granted.70

6. State law Negligence and False Imprisonment

To the extent that Plaintiff has brought state law claims for negligence, excessive

use of force, and false imprisonment, these claims also fail. At the outset, Plaintiff only

65 Id.

66 Rec. Doc. 27, p.6.

67 Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (citing Castellano v. Fragozo, 352 F.3d 939, 958

(5th Cir. 2003)).

68 Seals v. McBee, 2019 WL 2451630 at *5 (E.D. La. June 12, 2019) (quoting Watkins v. Eschete, No. 14-

265, 2015 WL 222348, at *9 (E.D. La. Jan. 13, 2015)).

69 Id.

70 See Fed. R. Civ. P. 15(a) (the Court should freely grant leave to amend when justice so requires).

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addresses the state law negligence claim in his Opposition, and therefore, any other state

law claims are deemed abandoned and dismissed with prejudice.71

Plaintiff alleges, “in the alternative,” that the Defendant Officers are liable under

theories of negligence under Louisiana law.72 Defendants contend that Plaintiff has again

failed to plausibly plead a claim and that they are immune from suit pursuant to Louisiana

Revised Statute § 9:2798.1.

“The Louisiana Supreme Court has adopted a “duty-risk” analysis for assigning tort

liability under a negligence theory.”73 This theory requires a plaintiff to establish that (1)

the plaintiff suffered an injury; (2) the defendant owed a duty of care to the plaintiff; (3)

the duty was breached by the defendant; (4) the conduct in question was the cause-in-

fact of the resulting harm; and (5) the risk of harm was within the scope of protection

afforded by the duty breached.74

Here, Plaintiff alleges that “Defendants had a duty to conform their conduct to a

standard of professionalism and to refrain from attacking bystanders ….”75 It is unclear to

the Court why the Defendant Officers owed a duty to Plaintiff to refrain from attacking

71 See U.S. ex rel. Woods v. SouthernCare, Inc., 2013 WL 1339375 at *7 (S.D. Miss. Mar. 30, 2013)(“The

Relators did not adequately brief their opposition to the Defendant's Motion to Dismiss Count Three on

state law claims of fraud, suppression, and deceit. As such, they have abandoned Count Three. See Black

v. N. Panola Sch. Dist., 461 F.3d 584, 588 n. 1 (5th Cir. 2006) (concluding that plaintiff's failure to defend

her “retaliatory abandonment” claim in response to the defendant's motion to dismiss constituted

abandonment of the claim); Dean v. One Life Am., Inc., No. 4:11–CV–203–CWR–LRA, 2013 WL 870352,

at *2 (S.D. Miss. Mar. 7, 2013) (holding that by failing to address the defendant's argument in her response,

the plaintiff abandoned her claim); Alexander v. Brookhaven Sch. Dist., No. 3:07–CV–640–DPJ–JCS, 2009

WL 224902, at *4 (S.D. Miss. Jan. 28, 2009) (stating that the plaintiff “appears to have abandoned [her

Equal Pay Act] claim having not defended it” in her response to the defendant's motion to dismiss), aff'd,

428 F. App'x 303 (5th Cir. 2011)).

72 Rec. Doc. 1, ¶¶33-36.

73 Doe v. McKesson, 935 F.3d 253, 260-61 (5th Cir. 2019).

74 Id.

75 Id. at ¶34.

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“bystanders,” because, as previously mentioned, there are virtually no facts or details

regarding the circumstances leading up to or surrounding the “struggle.”

In his Opposition, Plaintiff appears to abandon the duty described in the Complaint

and instead argues that “[p]olice officers have a duty to enforce the laws, prevent and

detect crime and maintain peace and order in the community.”76 Again, without more

facts, the Court cannot conclude that this duty was plausibly breached. Plaintiff argues

that the “Defendants knew or should have known that an individual subject to an illegal

arrest has a right to resist and that an injury could result.”77 This statement appears to

suggest that Plaintiff did, in fact, resist the officers during the arrest and conflicts with

statements made defending his excessive force claim. These conflicting statements

suggest to the Court that the facts contained in the Complaint are incomplete.

Accordingly, Plaintiff’s state law claim for negligence is dismissed without prejudice for

failure to state a claim upon which relief can be granted. However, because the Plaintiff

has not had a meaningful opportunity to amend his Complaint,78 the Court will allow him

21 days to amend his Complaint to cure the deficiencies for the state law negligence

claim.

76 Rec. Doc. 27, p. 8.

77 Id. at 9.

78 Rec. Doc. 1.

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C. Leave to Amend

Several times above, the Court noted that it will allow Plaintiff to amend for certain

claims within twenty-one days. That is because the Federal Rules of Civil Procedure

provide that “leave to amend shall be freely given when justice so requires.”79 Moreover,

“courts should ordinarily grant a plaintiff at least one opportunity to amend before

dismissing a complaint with prejudice for failure to state a claim.80

As to the claims that were dismissed without prejudice as set forth above, Plaintiff

shall have twenty-one (21) days from the date of this Ruling to amend his Complaint to

cure the deficiencies set forth herein as to any claim that were dismissed without

prejudice. Plaintiff shall also have (21) days from the date of this Ruling to file a Rule 7(a)

response to all Defendants’ assertions of the qualified immunity defense. Plaintiff’s failure

to amend his Complaint and/or file a Rule 7(a) response within the given deadline will

convert all dismissals herein to “with prejudice.”

IV. CONCLUSION

For the reasons set forth above, Defendant Dustin Johnson’s Motion to Dismiss

Under Rule 12(b)(6)81 is GRANTED. Plaintiff’s claims against Defendant Johnson are

hereby DISMISSED without prejudice and the Court will permit Plaintiff 21 days to file an

amended complaint and Rule 7(a) response to the asserted defense of qualified

immunity.

79 Fed. R. Civ. P. 15(a)(2).

80 Matthews v. Stolier, No. 13-6638, 2014 WL 5214738 at *12 (E.D. La. Oct. 14, 2014)(citing Hart v. Bayer

Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000))(emphasis added).

81 Rec. Doc. 26.

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Additionally, Defendant Officers Yusef Hamadeh and Johnathan Stewart’s Motion

for Judgment on the Pleadings82 is hereby GRANTED and Plaintiff’s claims filed against

Defendant Officers Hamadeh and Stewart are hereby DISMISSED without prejudice

pursuant to Rule 12(c) and the Court will permit Plaintiff 21 days to file an amended

complaint and Rule 7(a) response to the asserted defense of qualified immunity.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana on September 27, 2019.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

82 Id.

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