# Watkins v. Gautreaux

> District Court, M.D. Louisiana · January 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10191698

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** January 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10191698

## How later opinions describe it (automated extraction)

- rejecting argument that suspect was unarmed and explaining that an officer can be “in harm’s way” by a suspect’s driving, and there can be a “very real danger that [the officer] would sustain serious injury or death” that renders the use of lethal force reasonable

## Opinion text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MARGARET GIBBS WATKINS
CIVIL ACTION
VERSUS
NO. 19-635-JWD-WD
SID GAUTREAUX, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
EAST BATON ROUGE PARISH
SHERIFF, ET AL.

RULING AND ORDER

This matter comes before the Court on the Motion to Dismiss Second Amended Complaint
(Doc. 30) filed by defendant James Morgan Hammett (“Defendant” or “Hammett”). Plaintiff
Margaret Gibbs Watkins (“Plaintiff” or “Mrs. Watkins”) opposes the motion, (Doc. 33), and
Hammett has filed a reply, (Doc. 34). Oral argument is not necessary. The Court has carefully
considered the law, the well-pleaded facts alleged in the Second Amended Complaint (Doc. 21),
and the arguments and submissions of the parties and is prepared to rule.
For the following reasons, Defendant’s motion is granted in part and denied in part.
Specifically, most of Plaintiff’s § 1983 claims are dismissed as waived. Further, Plaintiff’s § 1983
excessive force claim is dismissed because Plaintiff has failed to demonstrate that Hammett is not
entitled to qualified immunity; that is, Plaintiff has failed to show that every reasonable officer in
Hammett’s position would know that his conduct was unlawful under clearly established law.
However, Plaintiff has stated viable state law claims against Hammett, as Plaintiff has sufficiently
alleged that Hammett’s conduct was unreasonable under the totality of the circumstances.
I. Relevant Factual and Procedural Background
A. Introduction
The following factual allegations are largely taken from the Second Amended Complaint
(Doc. 21). The well-pleaded facts are assumed to be true and viewed in a light most favorable to

Plaintiff. Thompson v. City of Waco, Tex., 764 F.3d 500, 502–03 (5th Cir. 2014).
Plaintiff in this action is Margaret Gibbs Watkins. (Sec. Amend. Compl., Doc. 21 at 1.) She
was married to Melvin Watkins (“Decedent” or “Mr. Watkins”) in 1995, and they were domiciled
together in East Baton Rouge Parish. (Id. ¶ 3.)
There were originally two Defendants in this case: (1) Sid Gautreaux, Sheriff of East Baton
Rouge Parish, and (2) James Morgan Hammett, individually and in his official capacity as a former
deputy of the East Baton Rouge Sheriff’s Office. (Id. ¶ 2.) Gautreaux was previously dismissed
from this case (Doc. 29), so Hammett is the only remaining Defendant.
B. Facts Giving Rise to the Suit
On September 14, 2019, Plaintiff and her family members were present at a birthday party

for her 95-year-old aunt. (Sec. Amend. Compl. ¶ 4, Doc. 21.) Around 3:45 p.m., Mr. Watkins
arrived at the party but began to have a verbal disagreement with an attendee of the party. (Id.)
The host asked Mr. Watkins to leave, but Mr. Watkins initially refused. (Id.) Thereafter, another
party guest telephoned 911 asking for an officer to escort Mr. Watkins from the residence. (Id.)
After this, “Mr. Watkins voluntarily removed himself from the residence and headed
toward his car parked at least two (2) houses down . . . facing toward the exit to the subdivision.”
(Id. ¶ 5.) He got into his car, and Plaintiff followed him to his car. (Id.)
As Mr. Watkins was pulling away from the curb, Hammett arrived in his police car and
talked briefly with a few of Plaintiff’s family members who were standing in the driveway of the
house. (Sec. Amend. Compl. ¶ 6, Doc. 21.) Plaintiff alleges:
At no time was Mr. Watkins threatening toward defendant
Hammett, took no action toward defendant Hammett, and was
completely unarmed. In fact, Mr. Watkins was in his car with the
windows rolled up, and was not engaging with anyone. He was
simply leaving as requested.

(Id. ¶ 7.)
According to the operative complaint, “less than nine (9) seconds after arriving at the
residence and upon exiting his vehicle, [Hammett] fired two (2) shots through the front windshield
of Mr. Watkins’ car, striking him in the chest.” (Id. ¶ 8.) Because of the gun blasts, Mr. Watkins
“lost control of his lower extremities, causing his foot to depress the accelerator of his car.” (Id.)
Next:
[Hammett] fired at least three (3) more shots into Mr. Watkins from
the driver’s side of the car. Ultimately, Mr. Watkins’ car careened
out of control down the street, struck mailboxes, flipped over, and
came to rest in the front yard of a residence after hitting a car in the
driveway.

(Id.)
The East Baton Rouge Coroner determined that Mr. Watkins’ death was a homicide. (Id. ¶
9.) The cause of death was multiple gunshot wounds to the chest and upper extremities. (Id.)
Plaintiff claims that Hammett was the legal cause of her husband’s death. (Sec. Amend.
Compl. ¶ 10, Doc. 21.) She further alleges that Hammett did not have “probable or reasonable
cause” to employ deadly force toward her husband. (Id.) Plaintiff further asserts:
Petitioner shows that given the less than nine (9) second lapse
between the time said defendant officer exited his vehicle and fired
his first shots into the chest of Mr. Watkins demonstrates that the
officer's actions were in wanton and reckless disregard for the rights
of Mr. Watkins. In fact, in addition to common sense, the
undersigned has consulted with several law enforcement veterans
and experts in Peace Officers Standards and Training ("POST") who
have indicated that based upon all available public information (i.e.
witness statements, video, media reports, etc.) there is at this time,
this shooting was not objectively reasonable. Moreover, had
defendant Hammett been properly trained and supervised, he would
or should have known how to properly assess the situation and
utilize force continuum standards.

(Id. ¶ 11.)
Plaintiff makes allegations against Gautreaux that reflect on Hammett’s background and
purported propensity toward violence. (Id. ¶¶ 15–16.) Specifically, Hammett was at one point
employed by the Louisiana Department of Public Safety and Corrections, and he “was [allegedly]
allowed to resign from DPS in lieu of termination amid an internal affairs investigation into
complaints of excessive force and control of temper.” (Id. ¶ 15.) Further, after Decedent’s passing,
“defendant Hammett resigned from the EBRSO amid an internal affairs investigation into a
photograph taken and disseminated by a fellow deputy, depicting a tear drop tattoo on his face,
which are common among gang members who have served time in prison and/or taken another's
life.” (Id. ¶ 16.)
Plaintiff claims violations of Decedent’s Fourth, Fifth, Eighth, and Fourteenth Amendment
rights. (Sec. Amend. Compl. ¶ 12, Doc. 21.) Plaintiff also asserts that Hammett committed the tort
of assault and battery. (Id. ¶ 18.) Plaintiff states that she suffered mental anguish prior to her
husband’s death and pleads a variety of damages, including punitive damages and attorneys' fees.
(Id. ¶¶ 19, 21–25.)
C. Procedural Background
On September 23, 2019, Plaintiff filed suit against Sheriff Gautreaux. (See Docs. 1–2.)
Shortly thereafter, on September 25, 2019, Plaintiff filed a motion to substitute the complaint,
(Doc. 3), which was granted two days later, (Doc. 4.) The Amended Complaint described a

“currently unidentified Deputy with EBR Sheriff’s Department[.]” (Amend. Compl. ¶ 2, Doc. 1.)
On November 27, 2019, Sheriff Gautreaux filed a motion to dismiss. (Doc. 11.) He also
filed a motion to stay discovery. (Doc. 13.)
On December 16, 2019, Plaintiff filed a motion to amend the operative complaint. (Doc.
15.) Plaintiff sought to name Hammett as a defendant, as he was previously unidentified. (Id. at
1–2.) On the same day, Plaintiff filed an opposition to the motion to dismiss. (Doc. 16.)
On December 23, 2019, the Magistrate Judge conducted a telephone conference. (Doc. 19.)
She granted the motion for leave to file the Second Amended Complaint and gave Defendant two
weeks within which to file a motion to withdraw the motion to dismiss without prejudice to his
right to refile in response to the Second Amended Complaint. (Id.) Discovery was also stayed

pending the resolution of the qualified immunity defense asserted by Sheriff Gautreaux. (Id.) On
the same day, the Second Amended Complaint was filed into the record. (Doc. 21.) A few days
later, on December 27, 2019, Sheriff Gautreaux filed a motion to withdraw his original motion to
dismiss. (Doc. 22.)
On January 6, 2020, Sheriff Gautreaux filed a second motion to dismiss the Second
Amended Complaint. (Doc. 24.) No response to this motion was filed.
On March 9, 2020, the Court entered a Local Rule 7(f) Ruling granting the motion as
unopposed. (Doc. 29.) The ruling gave Plaintiff an opportunity to file a response (with an
explanation for the failure to comply with the opposition deadline) within fourteen days. (Id. at 2.)
No response was filed.
On April 9, 2020, Hammett filed the instant Motion to Dismiss. (Doc. 30.) Plaintiff
opposed it, (Doc. 33), and Hammett filed a reply, (Doc. 34.)

II. Rule 12(b)(6) Standard
“Federal pleading rules call for a ‘short and plain statement of the claim showing that the
pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2); they do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. 10, 11 (2014) (citation omitted).
Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has
explained:
The complaint (1) on its face (2) must contain enough factual matter
(taken as true) (3) to raise a reasonable hope or expectation (4) that
discovery will reveal relevant evidence of each element of a claim.
“Asking for [such] plausible grounds to infer [the element of a
claim] does not impose a probability requirement at the pleading
stage; it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal [that the elements of the claim
existed].”

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007)).
Applying the above case law, the Western District of Louisiana has stated:
Therefore, while the court is not to give the “assumption of truth” to
conclusions, factual allegations remain so entitled. Once those
factual allegations are identified, drawing on the court's judicial
experience and common sense, the analysis is whether those facts,
which need not be detailed or specific, allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” [Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949 (2009)]; Twombly, 55[0] U.S. at 556. This analysis is not
substantively different from that set forth in Lormand, supra, nor
does this jurisprudence foreclose the option that discovery must be
undertaken in order to raise relevant information to support an
element of the claim. The standard, under the specific language of
Fed. R. Civ. P. 8(a)(2), remains that the defendant be given adequate
notice of the claim and the grounds upon which it is based. The
standard is met by the “reasonable inference” the court must make
that, with or without discovery, the facts set forth a plausible claim
for relief under a particular theory of law provided that there is a
“reasonable expectation” that “discovery will reveal relevant
evidence of each element of the claim.” Lormand, 565 F.3d at 257;
Twombly, 55[0] U.S. at 556.

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-00177, 2011 WL 938785, at *3
(W.D. La. Feb. 9, 2011) (citation omitted).
In deciding a Rule 12(b)(6) motion, all well-pleaded facts are taken as true and viewed in
the light most favorable to the plaintiff. Thompson v. City of Waco, Tex., 764 F.3d 500, 502–03
(5th Cir. 2014). The task of the Court is not to decide if the plaintiff will eventually be successful,
but to determine if a “legally cognizable claim” has been asserted.” Id. at 503.
III. Discussion of § 1983 Claim
A. Preliminary Note and Parties’ Arguments
Defendant moves to dismiss all of Plaintiff’s claims. Defendant spends time on Plaintiff’s
Fifth, Eighth, and Fourteenth Amendment claims and the official capacity claim, but Plaintiff’s
opposition focuses solely on the Fourth Amendment excessive force and state law claims. Thus,
these are the only claims at issue. See JMCB, LLC v. Bd. of Commerce & Indus., 336 F. Supp. 3d
620, 634 (M.D. La. 2018) (deGravelles, J.) (finding that operative complaint could be dismissed
because plaintiff failed to respond to the substance of defendant's arguments); Apollo Energy, LLC
v. Certain Underwriters at Lloyd's, London, 387 F. Supp. 3d 663, 672 (M.D. La. 2019)
(deGravelles, J.) (finding that policy exclusion could apply because plaintiff failed to oppose
insurer’s argument on the issue).
Both sides agree that officers can use deadly force to protect others or the officer from
significant injury. But Defendant asserts:
In the context of a police officer’s use of deadly force against the
driver of motor vehicles, courts have little trouble recognizing that
a motor vehicle can be used as a deadly or dangerous weapon, and
an officer who reasonably believes that the motor vehicle is being
used or is about to be used as a deadly weapon, does not violate the
Fourth Amendment when using deadly force to try to stop the
danger created by such a motor vehicle.

(Doc. 30-1 at 8–9 (citation omitted).) According to Defendant, Plaintiff makes only conclusory
allegations that Defendant lacked cause to use deadly force on Decedent. Plaintiff failed to plead
any facts (beyond conclusions) regarding Decedent’s conduct or the facts surrounding his death.
Plaintiff also failed to overcome qualified immunity, so, even if there was a constitutional
violation, her claims should be dismissed.
Plaintiff emphasizes, inter alia, that, at the time of the accident, Decedent was not engaging
with anyone and was simply leaving as requested; that Defendant fired shots less than 9 seconds
after arriving on the scene; that Decedent at no time provoked the officer; that law enforcement
veterans and experts in Peace Officer Standards and Training who were consulted about the case
indicated that, based on their information, the shooting was not objectively reasonable; and that
Defendant did not properly assess the situation and utilize continuum standards. Thus, Mr.
Watkins’ Fourth Amendment rights were violated. As to qualified immunity, Plaintiff explains:
The Supreme Court in Tennessee v. Garner, 105 S. Ct. 1694 (1985),
announced the principle that the use of deadly force is permitted
only to protect the life of the shooting officer or others: “Where the
suspect poses no immediate threat to the officer and no threat to
others, the harm resulting from failing to apprehend him does not
justify the use of deadly force to do so.” Garner also requires a
warning before deadly force is used “where feasible,” a critical
component of risk assessment and de-escalation. Id. at 11-12. The
Supreme Court has also repeatedly stated that this rule can be
sufficient in obvious cases without dependence on the fact patterns
of other cases. White v. Pauly, 137 S. Ct. 548,552 (2017).

(Doc. 33 at 10.) Similarly, here, “Hammett utilized deadly force on an unarmed suspect where the
suspect posed no immediate threat to the shooting officer or others,” and the officer gave no
warning. (Id. at 10–11.)
Defendant replies that he is entitled to qualified immunity. Defendant explains that
Plaintiff provided only conclusory allegations:
[Plaintiff] did not plead any facts regarding the decedent’s own
conduct or any other factors relating to the circumstances leading to
and surrounding the alleged deadly force, except to generally deny
that Mr. Watkins took any threatening action toward Deputy
Hammett, apparently under the presumption that Hammett was not
a suspect for arrest and not being detained for an investigation and
the argument that driving a motor vehicle directly at someone is not
threatening.

(Doc. 34 at 3.) Thus, there is no Fourth Amendment violation, and, even if there were, Defendant
would be entitled to qualified immunity.
B. Applicable Law
1. Qualified Immunity Generally
“Qualified immunity provides government officials performing discretionary functions
with a shield against civil damages liability, so long as their actions could reasonably have been
thought consistent with the rights they are alleged to have violated.” Gobert v. Caldwell, 463 F.3d
339, 345 (5th Cir. 2006) (citing Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “In determining
whether an official enjoys immunity, we ask (1) whether the plaintiff has demonstrated a violation
of a clearly established federal constitutional or statutory right and (2) whether the official's actions
violated that right to the extent that an objectively reasonable person would have known.” Id.
(citing Hope v. Pelzer, 536 U.S. 730 (2002)). Courts are “permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
2. Whether There Was a Fourth Amendment Violation

“The Fourth Amendment guarantees the right to be free from ‘unreasonable searches and
seizures.’ ” Davis v. Romer, 600 F. App'x 926, 929 (5th Cir. 2015) (per curiam) (quoting U.S.
Const. amend. IV). “Apprehension by the use of deadly force is a seizure.” Carnaby v. City of
Houston, 636 F.3d 183, 187 (5th Cir. 2011) (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985)).
“For the first step” in the qualified immunity analysis, “ ‘all claims that law enforcement
officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop,
or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its
“reasonableness” standard.’ ” Hudspeth v. City of Shreveport, 270 F. App'x 332, 336 (5th Cir.
2008) (per curiam) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). “To prevail on a
Fourth Amendment excessive-force claim, a plaintiff must establish: (1) an injury; (2) that the

injury resulted directly from the use of excessive force; and (3) that the excessiveness of the force
was unreasonable.” Carnaby, 636 F.3d at 187 (citing Freeman v. Gore, 483 F.3d 404, 416 (5th
Cir. 2007)).
Because Decedent’s “death was an injury caused by the deadly force employed, [] the only
issue is whether the use of that deadly force was unreasonable.” Id. “To gauge the objective
reasonableness of the force, ‘[the Court] must balance the amount of force used against the need
for force.’ ” Id. at 187–88 (quoting Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008)
(internal quotation marks and citation omitted)).
Because “[t]he test of reasonableness under the Fourth Amendment
is not capable of precise definition or mechanical application,” Bell
v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L.Ed.2d 447
(1979), . . . its proper application requires careful attention to the
facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.
See Tennessee v. Garner, 471 U.S., at 8–9, 105 S. Ct., at 1699–1700
(the question is “whether the totality of the circumstances justifie[s]
a particular sort of . . . seizure”).

Graham, 490 U.S. at 396; see also Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004)
(“This balancing test ‘requires careful attention to the facts and circumstances of each particular
case.’ ” (quoting Graham, 490 U.S. at 396)).
“That second factor is the most important: [The Court] must determine whether [Decedent]
‘posed an immediate threat to the safety of the officers or others.’ ” Malbrough v. Stelly, 814 F.
App'x 798, 803 (5th Cir. 2020) (per curiam) (quoting Graham, 490 U.S. at 396). “The ‘[u]se of
deadly force is not unreasonable when an officer would have reason to believe the suspect poses a
threat of serious harm to the officer or others.’ ” Carnaby, 636 F.3d at 188 (quoting Mace v. City
of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)). That is, “[t]he use of deadly force may be proper
regardless of an officer's negligence if, at the moment of the shooting, he was trying to prevent
serious injury or death.” Id. (citations omitted).
“[T]he proper inquiry is an objective one.” Hudspeth, 270 F. App'x at 337 (citing
Devenpeck v. Alford, 543 U.S. 146, 153 (2004). The “ ‘Fourth Amendment's concern with
‘reasonableness' allows certain actions to be taken in certain circumstances, whatever the
subjective intent.” Id. (quoting Devenpeck, 543 U.S. at 153 (emphasis in original)) (quoting Whren
v. United States, 517 U.S. 806, 814 (1996))). Phrased another way, “[t]he ‘reasonableness inquiry
is objective: the question is whether the officers' actions are objectively reasonable in light of the
facts and circumstances confronting them, without regard to their underlying intent or motivation.’
” Davis, 600 F. App'x at 931 (quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)).
Thus, the officer’s “subjective intent is irrelevant to the reasonableness determination.” Id.
Further, the Court’s “inquiry into reasonableness is fact-specific and ‘must be judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’

” Carnaby, 636 F.3d at 188 (quoting Graham, 490 U.S. at 396–97). The Court must review as “
‘a reasonable officer on the scene,’ and [] ‘allow[ ] for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.’ ” Flores, 381 F.3d
at 399 (quoting Graham, 490 U.S. at 396–97). The Court “cannot allow the ‘theoretical, sanitized
world of our imagination to replace the dangerous and complex world that policemen face every
day.’ ” Malbrough, 814 F. App’x at 806 (quoting Stroik v. Ponseti, 35 F.3d 155, 158 (5th Cir.
1994) (quoting Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992)))
Thus, for example, in Malbrough, the Fifth Circuit was faced with a situation involving the
shooting of an individual in a vehicle. The appellate court concisely summarized the facts as

follows:
Anthony Campbell was in his GMC Yukon with two friends outside
his home in Acadia Parish, Louisiana when Police arrived to execute
a search warrant. Officers surrounded Campbell's vehicle, shouted
commands for the occupants to exit, and pulled one of Campbell's
friends out onto the ground. Campbell refused to exit, threw his
Yukon in reverse, smashed into the police cruiser parked behind
him—then switched gears and took a hard-left turn, attempting to
flee while surrounded by officers. One officer [named Ware] was
either bumped to the ground or fell. The officers fired. And
Campbell was hit. Tragically, the bullet, which remains lodged in
Campbell's brain, disabled him for life.

Malbrough, 814 F. App'x at 799.
The Fifth Circuit affirmed the district court’s finding that there was “no constitutional
violation, because Campbell posed an immediate threat to the officers and civilian bystanders.” Id.
at 799–800. The Fifth Circuit relied on Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007):
In Hathaway, an officer on foot fired his weapon at a car that
accelerated toward him. The bullet struck and killed the driver. We
emphasized two factors in determining that the officer's use of
deadly force was reasonable: (1) the limited time the officer had to
respond, and (2) the officer's proximity to the path of the vehicle. Id.
at 322. We further highlighted “our circuit's general
acknowledgment that police officers are often required to make
instantaneous decisions that ought not be second-guessed merely
because other options appear plausible in hindsight.” Id. at 321.

Id. at 804–05. Thus, in Malbrough, the key question was “whether it would have appeared to a
reasonable officer on the scene that Ware, other officers, or bystanders were in danger.” Id. at 805.
Plaintiff “need[ed] to show that Ware (as well as the other officers and bystanders) were far enough
away from the Yukon and its path, as it moved forward, that no reasonable officer could have
thought anyone was in danger.” Id. The Fifth Circuit agreed with the district court that it was
objectively reasonable to respond with force, even if Ware had not been struck by the vehicle,
because “(1) Ware went to the ground near the Yukon; (2) it was announced that an officer was
down; and (3) the firing did not take place until the officers saw Ware go to the ground near the
fleeing vehicle.” Id. Lastly, the appellate court rejected plaintiff’s argument that, once the vehicle
passed Ware and the other officers, they should have stopped firing. The Fifth Circuit explained:
[A]s the district court noted, the Supreme Court rejected a similar
argument in in Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012,
188 L. Ed. 2d 1056 (2014). There, a high-speed chase came to a stop
after the suspect “spun out into a parking lot and collided with [an
officer's] cruiser.” Id. at 769, 134 S. Ct. 2012. The officers then
stepped out of their cruisers and banged on the suspect's passenger
window, attempting to get him to surrender. But the suspect again
punched the gas. Id. at 770, 134 S. Ct. 2012. One of the officers fired
three shots at the suspect's car. Id. The suspect sped away, and after
the officers were safely out of the pathway of the fleeing car, they
fired an additional twelve shots. Id.

The Court held that the officers did not act unreasonably: “It stands
to reason that, if police officers are justified in firing at a suspect in
order to end a severe threat to public safety, the officers need not
stop shooting until the threat has ended.” Id. at 777, 134 S. Ct. 2012.
And the Court found that the threat had not ended precisely because
the suspect “never abandoned his attempt to flee.” Id. The case
would be different, the Court noted, “if [the officers] had initiated a
second round of shots after the initial round had clearly
incapacitated [the suspect] and had ended any threat of continued
flight, or if [the suspect] had clearly given himself up.” Id. The same
is true here. The officers were not aware that Campbell was “clearly
incapacitated” by a bullet, and Campbell never stopped his vehicle
or gave himself up. The officers continued firing until Campbell's
vehicle came to a stop, which was when the threat was over.

Malbrough, 814 F. App'x at 806. Thus, the district court’s granting
of summary judgment for the defendants was affirmed. Id. at 807.

3. Whether Every Reasonable Officer Under the Circumstances Would
Know His Conduct Was Unlawful

As to the second prong, “ ‘[q]ualified immunity attaches when an official's conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’ ” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting White v.
Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (alterations and internal quotation marks omitted)).
“ ‘Because the focus is on whether the officer had fair notice that her conduct was unlawful,
reasonableness is judged against the backdrop of the law at the time of the conduct.’ ” Id. (quoting
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
“Although ‘[the Supreme] Court's caselaw does not require a case directly on point for a
right to be clearly established, existing precedent must have placed the statutory or constitutional
question beyond debate.’ ” Id. (quoting White, 137 S. Ct. at 551 (internal quotation marks
omitted)). “ ‘In other words, immunity protects all but the plainly incompetent or those who
knowingly violate the law.’ ” Id. (quoting White, 137 S. Ct. at 551 (internal quotation marks
omitted)).
“ ‘Of course, general statements of the law are not inherently incapable of giving fair and
clear warning to officers.’ ” Kisela, 138 S. Ct. at 1153 (quoting White, 137 S. Ct. at 552 (internal

quotation marks omitted)). Thus, for example, the Supreme Court has said that:
(1) “the reasonableness of an officer's use of force depends, in part,
on whether the officer was in danger at the precise moment that he
used force” and (2) “if the suspect threatens the officer with a
weapon[,] deadly force may be used if necessary to prevent escape,
and if[,] where feasible, some warning has been given.”

White, 137 S. Ct. at 551 (quoting reversed lower court opinion, which in turn quoted, inter alia,
Garner, 471 U.S. at 7, and Graham, 490 U.S. 386). “[B]ut ‘in the light of pre-existing law the
unlawfulness must be apparent, [(citation omitted][, and,] [f]or that reason, [the Supreme Court
has] held that Garner and Graham do not by themselves create clearly established law outside ‘an
obvious case.” White, 137 S. Ct. at 552 (quoting Brosseau, 543 U.S. at 199).
Thus, “[a]n officer ‘cannot be said to have violated a clearly established right unless the
right's contours were sufficiently definite that any reasonable official in the defendant's shoes
would have understood that he was violating it.’ ” Kisela, 138 S. Ct. at 1153 (quoting Plumhoff v.
Rickard, 134 S. Ct. 2012, 2023 (2014)). Phrased another way, “[w]hen considering a defendant’s
entitlement to qualified immunity, [the Court] must ask whether the law so clearly and
unambiguously prohibited his conduct that ‘every reasonable official would understand that what
he is doing violates [the law].’ ” McLin v. Ard, 866 F.3d 682, 695 (5th Cir. 2017) (citing Morgan
v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011)). “ ‘To answer that question in the affirmative, we must be able to point to
controlling authority—or a robust consensus of persuasive authority—that defines the contours of
the right in question with a high degree of particularity.’ ” Id. at 696 (quoting Morgan, 659 F.3d
at 371–72 (internal quotation marks omitted) (quoting al-Kidd, 563 U.S. at 742)). “ ‘Where no
controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit
courts are split on the issue, the law cannot be said to be clearly established.’ ” Id. (quoting Morgan,

659 F.3d at 372).
Thus, for example, in Brosseau v. Haugen, “Officer Rochelle Brosseau . . . shot Kenneth
Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle.”
Brosseau, 543 U.S. at 194. The day before the incident, someone named Tamburello reported to
the officer that Haugen had stolen some tools, and the officer “later learned that there was a felony
no-bail warrant out for Haugen’s arrest on drug and other offenses.” Id. at 195. On the day of the
incident, the officer heard a report that Haugen and Tamburello were fighting in Haugen’s
mother’s yard. Id. When the officer arrived, Haugen fled and hid in the neighborhood. Id. at 196.
Two other officers and a K-9 arrived, and they all searched for Haugen for 30 to 45 minutes. Id.
An officer had heard that a neighbor had seen a man in her backyard. Id. Brosseau ran in that

direction. Id. Haugen appeared and ran into the driveway of the mother’s house. Id. With Brosseau
in hot pursuit, Haugen ran into a jeep in the driveway and locked the door. Id. Brosseau believed
Haugen was running to retrieve a weapon. Id. Brosseau ordered him out of the vehicle and pointed
a gun at him. Id. The Supreme Court explained:
Brosseau arrived at the Jeep, pointed her gun at Haugen, and ordered
him to get out of the vehicle. Haugen ignored her command and
continued to look for the keys so he could get the Jeep started.
Brosseau repeated her commands and hit the driver's side window
several times with her handgun, which failed to deter Haugen. On
the third or fourth try, the window shattered. Brosseau
unsuccessfully attempted to grab the keys and struck Haugen on the
head with the barrel and butt of her gun. Haugen, still undeterred,
succeeded in starting the Jeep. As the Jeep started or shortly after it
began to move, Brosseau jumped back and to the left. She fired one
shot through the rear driver's side window at a forward angle, hitting
Haugen in the back. She later explained that she shot Haugen
because she was “ ‘fearful for the other officers on foot who [she]
believed were in the immediate area, [and] for the occupied vehicles
in [Haugen's] path and for any other citizens who might be in the
area.’ ” 339 F.3d, at 865.

Despite being hit, Haugen, in his words, “ ‘st[ood] on the gas' ”;
navigated the “ ‘small, tight space’ ” to avoid the other vehicles;
swerved across the neighbor's lawn; and continued down the street.
Id., at 882. After about a half block, Haugen realized that he had
been shot and brought the Jeep to a halt.

Id. at 196–97.
The Supreme Court began its analysis:
Specifically with regard to deadly force, we explained in Garner
that it is unreasonable for an officer to “seize an unarmed,
nondangerous suspect by shooting him dead.” 471 U.S., at 11, 105
S.Ct. 1694. But “[w]here the officer has probable cause to believe
that the suspect poses a threat of serious physical harm, either to the
officer or to others, it is not constitutionally unreasonable to prevent
escape by using deadly force.” Ibid.

Brosseau, 543 U.S. at 197–98. The Court then turned to the qualified immunity question and
explained the standard it must apply:
It is important to emphasize that this inquiry “must be undertaken in
light of the specific context of the case, not as a broad general
proposition.” Id., at 201, 121 S. Ct. 2151. As we previously said in
this very context:

“[T]here is no doubt that Graham v. Connor, supra,
clearly establishes the general proposition that use of
force is contrary to the Fourth Amendment if it is
excessive under objective standards of
reasonableness. Yet that is not enough. Rather, we
emphasized in Anderson [v. Creighton] ‘that the
right the official is alleged to have violated must have
been “clearly established” in a more particularized,
and hence more relevant, sense: The contours of the
right must be sufficiently clear that a reasonable
official would understand that what he is doing
violates that right.’ 483 U.S. [635,] 640 [, 107 S. Ct.
3034, 97 L. Ed. 2d 523 (1987)]. The relevant,
dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in
the situation he confronted.” Id., at 201–202, 107 S.
Ct. 3034.

The Court of Appeals acknowledged this statement of law, but then
proceeded to find fair warning in the general tests set out in Graham
and Garner. 339 F.3d, at 873–874. In so doing, it was mistaken.
Graham and Garner, following the lead of the Fourth Amendment's
text, are cast at a high level of generality. See Graham v. Connor,
supra, at 396, 109 S. Ct. 1865 (“ ‘[T]he test of reasonableness under
the Fourth Amendment is not capable of precise definition or
mechanical application’ ”). Of course, in an obvious case, these
standards can “clearly establish” the answer, even without a body of
relevant case law. See Hope v. Pelzer, 536 U.S. 730, 738, 122 S. Ct.
2508, 153 L. Ed. 2d 666 (2002) (noting in a case where the Eighth
Amendment violation was “obvious” that there need not be a
materially similar case for the right to be clearly established). See
also Pace v. Capobianco, 283 F.3d 1275, 1283 (C.A. 11 2002)
(explaining in a Fourth Amendment case involving an officer
shooting a fleeing suspect in a vehicle that, “when we look at
decisions such as Garner and Graham, we see some tests to guide
us in determining the law in many different kinds of circumstances;
but we do not see the kind of clear law (clear answers) that would
apply” to the situation at hand). The present case is far from the
obvious one where Graham and Garner alone offer a basis for
decision.

Brosseau, 543 U.S. at 198–99.
The High Court then focused on “cases relevant to the ‘situation [Brosseau] confronted’:
whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons
in the immediate area are at risk from that flight.” Id. at 200. The Supreme Court looked at the
officer’s authority and concluded, “In these cases, the courts found no Fourth Amendment
violation when an officer shot a fleeing suspect who presented a risk to others.” Id. (citations
omitted). The Supreme Court then concluded:
These three cases taken together undoubtedly show that this area is
one in which the result depends very much on the facts of each case.
None of them squarely governs the case here; they do suggest that
Brosseau's actions fell in the “ ‘hazy border between excessive and
acceptable force.’ ” Saucier v. Katz, supra, at 206, 121 S. Ct. 2151.
The cases by no means “clearly establish” that Brosseau's conduct
violated the Fourth Amendment.

Id. at 201.
Similarly, Davis v. Romer also involved the shooting of a driver by a police officer. 600 F.
App’x at 927. The Fifth Circuit concisely summarized the facts as follows:
Officer J. Romer (“Romer”) was attempting to arrest Charal Thomas
(“Thomas”), who was sitting in the driver's seat of his vehicle.
Although there was a warrant for his arrest, Thomas refused to exit
his vehicle and submit to a lawful arrest. Romer reached inside the
driver's window, and Thomas suddenly began driving away. Romer
then jumped on the vehicle's running board and ordered Thomas to
stop the vehicle, but Thomas ignored the order and continued to
drive toward the entrance to the freeway. After Thomas refused to
stop the vehicle, Romer, who was still standing on the running board
of the fleeing vehicle, fatally shot Thomas.

Id. Thomas’ family claimed excessive force. Id. Romer moved for summary judgment and argued
qualified immunity. Id. at 928. The district court granted the motion. Id.
The Fifth Circuit affirmed. Id. at 927. The appellate court explained:

Under such chaotic, dangerous circumstances, Appellants have not
shown that Romer's conduct was objectively unreasonable. As
previously discussed, the definitive question is whether Romer had
a reasonable belief that Thomas posed a risk of serious harm at the
time Romer used deadly force. Appellants have conceded that
Romer was on the running board of the fleeing vehicle when he fired
the fatal shots. We therefore conclude that at the time of the
shooting, Romer had reason to believe that there was a serious threat
of physical harm to him.

Id. at 930. The Fifth Circuit also rejected appellants’ argument that Thomas was unarmed at the
time of the shooting:
The Supreme Court has held that it is constitutionally unreasonable
to use deadly force on an unarmed suspect by shooting him while he
was fleeing on foot. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct.
1694, 85 L. Ed. 2d 1 (1985). This is because the officer “could not
reasonably have believed” that the suspect “posed any threat,” and
the officer “never attempted to justify his actions on any basis other
than the need to prevent an escape,” Id. at 21, 105 S. Ct. 1694. That
case is inapposite. Here, the testimony and the diagram of the scene
demonstrate that Romer was standing by the driver's door when
Thomas suddenly drove to the left with Romer's arm inside the
vehicle. Moreover, it is undisputed that Romer was standing on the
running board of the vehicle as it was being driven on the service
road and headed toward the freeway. Clearly, Thomas's actions put
the officer in harm's way, and there was a very real danger that
Romer would sustain serious injury or death. Thus, unlike in
Garner, Thomas's actions were posing a threat to Romer at the time
of the shooting.

Davis, 600 F. App'x at 931. The Fifth Circuit next rejected Appellants’ contention that the force
was unjustified because Thomas’s warrants were for outstanding misdemeanor traffic violations.
“[T]he important question is whether the suspect is ‘dangerous or benign’ and ‘not whether the
suspect is suspected of committing a felony or a misdemeanor.’ ” Id. Additionally, the fact that
the officer fired 12 shots rather than a single round was irrelevant, as “ ‘if police officers are
justified in firing at a suspect in order to end a severe threat to public safety, the officers need not
stop shooting until the threat has ended.’ ” Id. (quoting Plumhoff, 134 S. Ct. at 2022). The appellate
court concluded that “[t]he district court properly granted summary judgment as to the Fourth
Amendment claim based on qualified immunity.” Id.
C. Analysis
Having carefully considered the matter, the Court will grant Defendant’s motion to dismiss
Plaintiff’s § 1983 excessive force claim. In short, Plaintiff has failed to show that Hammett is not
entitled to qualified immunity.
Plaintiff fails to identify a single case that is factually analogous to this one. She instead
relies on White and Brosseau and argues that their general principles can create clearly established
law in “an obvious case.” White, 137 S. Ct. at 552 (quoting Brosseau, 543 U.S. at 199)).
The Court sees two problems with this position. First, White language is more nuanced
than Plaintiff indicates. White actually states: “in the light of pre-existing law the unlawfulness
must be apparent, [(citation omitted][, and,] [f]or that reason, [the Supreme Court has] held that
Garner and Graham do not by themselves create clearly established law outside ‘an obvious case.”

White, 137 S. Ct. at 552 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)).
Thus, while White and Brosseau allow for exceptions for obvious cases, the general rule remains
that “[a]n officer ‘cannot be said to have violated a clearly established right unless the right's
contours were sufficiently definite that any reasonable official in the defendant's shoes would have
understood that he was violating it.’ ” Kisela, 138 S. Ct. at 1153 (quoting Plumhoff, 134 S. Ct. at
2023). And, as Kisela also said, “[a]lthough ‘[the Supreme] Court's caselaw does not require a
case directly on point for a right to be clearly established, existing precedent must have placed the
statutory or constitutional question beyond debate.’ ” Kisela, 138 S. Ct. at 1152 (quoting White,
137 S. Ct. at 551).
But, even putting this aside, the second and larger problem for Plaintiff is that “[t]he present

case is far from the obvious one where Graham and Garner alone offer a basis for decision.”
Brosseau, 543 U.S. at 199. Here, a police officer arrived on the scene in response to a 911 call;
“briefly spoke with a few of [Plaintiff’s] family members who were standing in the driveway of
the residence”; and “less than nine (9) seconds after arriving at the residence,” fired two shots
through the driver’s front windshield as the driver was pulling away from the curb and leaving the
scene. (Sec. Amend. Compl. ¶¶ 4–7, Doc. 21.)
Plaintiff’s allegations that Mr. Watkins was not “threatening toward [ ] Hammett,” that he
“took no action toward [ ] Hammett,” that he was “completely unarmed,” and that he was “not
engaging with anyone” and “simply leaving as requested,” are conclusory and not dispositive. (Id.
¶ 7.) As the Fifth Circuit explained in Malbrough, the key question is “whether it would have
appeared to a reasonable officer on the scene that . . . bystanders were in danger.” Malbrough,
814 F. App'x at 805; see also Brosseau, 543 U.S. at 200 (“In these cases, the courts found no
Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to

others.”); see also Davis, 600 F. App'x at 931 (rejecting argument that suspect was unarmed and
explaining that an officer can be “in harm’s way” by a suspect’s driving, and there can be a “very
real danger that [the officer] would sustain serious injury or death” that renders the use of lethal
force reasonable). Ultimately, Mrs. Watkins “need[ed] to show that . . . bystanders[] were far
enough away from [Mr. Watkin’s vehicle] and its path, as it moved forward, that no reasonable
officer could have thought anyone was in danger.” Id. Plaintiff has not alleged this.
Additionally, the above case law demonstrates other reasons Hammett is entitled to
qualified immunity. For instance, after Hammett fired his initial two shots, Mr. Watkins “lost
control of his lower extremities causing his foot to depress the accelerator of his car.” (Sec. Amend.
Compl. ¶ 8, Doc. 21.) Hammett then fired three additional shots. (Id.) As explained above, “if

police officers are justified in firing at a suspect in order to end a severe threat to public safety, the
officers need not stop shooting until the threat has ended.” Malbrough, 814 F. App'x at 806
(quoting Plumhoff, 572 U.S. at 777); see also Davis, 600 F. App'x at 931 (same) (quoting
Plumhoff). Thus, if Hammett was justified in his first two shots, he was certainly justified in his
second set of shots, as Hammett was justified in “firing until [Decedent’s] vehicle came to a stop,
which was when the threat was over.” Id.
Moreover, Plaintiff highlights other alleged incidents of excessive force and the tear-drop
tattoo gang symbol as indications of Hammett’s propensity toward violence. (Sec. Amend. Compl.
¶ 15–16, Doc. 21.) But “subjective intent is irrelevant to the reasonableness determination.” Davis,
600 F. App'x at 931. “The reasonableness inquiry is objective: the question is whether the officers'
actions are objectively reasonable in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Id. (cleaned up). Plaintiff has not shown that
every reasonable officer would find Hammett’s conduct unreasonable.

It bears repeating: the question for the second part of the qualified immunity analysis is not
whether Hammett acted unreasonably. Rather, it was incumbent upon Plaintiff to point to
controlling authority demonstrating that “the law so clearly and unambiguously prohibited
[Hammett’s] conduct that ‘every reasonable official would understand that what he is doing
violates [the law].’ ” McLin, 866 F.3d at 695. “[E]xisting precedent must have placed the statutory
or constitutional question beyond debate.” Kisela, 138 S. Ct. at 1152 (quoting White, 137 S. Ct. at
551).
Without more, Plaintiff has not met her burden. As a result, Hammett is entitled to
qualified immunity, and Plaintiff’s § 1983 excessive force claim will be dismissed.
IV. Discussion of State Law Claim

A. Parties’ Arguments

Defendant urges that Plaintiff’s state law claims fail for the same reasons as the federal
excessive force claim. Conversely, Plaintiff maintains that she stated a claim for assault and
battery under state law; Mr. Watkins did not pose a threat or danger to anyone; he was merely
pulling away from the curve; there were no exigencies; he was unarmed; and he was not
committing a crime.
B. Applicable Law
Louisiana Code of Criminal Procedure Article 220 provides, “A person shall submit
peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect
the arrest and detention, and also to overcome any resistance or threatened resistance of the person
being arrested or detained.” “The use of force by law enforcement officers must be tested by the
‘reasonable force’ standard established by this article. The test precludes ‘clearly inappropriate
force.’ ” Kyle v. City of New Orleans, 353 So. 2d 969, 972 (La. 1977) (quoting La. Code Crim.

Proc. art. 220, Official Revision Comment (b))
“The use of force when necessary to make an arrest is a legitimate police function.” Id.
“But if the officers use unreasonable or excessive force, they and their employer are liable for any
injuries which result.” Id. (citations omitted). “Whether the force used is reasonable depends upon
the totality of the facts and circumstances in each case.” Id. at 973. “A court must evaluate the
officers' actions against those of ordinary, prudent, and reasonable men placed in the same position
as the officers and with the same knowledge as the officers.” Id. “The degree of force employed
is a factual issue.” Id. (citations omitted).
The Louisiana Supreme Court has explained further:

Several factors to be considered in making this determination are the
known character of the arrestee, the risks and dangers faced by the
officers, the nature of the offense involved, the chance of the
arrestee's escape if the particular means are not employed, the
existence of alternative methods of arrest, the physical size, strength,
and weaponry of the officers as compared to the arrestee, and the
exigencies of the moment.

Kyle, 353 So. 2d at 973 (citations omitted).
C. Analysis
Preliminarily, the parties are mistaken in assuming that the Court must reach the same
result for the state law claims as it did for the federal excessive force claim. For § 1983 and
qualified immunity, the issue is (in part) whether every reasonable officer under the circumstances
would know that Hammett’s conduct was unlawful under clearly established law. But, for the
state law claims, the key question is whether, under the totality of the circumstances, Hammett’s
conduct was unreasonable.
In short, the Court finds that it was. Though Hammett and others faced a degree of danger
with Mr. Watkin’s moving toward the officer in a vehicle, the nature of this offense appeared

minor, and there were alternate, less lethal means the officer could have used to prevent Mr.
Watkins’ escape. As alleged, the exigencies of the moment did not warrant firing two shots after
a mere nine seconds of being at the scene.
Again, the question is not whether Plaintiff will prevail at trial. Rather, the key issue is
whether “[t]he [operative] complaint (1) on its face (2) [] contain[s] enough factual matter (taken
as true) (3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence
of each element of a claim.” Lormand, 565 F.3d at 257. The Court finds that Plaintiff has satisfied
this burden at this stage
In sum, the Court finds that Plaintiff has stated viable state law claims against Hammett.
Consequently, Defendant’s motion will be denied on this issue.

V. Leave to Amend
Plaintiff notes “in the alternative, should the Court determine additional facts are necessary,
plaintiff must be given an opportunity to amend.” (Doc. 33 at 4.) While the Court takes some issue
with Plaintiff’s use of the word “must,” the Court agrees that Plaintiff should be given leave to
amend under the circumstances.
“[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, though Plaintiff has amended her complaint twice, she has not done so in response
to a ruling by this Court assessing the sufficiency of her claims. Thus, “though [there is] a
compelling case for denying leave to amend, the Court will act in accordance with the ‘wise
judicial practice’ and general rule and grant Plaintiff's request.” JMCB, 336 F. Supp. 3d at 641–
42; see also Fetty v. Louisiana State Bd. of Private Sec. Examiners, --- F. Supp. 3d ----, No. 18-
517, 2020 WL 520026, at *15 (M.D. La. Jan. 31, 2020) (deGravelles, J.) (“because Plaintiffs did
not amend their complaint in response to a ruling by this Court, and because of the above ‘wise
judicial practice,’ the Court will grant Plaintiffs one final opportunity to amend their complaint to
state viable claims against the Board Members.” (citing JMCB, 336 F. Supp. 3d at 641–42));
Murphy v. Bos. Sci. Corp., No. 18-31, 2018 WL 6046178, at *1 (M.D. La. Nov. 19, 2018)
(deGravelles, J.) (reaching same result) (citing, inter alia, JMCB).

Failure to cure the deficiencies will likely result in the dismissal of Plaintiff’s case from
this Court. Specifically, if Plaintiff fails to cure the deficiencies in her § 1983 claims, they will be
dismissed with prejudice. Further, if all of Plaintiff’s § 1983 claims are dismissed, the Court will,
in all likelihood, decline to exercise supplemental jurisdiction over Plaintiff’s state law claims.
See Enochs v. Lampasas Cty., 641 F.3d 155, 159–61 (5th Cir. 2011) (“Our general rule is to dismiss
state claims when the federal claims to which they are pendent are dismissed.” (collecting cases));
Pullins v. Hancock Whitney Bank, No. CV 19-00006, 2021 WL 96246, at *12 (M.D. La. Jan. 11,
2021) (Dick, C.J.) (declining to exercise supplemental jurisdiction over state law IIED claim after
federal claims were dismissed).
VI. Conclusion

Accordingly,
IT IS ORDERED that the Motion to Dismiss Second Amended Complaint (Doc. 30) filed
by defendant James Morgan Hammett is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the motion is GRANTED in that Plaintiff’s § 1983
claims against Hammett are DISMISSED WITHOUT PREJUDICE. Plaintiff is given twenty-
eight (28) days in which to amend her operative complaint to cure the above deficiencies. Failure
to do so will result in the dismissal of her § 1983 claims with prejudice and, in all likelihood, the

Court declining to exercise supplemental jurisdiction over Plaintiff’s state law claims.
IT IS FURTHER ORDERED that, in all other respects, Defendant’s motion is DENIED.
Specifically, Plaintiff has stated viable state law claims against Hammett.
Signed in Baton Rouge, Louisiana, on January 28, 2021.

S

JUD GE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191698. Public record. Not legal advice.