# Gray v. City of Denham Springs

> District Court, M.D. Louisiana · March 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10191790

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** March 29, 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/10191790

## How later opinions describe it (automated extraction)

- finding that plaintiff’s conviction of simple assault of a law enforcement office was “not inconsistent” with his claim of excessive force (discussing cases)
- finding that plaintiffs’ excessive force claim was not “inherently inconsistent” with their convictions for disturbing the peace where plaintiffs’ disturbing the peace convictions resulted from their pre-arrest conduct

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ROBERT GRAY, ET AL. CIVIL ACTION
VERSUS
THE CITY OF DENHAM SPRINGS, NO. 19-00889-BAJ-EWD
ET AL.
RULING AND ORDER
Before the Court is the Motion To Dismiss For Failure To State A Claim
And/Or For More Definite Statement Pursuant To FRCP 12 (Doc. 33), submitted by
Defendants the City of Denham Springs, Denham Springs Police Department Chief
J. Shannon Womack, and Berkshire Guard Insurance Companies (collectively,
“Defendants”). Also before the Court is Defendants’ Supplemental Motion To Dismiss
And/Or For More Definite Statement Under FRCP 12 (Doc. 42), submitted after
Plaintiffs amended their complaint to add new allegations regarding recent
developments in their case. Plaintiffs oppose Defendants’ Motions. (Doc. 45).
For the reasons stated herein, the Court will dismiss Plaintiffs’ federal Section
1983 municipal liability claims against the City of Denham Springs; all claims
against Police Chief Womack; and Plaintiffs’ claims of conspiracy and abuse of
process. Otherwise, Defendants’ Motions will be denied.

I. ALLEGED FACTS
This case alleges excessive force by police officers following a routine traffic
stop. For present purposes, the following allegations are accepted as true:
Plaintiffs Robert Gray and Jacob Gray are father and son. On December 24,
2018—Christmas Eve—Robert (the father) drove to Don’s Seafood in Denham
Springs, Louisiana to pick up Jacob from work. (Doc. 41 at ¶ 7). As he neared Don’s
Seafood, two officers of the Denham Springs Police Department (“DPSD”)—presently

identified only as Defendants John Doe #1 and John Doe #2—observed that Robert’s
license plate light was burnt out and initiated a traffic stop. (Id. at ¶ 8).
Robert pulled over and the John Doe Officers approached his driver’s side
window. The Officers observed Robert exhibiting “erratic speech patterns and body
movements,” which caused them to believe that he was intoxicated. (Id. at ¶ 11). In
fact, Robert was not intoxicated, and his unusual speech and body movements were
caused by central pontine myelinolysis (“CPM”), a nerve disease that presents various

symptoms, including “acute paralysis,” an unstable gait, tremors, and difficulty
swallowing and speaking. (Id. at ¶ 12). Robert attempted to explain his condition to
the Officers, and even tried to present his handicap identification card, but the
Officers ignored him, and repeatedly demanded that he exit his vehicle. (Id. at ¶¶ 12-
13). Robert informed the Officers that, due to the uneven ground, “he would likely fall
given his condition,” but again the Officers demanded that he exit his car, and

threatened to forcibly remove him if he did not comply. (Id. at ¶ 14).
At that point, Robert called Jacob, “hoping that his son … would be able to
better explain … his condition” to the Officers. (Id. at ¶ 15). Also around that time
multiple additional DPSD officers—presently identified only as Defendants John Doe
#4, John Doe #5, John Doe #6, John Doe #7, and John Doe #8—arrived at the scene.
(Id. at ¶ 10).
When Jacob learned of the traffic stop, and “saw his father’s SUV parked near
his place of employment with numerous law enforcement officers surrounding it, he
[Jacob] immediately rushed over to assist his father.” (Id. at ¶ 15). As Jacob

approached the scene, he observed Officers Doe #1 and Doe #2 forcibly removing
Robert from his car. (Id. at ¶ 16). The other Officers did not intervene. (Id.).
Concerned, Jacob began recording his father’s encounter with the Officers on
his cellphone. (Id. at ¶ 17). Officer Doe #1 noticed Jacob recording and attempted to
make him stop, first by forcing Jacob to move to the passenger side of his father’s car
(to block Jacob’s view), and then by grabbing Jacob’s phone from his hand, tackling
him to the ground, and deploying pepper spray in his face. (Id. at ¶¶ 18-20). Still, the

other Officers did not intervene. (Id.).
Although Jacob no longer possessed his phone, it continued to record, and even
captured Jacob “scream from being pepper sprayed in his face.” (Id. at ¶ 20).
Eventually, one of the Officers noticed that the cellphone was still recording, stopped
the recording, and tried to delete the video. (Id. at ¶ 21). Even though the “unknown
officer hit ‘delete,’ the video was not permanently deleted; rather it went to the

‘deleted photo/video album.’” (Id.).
After forcibly removing Robert from his car, the Officers conducted a search of
the vehicle and discovered “a small amount of marijuana in the trunk.” (Id. at ¶ 22).
Thereafter, Robert was arrested for “Misdemeanor Possession of Marijuana, License
Plate Light Required, Fake MVI Sticker, and Resisting an Officer.” (Id. at ¶ 23).
Jacob was arrested for “Resisting an Officer.” (Id. at ¶ 24).
Robert later pleaded guilty to misdemeanor marijuana possession and the
traffic infractions. The State entered a nolle prossequi on the charge of resisting an
officer. (Id. at ¶ 25). The State “amended” the charges against Jacob from resisting

an officer to misdemeanor disturbing the peace. (Id.). Jacob pleaded nolo contendre
to misdemeanor disturbing the peace. (Id.).
Plaintiffs each allege that they suffered injuries, financial losses, and other
damages resulting from their encounter with the John Doe Officers. (Id. at ¶ 28).
II. PROCEDURAL BACKGROUND
On December 24, 2019, Robert and Jacob initiated this action. The operative
Second Amended Complaint (the “SAC”) asserts constitutional claims of excessive

force, infringement of speech, and unlawful search and seizure of personal property;
discrimination under Title II of the Americans With Disabilities Act (“ADA”), 42
U.S.C. § 12132, and the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 701, et seq.;
and related state law claims, including abuse of process. (See Doc. 41 at 11-41).
On May 20, 2020, the City of Denham Springs (the “City”), Police Chief
Womack, and Berkshire Guard Insurance Companies (“Berkshire”)—the City’s
liability insurer—filed their original Motion to Dismiss, asserting that Plaintiffs’

action must be dismissed in its entirety for multiple reasons, including that Plaintiffs’
claims are legally barred under Heck v. Humphrey, 512 U.S. 477 (1994), due to
Plaintiffs’ convictions for criminal offenses arising from the December 24 encounter.
(Doc. 33). On June 23, 2020, the City, Chief Womack, and Berkshire filed their
Supplemental Motion To Dismiss And/Or For More Definite Statement Under FRCP
12 (Doc. 42), for the sole purpose of addressing Plaintiffs’ new allegation—stated for
the first time in Plaintiffs’ SAC (which was filed after Defendants’ original Motion)—
that Jacob “[pleaded] no contest to an amended charge of disturbing the peace
(instead of pleading no contest to a charge of resisting an officer).” (Doc. 42-1 at 1).

Defendants argue that “no matter the charge for which [Jacob] stands convicted, his
Fourth Amendment excessive force claim still fails” under Heck. (See id.).
On July 17, 2020, Plaintiffs filed a single opposition addressing each of
Defendants’ Motions. (Doc. 45). Plaintiffs concede that Chief Womack “is not
essential” to their action, and that their abuse of process claims may be dismissed.
(Id. at 13-14, 36). Otherwise, Plaintiffs contest each of Defendants’ arguments.
III. LAW AND ANALYSIS

A. Standard
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against
the legal standard set forth in Rule 8, which requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “Determining whether a complaint states a plausible claim for relief [is] . . .
a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
When reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded
facts in the complaint as true and view them in the light most favorable to the
plaintiff. Sonnier v. State Farm Mutual Auto Ins. Co., 509 F.3d 673, 675 (5th Cir.
2007).
B. Discussion
i. Preliminary Matters
a. The Court Will Not Consider Jacob Gray’s Cellphone Video
At This Stage
Defendants invite the Court to view Jacob Gray’s cellphone video when
considering their arguments, contending that it “so contradicts the version of events
portrayed by plaintiffs, [that] the Court need not engage in an exercise of ‘visible
fiction’ to give credence to and/or accept the facts as alleged [in the SAC].” (Doc. 33-1

at 15 & n.1). Plaintiffs also invite the Court to view Jacob’s video. (Id. at 2 n.1).
The Court declines the Parties’ invitation to view the video at this stage of the
proceedings. Although Rule 12(d) allows the Court to consider “matters outside the
pleadings” when addressing a Rule 12(b)(6) motion, the effect is to convert the motion
to motion for summary judgment, in which case “the nonmoving party should be
granted the protections of Rule 56.” Dillon v. Rogers, 596 F.3d 260, 271 (5th Cir.

2010); see also Fed. R. Civ. P. 12(d).1 Rather than inject contested interpretations of
the events portrayed in the video—which would require allowing Plaintiffs to develop
additional summary judgment evidence—the Court will exercise its discretion to
disregard the video evidence at present, and consider Defendants’ arguments based

1 A limited exception to Rule 12(d) exists which allows the Court to consider documents
attached to a motion to dismiss without converting the motion to a motion for summary
judgment. See Trinity Med. Servs., 2019 WL 3240048, at *5. Defendants have not presented
any caselaw extending this limited exception to videos. On the contrary, the only case cited
by Defendants for the proposition that the Court may consider the cellphone video at this
stage, Scott v. Harris, 550 U.S. 372, 378-79 (2007), addresses the significance of video
evidence at summary judgment. Plainly, Scott is inapposite.
on the well-pleaded allegations of the SAC. See Trinity Med. Servs., L.L.C. v. Merge
Healthcare Sols., Inc., No. 17-cv-592, 2019 WL 3240048, at *4 (M.D. La. July 18, 2019)
(deGravelles, J.) (“A district court … enjoys broad discretion in deciding whether to

treat a motion to dismiss as a motion for summary judgment.”).
b. The Court Will Dismiss Plaintiffs’ Claims Against Chief
Womack
As indicated above, Plaintiffs acknowledge, as they must, that their “official
capacity” claims against Chief Womack are duplicative of their municipal liability
claims against the City because Chief Womack is an employee of the City. See Castro
Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (“The district court was also
correct in dismissing the allegations against all of the municipal officers and two of
the employees of the Corps of Engineers in their official capacities, as these
allegations duplicate claims against the respective governmental entities
themselves.”). As such, Plaintiffs’ official capacity constitutional claims against Chief

Womack will be dismissed
Additionally, the Court determines that Chief Womack is not necessary to
Plaintiffs’ state law respondeat superior claims. Defendants expressly admit that “the
‘John Doe’ officers are employees of the City of Denham Springs,” rendering the City
an adequate Defendant for the respondeat superior claims, too. (See Doc. 48 at 3-4).
Accordingly, Plaintiffs’ state law respondeat superior claims against Chief Womack

will also be dismissed.2

2 The SAC is confusing regarding whether Plaintiffs have also asserted individual capacity
constitutional claims against Chief Womack. For example, the SAC’s introductory paragraph
states that Chief Womack is sued “in His Individual and Official Capacity as Chief of Police,”
c. The Court Will Dismiss Plaintiffs’ Conspiracy Claim
Additionally, the Court will dismiss Plaintiffs’ conspiracy claim. Although a
conspiracy may be alleged as a mechanism through which to impose liability on
multiple defendants for violations of the constitution and state law, a conspiracy

claim fails absent proof of an agreement among the defendants. Montgomery v.
Walton, 759 F. App'x 312, 314 (5th Cir. 2019) (a conspiracy claim under Section 1983
requires proof of “an agreement among the alleged co-conspirators to deprive [the
plaintiff] of his constitutional rights”); Currier v. Entergy Servs., Inc., No. 11-cv-2208,
2014 WL 4450360, at *2 (E.D. La. Sept. 10, 2014) (Feldman, J.) (a conspiracy claim
under Louisiana law requires proof of an agreement to commit an unlawful act).

The SAC alleges in a single sentence, without elaboration, that “[a]t all times
relevant hereto, all Defendants acted in concert and conspiracy and were jointly and
severally responsible for the harms caused to Plaintiffs.” (Doc. 41 at ¶ 3). There are
no allegations whatsoever to establish that the Defendants specifically agreed to
violate Plaintiffs’ rights under federal or state law. Accordingly, Plaintiffs’ purported

(Doc. 41 at 1), whereas elsewhere, the SAC states that Chief Womack is “sued in his official
capacity” only, (Id. at ¶ 2). “In the Fifth Circuit … if it is not clear from allegations of the
complaint whether a defendant has been sued in his official or individual capacity, the court
must look to the substance of the claims, the relief sought, and the course of the proceedings
to determine in which capacity the defendant is sued.” Senu-Oke v. Jackson State Univ., 521
F. Supp. 2d 551, 556 (S.D. Miss. 2007), aff'd, 283 F. App'x 236 (5th Cir. 2008). Here, the SAC
contains no allegations whatsoever that Chief Womack participated in the events of
December 24, 2018. Moreover, the substance of the claims and allegations against Chief
Womack focus on actions he took in his “official capacity.” See Doc. 41 at ¶ 31 (“In Chief
Womack’s official capacity, he was and is responsible for adopting, implementing,
promulgating, and enforcing policies, customs, and practices pertaining to making arrest and
preserving peace in the City of Denham Springs.”). Accordingly, the Court exercises its
discretion and determines that Chief Womack is sued in his official capacity only.
conspiracy claim will also be dismissed.
d. Defendants fail to properly assert a qualified immunity
defense
Generally, “adjudication of qualified immunity claims should occur at the
earliest possible stage in litigation.” McClendon v. City of Columbia, 305 F.3d 314,
323 (5th Cir. 2002). In the opening pages of their Motion to Dismiss, Defendants
reference qualified immunity, asserting that the John Doe Officers are shielded from

liability because their conduct was “not objectively unreasonable,” and because “the
officers’ handling of this traffic stop was [not] so obviously violative of anyone’s
constitutional rights.” (See Doc. 33-1 at 16-17). Beyond these early references,
however, Defendants fail to mention qualified immunity, much less brief the issue.
“Generally speaking, a defendant waives an issue if he fails to adequately brief
it.” United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001). Moreover, this
Court’s Local Rules require that parties support their arguments with “a concise

statement of reasons … and citations of authorities.” M.D. La. LR 7(d). Here,
Defendants fail to provide any argument or authorities whatsoever to support
application of qualified immunity at this stage. “[T]he Court will not speculate on
arguments that have not been advanced,” or attempt to develop arguments on
Defendants’ behalf. See Evans v. Mgmt. & Training Corp., No. 15-cv-770, 2017 WL
78803, at *3 (S.D. Miss. Jan. 6, 2017) (Jordan, J.). Pursuant to the Court’s Local

Rules, and consistent with the general rule that a party’s failure to adequately brief
an issue acts as a waiver, the Court determines that Defendants have waived a
qualified immunity defense at this stage.
ii. Plaintiffs’ Constitutional Claims
The SAC alleges three constitutional violations resulting from the December
24, 2018 encounter with the John Doe Officers: (1) Robert Gray and Jacob Gray
suffered excessive force, (Doc. 41 at ¶¶ 38-65, 115-127); (2) Jacob Gray was deprived

of his right to record police activities, and suffered retaliation as a result of his
attempts to record policies activities, (id. at ¶¶ 74-114); and (3) Jacob Gray suffered
an unlawful search and seizure when the Officers took his cellphone and attempted
to delete his video without first obtaining a warrant. (id. at ¶¶ 128-37). Plaintiffs
further allege that each of these violations occurred as the result of the City’s failure
to properly screen, train, and supervise the John Doe Officers. (Id. at ¶¶ 66-67, 138-

39).
Defendants argue that Plaintiffs’ constitutional claims must be dismissed in
their entirety, whether directed at the City or the John Doe Officers individually.
a. Plaintiffs’ Municipal Liability Claims Against The City Will
Be Dismissed For Failure To Establish Deliberate
Indifference
To establish a plausible municipal liability claim against the City, Plaintiffs
must allege: (1) the City’s screening, training, or supervising policies were
inadequate, (2) the City was deliberately indifferent in adopting these policies, and
(3) these inadequate policies directly caused the constitutional deprivations at issue.
Sanders-Burns v. City Of Plano, 594 F.3d 366, 381 (5th Cir. 2010).
Relevant here, “[d]eliberate indifference is more than mere negligence.” Id. at
381 (quotation marks omitted). Plaintiffs must show that “in light of the duties
assigned to specific officers or employees, the need for more or different [screening,
training, and/or supervising] is obvious, and the inadequacy so likely to result in
violations of constitutional rights, that the policymakers of the city can reasonable be
said to have been deliberately indifferent to the need.” City of Canton, 489 U.S. at

390.
Finally, a showing of deliberate indifference is difficult, although not
impossible, to base on a single incident. Claims of inadequate [screening,
training, and/or supervising] generally require that the plaintiff
demonstrate a pattern. Notice of a pattern of similar violations is
required. The prior acts must be fairly similar to what ultimately
transpired and, in the case of excessive use of force, that the prior act
must have involved injury to a third party. The “single incident
exception” is narrow and to rely on the exception a plaintiff must prove
that the highly predictable consequence of a failure to [screen, train, or
supervise] would result in the specific injury suffered, and that the
failure to [screen, train, or supervise] represented the moving force
behind the constitutional violation.
Sanders-Burns, 594 F.3d at 381 (quotation marks and citations omitted).
Here, Plaintiffs’ SAC fails to allege that that the constitutional deprivations
they suffered on December 24, 2018 were the obvious or highly predictable
consequence of the City’s failure to screen, train, or supervise the John Doe Officers.
Plaintiffs also fail to identify a pattern of similar constitutional violations by
unscreened, untrained, or unsupervised officers. As such, the Court must dismiss
Plaintiffs’ municipal liability claims against the City for failure to adequately allege
deliberate indifference. See Sanders-Burns, 594 F.3d at 381.
b. Plaintiffs’ Personal Capacity Claims Against The John Doe
Officers May Proceed
Defendants contend that Plaintiffs’ allegations are too vague and conclusory to
state plausible constitutional claims against the individual John Doe Officers; that
Plaintiffs’ claims, even if actionable, are barred by Heck v. Humphrey; and,
alternatively, that Jacob Gray’s First Amendment retaliation claim is barred under
Nieves v. Bartlett. The Court considers each argument in turn.
1. The SAC Alleges Actionable Fourth Amendment Excessive
Force Claims
The Fourth Amendment protects individuals against police officers’ excessive
or unreasonable use of force. Graham v. Connor, 490 U.S. 386, 394 (1989). To prevail
on an excessive force claim, “[a] plaintiff must show (1) an injury, (2) which resulted

directly and only from the use of force that was clearly excessive, and (3) the
excessiveness. . . was clearly unreasonable.” Collie v. Barron, 747 Fed. Appx. 950, 953
(5th Cir. 2018) (citations omitted).
Excessive force claims are necessarily fact-intensive; whether the force
used is “excessive” or “unreasonable” depends on the facts and
circumstances of each particular case. Factors to consider include 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.
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009).
Applying these factors, Robert Gray plainly states an excessive force claim
against the John Doe Officers. Robert alleges he was stopped for a minor traffic
infraction, making the need for force substantially lower than if he had been
suspected of a serious crime. He posed no objective threat to the Officers, remained
in his vehicle as the Officers approached, and responded to the Officers’ questions
regarding possible intoxication by explaining that his speech and body movements
were due to a chronic medical condition. He repeatedly offered to show the Officers
his “handicap identification card,” and pleaded that if he was forced to get out of the
vehicle he would likely fall. The John Doe Officers ignored Robert’s explanations and
pleas, and then forcibly removed him from his vehicle, causing physical injuries. At
no point did Robert resist arrest or attempt to flee. Viewing the allegations in Robert’s
favor, the degree of force employed against him was not justified under the

circumstances. See, e.g., Deville, 567 F.3d at 167 (plaintiff’s excessive force claim
survived summary judgment where officer pulled her from vehicle following minor
traffic infraction).
Likewise, Jacob Gray states a plausible excessive force claim. Jacob alleges
that he approached the scene of the traffic stop after receiving his father’s call for
help, observed his father being forcibly removed from his car, pulled out his cellphone,
and started to record. When the Officers saw Jacob recording, they forced him to the

opposite side of Robert’s car, where they grabbed his cellphone from his hand, tackled
him to the ground, and pepper sprayed him in the face. At the time, Jacob had
committed no crime, posed no threat to anyone's safety, and was not attempting to
flee. Here, again, viewing the allegations in Jacob’s favor, the degree of force
employed against him was not justified. See Newman v. Guedry, 703 F.3d 757, 764
(5th Cir. 2012) (plaintiff’s excessive force claim survived summary judgment where

plaintiff committed no crime, posed no threat to anyone's safety, and did not resist
the officers or fail to comply with a command before officers struck him with a baton).
2. The SAC Alleges Actionable First Amendment Claims
“The First Amendment prohibits not only direct limits on individual speech but
also adverse governmental action against an individual in retaliation for the exercise
of protected speech activities.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
Relevant here, the First Amendment protects an individual’s “right to record the
police … subject only to reasonable time, place, and manner restrictions.” Turner v.
Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017).
“Importantly, an individual's exercise of her First Amendment right to film

police activity carried out in public, including a traffic stop, necessarily remains
unfettered unless and until a reasonable restriction is imposed or in place.” Gericke
v. Begin, 753 F.3d 1, 8 (1st Cir. 2014); Turner, 848 F.3d at 690 n.50 (same).
The circumstances of some traffic stops, particularly when the detained
individual is armed, might justify a safety measure—for example, a
command that bystanders disperse—that would incidentally impact an
individual's exercise of the First Amendment right to film. Such an
order, even when directed at a person who is filming, may be appropriate
for legitimate safety reasons. However, a police order that is specifically
directed at the First Amendment right to film police performing their
duties in public may be constitutionally imposed only if the officer can
reasonably conclude that the filming itself is interfering, or is about to
interfere, with his duties.
Gericke, 753 F.3d at 8 (emphasis added).
Jacob Gray alleges that he was on a public street, peaceably filming the traffic
stop, when Officers forced him to the opposite side of Robert’s car, grabbed his
cellphone from his hand, tackled him to the ground, and pepper sprayed him in the
face. As alleged, Jacob was not interfering with the Officers’ duties when these events
occurred, and no additional safety concerns justified the Officers’ actions. On the
contrary, Jacob alleges that the Officers’ actions were specifically intended “to
retaliate against him for being present as an observer and/or documenting (via
cellphone video-recoding)” the traffic stop. (Doc. 41 at ¶ 99). Here, again, Jacob plainly
states plausible constitutional violations of his First Amendment rights to record his
father’s traffic stop, and to be free from retaliation when doing so. See Turner, 848
F.3d at 688; Gericke, 753 F.3d at 8.
3. The SAC Alleges An Actionable Fourth Amendment
Search And Seizure Claim
The Fourth Amendment also protects individuals from unreasonable searches
and seizures of “their persons, houses, papers, and effects.” Soldal v. Cook Cty., Ill.,
506 U.S. 56, 62 (1992). “[T]he Amendment protects property as well as privacy,” id.,
and its protections unmistakably extend to cellphones and the data stored on them.

Riley v. California, 573 U.S. 373, 401-02 (2014).
The “ultimate touchstone” of the Fourth Amendment is “reasonableness,”
which generally requires an officer to obtain a warrant before engaging in a search
or seizure. Id. at 381–82. “In the absence of a warrant, a search is reasonable only if
it falls within a specific exception to the warrant requirement.” Id. Relevant here,
the “search incident to arrest exception” to the warrant requirement “does not apply
to cell phones.” Id. at 405. Other exceptions may still apply, however, such as when

“when ‘the exigencies of the situation’ make the needs of law enforcement so
compelling that a warrantless search is objectively reasonable.” Id. (quotation marks
omitted).
Such exigencies could include the need to prevent the imminent
destruction of evidence in individual cases, to pursue a fleeing suspect,
and to assist persons who are seriously injured or are threatened with
imminent injury.
Id. at 402.
Here, Jacob Gray alleges that the John Doe Officers “physically removed [his]
cellphone from his hand”—i.e., seized Jacob’s phone—“[w]ithout any legal provocation
or justification,” specifically to prevent him from exercising his lawful right to film
his father’s traffic stop. (Doc. 41 at ¶¶ 19, 99). Thereafter, when they realized that
the phone was still recording, the Officers “stopped the recording and attempted to
delete the video”—i.e., searched Jacob’s phone. (Id. at ¶ 21). The John Doe Officers

never obtained a warrant to seize or search Jacob’s phone, and, as stated, “the search
incident to arrest exception does not apply.” Riley, 573 U.S. at 401. Further, viewed
in the light most favorable to Plaintiffs, no exigencies eliminated the warrant
requirement, such as the need to prevent destruction of evidence, locate or pursue a
fleeing suspect, or identify or prevent serious injury or death. Id. Here, again, Jacob
Gray states a plausible constitutional violation.
c. Plaintiffs’ Constitutional Claims Are Not Barred By Heck v.
Humphrey’s “Favorable Termination Rule”
Next, Defendants contend that as a result of their convictions, Plaintiffs’
constitutional claims are barred by Heck v. Humphrey’s “favorable termination rule.”
The favorable termination rule dictates that a plaintiff’s Section 1983 claim

must be dismissed if, ultimately, a judgment in the plaintiff’s favor on the claim
“would necessarily imply the invalidity” of a criminal conviction arising from the
same set of facts. Ballard v. Burton, 444 F.3d 391, 397 (5th Cir. 2006). In other words,
the favorable termination rule bars a Section 1983 claim “if the underlying criminal
offense and the alleged constitutional deprivation cannot legally co-exist.” Davis v. E.
Baton Rouge Sheriff's Off., No. 08-cv-00708, 2016 WL 2347893, at *2 (M.D. La. May

2, 2016) (Jackson, J.).
Applied here, the favorable termination rule plainly does not bar Robert Gray’s
excessive force claim. Robert ultimately pleaded guilty to misdemeanor marijuana
possession and two minor traffic infractions. (Doc. 41 at ¶ 25). Robert’s allegations
that the John Doe Officers used unreasonable force during his traffic stop, prior to
discovery of the marijuana in Robert’s trunk, can legally coexist with these

convictions. See, e.g., Davis, 2016 WL 2347893, at *2 (under Heck, plaintiff’s
conviction for cocaine possession did not bar excessive force claim related to
underlying traffic stop (citing authorities)).
Jacob Gray ultimately pleaded nolo contendre to misdemeanor disturbing the
peace, in violation of La. R.S. 14:103. (Doc. 41 at ¶ 25). In relevant part, La. R.S.
§ 14:103 prohibits fist fights and creating a nuisance with the express intent “to
deride, offend, or annoy [any person], or to prevent him from pursuing his lawful

business, occupation, or duty.” La. R.S. § 14:103(A)(1), (3). Still, despite the wide
range of activities proscribed by § 14:103, the Court determines that the favorable
termination rule does not bar Jacob Gray’s Section 1983 claims at this stage. As
discussed, Jacob’s constitutional claims are interrelated, and center on his allegations
that he was lawfully and peaceably recording the traffic stop when the John Doe
Officers assaulted him and took his phone. Put differently, Jacob’s allegations

establish that prior to the Officers’ alleged assault, Jacob was engaged in
constitutionally protected activity, and was not creating any physical or verbal
disturbance, or preventing the Officers from doing their jobs, as is required to sustain
a conviction for disturbing the peace under § 14:103. Thus, the predicate facts
underlying Jacob’s conviction for disturbing the peace necessarily arose after the
Officers’ alleged assault. As such, the alleged facts underlying Jacob’s constitutional
claims are temporally and conceptually distinct from the facts underlying his
conviction, and a judgment in his favor would not be “inherently inconsistent” with
his conviction. See Thomas v. Pohlmann, 681 F. App'x 401, 408 (5th Cir. 2017)

(finding that plaintiffs’ excessive force claim was not “inherently inconsistent” with
their convictions for disturbing the peace where plaintiffs’ disturbing the peace
convictions resulted from their pre-arrest conduct); Cf. Bush v. Strain, 513 F.3d 492,
499-500 (5th Cir. 2008) (finding that plaintiff’s excessive force claim was not barred
under Heck by her conviction for resisting arrest because “the fact findings essential
to her criminal conviction [were] not inherently at odds with” her excessive force
claim, and therefore “a favorable verdict on her excessive force claims [would] not

undermine her criminal conviction.” (discussing cases); Ballard, 444 F.3d at 397-401
(finding that plaintiff’s conviction of simple assault of a law enforcement office was
“not inconsistent” with his claim of excessive force (discussing cases)).3

3 The fact that Robert and Jacob were each initially charged with resisting an officer does not
change the Court’s analysis. The Louisiana Supreme Court has held that prosecutorial
decisions not to proceed with a particular charge result in “a bona fide termination” for
purposes of Heck’s favorable termination rule, unless
the charge is dismissed pursuant to an agreement of compromise, because of
misconduct on the part of the accused or in his behalf for the purpose of
preventing trial, out of mercy requested or accepted by the accused, because
new proceedings for the same offense have been instituted and have not been
terminated favorably to the accused, or when the dismissal is due to the
impossibility or impracticality of bringing the accused to trial.
Lemoine v. Wolfe, 2014-1546 (La. 3/17/15), 168 So. 3d 362, 364.
Here, Plaintiffs allege that Robert’s resisting an officer charge terminated with a nolle
prosequi, and that Jacob’s charge terminated when the State “amended” the charge to
disturbing the peace. Viewing the allegations most favorably to Plaintiffs, the Court
determines for present purposes that Plaintiffs each allege “a bona fide termination” of their
resisting an officer charges, allowing their constitutional claims to proceed. Lemoine, 168 So.
3d at 364.
d. Jacob Gray’s First Amendment Retaliation Claim Is Not
Barred By Nieves v. Bartlett
Likewise, Jacob Gray’s First Amendment retaliation claim is not barred at this
stage by Nieves v. Bartlett. Nieves instructs that a Section 1983 plaintiff cannot
pursue a claim of retaliatory arrest in violation of the First Amendment when the
summary judgment evidence shows that police had probable cause to make an arrest.
139 S. Ct. 1715, 1728 (2019); see also Roy v. City of Monroe, 950 F.3d 245, 255 (5th

Cir. 2020) (discussing Nieves and related cases). Nieves is distinguishable in two
respects. First, it addresses a claim of retaliatory arrest. Here, by contrast, Jacob
alleges retaliatory excessive force. As explained above, the issue of whether the John
Doe Officers engaged in unlawful and excessive force to prevent Jacob from filming
the traffic stop is temporally and conceptually distinct from the issue of whether
probable cause to arrest Jacob for disturbing the peace arose after the Officers took
his phone, tackled him to the ground, and sprayed him with mace.

Second, Nieves was decided at summary judgment, after development of
evidence proving that police had probable cause to arrest the plaintiff for drunken
conduct and resisting arrest. Here, no such evidence is presently before the Court.
Rather, Jacob alleges that he was peaceably and lawfully recording the traffic stop
when he suffered retaliation. For present purposes, Jacob’s allegations are sufficient.
See Roy, 950 F.3d at 255 (“To prevail on a First Amendment retaliation claim …

plaintiffs must plead and prove the absence of probable cause.” (emphasis added)).
iii. Robert Gray’s ADA Claims
Robert Gray alleges two forms of prohibited discrimination resulting from his
encounter with the John Doe Officers: (1) the John Doe Officers failed to accommodate
Robert’s CPM, and (2) the John Doe Officers directly discriminated against Robert on
the basis of his CPM, each in violation of the RA and Title II of the ADA. (Doc. 41 at

¶ 49). Defendants challenge each claim, arguing that the John Doe Officers were
allowed to conduct the traffic stop “without consideration of the [ADA],” and,
alternatively, that Robert’s allegations are legally insufficient. (Doc. 33 at 2).
Here, again, Defendants’ arguments miss the mark. First, the ADA and RA
undoubtedly apply to police encounters, including traffic stops. See Delano-Pyle v.
Victoria Cty., Tex., 302 F.3d 567, 576 (5th Cir. 2002) (evidence supported claim of
intentional discrimination in violation of the ADA and the RA where sheriff’s deputy

failed to adequately accommodate plaintiff’s hearing impairment when conducting a
field sobriety test after a traffic stop).
Second, Robert has alleged a prima facie case of discrimination, allowing his
claims to proceed. In support of his failure to accommodate claims, Robert alleges (1)
he suffers from CPM, a qualifying disability under the ADA, see Clark v. Champion
Nat’l Sec., Inc., 952 F.3d 570, 578 n.15 (5th Cir. 2020) (“Congress expanded the

definition of ‘disability’ and instructed courts to construe that definition ‘broadly.’”);
(2) the John Doe Officers knew of this disability and its consequences; and, yet, (3)
the John Doe Officers persisted in their demands that Robert exit his vehicle despite
the risk the he would fall, and, when Robert failed to immediately comply, forcibly
removed him from his vehicle. Further, Plaintiffs’ allegations establish that no
exigent circumstances existed which would have allowed the officers to disregard
Robert’s right to reasonable accommodations. See Windham v. Harris Cty., Texas, 875
F.3d 229, 235 (5th Cir. 2017) (the ADA and RA “allow individuals to sue local
governments for disability discrimination committed by police in non-exigent

circumstances.”).
To state a claim for direct discrimination under the ADA, Robert must allege
“(1) that he has a qualifying disability; (2) that he is being denied the benefits of
services, programs, or activities for which the public entity is responsible, or is
otherwise discriminated against by the public entity; and (3) that such discrimination
is by reason of his disability.” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011). Notably,
direct “[d]iscrimination under the ADA and Rehabilitation Act may include a

defendant’s failure to make reasonable accommodations to the needs of a disabled
person.” Wright v. Texas Dep’t of Criminal Justice, No. 13-cv-0116, 2013 WL 6578994,
at *3 (N.D. Tex. Dec. 16, 2013) (citing authorities).
Here, again, Robert’s allegations establish his prima facie case: (1) he has a
qualifying disability (CPM); (2) he was denied access to reasonable accommodations
during his traffic stop; and (3) the discrimination—specifically, John Doe Officers’

failure to accommodate his disability-based concerns about exiting his vehicle—is the
direct result of his CPM. See Wright, 2013 WL 6578994, at *3-*4.
iv. Plaintiffs’ State Law Claims
As stated, Plaintiffs concede that their state law abuse of process claims must
be dismissed. (Doc. 45 at 8, 36). Accordingly, these claims will be dismissed.
What remains are Plaintiffs’ claims of battery, intentional infliction of
emotional distress, intentional misrepresentation, malfeasance in office, and
attempted obstruction of justice against the individual John Doe Officers, (Doc. 41 at
¶¶ 69, 141), and Plaintiffs’ claims of respondeat superior liability and negligent
hiring, retention, and supervision against the City. (Id. at ¶¶ 72, 144). Among these,

Defendants only challenge Plaintiffs’ battery claims, arguing that they are barred by
Heck. (See Doc. 33-1 at 67-70).4
Plaintiffs’ state law battery claims are subject to essentially the same analysis
as their Fourth Amendment excessive force claims. See Elphage v. Gautreaux, 969 F.
Supp. 2d 493, 515 (M.D. La. 2013) (Dick, J.) (citing authorities). Having determined
that Plaintiffs’ excessive force claims are plausibly alleged and survive Heck, the
Court further determines that Plaintiffs’ state law battery claims may also proceed.

v. More Definite Statement
As an alternative to dismissal, Defendants request a more definite statement
of Plaintiffs’ claims under Rule 12(e). Having determined that Plaintiffs’ allegations
are not conclusory and state actionable claims, the Court determines that a “more
definite statement” is unnecessary, and denies Defendants’ request.
vi. Amendment
Plaintiffs request the opportunity to amend the SAC to the extent any claims

are dismissed. (Doc. 45 at 10). When, as here, the deadline to amend has passed,
amendment may be granted “only for good cause and with the judge’s consent.” Fed.
R. Civ. P. 16. Plaintiffs have already amended their complaint twice, and fail to make

4 Defendants’ assert in their Motion to Dismiss that Plaintiffs’ state law claims must all be
dismissed, (Doc. 33 at 2), but fail to provide any briefing or authorities as to any claims except
battery and abuse of process. Here, again, the Court will not speculate or develop arguments
on Defendants’ behalf. See Section III(B)(i)(d), supra.
any showing that amending a third time will sufficiently address the deficiencies
identified herein. As such, Plaintiffs have failed to show good cause and their request
to amend shall be denied.

IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion To Dismiss For Failure To State A
Claim And/Or For More Definite Statement Pursuant To FRCP 12 (Doc. 33) and
Supplemental Motion To Dismiss And/Or For More Definite Statement Under FRCP
12 (Doc. 42), are each GRANTED IN PART. Specifically, the Court dismisses
Plaintiffs’ federal Section 1983 municipal liability claims against the City of Denham

Springs; dismisses all claims against Police Chief Womack; and dismisses Plaintiffs’
claims of conspiracy and abuse of process. In all other respects, Defendants’ Motions
are DENIED.
IT IS FURTHER ORDERED that the parties’ Joint Motion To Continue
Trial And Extend Deadlines (Doc. 52) is GRANTED, and that the jury trial currently
set to begin August 23, 2021 be and is hereby CONTINUED.
IT IS FURTHER ORDERED that this matter is referred to the Magistrate

Judge for selection of a new trial date and entry of a revised scheduling order.
Baton Rouge, Louisiana, this 29th day of March, 2020

_______________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191790. Public record. Not legal advice.