The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TAKARA JACKSON CIVIL ACTION
VERSUS 19-149-SDD-EWD
SID J. GAUTREAUX, III, ef a/
RULING
This matter is before the Court on the Motion to Dismiss Amended and
Supplemental Complaint for Damages’ filed by Defendants Sid J. Gautreaux, III (“Sheriff
Gautreaux”) and Ronald Landry (“Deputy Landry”) (collectively, “Defendants”). Plaintiff
Takara Jackson (“Plaintiff”) filed a Response,* to which Defendants filed a Reply.? For
the reasons that follow, the Court finds that Defendants’ Motion shall be GRANTED in
part and DENIED in part.
I. Factual and Procedural Background
On March 14, 2018, Deputy Ronald Landry of the East Baton Rouge Parish
Sheriffs Office (“EBRPSO”) shot and killed Shermichael Ezeff (“Ezeff’) after Ezeff
approached him while he was serving an unrelated restraining order at an apartment
complex on North Ardenwood Street in Baton Rouge, Louisiana.’ Plaintiff, who brings suit
on behalf of her daughter with Ezeff, alleges in her Complaint that Ezeff “arrived at the
[apartment complex] looking like he had been in a fight, with a torn shirt and spattered
with blood.”* One of his relatives “flagged down” Deputy Landry, who met Ezeff “in a
1 Rec. Doc. No. 42.
? Rec. Doc. No. 49.
3 Rec. Doc. No. 53.
4 Rec. Doc. No 1; Rec. Doc. No. 40.
5 Rec. Doc. No. 40, p. 4.
Page 1 of 18
grassy area between one of the apartment buildings and a fence.” Deputy Landry
allegedly asked Ezeff if he had a weapon, to which Ezeff responded “no.” Landry told
Ezeff to put his hands on the nearby fence; he allegedly complied, then “moved to say
something to” Deputy Landry, at which point, Plaintiff alleges, Landry “stepped back and
pulled out his taser, dropping the taser, the Defendant Deputy Landry pulled his gun out
and shot and killed Ezeff.”’ Plaintiff alleges that, according to witnesses, “there was never
a physical confrontation”® between the men, but that Ezeff “was experiencing psychotic
episodes”? at the time.
Plaintiff filed this suit on March 13, 2019. On June 28, 2019, Defendants Sheriff
Gautreaux and Deputy Landry filed a Motion to Dismiss for Failure to State a Claim.'°
Plaintiff filed an untimely opposition, which was stricken from the record upon Defendants’
motion.'' The Motion to Dismiss was then granted as unopposed on February 27, 2020,
though the Court allowed Plaintiff to file a response setting forth valid reasons, if any, for
her failure to timely oppose the Motion.'? Plaintiffs Response indicated that she was
unable to obtain necessary facts because Ezeff’s shooting was still under investigation.'*
The Court allowed Plaintiff to file an Amended Complaint."* After it was filed, Defendants
filed the instant Motion to Dismiss.
Reading her Complaint and Amended Complaint together, Plaintiff brings a claim
under 42 U.S.C. § 1983 against both Defendants, alleging that they violated Ezeff's
8 Id.
"Id.
8 Id.
® Rec. Doc. No. 40, p. 8.
10 Rec. Doc. No. 14.
1 Rec. Doc. No. 34.
12 Rec. Doc. No. 36.
13 Rec. Doc. No. 37-2.
14 Rec. Doc. No. 40.
Page 2 of 18
Fourth Amendment right to be free from excessive force and, in the case of Sheriff
Gautreaux, that he implemented policies and condoned practices that were deliberately
indifferent to the rights of Ezeff “and all persons similarly situated.” Plaintiff also alleges
various state law claims. Defendants move to dismiss all of the above, arguing that
Plaintiff has failed to allege facts that state a claim for relief against Sheriff Gautreaux and
Deputy Landry. As to the individual capacity § 1983 claims against them, Defendants also
argue that they are entitled to qualified immunity. Even a cursory reading of Plaintiff's
Complaints reveals that they offer somewhat sparse factual allegations and are rife with
repetitive boilerplate, conclusory statements, and confusing statements of the law.
Nevertheless, on a motion to dismiss, “[t]he ‘court accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.”"® With that in mind, the Court
turns now to the parties’ arguments.
ll. Law and Analysis
A. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-
pleaded facts as true, viewing them in the light most favorable to the plaintiff." The Court
may consider “the complaint, its proper attachments, documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice.”'® “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.”’'? In Twombly, the United States Supreme
18 Rec. Doc. No. 1, p. 2.
18 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
8 randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
18 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. “vowe 3 a
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”2° A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.”2' However,
“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”*3 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.” On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”
B. Excessive Force Claims Under 42 U.S.C. § 1983
The Civil Rights Act of 1964, 42 U.S.C. § 1983, creates a private right of action for
redressing the violation of federal law by those acting under color of state law.”6 It
provides:
Rapid Transit, 369 F.3d at 467).
20 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets
omitted)(hereinafter Twombly).
21 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations
omitted)(hereinafter “/qbal’).
22 Twombly, 550 U.S. at 570.
23 Iqbal, 556 U.S. at 678.
*4 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
25 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
26 See Migra v. Warren City School District Board of Educ., 465 U.S. 75, 82 (1984); Middlesex County
Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19 (1981).
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Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured...2”
“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights conferred elsewhere.’”*8 To prevail on a Section 1983 claim,
a plaintiff must prove that a person acting under the color of state law deprived him of a
right secured by the Constitution or laws of the United States.22 A Section 1983
complainant must support his claim with specific facts demonstrating a constitutional
deprivation and may not simply rely on conclusory allegations.*°
Plaintiff alleges that Ezeffs Fourth Amendment right to be free from excessive
force was violated by Defendants. To prove an excessive force claim, Plaintiff must
demonstrate “(1) an injury (2) which resulted directly and only from a use of force that
was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.”
Excessiveness turns upon whether the degree of force used was reasonable in light of
the totality of the circumstances facing the officer in each case.** Relevant factors 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
27 A2 U.S.C. § 1983.
28 Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, (1979));
accord Graham v. Connor, 490 U.S. 386, 393-94 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985); Jackson v. City of Atlanta, TX, 73 F.3d 60, 63 (5th Cir.), cert. denied, 519 U.S. 818 (1996);
Young v. City of Killeen, 775 F.2d 1349, 1352 (5th Cir.1985).
2° See Blessing v. Freestone, 520 U.S. 329, 340 (1997); Daniels v. Williams, 474 U.S. 327, 330 (1986);
Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir.1984).
3° See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995); Fee v. Herndon, 900 F.2d 804, 807 (5th Cir.),
cert. denied, 498 U.S. 908 (1990); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.1986); Angel v. City of
Fairfield, 793 F.2d 737, 739 (5th Cir.1986).
31 Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009) (quoting Freeman v. Gore, 483
F.3d 404, 416 (5th Cir. 2007).
32 Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694,
85 L.Ed.2d 1 (1985)).
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evade arrest by flight."°° When deciding whether to use force, officers must determine
“not only the need for force, but also ‘the relationship between the need and the amount
of force used.’””*4 The reasonableness of the officers’ conduct cannot be judged with the
benefit of hindsight, but must be assessed from the viewpoint of a reasonable officer on
the scene at the moment the force is applied.*° Certainly,
[nJot every push or shove, even if it may later seem unnecessary in the
peace of a judge's chambers ... violates the Fourth Amendment. The
calculus of reasonableness must embody allowance 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.*©
“Excessive force claims are [thus] necessarily fact-intensive and depend[ ] on the facts
and circumstances of each particular case.”5’ The facts must be judged objectively
“without regard to [the officer's] underlying intent or motivation.”*8
C. Individual Capacity § 1983 Claims
Plaintiff appears to bring an individual capacity §1983 claim for excessive force
against both Defendants, pleading generally that “Defendants. . .subject[ed] the decedent
to excessive force”? and that the “wrongful acts of defendants killed the decedent.”*° This
collective pleading, where allegations are levied against multiple defendants without
differentiation, does not pass muster. Indeed, “[p]ersonal involvement is an essential
element of a civil rights cause of action.”*'
Bid
34 Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting Gomez v. Chandler, 163
F.3d 921, 923 (5th Cir. 1999).
3 See Graham, 490 U.S. at 396, 109 S.Ct. 1865.
36 Jd. at 396-97, 109 S.Ct. 1865 (internal citations and marks omitted).
3” Poole, 691 F.3d at 628 (internal citations and marks omitted).
38 Graham, 490 U.S. at 397, 109 S.Ct. 1865.
39 Rec. Doc. No. 1, p. 6.
40 Id.
41 Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
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Further, “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official's own individual
actions, has violated the Constitution.’ Plaintiffs suing governmental officials in their
individual capacities . . . must allege specific conduct giving rise to a constitutional
violation.”*° “This standard requires more than conclusional assertions: The plaintiff must
allege specific facts giving rise to a constitutional violation.’44 As to Sheriff Gautreaux,
Plaintiff does not make any allegation that he was personally involved in the events that
led to Ezeff's death. As a result, her individual capacity claim against the Sheriff cannot
survive. Defendants argue as much in their Motion to Dismiss, and Plaintiff does not
address that argument or oppose it. Accordingly, the §1983 claim for excessive force
against Sheriff Gautreaux in his individual capacity shall be dismissed with prejudice.
Deputy Landry argues that the individual capacity excessive force claim against
him should be dismissed because Plaintiff has not alleged sufficient facts to overcome
his defense of qualified immunity. The issue of qualified immunity requires the Court to
make a two-part inquiry: (1) whether the facts alleged or shown by the plaintiff
demonstrate a violation of a constitutional right, and (2) if a violation has been established,
whether the officer's actions were objectively reasonable in light of clearly established law
at the time of the alleged misconduct.** A court may begin its analysis of qualified
immunity with either prong.*° Here, Defendants argue that Plaintiff fails to carry her
burden because she “makes conclusory allegations with no factual predicate for her
43 Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002)(citing Anderson, 184 F.3d at 443).
“4 Id. (citing Baker v. Putnal, 75 F.3d 190, 194 (5th Cir.1996)).
45 Saucier v. Katz, 533 U.S. 194, 201 (2001).
46 Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014).
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conclusion that defendants violated the decedent’s constitutional rights by using
excessive force.”*” Specifically, they point out, Plaintiff makes no factual allegations “of
the circumstances surrounding Deputy Landry and Ezeff meeting in a grassy area or how
Ezeff thereafter moved toward the deputy, but Plaintiff acknowledges Ezeff stopped
complying with the deputy’s orders.”48
It is a plaintiffs burden to negate the defense of qualified immunity once it has
been raised.*9 “Furthermore, when an officer asserts qualified immunity, ‘a plaintiff cannot
be allowed to rest on general characterizations, but must speak to the factual particulars
of the alleged actions, at least when those facts are known to the plaintiff and are not
peculiarly within the knowledge of defendants.” Plaintiff argues that she has
successfully pled facts to overcome the invocation of qualified immunity, pointing out that,
based on the allegations in the Complaint, the force applied was excessive because “it is
nonsensical to assert that Deputy Landry was in any way reasonably trying to prevent
serious injury or death.”°' Plaintiff urges the Court to be guided by the framing offered by
the United States Supreme Court in Saucier v. Katz: “Taken in the light most favorable
to the party asserting the injury, do the facts alleged show the officer's conduct violated a
constitutional right?” The answer to this question is perhaps not as straightforward as
Plaintiff believes it to be. To be sure, her Complaint sets forth allegations that, viewed in
the light most favorable to her, suggest that Deputy Landry’s conduct violated Ezeff's
rights. In particular, her allegation that Landry shot Ezeff despite the absence of any
47 Rec. Doc. No. 53, p. 3.
48 Rec. Doc. No. 42-1, p. 22.
“9 Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
50 Sinegal v. City of El Paso, 414 F. Supp. 3d 995, 1004 (W.D. Tex. 2019)(quoting Schultea v. Wood, 47
F.3d 1427, 1432 (5th Cir. 1995)).
51 Rec. Doc. No. 49-2, p. 7.
Page 8 of 18
physical altercation, “struggle,” or provocation suggests excessive force.
But the Complaints also contain factual allegations that tend to show Deputy
Landry may have reasonably feared for his safety. According to the Plaintiff's allegations,
Deputy Landry was approached by a man “in distress”®* who looked “like he had been in
a fight, with a torn shirt and spattered with blood.”®? That man had been hospitalized for
“psychotic episodes” two days previously, and when he was released allegedly “showed
signs of the same psychotic symptoms he was taken to the hospital for initially."°4 When
Landry told the man to place his hands on the fence, he did, but then he “moved.”°°
Nevertheless, the Court is bound to construe the facts in favor of Plaintiff, and although
there are allegations tending to suggest that Ezeff could have been perceived as posing
a threat to Deputy Landry, the pleaded facts do not establish that he posed an immediate
threat when Landry shot him.*6 In the Court’s view, Plaintiffs allegations rise above the
level of “general characterizations.” Although the Complaints are not models of clarity or
detail, the Court concludes that Plaintiff has plausibly — beyond a mere possibility --
alleged excessive force on the part of Deputy Landry. Likewise, there can be no question
that the situation as pled by Plaintiff implicates a clearly established right. In Amador v.
Vasquez,°’ the Fifth Circuit held that it would violate clearly established law for an officer
to shoot a suspect who was holding a knife but had his hands raised and was submissive
when shot. The well-pleaded facts in this case establish that Ezeff had no weapon and
52 Rec. Doc. No. 1, p. 3.
53 Rec. Doc. No. 40, p. 4.
54 Id. at p. 6.
55 fd. at p. 4.
56 See Summers v. Hinds Cty., Mississippi, 508 F. Supp. 3d 124, 134 (S.D. Miss. 2020)(district court finding
that plaintiff negated qualified immunity defense in excessive force case where “[nJothing in the pleaded
facts suggests [the plaintiff] posed an immediate threat when [the deputies] shot, much less a threat that
would allow the use of deadly force”).
57 961 F.3d 721, 730 (5th Cir. 2020).
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that the extent of his failure to comply with Deputy Landry was that he “moved to say
something” to him. Ergo, Deputy’s Landry’s alleged actions were even more violative of
clearly established law than the actions in Amador. Because Plaintiff has pled a
constitutional violation of a clearly established right, the Court concludes that Deputy
Landry is not entitled to qualified immunity at this stage. Defendants are, of course, able
to revisit the issue on summary judgment when the record regarding Deputy Landry’s
encounter with Ezeff is better-developed.
D. Official Capacity § 1983 Claims
“Official capacity suits generally represent another way of pleading an action
against an entity of which an officer is an agent.”°° “[A] local government may not be sued
under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when
execution of a government's policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury that
the government as an entity is responsible under § 1983.”°° “Municipal liability under
section 1983 requires proof of three elements: a policymaker; an official policy; and a
violation of constitutional rights whose “moving force” is the policy or custom.”© “Official
policy is ordinarily contained in duly promulgated policy statements, ordinances or
regulations. But a policy may also be evidenced by custom, that is. . .a persistent,
widespread practice of City officials or employees, which, although not authorized by
officially adopted and promulgated policy, is so common and well-settled as to constitute
a custom that fairly represents municipal policy.”®' Further, “[Iiability will only attach if the
58 Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).
58 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).
89 Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
81 Id. at 579.
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municipality was deliberately indifferent to the constitutional rights of citizens—a showing
of negligence or even gross negligence will not suffice.”®
Defendants assert that Plaintiff's official capacity claims against Deputy Landry
should be dismissed because Plaintiff does not allege that Landry is a final decision maker
or policy maker for the East Baton Rouge Sheriff's Office. The Court agrees. Plaintiff does
not address or rebut this argument whatsoever; accordingly, the official capacity § 1983
claims against Deputy Landry will be dismissed.
The analysis is less clear with respect to Sheriff Gautreaux. Although Plaintiff
alleges a litany of official capacity claims against him in her Complaints, her allegations
are generally quite conclusory and do not come close to establishing deliberate
indifference. Defendants gamely addressed each claim in their Motion to Dismiss, but the
only claim that Plaintiff argued for in her Opposition is, as she puts it, her claim that “there
is a policy, practice, or custom of the East Baton Rouge Sheriff's Office subjecting people
that are similarly situated to the defendant and complainant to unreasonable uses of
force.”®° Failure to respond to arguments constitutes abandonment or waiver of the
issue. The Court will consider this claim for constitutionally deficient policy, but dismiss
the other official capacity claims against Sheriff Gautreaux as abandoned.®®
On the policy claim, Defendants argue that Plaintiff has not alleged sufficient facts,
making only conclusory allegations of an isolated case without any facts to establish a
82 Johnson v. Louisiana, No. CIV.A. 09-55, 2010 WL 996475, at *13 (W.D. La. Mar. 16, 2010).
®3 Rec. Doc. No. 49-2, p. 8.
54 See, e.g., Kellam v. Servs., No. 3:12-CV-352-P, 2013 WL 12093753, at *3 (N.D. Tex. May 31, 2013),
affd sub nom. Kellam v. Metrocare Servs., 560 F. App'x 360 (5th Cir. 2014).
65 Plaintiff abandoned her claims for failure to train and supervise, for selecting, retaining, and assigning
employees with demonstrable propensities for excessive force, for condoning and encouraging officers in
the belief that they can violate rights with impunity, for deprivation of familial relationship, for deliberate
indifference to medical needs, and failure to adequately discipline officers involved in misconduct.
Page 11 of 18
pattern of violations. The only allegation along these lines is Plaintiff's statement that
“Numerous complaints between 2014-2019 regarding police brutality and excessive force
had been lodged against the East Baton Rouge Sheriff's Office.”®* Per Plaintiff, this
allegation is sufficient because it sets forth that “this custom, policy, or practice has been
going on for some time.”6” But alleging that a poilcy has been “going on for some time’ is
inadequate; more is required. It is well-established that “proof of a custom or practice
requires more than a showing of isolated acts.”® Indeed, prior incidents are only proof of
a pattern when they are “sufficiently numerous”©? and “demonstrate actions occurring “for
so long or so frequently that the course of conduct warrants the attribution to the
governing body of knowledge that the objectionable conduct is the expected, accepted
practice of city employees.””° Moreover, “[a] pattern requires similarity and specificity;
‘[p]rior indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must
point to the specific violation in question.’”””'
Plaintiff does not allege how many other, similar incidents have occurred as a
result of EBRSO’s alleged policy, apart from saying that they are “numerous.” She does
not plead any facts or detail regarding these incidents — including whether the “numerous
complaints” were substantiated -- that would allow the Court to conclude that a pattern
indeed exists. In Peterson v. City of Fort Worth, Tex., the Fifth Circuit affirmed the district
court’s holding that 27 complaints of excessive force against a police department were
insufficient to establish a pattern because the plaintiffs “failed to provide context that
86 Rec. Doc. No. 40, p. 5.
87 Rec. Doc. No. 49-2, p. 8.
68 Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003)
6° Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 851 (5th Cir. 2009).
70 Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir.), on reh'g, 739 F.2d 993 (5th Cir. 1984).
” Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005).
Page 12 of 18
would show a pattern of establishing a municipal policy.”’* Likewise here. Plaintiff's
repetition of boilerplate law in her Opposition cannot rehabilitate her extremely sparse
allegations on this issue. The Section 1983 official capacity claims against Sheriff
Gautreaux shall be dismissed.
E. Claims Against the East Baton Rouge Sheriff's Office
Plaintiffs Complaints appear to name as a Defendant the East Baton Rouge
Sheriff's Office. Defendants move to dismiss any claims against EBRSO, which they
describe as “a non-existent entity that has no legal capacity to be sued.””> Indeed, the
Supreme Court of Louisiana instructs that “[i]t is well settled in the lower courts that a
Sheriffs Department is not a legal entity capable of being sued.” Plaintiff does not
address or respond to this argument in her Opposition. All claims against “the East Baton
Rouge Sheriff's Office” will be dismissed with prejudice.
F. State Law Claims
Plaintiff brings several state law claims against Defendants: a state law excessive
force claim pursuant to the Louisiana Constitution, Article |, § 20; negligence, pursuant to
Louisiana Civil Code article 2315; a state law failure to train and supervise claim against
Sheriff Gautreaux; and assault and battery against both Defendants. Defendants move
to dismiss all of the above.
“Louisiana's excessive force tort mirrors its federal constitutional counterpart.’”
Thus, Plaintiff's state law excessive force claim meets the same fate as her § 1983 claim;
it survives the motion to dismiss as to Deputy Landry. The state law negligence claims
72 Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 851 (5th Cir. 2009).
73 Rec. Doc. No. 42-1, p. 5.
Valentine v. Bonneville Ins. Co., 96-1382 (La. 3/17/97), 691 So. 2d 665, 668.
75 Deville v. Marcantel, 567 F.3d 156, 172 (5th Cir. 2009).
Page 13 of 18
also survive as to Deputy Landry. Reasonableness is at the heart of both the excessive
force analysis and the negligence analysis, and the Court concluded above that Plaintiff
has stated a plausible claim that Deputy Landry’s use of force was not reasonable under
the circumstances.’® Again, the Court emphasizes that further discovery may illuminate
the details of Deputy Landry’s encounter with Ezeff and reveal that the force was not
excessive; however, at the pleading stage, the Court finds that Plaintiff's negligence
claim, state law excessive force claim, and assault and battery claim against Deputy
Landry may move forward.
As for the state law claims against Sheriff Gautreaux, the Court finds that the state
law excessive force claim necessarily fails because there has been no allegation that he
was personally involved in the events that give rise to the excessive force claim. The claim
for vicarious liability for Deputy Landry’s excessive force, however, survives. The failure
to train and supervise claim against Sheriff Gautreaux fails, for two reasons. First,
Plaintiffs allegations on this issue are conclusory and bare-bones. Second, as
Defendants argue, Sheriff Gautreaux’s discretionary hiring, training, and supervision
decisions are shielded by the immunity provided by Louisiana Revised Statute §9:2798.1,
which provides:
Liability shall not be imposed on public entities or their officers or employees
based upon the exercise or performance or the failure to exercise or perform
their policymaking or discretionary acts when such acts are within the
course and scope of their lawful powers and duties.
This Court has held that this immunity statute applies to a sheriff's training and supervision
76 See, e.g. Shepherd on behalf of Est. of Shepherd v. City of Shreveport, 920 F.3d 278, 286 (5th Cir.
2019)(“[E]xcessive force claims under both federal and Louisiana law turn on whether the use of force was
objectively reasonable given the totality of the circumstances. This has been widely recognized by this
court, Louisiana federal district courts, and the Louisiana Supreme Court’).
Page 14 of 18
duties.’’ Plaintiff does not respond to this state law immunity argument in her Opposition,
appearing to concede that vicarious liability is her only viable state law claim against the
Sheriff.”2 In short, the Court concludes that the only state law claim against Sheriff
Gautreaux that will survive the motion to dismiss is the claim for vicarious liability for
excessive force and/or battery based on Deputy Landry’s actions.
lil. Leave to Amend
Federal Rule of Civil Procedure 15(a) “requires a trial court to grant leave to amend
freely, and the language of this rule evinces a bias in favor of granting leave to
amend.””9 However, “[Ileave to amend is in no way automatic, but the district court must
possess a ‘substantial reason’ to deny a party's request for leave to amend.”®° The Fifth
Circuit further described the district courts' discretion on a motion to amend as follows:
The district court is entrusted with the discretion to grant or
deny a motion to amend and may consider a variety of factors
including “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failures to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party ..., and futility of the amendment.” Jones, 427
F.3d at 994. (citation omitted). “In light of the presumption in
favor of allowing pleading amendments, courts of appeals
routinely hold that a district court's failure to provide an
adequate explanation to support its denial of leave to amend
justifies reversal.” Mayeaux v. La. Health Serv. & Indent. Co.,
376 F.3d 420, 426 (5th Cir. 2004) (citation omitted). However,
when the justification for the denial is “readily apparent,” a
failure to explain “is unfortunate but not fatal to affirmance if
the record reflects ample and obvious grounds for denying
7T Skinner v. Ard, No. CV 19-66-JWD-EWD, 2020 WL 699740, at *10 (M.D. La. Feb. 11, 2020)(“Sheriff Ard
is a policymaker and in his discretionary decision-making capacity, has to train and supervise deputies at
the Livingston Parish Sheriff's Office. La. R.S. 9:2798.1 applies to those decisions”); See also Hoffpauir v.
Columbia Cas. Co., 2013 WL 5934699 (M.D. La. 11/5/13).
78 Rec. Doc. No. 49-2, p. 12.
7 Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005) (internal citations and quotations
omitted).
80 Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014) (citing Jones,
427 F.3d at 994).
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leave to amend.” (citation and internal quotation marks
omitted).®"
In addition, the Fifth Circuit has made clear that “[dJenying a motion to amend is not an
abuse of discretion if allowing an amendment would be futile.”°, An amendment would
be deemed futile “if it would fail to survive a Rule 12(b)(6) motion.”®°
Having carefully considered the matter, the Court declines to grant leave to amend.
First, as stated above, “repeated failures to cure deficiencies by amendments previously
allowed” is a factor to consider when granting or denying leave to amend, as is undue
delay.** Here, Plaintiff sought leave to amend after Defendants filed their original motion
to dismiss.® Plaintiff nevertheless failed to make allegations in response to Defendants’
arguments. Every claim that the Court now dismisses was objected to in Defendant’s
original motion, largely on the same grounds. On September 1, 2020, Plaintiff moved for
leave to file a Second Amended Complaint “in order to add specificity a list of cases of
excessive force and unconstitutional police misconduct regarding the customs and
practice of the East Baton Rouge Sheriff's Office/Sid Gautreaux."8° The proposed
amendment was just that: a list of case names and citations. The magistrate judge denied
the motion for leave to file, finding that the issue of amendment was already pending
before the Court in the briefing on the pending Motion to Dismiss.
Second, any amendment would only compound the delay that has already
occurred in this case. On September 18, 2020, Plaintiff filed a Motion representing that
81 I,
Id. (citing Briggs v. Miss., 331 F.3d 499, 508 (5th Cir. 2003)).
84 id (citation omitted).
85 See Rec. Doc. No. 14.
86 Rec. Doc. No. 50, p. 2.
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she was unable to obtain the information necessary to successfully plead her case
because the East Baton Rouge Parish District Attorney's Office was still investigating
Ezeff's shooting and therefore declined to share information with Plaintiff. Plaintiff moved
to stay the case pending the outcome of the criminal investigation, and Defendants did
not oppose.®” On December 14, 2021, Plaintiff moved to reopen the case, and the
magistrate judge granted her motion. Plaintiff avers that the grand jury declined to indict
Deputy Landry in connection with the shooting.®* Even without the benefit of whatever
additional information may be had now that the investigation is closed, the Court
concludes that Plaintiff has pled sufficiently to overcome qualified immunity as to Deputy
Landry. The bulk of the other claims are either foreclosed as a matter of law or were
abandoned by Plaintiff in her briefs, and thus amendment would be futile. To delay these
proceedings further with an additional round of briefing, especially when Plaintiff has
repeatedly failed to abide by deadlines, would not be in the interest of justice. Accordingly,
this case shall move forward with the Complaints already filed.
IV. Conclusion
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss®® is
GRANTED in part and DENIED in part. The official capacity and individual capacity
Section 1983 claims against Sheriff Gautreaux are dismissed with prejudice. The official
capacity Section 1983 claims against Deputy Landry are dismissed with prejudice, but
the Motion is denied with respect to the individual capacity Section 1983 claims against
Deputy Landry. The state law claims against Deputy Landry remain viable, but all state
87 Rec. Doc. No. 58; Rec. Doc. No. 59.
88 Rec. Doc. No. 58, p. 1.
89 Rec. Doc. No. 42.
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law claims against Sheriff Gautreaux are dismissed with prejudice, with the exception of
vicarious liability. All claims against the “East Baton Rouge Sheriff's Office” are dismissed
with prejudice.
Signed in Baton Rouge, Louisiana the 9th day of March, 2022.
CHIEF yh D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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