# Barras v. Garber

> District Court, W.D. Louisiana · September 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10193839

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** September 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

MAEGAN MARIE BARRAS ET AL CASE NO. 6:19-CV-01411
VERSUS JUDGE SUMMERHAYS
MARK GARBER ET AL MAGISTRATE JUDGE WHITEHURST

MEMORANDUM RULING
Presently before the Court is the Motion to Dismiss Defendants Mark Garber and Paula
Smith, Under Rule 12(b)(6) [ECF No. 7]. For the reasons that follow, the Motion is GRANTED
IN PART and DENIED IN PART.
I.
BACKGROUND
On November 2, 2018, Josh Barras was arrested on misdemeanor charges and transported
to the Lafayette Parish Correctional Center (“LPCC”) for booking.' At the time of his arrest and
booking, Barras was allegedly exhibiting “bizarre behavior.”? During booking, Barras was
permitted to enter an LPCC restroom alone and unmonitored for approximately twenty minutes.’
When LPCC personnel ultimately checked on Barras in the restroom, he had attempted suicide
and was unresponsive.’ He was immediately rushed to Lafayette General Medical Center.’ Barras
allegedly “had a history of mental illness well documented in the medical and institutional records

Amended Complaint [ECF No. 5] at 7.
2 Id, at J98-10.
3 Id.
4 Id.
3 Id.

of the Lafayette Parish Correctional Center.” The Amended Complaint also alleges that “it was
known that Josh Barras had attempted suicide previously.”
Plaintiff Maegan Barras (“Plaintiff”) is Barras’ wife. Plaintiff filed the pending Complaint
on behalf of Josh Barras against Mark Garber, individually and as the duly elected Sheriff for the
Parish of Lafayette, and Paula Smith, individually and in her capacity as Director of Corrections
and an employee of the Lafayette Parish Sheriff's Office. Plaintiff seeks damages under 42 U.S.C.
§ 1983. Plaintiff subsequently filed an Amended Complaint adding a claim for loss of consortium
damages. Defendants have now filed the present Motion to Dismiss pursuant to Rule 12(b)(6).
Il.
RULE 12(B)(6) STANDARD
“To survive a Rule 12(b)(6) motion to dismiss, a complaint “does not need detailed factual
allegations,’ but must provide the plaintiff's grounds for entitlement to relief—including factual
allegations that when assumed to be true ‘raise a right to relief above the speculative level.’”® The
facts alleged, taken as true, must state a claim that is plausible on its face.° “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”!° A complaint is not sufficient
if it offers only “labels and conclusions,” or “a formulaic recitation of the elements of a cause of
action.”!!

6 Id. at J11.
7 Id. at 79.
8 Cwvillier v. Taylor, 503 F.3d 397, 401 (Sth Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-
domachoy v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (Sth Cir. 2011).
10 Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009).
11 Tq. (quoting Twombly, 550 U.S. at 554-57). ;

Il.
LAW AND ANALYSIS
A. Plaintiff's Capacity to Sue.
The Amended Complaint alleges that Maegan Barras is the “wife and appointed Tutrix” of
Josh Barras.!* Under Rule 17(b) of the Federal Rules of Civil Procedure, the capacity of an
individual to sue in a representative capacity is determined by the law of the state in which the
District Court is located.’ Under Louisiana law, tutorship refers to the guardianship of
unemancipated minor children whose parents dissolve their marriage or are unmarried." There is
no provision in Louisiana law in which a tutor/tutrix may be appointed for a spouse. In the instant
suit, Maegan Barras has alleged that her capacity to sue on behalf of her husband stems from a
tutorship proceeding. This allegation of her representative capacity is not cognizable under
Louisiana law. Plaintiff has responded and indicates that the reference to “tutrix” was simply
incorrect language and that she does, in fact, have a court order appointing her to handle the affairs
of Josh Barras. Plaintiff must correctly plead capacity to proceed with this case. Accordingly, the
Court grants the Motion to Dismiss with respect to capacity but will grant leave to amend the
complaint to correct Plaintiff's capacity allegations.
B. Individual Capacity Claims Against Smith and Garber.
An official’s “episodic act or omission violates a pretrial detainee's due process rights to
medical care [and protection from harm] if the official acts with subjective deliberate indifference
to the detainee's rights.”!> In this context, deliberate indifference requires a showing that “(1) the
official was aware of facts from which an inference of substantial risk of serious harm could be

2 Amended Complaint at 43.
13 FR.C.P. 17(b)(3).
4 LSA-C.C. 246, LSA-C.C. 256.
'S Nerren v. Livingston Police Dep't, 86 F.3d 469, 473 (Sth Cir.1996).

drawn; (2) the official actually drew that inference; and (3) the official's response indicates the
official subjectively intended that harm occur.”!® In contrast to an official capacity claim, a claim
against an official in his or her individual capacity requires a plaintiff to “allege specific conduct
giving rise to a constitutional violation. This standard requires more than conclusory assertions:
the plaintiff must allege specific facts giving rise to the constitutional claims.””!’ In other words, a
plaintiff “must allege facts reflecting the defendants' participation in the alleged wrong, specifying
the personal involvement of each defendant.”!* Supervisory officials may be held liable for
asection 1983 violation only if they either were personally involved in the constitutional
deprivation or if there is a “sufficient causal connection between the supervisor's wrongful conduct
and the constitutional violation.”!?
Plaintiff fails to allege any facts showing that the defendants were personally involved in
the events leading up to Barras’ attempted suicide. Nor do Plaintiffs allegations show that the
defendants had knowledge of any facts from which they could have drawn the inference of a
substantial risk of serious harm. Accordingly, Plaintiff's Amended Complaint fails to state a claim
against Sheriff Garber and Paula Smith in their individual capacities. The Court therefore grants
the Motion to Dismiss with respect to the individual capacity claims against Smith and Garber.”°

‘6 Brumfield v. Hollins, 551 F.3d 322 (Sth Cir. 2008), citing Thompson v. Upshur County, TX, 245 F.3d 447 (Sth Cir.
2001).
'7 Oliver y. Scott, 276 F.3d 736, 741 (5th Cir. 2002).
'8 Jolly v. Klein, 923 F. Supp. 931, 943 (S.D. Tex. 1996) (citing Murphy v. Kellar, 950 F.2d 290, 292 (Sth Cir.1992)).
°Thompkins, 828 F.2d at 304.
20 Defendants assert qualified immunity with respect to Plaintiff's individual capacity claims. “The doctrine of
qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would have known.””
Pearson v. Callahan, 555 U.S. 223 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800 (1982)). When a defendant
raises the qualified immunity defense, the burden shifts to the plaintiff to demonstrate the inapplicability of □□□
defense. McClendon vy. City of Columbia, 305 F.3d 314, 323 (Sth Cir. 2002) (en banc). Qualified immunity is
“immunity from suit rather than a mere defense to liability” and should, therefore, be resolved at the earliest possible
stage in the litigation. Porter v. Epps, 659 F.3d 440, 445 (Sth Cir. 2011). Here, however, the Court concludes that
Plaintiff has not stated individual capacity claims against the defendants regardless of the question of qualified
immunity. Moreover, as explained further below, the court will not grant leave to replead these individual capacity
claims. Therefore, the Court will not address qualified immunity at this time.

C. Official Capacity Claims against Paula Smith.
Plaintiff names Paula Smith as a defendant “in her official capacity as a Director of
Corrections and an employee of the Lafayette Parish Sheriff's Office.””! Claims against an official
in his or her official capacity are “only another way of pleading an action against an entity of which
an officer is an agent.”?? A governmental entity such as the Lafayette Parish Sherriff's Office may
not be held liable under section 1983 for the violation of constitutional rights on a theory of
vicarious liability.77 It may, however, be liable under Monell when allegedly unconstitutional
conduct “implements or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.”*4 To state a claim of liability under section
1983, a Plaintiff must allege facts that plausibly establish that an official policy was promulgated
by the municipal policymaker.*> That policymaker must have “final policymaking authority.”?°
State law guides the determination as to the official whose decisions represent the official policy
of the local government unit.?”? Under Louisiana law, the sheriff is the “chief law enforcement
officer in the parish,” and also “the keeper of the public jail of his parish.””* In contrast, a Director
of Corrections, like Smith, is not a final policymaker for the Sheriff's Office or the parish jail.?”
As such, claims against Smith in her official capacity must be dismissed.

21 Amended Complaint, Document 5, 94.
22 Hafer v. Melo, 502 U.S. 21 (1991); Woodard v. Andrus, 419 F.3d 348, 352 (Sth Cir. 2005).
23 Hicks-Fields v. Harris Cty., Texas, 860 F.3d 803, 808 (5th Cir. 2017), cert. denied sub nom. Hicks-Fields v. Harris
Cty, Tex., _U.S.__, 138 S. Ct. 510 (2017).
24 Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978).
25 Blanchard-Daigle v. Geers, No. 18-51022, 2020 WL 730586, at *2 (5th Cir. Feb. 12, 2020) (emphasis added).
26 See Davis v. Tarrant Cty., Tex., 565 F.3d 214, 227 (5th Cir. 2009)
27 Jett v. Dallas Independent School Dist., 491 U.S. 701, 737 (1989).
28 La. Const. art. 5 § 27; La.Rev.Stat. § 15:704
29 Jones v. St. Tammany Parish Jail, 4 F.Supp.2d 606, 614 (E.D. La. May 8, 1998).

D. Official Capacity Claims Against Mark Garber.
In contrast, Sheriff Garber does have final policymaking authority over the Sheriffs Office
and the LPCC. *° He can, therefore, be sued in his official capacity and those claims are treated as
claims against the governmental entity he represents. To state a claim of liability under section
1983, a Plaintiff must allege facts that plausibly establish that (1) an official policy, (2) that was
promulgated by the municipal policymaker, (3) was the moving force behind the violation of a
constitutional right.3! The requirement of an official policy may be satisfied by proof of an
“official policy or custom that deprives individuals of their constitutional rights” or “a persistent,
widespread practice which, although not officially promulgated, is so common and well settled as
to constitute a custom that fairly represents municipal policy.’”°* The requirement may also be
satisfied by evidence that the conduct of the policymaker itself may have violated a person's
constitutional right. Finally, the requirement may be met by evidence of a policymaker's failure
to take some affirmative action that rises to the level of “deliberate indifference.”*4
Here, Barras was a pre-trial detainee who was brought to the LPCC following his
misdemeanor arrest. A pre-trial detainee has procedural and substantive due process rights under
the Fourteenth Amendment. The Fourteenth Amendment does not confer an absolute right to a
psychological examination, nor does it impose liability for failing to “detect /atent suicidal
tendencies...”*° The Fourteenth Amendment does, however, confer the right to medical care and
the right to be protected from known or obvious suicidal tendencies.*® Violations of a pre-trial

3° La. Const. art. 5 § 27; La.Rev.Stat. § 15:704
3! Blanchard-Daigle v. Geers, No. 18-51022, 2020 WL 730586, at *2 (Sth Cir. Feb. 12, 2020).
32 Esteves, 106 F.3d at 677 (citing Monell, 436 U.S. at 694); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.
1984) (en banc), cert. denied, 472 U.S. 1016 (1985)).
33 See Burge, 187 F.3d at 471.
34 Td. (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989).
35 Evans y. City Marlin, Tx., 986 F.2d 104, 107-08 (5" Cir. 1993) (citing Burns v. City of Galveston, 905 F.2d 100 (5"
Cir. 1990)) (emphasis in original).
36 Sanchez v. Young County, Tex., 956 F.3d 785, 791 (5 Cir. 2020) (citing Flores v. County of Hardeman, 124 F.3d
736, 738 (5 Cir. 1997)) (emphasis added).

detainee’s rights under the Fourteenth Amendment generally fall into two categories: Episodic-
Acts-or-Omissions claims or Conditions-of-Confinement claims.*’ Plaintiff does not identify
which of these claims she is asserting against Sheriff Garber in his official capacity. Her
allegations, like those in Sanchez, fall into three broad categories of violations: (1) the failure to
properly assess and classify Barras’ risk for suicide; (2) the failure to properly monitor Barras once
he arrived at the LPCC; and (3) the failure to adequately train LPCC staff on assessing detainees’
suicide risks and properly applying LPCC policies regarding detainees with mental health
problems.** Of these claims, plaintiff's failure-to-train claim must be analyzed as an Episodic-
Acts-or-Omissions claim.*?
The Court will first analyze Plaintiffs allegations as an Episodic-Acts-or-Omissions claim.
To state such a claim against a municipality, a plaintiff must show, first, that municipal officials
acted or failed to act with deliberate indifference to a detainee’s needs.*° Second, the plaintiff must
show that these acts resulted from “a municipal policy or custom, adopted with objective
indifference to the detainee’s constitutional rights.’”*! In the context of a detainee suicide (or,
presumably, attempted suicide) case, the first element of this claim requires proof that jail officials
“gained actual knowledge of the substantial risk of suicide and _ responded

37 Sanchez, 956 F.3d at 791 (citing Hare, 74 F.3d at 639).
38 Amended Complaint at $913,14. In her complaint, plaintiff also refers to a failure to “transports offenders to
medical/mental health facilities adequately equipped to properly observe, evaluate and treat/....” “allowing untrained
non-medical staff to make decisions regarding when offenders are transported out of the facility for medical
treatment.” Jd. at 14. However, when pleading the specific facts of this case, plaintiff makes no mention that Barras
was injured as a result of either of these lapses. Indeed, when Barras was found unresponsive he was “immediately
rushed to Lafayette Medical Center.” Accordingly, it is unclear whether plaintiff is seeking to assert a claim based on
the medical treatment Barras received after he was found unconscious. To the extent that she is asserting such a claim,
she has not asserted a claim because she has not shown any connection between any such lapses and the harm suffered
by Barras.
3° Sanchez, 956 F.3d at 792 (“Failure-to-Train claims are not Conditions-of-Confinement claims....”).
40 Sanchez, 866 F.3d at 279.
41 Td. (citing Hare, 794 F.3d at 649 n.4).

with deliberate indifference.’”*” This standard requires proof that a prison official knows of an
excessive risk of harm and nevertheless disregards that risk.
Here, Plaintiff alleges that LPCC personnel were deliberately indifferent to Barras’ known
suicidal tendencies when they allowed him to enter a restroom alone and unsupervised for at least
20 minutes. Plaintiff alleges that Barras’ prior suicide attempts were known.“ She also alleges that
Barras “had a history of mental illness well documented in the medical and institutional records of
the Lafayette Parish Correctional Center....”“> She further alleges that at the time of his arrest,
Barras was “exhibiting bizarre behavior which continued until the time of his suicide attempt.’“°
Plaintiff alleges that, despite knowledge of Barras’ mental health history, bizarre behavior, and
prior suicide attempts, LPCC personnel failed to properly monitor him. Plaintiff alleges that Barras
was not placed within the “specialized unit within the Lafayette Parish Correctional Center
renovated and designed to provided twenty-four hour direct supervision to offenders with medical
and mental health needs,” but was instead “left unattended in a restroom for an outrageous amount
of time without being adequately monitored.’*” These allegations are sufficient to plead the
“deliberate indifference” prong of an Episodic-Acts-or-Omissions claim and survive dismissal at
the pleading state.
With respect to the second element of this claim—that the constitutional violation resulted
from a municipal policy or custom adopted with objective indifference to the detainee’s
constitutional rights— a plaintiff must allege facts that plausibly establish that (1) an official
policy, (2) that was promulgated by the municipal policymaker, (3) was the moving force behind

42 Hare, 74 F.3d at 650.
Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
“4 Amended Complaint at { 9.
43 [dat 11.
46 Td. at] 8.
47 Td. at | 13.

the violation of a constitutional right.*® Official policies may exist in the form of “written policy
statements, ordinances, or regulations, but may also arise in the form of a widespread practice that
is so common and well-settled as to constitute a custom that fairly represents municipal policy.”
A plaintiff alleging a practice so common and well-settled as to represent municipal policy must
show a pattern of conduct that is specific and similar to the constitutional violation alleged by the
plaintiff.°° The court’s analysis in Thomas v. City of Galveston”! provides a useful framework for
applying this pleading standard. According to Thomas, a plaintiff is not required to “specifically
state what the policy is, as the plaintiff will generally not have access to it.”°? However, the
plaintiff must plead more than “generic, boilerplate recitations of the elements of claims against a
municipality for an unconstitutional custom or practice, failure to adequately train or supervise,
and negligent hiring of officials.”°? The plaintiffs allegations must provide fair notice to the
defendant with respect to the specific policies or customs that are being challenged.** For example,
“allegations that provide such notice could include, but are not limited to, past incidents of
misconduct to others, multiple harms that occurred to the plaintiff himself, misconduct that
occurred in the open, the involvement of multiple officials in the misconduct, or the specific topic
of the challenged policy or training inadequacy.”*»
Plaintiff cites a number of de facto LPCC policies or customs that allegedly resulted in the
violation of Barras’ constitutional rights:

Blanchard-Daigle v. Geers, No. 18-51022, 2020 WL 730586, at *2 (5th Cir. Feb. 12, 2020).
50 Fela 860 F.3d at 810.
51 800 F. Supp. 2d 826, 843 (S.D. Tex. 2011).
52 Td. at 844.
53 fd. at 845.
Td. at 844.
55 (footnotes omitted) (emphasis added).

(a) Operating and understaffed and/or inadequately staffed facility;
(b) Operating the facility in a manner which is was not designed to be operated in and
which has led to reduced contact between staff and offenders;
(c) Failing to properly man surveillance post;
(d) Negligent retention of staff;
(e) Failing to adequately train, supervise, monitor and discipline deputies in the need
for and the manner in which to observe and evaluate offenders to identify their
needs for medical/mental health treatment, and in the need to and the manner in
which to provide proper medical treatment in connection with those needs so
identified;
(f) Failing to properly monitor inmates;
(g) Failing to properly maintain surveillance systems for monitoring offenders;
(h) Failing to regularly and properly conduct rounds to check on the well-being of
offenders.*°
Plaintiff further alleges that jail employees were deliberately indifferent by failing to “devise,
adopt, implement and/or carry-out a custom practice, policies, and/or procedures including. ... (a)
medical procedure to ensure the safety and well-being of Josh Barras; and (b) mental health
procedures to ensure the safety and well-being of Josh Barras.”*’ These allegations identify the
“specific topic of the challenged policy or training inadequacy” and therefore provide “fair notice”
to the defendants as far as the specific policies or customs challenged.°* They also identify the
specific training inadequacy that resulted in a violation of Barras’ constitutional rights.

at 14.
58 Thomas, 800 F. Supp. 2d at 843.

Accordingly, Plaintiff has stated an Episodic-Acts-or-Omissions claim sufficient to survive
dismissal at the pleading stage.*°
To state a Conditions-of-Confinement claim, “a plaintiff must show a condition—a ‘rule,’
a ‘restriction,’ an ‘identifiable intended condition or practice,’ or ‘sufficiently extended or
pervasive’ ‘acts or omissions’ of jail officials—that is not reasonably related to a legitimate
government objective and that caused the constitutional violation.”®° Here, Plaintiff specifically
identifies the policies or practices that allegedly violated Barras’ constitutional rights. She further
alleges that jail officials were deliberately indifferent to Barras’ known suicidal tendencies and
mental health condition. These allegations in the Amended Complaint are sufficient to state a
Conditions-of-Confinement claim at the pleading stage. The Motion to Dismiss is therefore denied
with respect to the Episodic-Acts-Or-Omissions and Conditions-of-Confinement claims asserted
against Sheriff Garber in his official capacity.
D. Negligence Claims.
Paragraph 15 of the Amended Complaint purportedly attempts to allege negligence claims
against Sheriff Garber in his official capacity. Specifically, Plaintiff alleges that, “[p]rior to and
during the time period of November 2, 2018, the defendants negligently devised, adopted,
implemented and carried out a custom, practice, or policy or policies...”°' The law is clear that a
plaintiff claiming deprivation of his constitutional rights under § 1983 must show deliberate

°° Defendants argue that Plaintiffs allegations about a defective surveillance system does not support a claim against
Sherriff Garber in his official capacity because a “claim for improper maintenance of the jail ... is only properly raised
against the parish governing authority.” Defendants” Memorandum in Support of Motion to Dismiss [ECF No. 7-1]
at 9. The court has previously rejected this argument. In Noe/ v. Gibson, No. 18-CV-01217, 2020 WL 5227464 (W.D.
La. Sept. 1, 2020), the Court held that while a parish’s governing authority “is obligated to provide adequate funding
to maintain the Parish Jail, Louisiana law imposes no duty on the Police Jury to perform actual maintenance to the
Jail's security system.” Rather, the “operation and functioning ofa jail's security system involves the daily management
and operation of the jail, and thus falls under the authority of the parish sheriff.” Jd.
8° Sanchez, 956 F.3d at 791 (quoting Duvall v. Dallas County, 631 F.3d 203, 207 (5th Cir. 2011)).
61 Td. at ¢ 15, emphasis added.
11

indifference, “which entails something more than mere negligence.” Further, “...negligence,
even gross negligence, does not implicate the Constitution and does not provide a basis for a §
1983 claim.” The Fifth Circuit has recognized that, “it is well settled that mere negligence does
not constitute a deprivation of due process under the Constitution.” Plaintiffs claims of
negligence in the instant suit cannot, therefore, state a viable section 1983 claim. Accordingly, any
claims grounded on negligence must be dismissed for failure to state a claim for which relief may
be granted.
E. Loss of Consortium Claim and Funeral Expenses.
Turning to Plaintiffs loss of consortium claim, Defendants argue that this damages claim
is not cognizable under section 1983. They argue that, under Louisiana law, lost of consortium
damages are derivative claims arising from a successful state law tort claim brought by a spouse.°°
Defendants contend that this damage claim is inapplicable here because Plaintiff has not asserted
a state law tort claim.°° The Court agrees that Plaintiff's loss of consortium claim is not viable in
this action. Plaintiff asserts only claims under section 1983. The Fifth Circuit has held that a third-
party “may not assert a civil rights claim based on the civil rights violations of another
individual.”®’ Accordingly, the Court grants the Motion to Dismiss with respect to Plaintiff's loss
of consortium claim.

6 Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811, 823 (1994).
83 Sheppard v. Hawkins, 2012 WL 6020037 (W.D. La. 11/9/12), citing Farmer v. Brennan.
$4 Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137, 142 (Sth Cir. 1992), reversed on other grounds, 15 F.3d 443 (Sth Cir.
Memorandu in Support of Motion to Dismiss [ECF No. 7-1] at 16-17.
Tides v, Halliburton Co., 645 F.3d 297, 300 (5" Cir. 2011) (citing Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5*
Circuit 1986)). While Barker was not a section 1983 case, Coon was a section 1983 case.

12

Plaintiff further alleges damages for funeral expenses and for “all damages allowed” under
Louisiana Civil Code Articles 2315.1 and 2315.2.° Article 2315.1 is the basis for a survival action
under Louisiana law, and Article 2315.2 is the basis for a wrongful death action under Louisiana
law. Each of these provisions require that the person allegedly injured by the acts of another have
died. The Amended Complaint, however, alleges that Josh Barras suffered “severe injury and
incapacitation,” and that he “attempted suicide”; though the Amended Complaint refers to his
“injuries and/or death” in one paragraph,” all other allegations of the Complaint refer to his alleged
injury and incapacity. Based on the face of the Amended Complaint, Josh Barras allegedly suffered
injury and allegedly became incapacitated as a result of his attempted suicide on November 2,
2018. The Amended Complaint fails to state a claim for funeral expenses or for a wrongful death
or survival action and those claims must be dismissed.
F. Leave to Amend.
Rule 15(a) of the Federal Rules of Civil Procedure provides that courts should “freely”
grant leave to amend when “justice so requires.” But this “generous standard is tempered by the
necessary power of a district court to manage a case.””” One key exception to this generous
standard is where the amendment would be futile.’' In determining futility, courts “apply the same
standard of legal sufficiency as applies to Rule 12(b)(6).””* In other words, if an amendment would
be subject to the same grounds of dismissal as under a defendant’s original Rule 12(b)(6) motion,
amendment would be futile, and the court should deny leave to amend.

8 Td. at J 16.
Td. at J 14.
70 Priester v. J. P. Morgan Chase Bank, N.A., 708 F.3d 667, 678 (5" Cir. 2013).
Stripling v. Jordan Production Co., LLC, 234 F.3d 863, 872-73 Cir. 2000).

13

The Court has granted the Motion to Dismiss with respect to (1) Plaintiff's claims against
Smith and Garber in their individual capacities; (2) Plaintiff's claims against Smith in her official
capacity; (3) Plaintiff's negligence claims; (3) Plaintiff's loss of consortium claim and claim for
funeral expenses; and (4) Plaintiff's capacity to sue allegations. The Court denies leave to replead
the individual capacity claims, the negligence claims, the loss of consortium and funeral expense
claims, and the official capacity claim against Smith. Plaintiff has already had one opportunity to
replead her complaint. Moreover, she has not explained how an amendment could cure the
pleading defects outlined above. As a result, the Court concludes that leave to amend these claims
would be futile. The Court, however, grants Plaintiff leave to replead her complaint to properly
assert capacity to sue.
Il.
CONCLUSION
For the reasons stated above, the Motion to Dismiss Defendants Mark Garber and Paula
Smith, Under Rule 12(b)(6) [ECF No. 7] is GRANTED IN PART and DENIED IN PART. All
claims against Paula Smith in her official capacity are DISMISSED WITH PREJUDICE. All
claims against Mark Garber and Paula Smith in their individual capacities are DISMISSED WITH
PREJUDICE. All negligence claims against Mark Garber in his official capacity are DISMISSED
WITH PREJUDICE. Plaintiff's loss of consortium and funeral expense claim is DISMISSED
WITH PREJUDICE. Plaintiff shall file an amended complaint within 30 days to properly allege
her capacity to sue. In all other respects, the Motion Jg@ Dismiss is DENIED.
THUS DONE in Chambers on this a ath of September, 2020.

UNITED STATES DISTRICT JUDGE

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10193839. Public record. Not legal advice.