The opinion
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
MCKINLEY BATES III, CIVIL DOCKET NO. 1:20-CV-00036
Plaintiff
VERSUS JUDGE DRELL
LANE NORMAND,
Defendant MAGISTRATE JUDGE PEREZ-MONTES
MEMORANDUM ORDER
Before the Court is a Motion to Dismiss (ECF No. 9) filed by Defendant Lane
Normand (“Normand”), and a Motion to Amend/Correct Complaint (ECF No. 13)
filed by Plaintiff McKinley Bates III (“Bates”) (ECF 13). Because Defendants will
not be prejudiced by the amendment, Bates’s Motion to Amend/Correct Complain
(ECF No. 13) is GRANTED. Further, substantive evidence has been introduced in
opposition to the Motion. Thus, Normand’s Motion to Dismiss (ECF No. 9) is
DENIED AS MOOT.
I. Background
Bates filed this lawsuit under 42 U.S.C. § 1983. ECF Nos. 1, 5. The named
Defendant is Normand, a Louisiana Probation and Parole Officer. Bates alleges
that Normand fabricated evidence and lied to have Bates falsely arrested and
charged. Bates also contends Normand lied on a search warrant application to have
Bates’s father’s home searched, and used excessive force against Bates. Bates
seeks: (1) monetary damages (for false arrest, use of fabricated evidence to obtain a
search warrant and to arrest Bates, emotional distress, physical pain and suffering,
and false imprisonment); (2) the attorney fees associated with the criminal charges
that were dropped; and (3) punitive damages.
Normand filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (ECF
No. 9). Bates opposed that motion with evidence (ECF No. 12), including affidavits,
videos, and state court records. Bates then filed a Motion to Amend/Correct
Complaint (ECF No. 13), which Normand also opposes (ECF No. 16).
II. Law and Analysis
A. Allegations in Bates’s first Amended Complaint.
Bates alleges that, in October 2018, while he was outside at his father’s
house, he was “rushed” and chased by several police officers and Normand. ECF
No. 5 at ¶¶ 7-9. After running initially, Bates stopped and surrendered. ECF No. 5
at ¶ 9. Bates contends that, while making the arrest, Normand punched Bates
repeatedly about the head and back. ECF No. 5 at ¶ 10. After Bates was
handcuffed, Normand slammed Bates into a fence pole. ECF No. 5 at ¶ 11. Bates
alleges Normand then searched the carport without a warrant. ECF No. 5 at ¶ 12.
Bates contends that Normand wrote a police report, falsely stating he
smelled marijuana on the carport where Bates had been sitting; saw Bates pull a
plastic bag from his pocket and throw it before he ran; saw marijuana sitting in
plain view on the table where Bates had been sitting in the carport and on the
washer in the carport; and found the baggie Bates had thrown, which was full of
“Xanax bars.” Normand found mail in Bates’s vehicle that was addressed to Bates’s
father’s house. Normand’s statements formed the basis of a search warrant
application for Bates’s father’s home (Normand alleged Bates was living with his
father). The search warrant was executed by officers and Normand. Money and
guns were seized from Bates’s father’s home. Bates was charged with possession
with intent to distribute Schedule IV drugs, possession of marijuana, possession of
drug paraphernalia, possession of a firearm by a convicted felon, and resisting an
officer.
According to Bates, security cameras outside Bates’s father’s home captured
the incident on video and showed: Bates running away from the police without
discarding anything; and Normand placing bags of marijuana in the carport “in
plain view.” The video also revealed there were no drugs or drug paraphernalia on
the ground.
After the prosecutor viewed the video, the drug and gun charges against
Normand were dismissed. The prosecutor later dismissed the remaining charge of
resisting an officer.
B. Bates’s Motion to Amend/Correct Complaint (ECF No. 13) is granted.
Bates filed a Motion to Amend/Correct Complaint to add Lt. Cowan as a
Defendant, and to add state law causes of action for battery and malicious
prosecution against both Defendants. ECF No. 13. Normand contends the
amendment is futile. ECF No. 16.
Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading
as a matter of course within: (1) 21 days after serving the pleading; or (2) 21
after service of a responsive pleading or a motion under rule as (b),(e), or (f).
Fed. R. Civ. P. 15(a); , 3 F.3d 137, 139 (5th Cir. 1993);
, 160 F. 3d 1052, 1053 (5th Cir.
1998), cert. den., 528 U.S. 851 (1999). Thereafter (for a second or subsequent
pleading, or after 21 days), a party may amend its pleading with the opposing
party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a). Joinder of
additional defendants in an action also requires permission from the court, and the
defendants must be involved in the same transaction or occurrence, with common
questions of law or fact, as the originally named defendants. Fed. R. Civ. P. Rule
20.
Rule 15 mandates that leave to amend “be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). However, leave to amend is not automatic. The
decision to grant or deny a motion to amend is within the sound discretion of the
trial court. , 933 F.2d 314, 320
(5th Cir. 1991). The district court’s ruling is reversible only for an abuse of
discretion. , 3 F.3d at 139.
Five factors must be considered in determining whether to deny a party leave
to amend a complaint: (1) undue delay;1 (2) bad faith or dilatory motive;2 (3)
1 Delay alone is an insufficient basis for denial of leave to amend. The delay must be
meaning it must prejudice the nonmoving party or impose unwarranted burdens on
the court. , 376 F.3d 420, 427 (5th
Cir. 2004). If the delay in filing a motion for leave to amend is particularly egregious, the
burden shifts to the moving party to demonstrate that the delay was “due to oversight,
inadvertence or excusable neglect.” , 952 F.2d at 846 (citing
634 F.2d 199, 203 (5th Cir.1981)).
repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to
the opposing party;3 and (5) futility of the amendment.4 ,
393 F.3d 590, 595–96 (5th Cir. 2004) (citing . 332 F.3d
854, 864 (5th Cir. 2003)); , 381 F.3d 459,
468-69 (5th Cir. 1967). Absent these factors, leave to amend should be “freely
given.” , 393 F.3d at 595–96 (citing 371 U.S. 178, 182
(1962)).
A court must determine whether the proposed amendment: (1) merely
proposes alternative legal theories for recovery on the same underlying facts; or (2)
would fundamentally alter the nature of the case. , 376 F.3d at 427.
Amendments that fall into the former category generally should be permitted, as
they advance Rule 15(a)'s policy of promoting litigation on the merits rather than on
procedural technicalities. Amendments that fall into the latter category, however,
may be denied if the circumstances warrant. , 376 F.3d at 427. “When
2 A party's awareness of facts and failure to include them in the complaint might give rise
to the inference that the party was engaging in tactical maneuvers to force the court to
consider various theories seriatim. In such a case, where the movant first presents a theory
difficult to establish but favorable and, only after that fails, a less favorable theory, denial
of leave to amend on the grounds of bad faith may be appropriate. 3 F.3d at
141 (citing 660 F.2d 594 (5th Cir. 1981).
3 An amendment that is unduly prejudicial is one that is not merely clerical or corrective,
but would establish an entirely new factual basis for the plaintiff's claims and,
consequently, would require the parties to reopen discovery and alter their trial strategies.
, 952 F.2d at 846.
4 An amendment is futile where the amended complaint fails to state a claim upon which
relief can be granted. , 2003 WL 23112853, at *3 (E.D. La. 2003)
(citing , , 234 F.3d 863, 873 (5th Dir. 2000)) To
determine futility, the district court should apply “the same standard of legal sufficiency as
it applies under Rule 12(b)(6).”
late tendered amendments involve new theories of recovery and impose additional
discovery requirements, courts [of appeal] are less likely to find an abuse of
discretion due to the prejudice involved.”
Bates seeks to amend to add Lt. Cowan as a Defendant. Bates contends that,
although he states in his original complaint that Lt. Cowan applied for and obtained
a search warrant based on Normand’s false statements, Bates did not then know
that Lt. Cowan was aware that Normand’s statements were false. Bates alleges
that an unnamed eye-witness to the incident told him that Lt. Cowan was present
during the entire incident and saw what Normand did. In other words, Bates
contends Lt. Cowan was aware that Normand had lied in the search warrant
affidavit. ECF No. 13.
Bates has not delayed in adding Lt. Cowan as a Defendant. Neither an
answer nor a proposed plan of work have been filed. Lt. Cowan was included in
Bates’s original statement of the incident, although he was not named as a
Defendant. ECF No. 1. The incident occurred on October 30, 2018 (ECF No. 5 at 2
¶7); drug and gun charges against Bates were dismissed and Bates’s money was
released on January 10, 2019; according to Bates, the charge for resisting an officer
was dismissed sometime thereafter; the original complaint was filed on January 9,
2020 (ECF No. 1); and the complaint was amended on February 28, 2020 (ECF No.
5). Bates apparently learned of Lt. Cowan’s alleged complicity with Normand while
preparing a brief in opposition to Normand’s Motion to Dismiss, sometime in April
2020. ECF No. 13-1 at 2. Therefore, it is clear that Bates has not been dilatory or
delayed in adding Lt. Cowan as a Defendant. There is no apparent prejudice to
Normand or Lt. Cowan from that amendment.5
Bates also seeks to add state law causes of action for battery and malicious
prosecution. Because Bates had already alleged use of excessive force against him,
the addition of a corresponding state law battery claim is not a surprise or
prejudicial. Moreover, the addition of a state law malicious prosecution claim
corresponds to Bates’s Fourth Amendment claims that Normand fabricated
evidence and lied on a search warrant affidavit.
Finally, Normand argues that amendment is futile because he has qualified
immunity, which he raises in his Motion to Dismiss. That Motion will be denied as
moot pursuant to Fed. R. Civ. P. 12(b), as set forth below.
Therefore, Bates’s Motion to Amend (ECF No. 13) is GRANTED.
C. Normand’s Motion to Dismiss (ECF No. 9) is denied as moot.
Normand filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6),
arguing that: (1) he has qualified immunity; (2) Bates did not make any factual
allegations as to use of excessive force in his first Amended Complaint; (3) there was
probable cause to arrest Bates due to an active parole warrant; and (4) there was
probable cause to conduct search Bates’s father’s home because there was
reasonable suspicion to believe that Bates, a parolee, was engaging in criminal
5 It is noted that Normand objects to the Amended Complaint on the basis of adding the
state law causes of action, but makes no argument against adding Lt. Cowan as a
Defendant. ECF No. 16.
activity. Normand maintains that he smelled marijuana when he approached
Bates.
A court may grant a motion to dismiss for “failure to state a claim upon which
relief can be granted” under Fed. R. Civ. P. 12(b)(6). “[A] complaint will survive
dismissal for failure to state a claim if it contains ‘sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.’” ,
822 F.3d 207, 210 (5th Cir. 2016), cert. den., 137 S. Ct. 489 (U.S. 2016) (quoting
, 556 U.S. 662, 678 (2009)) (internal citation and quotation
omitted). “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.” , 556 U.S. at 678. The court must view all well-
pleaded facts in the light most favorable to the plaintiff.
, 819 F.3d 170, 174 (5th Cir. 2016).
In this case, Bates responded to Normand’s Motion to Dismiss with a brief
supported by substantive evidence. That evidence includes two affidavits from
eyewitnesses to the incident, videos, and state court documents from the criminal
proceedings instituted against Bates from the arrest, search, and seizure. ECF No.
12.
1. Bill of Sale
Bates produced a Bill of Sale showing the truck seized by the officers had
been sold to Jose Castaneda on October 28, 2018. ECF No. 12-1.
2. Fabian White’s affidavit
An affidavit from Fabian White (“White”) (ECF No. 12-2) shows White was
present at the home of Bates’s father (McKinley Bates, Jr.), playing chess, when
Normand and the officers arrived. White stated “some men” “ran out and
handcuffed” White without identifying themselves as police officers. ECF No. 12-2.
White states the officers did not state they had a search warrant or were there to
execute a search warrant. ECF No. 12-2. White states he did not see any guns or
drugs at the Bates residence; did not see Bates, Jr. or Bates III with guns or drugs;
did not smell or see marijuana; and did not see Xanax pills or bars. ECF No. 12-2.
White further states that Bates III does not live at his father’s home, and that the
guns taken from the home belonged to Bates, Jr. ECF No. 12-2. White heard
Bates, Jr. identify himself to the officers and tell they the guns were his and not his
son’s. ECF No. 12-2.
3. Albert Lee’s affidavit.
Bates also produced an affidavit from Albert Lee (“Lee”), an eye-witness to
Bates’s arrest. ECF No. 12-8. Lee states he saw the officers intentionally ram
Bates’s head into a fence post, one officer punched Bates with his fists “repeatedly,”
and Officer Lane punched bates in the head and body “man, many times,” although
Bates was not resisting. ECF No. 12-8. After beating Bates, the officers put him in
a police car. ECF No. 12-8. Lee states he told the officer to stop jumping on and
punching Bates, and ramming his head into the fence. ECF No. 12-8.
After placing Bates in the police car, one officer went to the house where Lee
was staying and made an illegal, warrantless search. ECF No. 12-2. Lee contends
the officer seized his prescription medication for Alprazolam (Xanax) and arrested
him for drug possession, even as Lee showed the officer his prescription. ECF No.
12-2. Lee was put in jail for 7 days on the charge of illegal possession of Xanax
before the charge was dismissed. ECF No. 12-2. Lee states that he did not see
Bates in possession of or using any drugs, and did not see or smell marijuana,
because Lee was down the street in his grandmother’s yard. ECF No. 12-2. Lee
states the same officer also went to Bates’s father’s home. Finally, Lee states that
he was not beaten like Bates was. ECF No. 12-2.
4. Transcript of Bates’s preliminary examination
Bates produced a certified transcript of Bates’s December 19, 2019
preliminary examination in the Seventh Judicial District Court, Concordia Parish.6
ECF No. 12-7.
Probation and parole officer Normand testified that, on the date of the
incident, he was serving a West Baton Rouge Parish parole warrant on Bates. ECF
No. 12-7 at 10. Normand testified that he had seen a car Bates had been known to
drive and found Bates had a parole warrant. ECF No. 12-7 at 10. Normand and
several deputies went to the residence where he has seen Bates’ car, and found
Bates, another “black male,” and two children sitting in the carport at a picnic
table. ECF No. 12-7 at 11.
6 Bates’s bond was also reduced in the event his parole-hold was dropped. ECF No. 12-7 at
49.
Normand testified that, when the officers arrived, Bates immediately stood
up and saw Normand, who stated he was “probation and parole.” ECF No. 12-7 at
11. Bates started to walk away, so Normand told Bates to
stop.” ECF No. 12-7 at 11. Bates then “reached in his pocket, pitched a clear plastic
bag toward the door area of the house, and fled on foot.” ECF No. 12-7 at 11.
Normand pursued Bates for several blocks before he caught up with him. ECF No.
12-7 at 11. Normand testified that he gave Bates “several commands to get on the
ground, show me your hands, which he refused.” ECF No. 12-7 at 11. Normand
then “decided to go hands on” and they “scuffled for a short time.” ECF No. 12-7 at
11. Normand was unable to cuff Bates, because he kept resisting and trying to
reach into his pocket, until Lt. Chris Groh arrived. ECF No. 12-7 at 12. After Bates
was restrained, he was walked back to the house. ECF No. 12-7 at 13.
Normand testified that, after Bates was restrained, he determined that the
vehicle Bates had been driving was registered to Bates, so he “checked” the car and
found mail addressed to Bates as his father’s residence. ECF No. 12-7 at 13, 24.,
The smell of marijuana in the vehicle was “overwhelming.” ECF No. 12-7 at 13.
Normand then found the cellophane bag he had seen Bates throw down–it
contained Xanax bars. Normand testified he also smelled marijuana coming from
inside the house, although the door was not open, because it was “high grade”
marijuana. ECF No. 12-7 at 14-15. Normand then decided to “clear the house for
remaining occupants,” and Bates, Jr. was escorted outside. ECF No. 12-7 at 14. Lt.
Cowan them applied for a warrant to search “the rest of the house.” The officers
found cash, several Xanax pills, and firearms–“drugs, money and guns.” ECF 12-7
at 14. Normand testified they also found marijuana outside where Bates and the
others had been sitting and some in “plain view” on a washing machine behind
where they had been sitting. ECF No. 12-7 at 15. No weapons were found outside
the home. ECF No. 12-7 at 25.
Normand testified that he searched the house because he believed Bates had
been living there (he was on probation) and because he had found drugs outside.
ECF No. 12-7 at 16. Normand testified that he found the Xanax bars “in plain
view” prior to obtaining the search warrant. ECF No. 12-7 at 17. As a result of the
search pursuant to the warrant, they found guns and cash inside the house. ECF
No. 12-7 at 17.
Normand further testified that he did not turn the mail found in the car over
to the District Attorney, but kept it in his office. ECF No. 12-7 at 18. Normand
testified that mail showed Bates’s address was at his father’s house. ECF No. 12-7
at 18. Normand admitted he had not noted the dates on the mail he seized. ECF
No. 12-7 at 19. Normand testified the mail was neatly in a “soft binder that flaps
over and snaps,” and was “just random different pieces of mail or letters” including
checks, checkbooks, and various documents with Bates’s name and address on it.
ECF No. 12-7 at 29.
Normand testified that, as a probation and parole officer, he can enter a
probationer’s residence and search their rooms. ECF No. 12-7 at 19. Normand
entered Bates Jr.’s home as a Probation and Parole officer, to clear the house after
he served the parole warrant. ECF No. 12-7 at 19. Normand testified that he did
not go in to see Bates’s room, did not know where the guns had been found, and did
not know how many people occupied the residence. ECF No. 12-7 at 20.
Normand testified that, when he found the bag of Xanax bars, he picked them
it up and did not know where he put it down again. ECF No. 12-7 at 20-21.
Normand thought the pictures of the evidence were taken before he picked the bag
up. ECF No. 12-7 at 21. After the pictures were taken, Normand picked up the
bag, then put it back down (he thinks) and left it there until the Sheriff’s Office took
possession of it. ECF No. 12-7 at 22.
Normand then testified that he originally found the bag of Xanax bars in a
bucket, and not on the ground as he testified earlier; Normand denied having
testified he found it on the ground. ECF No. 12-7 at 22, 28. Normand testified that
Bates threw the bag of bars out of his pocket and into the bucket. ECF NO. 12-7 at
22, 28.
Normand testified that he arrived at the Bates residence with Lt. Chris Groh,
Agent Chad Fuqua, and Investigator Phillip Smith. Other officers arrived later.
ECF No. 12-7 at 22. Normand was the only officer from Probation and Parole. ECF
NO. 12-7 at 22. Normand was not wearing a body camera and did not know if
anyone else had been. ECF No. 12-7 at 22-23.
Normand testified that he was not Bates’s Probation and Parole officer at
that time. ECF No. 12-7 at 24. Normand testified that an individual is assigned to
Probation and Parole based on where they live, and that Bates’s was assigned to
West Baton Rouge Parish. ECF No. 12-7 at 24. The parole warrant was issued by
West Baton Rouge Parish; Normand did not determine why a warrant had been
issued. ECF No. 12-7 at 26. Normand admitted the documents showed Bates’
address was in Baton Rouge and not Ferriday. ECF No. 12-7 at 25. Normand
testified that he never entered Bates, Jr.’s home to gather information as to
whether or not Bates was actually residing there. ECF No. 12-7 at 25. No
investigation as to where Bates was staying was conducted. ECF 12-7 at 25.
Normand never saw Bates inside Bates, Jr.’s home. ECF No. 12-7 at 25.
McKinley Bates, Jr. (Bates’s father) (“Bates, Jr.”) testified that he lives at the
address with his grandson, Tyrone Bates, and his fiancé, Ann Lewis, and they were
living there on October 30, 2018 (the date of the incident). ECF No. 12-7 at 32.
When the police arrived on October 30, 2018, Bates, Jr. was there with Fabian
Lloyd (“Lloyd), Bates III, and his granddaughter. ECF No. 12-7 at 33. Albert Lee
had visited him earlier in the day. ECF No. 12-7 at 36. Lloyd was sitting on the
picnic bench outside, under the carport. ECF No. 12-7 at 33. Bates, Jr. testified
that Bates III and Lloyd did not go inside that day. ECF No. 12-7 at 33. Bates III
had not lived there for about ten years, and did not have a room in Bates, Jr.’s
house. ECF No. 12-7 at 33-34, 41. When he was in Ferriday, Bates III sometimes
stayed with his grandfather on Moose Lodge Road. ECF No. 12-7 at 34. That day,
Bates III was in Ferriday for court the next day (ECF No. 12-7 at 34), and had
stayed the night with his girlfriend (ECF No. 12-7 at 44). Bates, Jr. testified that
Bates III had lived in Baton Rouge, with Bates, Jr.’s niece, since he had gotten out
of prison. ECF No. 12-7 at 35.
Bates, Jr. testified that Bates III left his home in 2007, when Bates III went
to college at Grambling. Bates III was arrested and incarcerated “for marijuana” in
2010, while in college, and had lived in Baton Rouge since he was released from
prison. ECF No. 12-7 at 41.
Bates, Jr. testified that he was asleep on his living room couch when the
police arrived. He was not outside. ECF No. 12-7 at 35. Bates, Jr. was awakened
when the police threw him on the floor and arrested him. ECF No. 12-7 at 35.
Officer Cowan got the key to Bates, Jr.’s room, unlocked the door, and went in,
while Bates, Jr. stayed on the floor for about thirty minutes. ECF No. 12-7 at 35.
Officers asked Bates, Jr. what was in the house, and he told them he had guns
locked up in his closet. ECF No. 12-7 at 35. The officers took the three guns. ECF
No. 12-7 at 35-36. Bates, Jr. testified that no one else had access to the guns
because they were locked up in the closet in his room and he had the key. ECF No.
12-7 at 37. Bates, Jr. stated that, although there were guns in his home, Bates III
was outside the house. ECF No. 12- at 45.
Bates, Jr. testified that he kept a white bucket outside to pick up trash on the
side of the road (and carry it to dump into a trashcan), and also had a silver
trashcan outside. ECF No. 12-7 at 37. Bates, Jr. testified that, just prior to the
police arriving, he had found a plastic bag on the ground under the carport and
thrown it into the white bucket. ECF No. 12-7 at 39. He did not notice if there was
anything in it or what it was–he just picked the trash up from the ground and
threw it into the bucket. ECF No. 12-7 at 40. Bates, Jr. testified that he has a
phobia about trash and that if something is in the way, he throws it away. ECF No.
12-7 at 40. Bates customarily picked up trash under his carport and used a blower
on the carport every other day. ECF No. 12-7 at 40, 42. Lloyd and Bates III were
sitting outside when he picked the bag up. ECF No. 12-7 at 40. Bates, Jr. testified
that Lloyd never left because the police took him away. ECF No. 12-7 at 41.
5. The videos from the carport security cameras
Bates filed three videos with his opposition to the Motion to Dismiss. The
videos were from security camera Bates, Jr. had outside his home. Bates’ videos
show that, when he arrived at Bates, Jr.’s home, Normand and the other officers
ran out of their vehicles with their gun drawn and pointed at the two men and two
young children under the carport. ECF No. 12-3. The video also shows Bates III
did not reach into his pocket, did not pull anything out of his pocket, and did not
throw anything onto the carport floor or into a bucket. ECF No. 12-3.
However, the video shows Normand going through a white plastic bucket
when there were no officers around, pulling everything out of it and then putting
something into it and putting the things he had just pulled out back into it. ECF
No. 12-6. Normand also removed everything from the top of the washing machine,
throwing everything onto the ground as he went through it. ECF No. 12-6. From
the video, it appears drugs were “found” in “plain view” after Normand removed
everything from the top of the washing machine. ECF No. 12-6. Moreover, before
any of that occurred, a police officer was under the carport while Normand when
through the three cars parked at the residence. The officer stood next to the bucket
and the washing machine (the top of which was still stacked with Bates, Jr.’s
things) for 20 to 30 minutes, setting his water bottle down on a corner of the
washing machine. ECF No. 12-6. That officer did not search the bucket or the top
of the washing machine, and it is apparent that he did not see any drugs in “plain
view” on the washing machine, in the bucket, or on the table.
The video further shows the picnic table held only two cups, a chess game,
and the chess set box when the officers arrived and when Bates III ran away.7 ECF
No. 12-3. Normand set several things down on the table, including his bag/fanny
pack and water, and moved things around on the table. ECF NO. 12-5. The video
also shows Normand removing papers from one of the cars and putting them into
his bag/fanny pack. ECF No. 12-6.
6. The court minutes
Bates produced the (uncertified) January 10, 2019 minutes of the Seventh
Judicial District Court, Concordia Parish, Division “A,” which show Bates had been
charged with: (1) possession of a schedule IV drug; (2) possession of marijuana; (3)
possession of drug paraphernalia; (4) possession of a firearm by a convicted felon;
and (5) resisting an officer. ECF No. 12-9. The court minutes further show that:
Defendant waived any claim to half of the money seized ($9,555.), the money was
7 Normand testified that he and the officers found marijuana outside where Bates and the
others had been sitting [the picnic table] and in “plain view” on a washing machine behind
where they had been sitting. ECF No. 12-7 at 15.
released to Bates’s father, and the cell phone seized was released to Bates’s brother,
Kendall Bates. ECF No. 12-9. The court minutes show that all charges except for
resisting an officer were dismissed on motion of the State. ECF No. 12-9.
7. The Motion to Dismiss should be denied as moot.
Normand contends there was a warrant from the parole office in West Baton
Rouge Parish for Bates’ arrest. Therefore, he has probable cause to arrest Bates.
However, Bates was not arrested and sent to West Baton Rouge Parish. Instead, he
was arrested, charged, and held on drug and firearms offenses, and with resisting
arrest. Bates argues there was no probable cause to support the drug and firearms
charges, that he was held in jail for and that Normand manufactured evidence
against him. Bates’s video evidence may support those assertions. Bates also
contends Normand used excessive force against him, and that contention is
supported by Albert Lee’s affidavit.
Normand has had the opportunity to present evidence to the Court. He
argues in his Motion to Dismiss is that he is entitled to qualified immunity and that
Bates has failed to allege sufficient facts to state claims against Normand.
However, Bates’s evidence supports his claims.
In accordance with Fed. R. Civ. P. rule 12(b), since Bates’s brief is
accompanied by documentary evidence outside the pleadings which the Court has
considered, Normand’s Motion can no longer be considered a Motion to Dismiss.
Therefore, dismissal of Normand’s Motion to Dismiss as moot will afford all parties,
including Cowan (after he is served and has filed a responsive pleading), an
opportunity to file Motions for Summary Judgment and/or oppositions thereto,
supported by evidence.
Ill. Conclusion
IT IS ORDERED that Bates’s Motion to Amend/Correct Complaint (ECF No.
13) is GRANTED.
IT IS FURTHER ORDERED that Normand’s Motion to Dismiss (ECF No. 9)
is DENIED AS MOOT. After service on and a responsive pleading from Lt. Cowan,
the parties may file properly supported Motions for Summary Judgment and/or
Oppositions, as appropriate.
SIGNED on Friday, February 26, 2021.
“TEL
Joseph H.L. Peréz-Montes
United States Magistrate Judge
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