Garner v. City of Many

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

ELLIOT GARNER, ET AL. CIVIL ACTION NO. 21-0228

VERSUS JUDGE S. MAURICE HICKS, JR.

CITY OF MANY, ET AL. MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Before the Court are three Motions to Dismiss challenging the sufficiency of Elliot

and Rose Garner’s (collectively “Plaintiffs” or “the Garners”) civil rights allegations brought

individually and on behalf of their minor child, P.G. See Record Documents 5, 15 & 21.

Each motion is opposed. See Record Documents 13, 27 & 29.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following facts are taken from Plaintiffs’ Amended Complaint,1 and are

considered in the light most favorable to the Garners. See Record Document 26. On

January 28, 2020, Plaintiffs’ child was held down and sodomized in the Many High School

locker room by nine fellow students with a mechanical pencil and their fingers. See id. at

¶31. Although an athletic coach walked in on the attack, local law enforcement was not

contacted, nor were the Garners immediately informed of what had taken place. See id.

at ¶¶31-32. Rose Garner became aware of the incident on Friday, January 31, 2020,

when an individual showed her a video of the attack, which had been posted on the

internet. See id. at ¶¶16-19.

1 Although Plaintiffs’ Amended Complaint was filed after the three pending motions to dismiss, the

Defendants continue to pursue dismissal, except where otherwise noted.

After viewing the video, Rose Garner made a recording and returned home to

confirm what had happened with P.G. See id. at ¶¶19-20. She then took P.G. to the

Sabine Parish Sheriff’s Office to file a report but was not permitted to make a statement

or leave a copy of the video, instead being redirected to the City of Many Police

Department. See id. at ¶¶21-23. Once there, she was advised the individual she needed

to speak with was not present and instructed to return on Monday, February 3. See id. at

¶24. She returned an hour later and forced an officer to watch the video, make a recording

of it, and take down her information. See id. at ¶¶25-26. Nevertheless, the officer advised

her that nothing could be done until after the weekend. See id. at ¶27.

Upset and frustrated, she telephoned the Louisiana State Police, who launched an

investigation into the sexual assault. See id. at ¶28. Later in the evening on January 31,

Many High School’s assistant principal finally called Elliot Garner, but did not discuss the

nature or extent of the incident, only stating that “something happened with P.G., but it

will be taken care of by Monday.” See id. at ¶30. Ultimately, the Louisiana State Police

drafted and filed arrest warrants against six suspects. See id. at ¶34.

LAW AND ANALYSIS

Plaintiffs’ Amended Complaint spans fifty pages and over two hundred paragraphs.

See id. It names nearly a dozen Defendants. See id. at ¶8. The Amended Complaint

explicitly labels claims for (1) Equal Protection and 42 U.S.C. § 1983; (2) Due Process

and § 1983; (3) civil conspiracy, § 1983, and 42 U.S.C. § 1985; (4) Fourth Amendment

violations; (5) policies, procedures, or lack thereof; (6) intentional infliction of emotional

distress; (7) abuse of process; and (8) direct action recovery.

The Amended Complaint struggles to attach specific allegations to particular

Defendants, opting instead to generalize the vast majority of its assertions. Accordingly,

the Court is left to decipher which claims and which allegations within them pertain to

each Defendant based solely on the nature of the contentions. With this task set forth, the

Court is prepared to analyze the pending motions to dismiss in this matter filed by the

Sabine Parish District Attorney’s Office and District Attorney Don Burkett (Record

Document 5), the Sabine Parish School Board (Record Document 15), and the Sabine

Parish Sheriff’s Department (Record Document 21).

I. Legal Standard

In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough

facts to state a claim [for] relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007). A complaint need not contain detailed factual allegations but

does require more than mere labels and conclusory statements. See id. at 555.

Importantly, a “formulaic recitation of the elements of a cause of action will not do.” Id.

When evaluating a pleading, courts must accept all factual allegations as true, but need

not accept legal conclusions as facts. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“Determining whether a complaint states a plausible claim for relief [is]… a context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 679. Facial plausibility is present when the plaintiff “pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556).

II. Sabine Parish District Attorney’s Office and District Attorney Don

Burkett’s Motion to Dismiss (Record Document 5)

Plaintiffs have sued the Sabine Parish District Attorney’s Office (“DA’s Office”) and

District Attorney Don Burkett (“Burkett”) in his official and personal capacities. See Record

Document 26 at ¶8. The official capacity claims against Burkett and the claims against

the DA’s Office as a whole are duplicative, and the Court will proceed to analyze them

together as claims against the DA’s Office. The personal capacity claims against Burkett

appear to be made against him in his role as prosecuting attorney. See id. This distinction

is important because Plaintiffs’ allegations state that in addition to serving as the elected

District Attorney, Burkett also represents the Sabine Parish School Board (“School

Board”). See id. at ¶110. This dual representation is statutorily mandated, pursuant to

Louisiana Revised Statute 42:261.

A singular motion to dismiss has been filed on behalf of the DA’s Office and

Burkett. See Record Document 5. It argues immunity from some claims and insufficient

pleading for others. See Record Document 5-1. Plaintiffs counter with attempted

explanations of their precise claims to avoid immunity, and with arguments in support of

the strength of their allegations. See Record Document 13.

A. Prosecutorial Immunity and Standing

Underscoring any suit against a prosecutor or his office are the related concepts

of absolute and qualified immunity. While prosecutorial acts more often than not qualify

for absolute immunity, “the actions of a prosecutor are not absolutely immune merely

because they are performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993). Rather, the prosecutor seeking absolute protection bears the burden of showing

that such immunity is justified for the function he performs. See Burns v. Reed, 500 U.S.

478, 486 (1991). For state prosecutors, absolute immunity is available for conduct that is

“intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman,

424 U.S. 409, 430 (1976).

Courts distinguish between (1) actions taken “in preparing for the initiation of

judicial proceedings or for trial, and which occur in the course of [the prosecutor’s] role as

an advocate for the State,” and (2) “administrative duties and those investigatory functions

that do not relate to an advocate’s preparation for the initiation of a prosecution or for

judicial proceedings.” Singleton v. Cannizzaro, 956 F.3d 773, 779-80 (5th Cir. 2020)

(quoting Buckley, 509 U.S. at 273). The former will be subject to absolute immunity, while

the latter, so-called investigatory functions, may be eligible for only qualified immunity.

See Burns, 500 U.S. at 496 (holding that a prosecutor’s participation in a probable cause

hearing qualified for absolute immunity, whereas legal advice he gave to police earned

only qualified immunity).

Whether an act is entitled to qualified immunity depends on if the official’s conduct

violated clearly established statutory or constitutional rights of which a reasonable person

would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts must

determine whether the government official’s actions were objectively reasonable in light

of law which was clearly established at the time of the disputed action. See Collins v.

Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004). Qualified immunity supports all but the

plainly incompetent or those who knowingly violate the law. See Burns, 500 U.S. at 480.

Tied to the concept of prosecutorial immunity is the widely recognized rule that “a

private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution

of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Recently, the Fifth Circuit

discussed the breadth of Linda R.S., stating that “every court to our knowledge to have

addressed this question prior to this case agrees that a crime victim may not challenge a

prosecutor’s failure to investigate or prosecute his perpetrator.” Lefebure v. D’Aquilla, 987

F.3d 446, 447 (5th Cir. 2021). With this framework in place, the Court is prepared to

analyze the instant motion to dismiss.

B. Equal Protection

The DA’s Office and Burkett argue Plaintiffs’ Equal Protection claims are rooted in

failures to prosecute and investigate the alleged sexual assault of P.G., as well as for

advising police on how to handle the matter. See Record Document 5 at 2-5.

Consequently, they argue for dismissal under absolute and qualified immunity, as well as

for a lack of standing. See id. Plaintiffs clarify that the alleged failures and advice to police

are not the foundation of the claims themselves, but rather examples of differential

treatment towards black and white victims of crime that comprise their overarching Equal

Protection claims. See Record Document 13 at 4-6. Plaintiffs state repeatedly throughout

their opposition memorandum:

Plaintiffs alleged that Don Burkett failed to review their case, failed to investigate

the matter, failed to recuse himself (if he couldn’t be fair and impartial because of

dual representation of the School Board and the District Attorney’s office), failed to

keep victim and his family reasonably informed of the proceedings, failed to keep

victim and his family reasonably informed of location and actions of perpetrators,

went out of his way to instruct Chief of Police to withhold public information to the

victim and his family, failed to disclose to the victim that they were or could have

been entitled to benefits as victims of a crime, and unlawfully modified bonds of

perpetrators unilaterally without informing the victim or his family. Plaintiffs, further,

allege that these actions were taken with a discriminatory intent as the [P]laintiffs

are of African American descent.

Id. at 1, 6 & 16. This, they argue, removes their claims from the realm of prosecutorial

immunity and warrants survival under Rule 12(b)(6).

The Court disagrees. Even construing Plaintiffs’ allegations in accordance with

their desires, as examples of discrimination rather than independent claims themselves,

the basic foundation of their alleged Equal Protection violations remains (1)

disagreements with the investigation or lack thereof, (2) a failure to prosecute, and (3)

advice given to police concerning the investigation. The Fifth Circuit’s recent decision in

Lefebure and decades of case law clearly preclude liability for any investigatory or

prosecutorial decisions that victims may find objectionable. As for legal advice to police

concerning the publicization of information, qualified immunity applies because the advice

provided was not objectively unreasonable in light of clearly established law. Given the

sensitive nature of the crime and the minor status of the victim and perpetrators,

instructing police to withhold information from the public did not violate clearly established

law. Such practice, undoubtedly common in sexual assault cases involving minors, falls

within the shield of qualified immunity and cannot be actionable.

Even were the Court to determine the alleged acts fall outside the realms of

immunity or standing principles, Plaintiffs’ Equal Protection claims fall short, as the bald

assertions of discriminatory intent and the conclusory allegations of an Equal Protection

violation cannot withstand 12(b)(6) scrutiny. While Plaintiffs allege discrimination dozens

of times in their Amended Complaint, they do so without any supporting detail on why or

how any alleged failures in the investigation or prosecution of this crime evidence an

Equal Protection violation.2 Plaintiffs’ amendments to their initial pleadings do provide

instances where white and black students have been disciplined differently within Many

2 For example, Paragraph 65 states “[o]n information and belief, DEFENDANTS have a history of

discriminating against African Americans, juveniles, and indigent people. DEFENDANTS have treated

sexual assault reports from these classes of individuals with less priority than other crimes not involving

these classes, with not legal, lawful, or rational basis or justification.” See Record Document 26.

High School, but each of these examples concerns intra-school punishment as opposed

to criminal charges brought by the DA’s Office. See Record Document 26 at ¶¶51-60.

Simply put, Plaintiffs have provided nothing more than conclusory allegations that the

DA’s Office or Burkett as a prosecutor treat black and white crime victims differently.3

The Equal Protection claims brought against the DA’s Office and Burkett must be

dismissed, as they are rooted in allegations from which prosecutors may not be held

liable. Even assuming otherwise, Plaintiffs have also failed to set forth sufficiently detailed

allegations to state a claim for relief under this constitutional provision. Accordingly,

Plaintiffs’ Equal Protection claims against the DA’s Office and Burkett are hereby

DISMISSED.

C. Due Process

Similar to Plaintiffs’ Equal Protection claims, their Due Process allegations revolve

around disagreements with investigatory and prosecutorial decisions. See id. at ¶¶74-95.

For example, Paragraph 86 of Plaintiffs’ Amended Complaint provides:

DEFENDANTS’ failure to Investigate deprived COMPLAINANTS of their

substantive due process rights by taking his property, failing to prosecute the

crime, failing to investigate the crime, failing to protect, failing to present evidence

to the necessary agency, and failure to prosecute all alleged perpetrators for their

involvement in the crime.

See id. at ¶86. The Amended Complaint then specifically names Burkett as committing a

“taking” without substantive due process by failing to pass along video evidence to the

FBI. Id. at ¶87.

3 At times, Plaintiffs argue Defendants, including the DA’s Office, discriminate against “African American

males, juveniles, and indigent people.” See, e.g., Record Document 26 at ¶65. While stated in their

pleadings, Plaintiffs have devoted their attention entirely to racial discrimination, offering no specific

allegations or arguments concerning age or financial status. Consequently, the Court will also focus solely

on potential race discrimination in its analysis.

Again, the large body of case law on this subject explicitly forecloses Plaintiffs’

allegations regarding failures to investigate and prosecute that form the basis of their Due

Process claims. Plaintiffs’ complaints of a “taking” of their personal property—the video

evidence of the assault—is likewise related to the investigation and potential prosecution

of the crime. Additionally, Plaintiffs have not demonstrated how they possessed or lost a

property interest in their copy of an online video from which additional copies were made

by law enforcement at the behest of Rose Garner. Accordingly, this claim, too, must be

DISMISSED against the DA’s Office and Burkett.

D. Conspiracy Claims

Next, Plaintiffs allege an overarching conspiracy to cover-up the assault and

impede the investigation and prosecution of the perpetrators. See Record Document 26

at ¶¶96-114. Their claims arise under 42 U.S.C. § 1985 and for civil conspiracy under §

1983. See id. The Garners recite a lengthy list of actions that they believe evidence a

prior agreement amongst, inter alia, the DA’s office, the School Board, and law

enforcement. See id. at ¶101. The DA’s Office counters, once again, that the basis for

their alleged role in the conspiracy remains rooted in nonviable claims. See Record

Document 5-1.

Section 1985 prohibits conspiracies “for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal protection of the laws.” 42 U.S.C.

§ 1985. “To state a claim under § 1985(3), a plaintiff must allege: (1) a conspiracy

involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a

person or class of persons of the equal protection of the laws; and (3) an act in furtherance

of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any

right or privilege of a citizen of the United States.” Texas Democratic Party v. Abbott, 961

F.3d 389, 410 (5th Cir. 2020) (citing Hilliard v. Ferguson, 30 F.3d 649, 652-52 (5th Cir.

1994)). Similarly, “the elements of civil conspiracy are (1) an actual violation of a right

protected under § 1983 and (2) actions taken in concert by the defendants with the

specific intent to violate the aforementioned right.” Angelle v. Town of Duson, 2018 WL

4649788 at *8 (W.D. La. Aug. 7, 2018).

In arguing for the existence of a conspiracy involving the DA’s Office and Burkett,

the Garners point to (1) the failures to prosecute and investigate, (2) the withholding of

information, and (3) Burkett’s dual representation as District Attorney of Sabine Parish

and counsel for the School Board. See Record Document 13 at 11-12. As discussed,

these first two alleged collusive actions are protected by absolute and qualified immunity,

and lack standing. This mandates the dismissal of these claims against the DA’s Office.

The third allegation supporting a conspiracy with Burkett at its center, however,

requires a more thorough analysis. The Court ordered supplemental briefing on this

contention, particularly to address the impact of Louisiana Revised Statute 42:261, which

establishes parish district attorneys as the “ex officio” counsel for school boards within

their jurisdictions. See Record Document 33; La. Stat. Ann. § 42:261. Burkett and the

DA’s Office argue that a conspiracy between a client and its lawyer is a legal impossibility,

so long as the actions of the attorney remain within the scope of the attorney-client

relationship. See Record Document 34. Plaintiffs argue the statutorily mandated

representation has no effect on their conspiracy claims, and Burkett should have recused

himself from the matter because of a severe conflict of interest.4 See Record Document

35.

While the Fifth Circuit has not directly addressed attorney-client conspiracies,

particularly in light of § 42:261, it has analyzed the general rule that agents and employees

cannot conspire with their principals or employers and extended that bar to the school

setting. See Hilliard, 30 F.3d at 653. In Hilliard, the court held the plaintiffs’ § 1985(3)

claim was properly dismissed because a school superintendent and his overseeing

school board were the same collective entity, and thus, the conspiracy did not involve two

or more people. See id.

Sister circuits have considered claims of conspiracies between attorneys and

clients and held that so long as the attorney’s actions fall within the broad scope of

representation, his conduct is immune from an alleged conspiracy. See Farese v.

Scherer, 342 F.3d 1223, 1232 (11th Cir. 2003); see also Heffernan v. Hunter, 189 F.3d

405, 413 (3d Cir. 1999). This holds true “even if the challenged activity violates the canons

of ethics.” Farese, 342 F.3d at 1232. If such an ethical violation is indeed present,

sufficient remedies exist “under state law through court imposed sanctions or reference

to state disciplinary bodies.” Heffernan, 189 F.3d at 413.

Here, Burkett and the School Board maintain an attorney-client relationship that is

perhaps even stronger than these cases due to the statutory mandate of the arrangement.

Unlike the attorneys in Farese or Heffernan, Burkett did not voluntarily take on the School

4 In support of their conspiracy argument, the Garners reference a former instance where Burkett recused

himself and his office from the prosecution of two teachers at Many Junior High School. See Record

Document 35 at 1. This allegation was first raised by the Garners in their opposition to the School Board’s

motion to dismiss as an accompanying news article exhibit. See Record Document 27-2. However, the

Court cannot consider this extrinsic evidence on a motion to dismiss, as it was not referenced in the

Plaintiffs’ pleadings. See All Green Corp. v. Wesley, 2021 WL 314290 at *2 (W.D. La. Jan. 29, 2021) (citing

Scanlan v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003)).

Board as a client, but rather was assigned this additional duty by virtue of his election as

District Attorney. The actions allegedly taken by Burkett, which the Garners believe

evidence a conspiracy, clearly fall within the scope of a typical attorney-client relationship.

See Record Document 34 at 6-8. Further, any potential ethical violations arising from his

involvement in this case have no effect on the viability of Plaintiffs’ conspiracy claims.

Consequently, the Garners’ conspiracy claims against Burkett and the DA’s Office must

be DISMISSED.

E. Fourth Amendment Violation

Plaintiffs allege a Fourth Amendment violation occurred when unknown deputies

of the Sabine Parish Sheriff’s Office entered their home without consent or a warrant and

took pictures of the home and attempted to intimidate P.G. See Record Document 26 at

¶115. According to the Garners, deputies did not knock before entering and left

immediately when questioned by P.G. as to why they were there. See id. at ¶117. The

Amended Complaint also states that “eyewitnesses” believe deputies had been watching

the home for some time because they entered through the back door, as the Garners

typically did. Id. at ¶118.

This claim appears to connect to the DA’s Office through the alleged conspiracy.

See id. at ¶116. The only factual support offered that this home entry was planned

amongst multiple Defendants is temporal proximity to the report of the sexual assault.

See id. No additional allegations addressing possible involvement by the DA’s Office or

Burkett are present. While unquestionably odd, Plaintiffs’ pleadings do not address any

involvement or coordination by the DA’s Office or Burkett in this event, and this claim must

be DISMISSED.

F. Lack of Policies and Procedures

Plaintiffs allege that “Defendant-Municipalities” have failed to generate policies to

protect black males from sexual assault, constituting deliberate indifference. Id. at ¶124.

Plaintiffs specifically allege that the DA’s office does not:

have a policy concerning investigation and prosecution of juvenile rape cases

when the perpetrators are juvenile or are adults that are in high school, concerning

taking statements from parents of rape victims, containment of rape videos,

protecting youths from bullying, rape, sodomization, dissemination of child

pornography.

Id. at ¶128. In support of this claim, Plaintiffs include a list of nineteen acts by Burkett and

the DA’s Office that they believe demonstrates the lack of an appropriate policy. See id.

at ¶156.

Aside from the fact that the foundation of these allegations are disagreements with

the investigatory and prosecutorial decisions made, they do not represent an

independent, standalone cause of action. Rather, any alleged lack of policy is relevant

only to establish municipal liability under § 1983, which Plaintiffs have failed to do through

their Equal Protection, Due Process, and conspiracy claims against the DA’s Office. As

such, these allegations must be DISMISSED.

G. Intentional Infliction of Emotional Distress

Plaintiffs devote five paragraphs to their claim for intentional infliction of emotional

distress (“IIED”). See id. at ¶¶186-90. The most detailed allegation states:

DEFENDANTS’ conduct was extreme and outrageous. Knowing that the emotional

distress suffered by COMPLAINANTS was severe, DEFENDANTS desired or

acted with recklessness to inflict severe emotional distress and/or knew that

severe emotional distress would be certain or substantially certain to result from

the violent sexual assault.

Id. at ¶187. The additional allegations discuss the actions of the perpetrators in

committing the assault, reaching the conclusion that the actions of the Defendants “after

the rape support that they were working in concert with the perpetrators to commit and

cover-up the violent sexual act.” Id. at ¶190.

Plaintiffs’ pleadings tie the emotional distress suffered to the perpetrators of the

crime, not the DA’s Office or Burkett. To the extent the investigatory and prosecutorial

decisions are meant to encompass this cause of action, the Court reiterates that these

claims are not viable. Plaintiffs’ IIED claim must be DISMISSED.

H. Abuse of Process

Plaintiffs’ abuse of process claim appears to be against only Burkett himself, not

the DA’s Office. See id. at ¶¶191-93. The Amended Complaint alleges that Burkett:

used his authority as the DISTRICT ATTORNEY to impede the prosecution … by

modifying each perpetrators’ bond obligations, reducing their bonds, amending

their bills of information to misdemeanor hazing, in order to, impede or abuse his

authority and working against the regular conduct of the proceeding with an ulterior

purpose in mind.

Id. at ¶192. Burkett argues Plaintiffs have failed to state an abuse of process claim

because their allegations do not encompass an irregularity in the regular course of

criminal proceedings. See Record Document 5-1 at 19. Plaintiffs hold firm that the bond

modifications made by Burkett are only typically made by courts themselves, and

Burkett’s ulterior purpose was to help the School Board evade liability. See Record

Document 13 at 15.

In Louisiana, “an abuse of process claim has two essential elements: (1) the

existence of an ulterior purpose and (2) a willful act in the use of the process not proper

in the regular prosecution of the proceeding.” No Drama, LLC v. Caluda, 15-211 (La. App.

5 Cir. 10/14/15), 177 So.3d 747, 751. Plaintiffs have sufficiently pled the first required

element of this tort, arguing Burkett’s dual representation and desire to avoid liability on

behalf of the School Board was his ulterior motive. However, Plaintiffs fall short of

demonstrating an irregularity outside the regular course of criminal prosecution. As

argued in Defendants’ reply memorandum, if bond modifications are exclusively the

prerogative of the judiciary, then Burkett could not have unilaterally revised them absent

forgery, bribery, or another illegal act. See Record Document 14 at 5. This has not been

alleged by Plaintiffs. The remaining allegation constituting this claim—the charging

decision—is routinely made by district attorneys in the regular scope of their positions

and cannot form the basis of an abuse of process claim.

The Court agrees with Defendants. Plaintiffs’ allegations defeat themselves, as

they simultaneously admit that the action Burkett undertook is something he cannot do.

Without this second required element, this claim must be DISMISSED.

I. Summary of Plaintiffs’ Claims Against DA’s Office and Burkett

The DA’s Office and Burkett’s Motion to Dismiss (Record Document 5) is hereby

GRANTED. All of Plaintiffs’ claims against the DA’s Office and Burkett must be

DISMISSED.

III. Sabine Parish School Board’s Motion to Dismiss (Record Document

15)

The School Board similarly moves to dismiss all claims under Rule 12(b)(6). See

Record Document 15. Addressed in its motion are Plaintiffs’ (1) Equal Protection claims,

(2) Due Process claims, (3) conspiracy claims, (4) First Amendment allegations, (5) lack

of policy and procedure arguments, (6) IIED claims, and (7) criminal allegations. See

Record Document 15-1. The School Board argues Plaintiffs’ “sprawling” complaint fails

to allege sufficient facts for each of these claims or allegations, relying only on conclusory

statements and unsubstantiated beliefs. Id. at 1. Plaintiffs counter with their disagreement

and belief that plausible claims have been pled. See Record Document 27 at 6.

A. Equal Protection

The School Board breaks Plaintiffs’ Equal Protection claims into two parts— (1)

failure to prevent or protect P.G. from the sexual assault and (2) failure to respond

appropriately to it. See Record Document 15-1 at 7. With respect to an alleged failure to

protect P.G., it argues no special duty of care exists for schools to protect students from

violence by private actors. See id. at 7-10. As for an inadequate response, the School

Board argues Plaintiffs have failed to show their son was treated differently than similarly

situated individuals and have not sufficiently pled a policy or custom to hold the School

Board liable. See id. at 10-14.

i. Failure to Protect

First, the Court agrees that the School Board did not have a special duty to prevent

the sexual assault of P.G. by private actors. In DeShaney, the Supreme Court recognized

that the Due Process Clause generally does not impose upon the government an

affirmative duty of care to protect its citizens against the actions of private actors. See

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196 (1989).

While the Court did recognize that certain “special relationships” created or assumed by

the State with regard to particular individuals may constitute an exception to this general

rule, the Fifth Circuit has rejected this exception’s applicability to school-sponsored

activities held outside of normal school hours. See Priester v. Lowndes County, 354 F.3d

414, 422 (5th Cir. 2004); Leffall v. Dallas Independent School Dist., 28 F.3d 521, 529 (5th

Cir. 1994). Further, the Fifth Circuit has held that compulsory attendance laws alone do

not create a special relationship between schools and students, while at school during

normal hours. See Doe v. Hillsboro Independent School Dist., 113 F.3d 1412, 1415 (5th

Cir. 1997) (joining “every circuit court that has considered the issue in holding that

compulsory school attendance … does not create the custodial relationship envisioned

by DeShaney”).

While DeShaney and its progeny concern the Due Process Clause, the Fifth Circuit

has “cautioned that the Equal Protection Clause should not be used to make an end-run

around the DeShaney principle.” Beltran v. City of El Paso, 367 F.3d 299, 304 (5th Cir.

2004); see also McKee v. City of Rockwall, 877 F.2d 409, 413 (5th Cir. 1989) (warning

that DeShaney could easily be circumvented if plaintiffs were allowed to convert “every

Due Process claim into an Equal Protection claim, via an allegation that state officers

exercised their discretion to act in one situation and not another”).

Plaintiffs cannot skirt DeShaney through their Equal Protection claims. The law

clearly prohibits School Board liability for failing to protect P.G. from the assault at the

hands of his fellow students. Plaintiffs have not pled any allegations demonstrating a

special relationship between the school and P.G., outside of his compulsory attendance.

See Record Document 26 at ¶¶92-93. Accordingly, to the extent Plaintiffs’ Equal

Protection claims are rooted in a failure to protect, those claims must be DISMISSED.

ii. Failure to Respond

The School Board argues for dismissal of any claims based on an insufficient

response to the attack because of Plaintiffs’ failure to provide supporting detail as to how

their child was treated differently than similarly situated individuals because of his race.

See Record Document 15-1 at 11. The School Board also asserts that Plaintiffs have

failed to sufficiently describe and support a policy or custom through which municipal

liability could attach. See id. at 12-14. Even after Plaintiffs amended their complaint to

include alleged examples of racial disparities within Many High School, the School Board

continues to argue that a precisely analogous situation has not been pled. See Record

Document 30.

Plaintiffs’ Amended Complaint added ten paragraphs of claimed instances at Many

High School where black students were allegedly treated differently than white students.

See Record Document 26 at ¶¶51-60. They include descriptions of white students

obtaining permission to get dressed in the coach’s office instead of the locker room, the

expulsion of a black student for a firearms arrest outside school hours compared to a

white student who brought a gun to school and was permitted to return, and the denial of

P.G.’s hardship exemption to play sports after changing schools when white students are

routinely granted such exemptions. See id. Most notably, Plaintiffs also allege that the

day prior to P.G.’s attack, another black student was sexually assaulted in the same

manner, and the School Board failed to take action. See id. at ¶53. Plaintiffs believe that

had this student or P.G. been white, the response would have been different. See id.

The School Board’s position is that Plaintiffs have failed to allege a perfectly

analogous situation of the sexual assault of a white student who received a more thorough

and favorable investigation process, and thus, their Equal Protection claims must fail

under either a traditional suspect class analysis or a “class of one” argument. See Record

Document 15-1 at 11. The Court cannot accept this stance. At this early stage of the

litigation, Plaintiffs have pled enough factual allegations, which if true, plausibly suggest

differential treatment based on race at Many High School. Particularly persuasive to the

Court is the alleged attack on another black student the day prior to P.G., which garnered

a similarly lackluster response. See id. This allegation, coupled with Plaintiffs’ other

alleged discriminatory instances, satisfies the need to plead differential treatment among

similarly situated individuals within Many High School.

Based on these specific allegations of differential treatment, Plaintiffs have likewise

met the plausibility burden for municipal liability. In order to hold a municipality, such as

a school board, liable under § 1983, a plaintiff must show that (1) an official policy (2)

promulgated by the municipal policymaker (3) was the moving force behind the violation

of a constitutional right. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.

2001). Plaintiffs are required to link governmental misconduct to a specific policy or

custom through detailed factual allegations. See Spiller v. City of Texas City, Police Dept.,

130 F.2d 162, 166-67 (5th Cir. 1997). While official policies typically exist in the form of

written policy statements, ordinances, or regulations, they may also arise in the form of

widespread practices that are “so common and well-settled as to constitute a custom that

fairly represents municipal policy.” Webster v. City of Houston, 735 F.2d 838, 841 (5th

Cir. 1984). Consequently, isolated violations do not represent “persistent, often repeated,

constant violations that constitute custom or policy.” Bennett v. City of Slidell, 728 F.2d

762, 768 n. 3 (5th Cir. 1984).

While the Garners do not point to a specific enumerated policy for the handling of

sexual assault amongst students, they repeatedly allege that a widespread practice to

deny or limit sexual assault investigations of black student victims is present. Although

this allegation in itself is a conclusory statement, entitled to no deference from the Court,

Plaintiffs have pled supporting allegations in the form of instances of differential treatment

for white and black students. See Record Document 26 at ¶¶51-60. Once again, the Court

is persuaded by the particular allegation that another black student was sexually

assaulted in a similar manner the day prior to P.G. and also received a minimal response.

See id. at ¶53. A second, prior, racially based assault without discipline removes what

happened to P.G. from the realm of an isolated, one-off incident and plausibly suggests

something more than mere negligence or failure to follow district policy. Taken in the light

most favorable to Plaintiffs, this assertion and other examples of potential discriminatory

treatment lead the Court to reject dismissal of Plaintiffs’ Equal Protection claims at this

early stage of the proceedings.

B. Due Process

Plaintiffs’ Amended Complaint adds a lengthy list of actions by the School Board

that they believe constitute a Due Process violation. See Record Document 26 at ¶91.

Plaintiffs’ central argument is the School Board violated their substantive due process

rights by failing to have policies in place to prevent sexual assaults and bullying at Many

High School and abdicating their investigatory and disciplinary roles. See id. In response

to the School Board’s DeShaney argument, Plaintiffs plead that a “special relationship

does exist between SCHOOL BOARD and its students as Louisiana law does require that

students attend school.” Id. at ¶92.

As discussed, DeShaney holds that an affirmative duty on behalf of schools to

protect their students from private actors exists only in limited circumstances. See 489

U.S. at 196. Compulsory attendance laws alone do not create the required “special

relationship” for the Due Process Clause to provide a cognizable avenue for redress. See

Doe, 113 F.3d at 1415 (5th Cir. 1997). Consequently, Plaintiffs’ Due Process claims must

be DISMISSED.

C. Conspiracy

Although the Garners’ conspiracy claims against Burkett and the DA’s Office are

foreclosed by various legal principles, these claims against the School Board remain

viable because other Defendants remain in the lawsuit that the Plaintiffs allege conspired

with the School Board. The Garners have plausibly pled an Equal Protection violation

against this entity, and whether the remaining Defendants can or cannot be part of a

conspiracy remains an open question that may be the subject of future motion practice.

Until the conspiracy claims against the remaining Defendants are properly before the

Court, Plaintiffs’ conspiracy claims against the School Board must be permitted to

proceed.

D. First Amendment

While discussed in the School Board’s motion to dismiss, Plaintiffs do not explicitly

assert a First Amendment claim, nor do they address such a violation in their opposition

memorandum. The Court is unable to ascertain any logical basis for a First Amendment

claim based on Plaintiffs’ allegations. As such, to the extent any claim was intended to be

asserted under the First Amendment, it is hereby DISMISSED.

E. Policies, Procedures, or Lack Thereof

While Plaintiffs’ pleadings contain a section of allegations concerning deficient or

nonexistent policies and procedures regarding sexual assault in school or the

investigation of student crime, these do not constitute independent, standalone claims for

relief. Instead, these allegations must be tied to possible § 1983 municipal liability, which

relies upon a policy or custom showing. As set forth above, Plaintiffs have demonstrated

a viable Equal Protection claim against the School Board, partly based on a possible

custom of racial discrimination towards black students. This set of allegations included in

Plaintiffs’ Amended Complaint, albeit not claims in themselves, may proceed alongside

the Garners’ Equal Protection claims.

F. Intentional Infliction of Emotional Distress

While somewhat amorphously pled in their Amended Complaint, Plaintiffs argue

the School Board committed the state law tort of IIED through its actions and inactions

following P.G.’s assault. See Record Document 27 at 13. Specifically, they challenge the

School Board’s failure to inform the Garners of the assault and to report the crime to a

law enforcement agency, failure to grant P.G.’s sports hardship exemption and award him

his lettermen’s jacket, and decision to force P.G. to attend school online, which together

they believe were designed to harass P.G. and suppress the sexual assault. See id. The

School Board argues these actions fail to satisfy IIED’s essential elements. See Record

Document 15-1 at 22.

“In order to prove a claim for intentional infliction of emotional distress, a plaintiff

must show (1) that the conduct of the defendant was extreme and outrageous; (2) that

the emotional distress suffered by the plaintiff was severe; and (3) that the defendant

desired to inflict severe emotional distress or knew that severe emotional distress would

be certain or substantially certain to result from his conduct.” Yazdi v. Lafayette Parish

School Board, 2019 WL 4805835 at *6 (W.D. La. Sept. 30, 2019) (citing White v.

Monsanto Co., 585 So.2d 1205, 1209 (La. 1991)). Extreme and outrageous conduct is

that which goes “beyond all bounds of decency, [so as] to be regarded as atrocious and

utterly intolerable in a civilized community.” Id.

The post-assault actions by the School Board that comprise Plaintiffs’ IIED claim

do not rise to the level of extreme and outrageous conduct. Plaintiffs’ pleadings link the

assault itself to their son’s emotional distress, and although the School Board’s decisions

in its aftermath are questionable, they do not approach the “utterly intolerable” standard

required to state a claim for IIED. Accordingly, this claim must be DISMISSED.

G. Criminal Allegations

Finally, the School Board seeks to address Plaintiffs’ references of criminal

conduct. See Record Document 15-1 at 24. Plaintiffs allege generally that the Defendants’

actions in this case “arise [sic] to the level of Accessory After the Fact of Sexual Battery,

2nd Degree Kidnapping, Distribution of Child Pornography, Assault, Battery, and other

crimes under Louisiana State Criminal law.” Record Document 26 at ¶187. The Court

need not devote serious attention to these wild allegations and reminds Plaintiffs they are

pursuing a civil action in a United States federal district court. Any criminal allegations

made against the School Board are hereby DISMISSED.

H. Summary of Plaintiffs’ Claims Against the School Board

The School Board’s Motion to Dismiss (Record Document 15) is hereby

GRANTED IN PART and DENIED IN PART. Plaintiffs’ Equal Protection claims founded

on an inadequate response and their conspiracy claims remain, but all other remaining

claims and allegations must be DISMISSED.

IV. Sabine Parish Sheriff's Department’s Motion to Dismiss (Record

Document 21)

The final pending motion to dismiss in this matter has been resolved. Plaintiffs’

original filing named the Sabine Parish Sheriffs Department (“Sheriffs Department”)

through Sheriff Aaron Mitchell (“Mitchell”) as a Defendant. See Record Document 1 at §8.

The Sheriffs Department moved for dismissal from the suit as an entity lacking the

capacity to be sued. See Record Document 21-1. Plaintiffs agreed with this argument,

and their Amended Complaint now pursues Mitchell in his official capacity. See Record

Document 26 at As a result of this correction, the Sheriffs Department's Motion to

Dismiss (Record Document 21) is hereby DENIED AS MOOT.

CONCLUSION

The instant case presents serious allegations stemming from a horrific incident.

While many of Plaintiffs’ claims must be dismissed as nonviable or insufficiently pled,

claims for an Equal Protection violation and potential conspiracy against the School Board

may proceed. An order consistent with the terms of this ruling shall issue herewith.

THUS DONE AND SIGNED in Shreveport, Louisiana on this 9th day of

September, 2021.

Getic on /pele /

S. MAURICE HICKS, JR., CHIEF JUD

UNITED STATES DISTRICT COURT

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