Jones v. American Alternative Insurance Corp

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

TAMERA JONES, ET AL. CIVIL ACTION NO. 21-690

VERSUS JUDGE ELIZABETH E. FOOTE

AMERICAN ALTERNATIVE INSURANCE MAGISTRATE JUDGE HORNSBY

CORP., ET AL.

MEMORANDUM RULING

Before the Court is a motion to dismiss, filed by Defendants the City of Shreveport (the

“City”), Shreveport Police Chief Ben Raymond (“Raymond”), Shreveport Police Officers ‘Treona

McCarter (“McCarter”), Brian Ross (“Ross”), D’matea Johnson (“Johnson”), and James LeClare

(“LeClare”), Shreveport Fire Chief Scott Wolverton (“Wolverton”), Shreveport Fire Captain Billy

Glass (“Glass”), Shreveport Fire Engineer Joshua Yelvington (“Yelvington”), and Shreveport

Firefighter Clint Richardson (“Richardson”) (collectively, “Defendants”). Record Document 34.

The motion has been fully briefed. For the reasons below, Defendants’ motion to dismiss [Record

Document 34] is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Plaintiffs are the surviving heits of Tommie McGlothen, Jr. (“McGlothen”). According to

Plaintiffs’ amended complaint, on April 5, 2020, McGlothen died after a violent encounter with

Shreveport Police Officers McCarter, Ross, Johnson, and LeClare (collectively, the “Police Officer

Defendants”). Record Document 28. Plaintiffs allege that at about 5:29 p.m., McGlothen’s father

called police and requested assistance because McGlothen, a paranoid schizophrenic, was not on

his medication and was expetiencing a mental breakdown. Id. 15. Officer Johnson responded to

the call. Plaintiffs, however, do not detail what happened after Officer Johnson arrived. Id.

Page 1 of 22

At approximately 6:30 p.m., McGlothen had a second encounter with police. Id □□ 16.

According to Plaintiffs, McGlothen was still in crisis and encountered Officer Ross. Plaintiffs,

however, do not allege why or how Officer Ross encountered McGlothen. The complaint further

states that Officer Ross handcuffed McGlothen without incident but then released him after a

citizen declined to press charges.! Id.

Around 7:42 p.m., McGlothen had a third encounter with police. Jd. | 17. Plaintiffs contend

that Officers McCarter, Ross, Johnson, and LeClare physically engaged McGlothen. Id {| 19.

However, Plaintiffs’ complaint does not establish why the officers engaged McGlothen ot whether

the interaction was unprovoked. Plaintiffs maintain that during this encounter, the Police Officer

Defendants struck McGlothen with a baton and punched, kicked, pepper sprayed, and tased him.

Record Document 45 at 1. Specifically, Plaintiffs assert that Officer Ross peppet sprayed

McGlothen, hit him with his baton, and tased him 6 times for 34 seconds total, 29 of which were

continuous. Record Document 28 Jf] 20, 41, & 43. Additionally, Plaintiffs aver that Officer

McCarter tased McGlothen, that Officer Johnson tased McGlothen three times, and that Officer

LeClare punched McGlothen in the face. Jd. {| 21, 44, 45, & 48.

After handcuffing McGlothen, Plaintiffs claim that Officers McCarter and LeClare

punched him in the face and that Officer Johnson forcibly shoved him to the ground. Id. {J 44 &

46. Additionally, Plaintiffs allege that Officer LeClare slammed McGlothen on the hood of the

police vehicle and elbowed him in the face. Id. | 47.

At about 7:47 p.m., McGlothen was shoved into the police vehicle with “his head near the

floorboard and his feet in the ait.” Id. § 23. At some point, McGlothen became seated upright. At

' The Court surmises that Officer Ross was responding to a citizen complaint, but Plaintiffs’

complaint fails to establish this fact.

Page 2 of 22

approximately 7:58 p.m., Shreveport Fire Captain Glass, Shreveport Fire Engineer Yelvington, and

Shreveport Firefighter Richardson (collectively, the “Responding Fire Defendants’) arrived at the

scene to assess officers for injuries. Id. § 26. One of the Responding Fire Defendants gave one of

the Police Officer Defendants a spit hood to put on McGlothen to stop him from spitting; one of

the Police Officer Defendants placed the spit hood on McGlothen even though they had not

decontaminated him after he was sprayed at least three times with pepper spray. Id. J 26 & 28.

At approximately 8:05 p.m., McGlothen was removed from the police vehicle so that the

Responding Fite Defendants could evaluate him. Id. { 29. However, Plaintiffs allege that the Police

Officer Defendants failed to disclose that they had used force on McGlothen. Id. 53. According

to Plaintiffs, this evaluation was cursory and lasted only one minute and sixteen seconds. Id. □ 30.

Soon after, the officers placed McGlothen back in the police vehicle and left him unattended. Id.

30, 31, 32, & 33.

Plaintiffs assert that at about 8:20 p.m., McGlothen stopped breathing in the back of the

police car. Id. § 32. Approximately 16 minutes later, one of the Police Officer Defendants noticed

that McGlothen was unresponsive. Id. J] 33. The officers removed McGlothen from the vehicle

and attempted to perform CPR until EMS arrived. Id. { 35. McGlothen was then transported to

Willis-Knighton North Hospital where it was discovered that McGlothen was severely acidotic, in

sevete shock, and hypotensive. Id J 38. Later that night, McGlothen died. Id 39. Plaintiffs

maintain that Defendants caused McGlothen to die from “metabolic acidosis, shock, and cardiac

arrest.” Id. ¥ 37.

After McGlothen’s death, Plaintiffs claim that the Shreveport Fire Department and

Shreveport Police Department did not timely launch an investigation into the responding officials’

conduct surrounding McGlothen’s death. Id at 18-20. According to Plaintiffs, an internal affairs

Page 3 of 22

review of the Responding Fire Defendants found that they had committed multiple violations of

depattment policies. Id. On September 18, 2020, a Caddo Parish Grand Jury indicted Officers Ross,

LeClare, McCarter, and Johnson on charges of malfeasance in office and negligent homicide. Id. {

13. This suit followed.

Plaintiffs assert a multitude of federal and state law claims surrounding McGlothen’s death.

Defendants have filed a motion to dismiss in which they seek to dismiss all claims, and they assert

qualified immunity as a defense against all individual capacity claims. Record Document 34.

LAW & ANALYSIS

I. Motion to Dismiss Standard

In order to sutvive a motion to dismiss brought under Rule 12(b)(6), a plaintiff must “state

a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court

must accept as true all of the factual allegations in the complaint in determining whether a plaintiff

has stated a plausible claim. See Be// Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); In re Katrina

Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). However, a court is “not bound to accept

as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286

(1986). A court may dismiss an otherwise well-pleaded claim if it is premised upon an invalid legal

theory. Neitzke v. Wilkams, 490 U.S. 319, 327 (1989). If a complaint cannot meet this standard, it

may be dismissed for failure to state a claim upon which relief can be granted. Igba/, 556 USS. at

678-79. A court does not evaluate a plaintiffs likelihood for success, but instead determines

whether a plaintiff has pleaded a legally cognizable claim. U.S. ex red Raley v. St. Luke’s Episcopal

Hosp., 355 F.3d 370, 376 (5th Cir. 2004).

Page 4 of 22

II. Official Capacity Claims

In suits brought under 42 U.S.C. § 1983, state officials can be sued in their individual and/or

official capacities. Initially, Plaintiffs named Chief Raymond and Officers McCarter, Ross, Johnson,

and LeClare in their official and individual capacities. See Record Document 1. However, in their

amended complaints, Plaintiffs do not state whether they are seeking relief against any Defendant

in his or her individual or official capacities. See Record Documents 28 & 45. When the pleadings

do not clarify the capacity of the officer, a court may assume that Plaintiffs seek relief against the

officials in both capacities.2 See Grafton v. Bailey, No. CV 13-2940, 2018 WL 2325410, at *6 (W.D.

La. May 22, 2018).

“Official capacity suits generally represent another way of pleading an action against an

entity of which an officer is an agent.” Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999);

see Lewis v. Clarke, 137 8. Ct. 1285, 1290-91 (2017). An official capacity suit against a municipal

officer duplicates a suit against the officer’s municipality, Turner v. Houma Mun. Fire C Police Civil

Sem. Bd, 229 F.3d 478, 483 (5th Cir. 2000) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)),

and a district court faced with both claims may dismiss the official capacity claims. Castro Romero v.

Becken, 256 F.3d 349, 355 (th Cir. 2001) (citing Flores v. Cameron Cuty., Tex., 92 F.3d 258, 261 (Sth

Cir. 1996)). Therefore, the official capacity claims against Police Chief Raymond, McCarter, Ross,

Johnson, LeClate, Fire Chief Wolverton, Glass, Yelvington, and Richardson are DISMISSED

WITH PREJUDICE as duplicative of the municipal lability claims against the City.

2 In their opposition brief, Plaintiffs state that Defendants are no longer named in their official

capacities. Record Document 40 at 13. Nevertheless, because the pleadings do not clearly abandon

the official capacity claims, the Court shall construe the pleadings to still assert such claims.

Page 5 of 22

III. Unlawful Arrest Claim

Defendants move to dismiss any putported unlawful arrest claim. Plaintiffs contend that

there is no unlawful arrest claim before the Court to dismiss. Considering this concession,

Defendants’ motion to dismiss any false arrest claim is DENIED AS MOOT as such claim is not

before the Court.

IV. Fourth Amendment Excessive Force Claims

A. Qualified Immunity under § 1983

Section 1983 provides a federal cause of action for “the deprivation of any rights, privileges,

ot immunities secured by the Constitution and laws” of the United States against any person acting

under color of state law. 42 U.S.C. § 1983. Section 1983 does not create substantive rights but

ptovides remedies to the rights established in the United States Constitution and other federal laws.

See Graham v. Connor, 490 U.S. 386, 393-94 (1989); City of ORlahoma City v. Tuttle, 471 U.S. 808, 816

(1985). To assert a claim for damages under this statute, a plaintiff must demonstrate “(1) a

deprivation of a right secured by federal law[,] (2) that occurred under color of state law, and (3)

was caused by a state actor.” Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004). Nonetheless,

the docttine of qualified immunity shields government officials from liability for claims against

them in their individual capacities “insofar as their conduct does not violate clearly established

statutory of constitutional rights of which a reasonable person would have known.” Harlow ».

Fitzgerald, 457 U.S. 800, 818 (1982). This protection exists to balance “the need to hold public

officials accountable when they exetcise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan,

555 U.S. 223, 231 (2009).

Page 6 of 22

The issue of whether qualified immunity applies should be resolved at the earliest possible

stage in the litigation. Porter v. Epps, 659 F.3d 440, 445 (Sth Cir. 2011). While qualified immunity 1s

technically an affirmative defense, it is the plaintiffs burden to negate the defense once it has been

raised. Pook v. Cty. of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

The issue of qualified immunity requires the Court to make a two-part inquiry: (1) whether

the facts alleged or shown by the plaintiff demonstrate a violation of a constitutional right, and (2)

if a violation has been established, whether the officer’s actions were objectively reasonable in light

of clearly established law at the time of the alleged misconduct. Saucer v. Katz, 533 U.S. 194, 201

(2001). A court may begin its analysis of qualified immunity with either prong. Gzbson v. Kilpatrick,

773 F.3d 661, 666 (5th Cir. 2014). If officers of reasonable competence could disagree as to whether

the plaintiff's rights were violated, the officer’s qualified immunity remains intact. See Tarver v. □□□□

of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986) (holding

that qualified immunity standard “gives ample room for mistaken judgments” by protecting “all

but the plainly incompetent or those who knowingly violate the law”).

B. Fourth Amendment Excessive Force Standard

The Fourth Amendment of the United States Constitution provides the “right to be free

from excessive force during a seizure.” Trammell v. Frage, 868 F.3d 332, 340 (5th Cir. 2017) (quoting

Pook, 691 F.3d at 627). The Fourth Amendment applies to state actors by virtue of the Fourteenth

Amendment. Morgan v. Chapman, 969 F.3d 238, 245 6th Cir. 2020). To prove an excessive force

claim, Bagley must show “(1) an injury (2) which resulted directly and only from a use of force that

was Clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Onsiveros v. □□□

of Rosenberg, Tex., 564 F.3d 379, 382 (th Cit. 2009) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th

Cir. 2007)). Excessitveness turns upon whether the degree of force used was reasonable tn light of

Page 7 of 22

the totality of the circumstances facing the officer in each case. Graham, 490 U.S. at 396 (citing

Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). Relevant factors include the “severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or others, and

whether he 1s actively resisting arrest or attempting to evade arrest by flight.” Jd These are known

as the Graham factors. When deciding whether to use force, officers must determine “not only the

need for force, but also ‘the relationship between the need and the amount of force used.” Deville

v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting Gomex v. Chandler, 163 F.3d

921, 923 (5th Cir. 1999)). The reasonableness of the officers’ conduct cannot be judged with the

benefit of hindsight, but it must be assessed from the viewpoint of a reasonable officer on the

scene at that very moment. See Graham, 490 U.S. at 396. Indeed,

[njot every push or shove, even if it may later seem unnecessary in the peace of a

judge’s chambers . . . violates the Fourth Amendment. The calculus of

reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is necessary in a particular

situation.

Id. at 396-97 (internal citations and quotation marks omitted). “Excessive force claims are thus

necessarily fact-intensive and depend on the facts and circumstances of each particular case.” Pook,

691 F.3d at 628 (cleaned up). The facts must be judged objectively “without regard to [the officet’s]

underlying intent or motivation.” Graham, 490 U.S. at 397.

Here, the Court finds that Plaintiffs have plausibly pled excessive force claims based on the

following allegations: (1) Officer McCarter punched McGlothen in his face multiple times after he

was secuted in handcuffs; (2) Officer Johnson shoved McGlothen to the ground after he was

secured in handcuffs; and (3) Officer LeClare slammed McGlothen on the hood of the patrol unit

and elbowed him in the face after he was secured in handcuffs. Record Documents 28 Ff 44, 46,

Page 8 of 22

& 47; 45 at 1; see also Record Document 45-1, Disk 1, McCarter Video DVR 547, at 19:46:58 to

19:47:46.

It has been clearly established since at least 2013 that after handcuffing and subduing a

suspect, it is unreasonable for an officer to strike an arrestee. See Bush v. Strain, 513 F.3d 492, 501—

02 (5th Cir. 2008) (establishing that force must stop when arrestee is handcuffed and subdued);

Ramirez v. Martinez, 716 F.3d 369, 378-79 (5th Cir. 2013) (same). Further, it 1s clearly established

that striking an arrestee who is merely passively resisting arrest is unlawful. Darden v. Cty. of Fort

Worth, Tex., 880 F.3d 722, 731 (5th Cir. 2018); Trammell, 868 F.3d at 343, Newman v. Guedry, 703

F.3d 757, 764 (6th Cir. 2012).

Accordingly, Defendants’ motion to dismiss is DENIED to this extent.

Notwithstanding the above conclusion, Plaintiffs have failed to plead enough facts to

ovetcome Defendants’ qualified immunity defense as to the use of force prior to handcuffing.

Based on the complaint, the Court does not know why the officers encountered McGlothen the

second or third time. The Court can surmise that the second encounter came from a citizen

complaint because Plaintiffs allege that a citizen declined to press charges. More importantly,

however, the complaint is bare of any detail as to the reason for the third encounter, which is

alleged to be when the officers used excessive force. Additionally, the complaint does not state the

level of resistance, if any, offered by McGlothen. Without this information, the Court is unable to

assess “the need for force” or “the relationship between the need and the amount of force used.”

Deville, 567 F.3d at 167 (internal quotation marks and citation omitted). Although Plaintiffs

successfully pled that the Police Officer Defendants used a substantial amount of force throughout

Page 9 of 22

the entire encounter with McGlothen, the complaint stops short of establishing facts to show that

the initial amount of force was disproportionate to the need.*

Whether or not the Police Officer Defendants’ initial use of force was warranted, “an

exercise of force that is reasonable at one moment can become unreasonable in the next if the

justification for the use of force has ceased.” Mason v. Lafayette City-Par. Consol. Gov't, 806 F.3d 268,

277 (5th Cir. 2015). “To stay within constitutional bounds, an officer must use force with measured

and ascending actions that correspond to a suspect’s escalating verbal and physical resistance.”

Joseph on behalf of Est. of Joseph v. Bartlett, 981 F.3d 319, 332-33 (5th Cir. 2020) (cleaned up). Plaintiffs

have not clearly alleged at what point each individual officer used force and the level of resistance

McGlothen offered at such time, if any. Although Plaintiffs make alarming allegations about the

sheer amount of force used on McGlothen when Defendants outnumbered him four to one, the

Court cannot ascertain at what point Plaintiffs contend the force became clearly excessive or

unreasonable. Thus, Plaintiffs cannot overcome the Police Officer Defendants’ qualified immunity

defense as to the force used before McGlothen was handcuffed. As stated in more detail below,

the Court will allow Plaintiffs an opportunity to amend their complaint.

V. Violation of Due Process or Summary Punishment

The Police Officer Defendants move to dismiss Plaintiffs’ Fourteenth Amendment claims

to the extent they mirror the claims that the Police Officer Defendants used excessive force.

3 The Court notes that Plaintiffs have not pincited to any portion of a video for the Court to

observe. The link attached to the second amended complaint is an invalid hyperlink. The portion

of the video cited by Defendants does not capture the encounter, though the audio does capture

loud yelling. Record Document 45-1, Disc 1, DVR 567, starting at 19:42. On its own review, the

Court reviewed the videos attached in Exhibit 1 to the second amended complaint around the 7:42

(19:42) mark. See Record Document 45-1. From the Court’s review, it does not appear that

any of the videos show the punching, kicking, baton strikes, use of pepper spray, or use of the

taser, as stated by Plaintiffs. If such video is in the record, the Court will require Plaintiffs to provide

more accurate pincites.

Page 10 of 22

Indeed, Plaintiffs’ allegations supporting these claims appear duplicative of their Fourth

Amendment excessive force claims. Because the force used on McGlothen related to his seizure,

the Fourth Amendment standard is the proper legal standard to evaluate Plaintiffs’ excessive force

claims, not the Fourteenth Amendment standard, which is applicable to pre-trial detainees. See

Graham v. Connor, 490 U.S. 386, 388 (1989); Morgan, 969 F.3d at 245 (stating that the Fourth

Amendment is applicable to state actors via the Fourteenth Amendment); Vaknaa v. Wiggins, 981

F.2d 1440, 1444 (5th Cir. 1993); Malbrough v. Sielly, 814 F. App’x 798, 801 n.7 (5th Cir. 2020) (“And

when a claim is properly analyzed under the Fourth Amendment, the Fourteenth is inapplicable.”).

Accordingly, Plaintiffs fail to state a claim for excessive force under the Fourteenth Amendment

standard; these claims are DISMISSED WITH PREJUDICE.

VI. Denial of Equal Protection under the Law

Plaintiffs accuse the Police Officer Defendants and Responding Fire Defendants of denying

McGlothen equal protection under the law in violation of the Fourteenth Amendment. “The Equal

Protection Clause directs that persons similarly situated should be treated alike.” Anokwuru v. Cty.

of Houston, 990 F.3d 956, 965 (th Cir. 2021) (citation omitted). “To state a claim under the Equal

Protection Clause, a § 1983 plaintiff must either allege that “(a) a state actor intentionally

discriminated against [him] because of membership in a protected class” or “(b) he has been

intentionally treated differently from others similarly situated and that there is no rational basis for

the difference in treatment.” Gzbson v. Tex. Dep’t of Ins.--Div. of Workers’ Comp., 700 F.3d 227, 238

(5th Cir. 2012) @nternal quotation marks and citations omitted). “[I]f the challenged government

action does not appear to classify or distinguish between two or more relevant persons or groups,

then the action—even if irrational—does not deny them equal protection of the laws.” Johnson v.

Rodriguez, 110 P.3d 299, 306 (5th Cir. 1997) (citation omitted).

Page 11 of 22

Here, Plaintiffs have alleged that McGlothen had a severe mental illness—paranoid

schizophrenia—and that at least Officers Ross and Johnson were aware that he had a mental illness

and was not on his medication. Record Document 28 {J 15 & 18. Although Defendants’ alleged

knowledge of McGlothen’s mental illness is relevant to Plaintiffs’ excessive force claims, Plaintiffs

have failed to allege facts to show that any defendant “intentionally discriminated” against

McGlothen because of his mental illness, nor have Plaintiffs alleged facts to show that McGlothen

was “intentionally treated differently from others similarly situated.” Gzbson, 700 F.3d at 238.

Accordingly, Plaintiffs have failed to state a claim fot a violation of Equal Protection pursuant to

the Fourteenth Amendment. Plaintiffs may amend their complaint regarding this claim.

VII. Prescription of Claims against Shreveport Fire Defendants

Defendants move to dismiss the claims against the Shreveport Fire Defendants based on

ptescription. In § 1983 suits, federal courts borrow the relevant state’s statute of limitations—te.,

Louisiana in this case. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Louisiana applies a one-

yeat prescriptive period for delictual actions, which encompass § 1983 suits. La. Civ. Code att.

3492; Eley v. Roberson, 868 F.2d 793, 794 (th Cir. 1989). “[T]he date a § 1983 claim accrues 1s

governed by federal law, not state law.” Campos v. Cty. of Natchitoches, 795 F. App’x 933 (5th Cit.

2020) (quoting Hit ». Connell, 301 F.3d 240, 246 (5th Cir. 2002)). “The limitations period begins to

tun when the plaintiff becomes aware that he has suffered an injury or has sufficient information

to know that he has been injured.” Hi#z, 301 F.3d at 246 (citation omitted). Here, the patties do not

generally dispute that the alleged wrongful conduct and McGlothen’s death both occurred on April

5, 2020, and that Plaintiffs had to file their claims by April 5, 2021. The parties dispute whether

prescription was interrupted or tolled under equitable principles.

Page 12 of 22

Plaintiffs timely filed their initial complaint against the City, American Alternative Insurance

Corporation, Chief Raymond, and Officers Ross, Johnson, LeClare, and McCarter. Record

Document 1. On June 25, 2021, Plaintiffs filed a motion to amend their complaint, which the Court

granted on July 1, 2021; in the amended complaint, Plaintiffs for the first time named Fire Chief

Wolverton, Fire Captain Glass, Fire Engineer Yelvington, and Firefighter Richardson as

defendants. See Record Documents 16, 27, & 28. Although Plaintiffs’ claims against the Fire

Defendants are prescribed on their face, the amended complaint clearly asserts that the Fire

Defendants wete joint tortfeasors. Under Louisiana law, the filing of suit against one joint

tortfeasor interrupts prescription against all joint tortfeasors. La. Civ. Code art. 2324(C); Miller ».

Mancuso, 388 F. App’x 389, 391 (th Cir. 2010). Prescription therefore was interrupted against the

Fite Defendants when Plaintiffs timely filed their initial complaint.+ La. Civ. Code art. 2324(C); see

Miller, 388 F. App’x at 391; see also Fed. R. Civ. P. 15(c)(1)(A).

VIII. Failure to Provide Medical Care

Plaintiffs assert that the Police Officer Defendants and Responding Fire Defendants failed

to provide McGlothen medical care in violation of the Fourteenth Amendment. “The Fourteenth

Amendment guarantees pretrial detainees a right not to have their serious medical needs met with

deliberate indifference.” Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) Gnternal quotation marks

4 The Court notes “where no liability is found on the part of a timely sued alleged tortfeasor, then

prescription is not interrupted as to untimely sued tortfeasors, as no joint or solidary obligation

exists.” Miller, 388 F. App’x at 391 (quoting Gallina v. Hero Lands Co., 2003-0331 (La. App. 4 Cir.

10/7/03); 859 So. 2d 758, 767). In other words, if Plaintiffs’ claims fail on the merits against the

defendants named in the initial complaint, Plaintiffs’ claims against the Fire Defendants would be

considered untimely, unless another theory saves their claims. Plaintiffs advance two such theoties:

the Louisiana doctrine of contra non valentum and relation back pursuant to Federal Rule of Civil

Procedure 15(c)(1)(C). The Court need not decide whether contra non valentem applies at this time.

However, Rule 15(€)(1)(C) is inapplicable to this case because “[flailing to identify individual

defendants cannot be characterized as a mistake.” Winger v. Kaufman Cuty., 916 F.3d 464, 471 (Sth

Cir. 2019).

Page 13 of 22

and citations omitted). “To succeed on a deliberate-indifference claim, plaintiffs must show that

(1) the official was aware of facts from which the inference could be drawn that a substantial risk

of setious harm exists, and (2) the official actually drew that inference.” Id. (internal quotation

and citations omitted). Similar to the Fourth Amendment claims, Defendants have asserted

qualified immunity as a defense.

As to the Police Officer Defendants, the Court finds that Plaintiffs have plausibly pled a

claim for the failure to provide adequate medical care. Here, Plaintiffs allege that the Police Officer

Defendants tased McGlothen at least nine times, doused him with peppet spray, and severely beat

him. Plaintiffs then accuse the Police Officer Defendants of putting a spit hood on McGlothen

without first cleansing him of the pepper spray. Although the Police Officer Defendants

summoned paramedics, Plaintiffs contend that “Defendant Officers did not communicate to any

EMS personnel the details or extent of the physical and violent encounter with Mr. McGlothen{,]

so they were unable to properly evaluate him.” Record Document 28 {| 53.

After the paramedics departed, Plaintiffs claim that the Police Officer Defendants left

McGlothen unattended in the back of the police vehicle for an extended period of time to allegedly

complete paperwork. Eventually, an officer realized that McGlothen was unresponsive, and the

officers removed him from the vehicle and attempted to perform CPR. Sometime after,

McGlothen was transported to Willis-Knighton North Hospital where he died.3 Jd. {| 38. Plaintiffs

allege that the force used on McGlothen coupled with the failure to provide medical care caused

him to suffer “metabolic acidosis, shock, cardia arrest, and death.” Id. 4] 39.

5 According to Plaintiffs, an unnamed officer lied to ER personnel by stating that McGlothen was

only exposed to a taser three times. Record Document 28 § 52. When amending their complaint,

Plaintiffs should clarify whether this allegation is directed at one of the Police Officer Defendants.

Page 14 of 22

Based upon the above facts, Plaintiffs have plausibly alleged that the Police Officer

Defendants were deliberately indifferent to McGlothen’s medical needs. Accepting all the facts in

the complaint as true, a jury could reasonably conclude that (1) the Police Officer Defendants

violently tased, pepper sprayed, and beat McGlothen; (2) the Police Officer Defendants did not

bother to decontaminate McGlothen after pepper spraying him and then placing a spit hood on

him; (3) that it was obvious that the amount of force used on McGlothen would require prompt

medical attention; and (4) the Police Officer Defendants withheld information from responding

EMS such that medical personnel could not properly treat McGlothen. From these facts, it is

plausible that the “Officers were either aware ot should have been awate, because it was.so obvious,

of an unjustifiably high risk to [McGlothen’s] health,” did not provide him prompt medical care,

and “even misstated [or failed to disclose] the severity of [McGlothen’s] condition to those who

could have” helped. Dyer, 964 F.3d at 383-85 (citing pre-2020 cases for clearly established law).

Thus, Plaintiffs have successfully overcome the Police Officer Defendants’ qualified immunity

defense at the motion to dismiss stage.

However, the facts alleged against the Responding Fire Defendants are insufficient to

overcome their defense of qualified immunity. Plaintiffs assert that the Responding Fire

Defendants examined McGlothen for about one minute and sixteen seconds without removing the

spit hood. Further, Plaintiffs aver that the Responding Fire Defendants were found to have violated

multiple City policies by an internal affairs review. Although the violation of City policy can be

some evidence of deliberate indifference, it is not dispositive because “[u]nsuccessful medical

treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference.”

Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). “Rather, [a] [plaintiff] must show that the

officials refused to treat him, ignored his complaints, intentionally treated him incorrectly, or

Page 15 of 22

engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical

needs.” Arenas v. Calhoun, 922 F.3d 616, 620-21 (5th Cir. 2019).

Unfortunately for Plaintiffs, the cursory review of McGlothen and violation of department

policy may establish negligence, but they do not establish that the Responding Fire Defendants

were “aware of facts from which the inference could be drawn that a substantial risk of serious

harm exist[ed], and (2) [they] actually drew that inference.” Dyer, 964 F.3d at 380. Indeed, the

Responding Fire Defendants were not at the scene when the Police Officer Defendants used force.

Further, Plaintiffs allege that the Police Officer Defendants withheld information from the

Responding Fire Defendants about what happened to McGlothen. Plaintiffs do not alternatively

plead facts to establish the Responding Fire Defendants’ subjective knowledge or that McGlothen’s

condition was so obvious that they showed a “wanton disregard” to his “medical needs.” Gobert,

463 F.3d at 346. Plaintiffs thus have failed to plead facts to overcome the Responding Fire

Defendants’ qualified immunity defense.

Accordingly, Defendants’ motion to dismiss is DENIED as to the Police Officer

Defendants’ alleged deliberate indifference to medical care. Although the Court concluded that

Plaintiffs have failed to state a claim against the Responding Fire Defendants, they will be afforded

an opportunity to amend their complaint as to this claim.

IX. Civil Conspiracy Claims

In Defendants’ motion to dismiss, they request for the Court to dismiss any conspiracy

claim. “To establish a civil conspiracy claim under section 1983, [Plaintiffs] must [allege] . . . that

the defendants acted jointly and that some overt act that was done in furtherance of the conspiracy

resulted in the deprivation of a constitutional right.” Latolats v. Cravins, 484 F. App’x 983, 988-89

(5th Cir. 2012) (citing Hak v. Townley, 45 F.3d 914, 920 (5th Cir. 1995)). The elements of a civil

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conspiracy claim ate “(1) two or more persons; (2) an object to be accomplished; (3) a meeting of

the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages

as a proximate result.” Wackman v. Rubsamen, 602 F.3d 391, 408 (5th Cir. 2010) (citation omitted).

Here, Plaintiffs have plausibly alleged that certain Police Officer Defendants violated

McGlothen’s constitutional tight to be free from excessive force and constitutional right to

adequate medical care. Plaintiffs also contend that the Police Officer Defendants thereafter

conspited to cover up their misconduct. Unfortunately for Plaintiffs, their complaint does not state

any facts to support their conclusory allegation that the Police Officer Defendants participated in

a conspiracy. Plaintiffs have not alleged that the state actors had a preexisting agreement to batter

McGlothen, deny him medical treatment, or cover up their actions. See Whetehurst v. Wright, 592

F.2d 834, 440 (5th Cir. 1979). “Allegations that the officers conspired to covet-up misconduct”

after their actions “do not alone point to a constitutional violation.” Bright v. Cty. of Killeen, Tex., 532

F. Supp. 3d 389, 401 (W.D. Tex. 2021). Notably, in their opposition brief, Plaintiffs do not cite any

law or patagtaphs in their complaint upon which to base their conspiracy claim. Without more

facts, the Coutt is unable to decipher when any purported conspiracy developed. Therefore, the

Court concludes that Plaintiffs have not alleged sufficient facts to state a civil conspiracy claim

against the Police Officer Defendants.

Plaintiffs also assert that the Responding Fire Defendants acted in concert to deny

McGlothen medical care. However, the Court finds the allegations against the Responding Fite

Defendants to be conclusory. Mote germane, Plaintiffs have failed to plausibly allege an underlying

constitutional violation against the Responding Fire Defendants upon which to base a conspiracy

claim. Jackson v. Cty. of Hearne, Tex., 959 F.3d 194, 206 (Sth Cir. 2020); see discussion supra Part. VILL.

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Ultimately, in their complaints, Plaintiffs do not clearly allege when any of the named

Defendants reached an agreement to cover up alleged misconduct. Based on the allegations in the

complaint, it appears Plaintiffs believe the investigation after McGlothen’s death was suspect.

Record Document 28 at 18-20. However, “[a]fter death, one is no longer a person within our

constitutional and statutory framework, and has no rights of which he may be deprived.” Whitehurst,

592 F.2d at 440. Any purported conspiracy to cover up misconduct after McGlothen’s death

invokes the denial of Plaintiffs’ own constitutional rights. See Bright, 532 F. Supp. 3d at 401 (citing

Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1983)). However, Plaintiffs failed to plead a violation

of their own constitutional rights. Plaintiffs are granted leave to amend their complaint regarding

this claim.

X. Section 1985(3) Conspiracy Claims

Defendants also move to dismiss Plaintiffs’ conspiracy claims brought pursuant to 42

U.S.C. § 1985(3). To state a conspiracy 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 petson or property, or a deprivation of any tight or

privilege of a citizen of the United States. In so doing, the plaintiff must show

that the conspiracy was motivated by a class-based animus.

Hillard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994) (citations omitted).

Plaintiffs make no specific argument as to this claim in their opposition brief. Instead,

Plaintiffs lump their conspiracy claims into one general claim of conspiracy. Record Document 40

at 23-24. Because of the lack of argument as to this specific claim, the Court considers this claim

to be abandoned. Jackson, 959 F.3d at 202 n.5. Moreover, this claim should be dismissed for the

same reasons as Plaintiffs’ § 1983 conspiracy claims and because Plaintiffs have failed to allege any

facts to show that the “conspiracy was motivated by a class-based animus.” Hi/hard, 30 F.3d at 653.

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Despite not making a specific argument regarding this claim, the Court will allow Plaintiffs to

amend their complaint regarding this claim.

XI. Monell Claims

Again, § 1983 provides a federal cause of action for “the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws” of the United States against any

petson acting under color of state law. 42 U.S.C. § 1983. The Supreme Court has held that

municipalities such as the City are “persons” within the meaning of § 1983. Monell v. Dep’?t of Soc.

Servs., 436 U.S. 658, 690 (1978). However, a municipality cannot be sued under § 1983 based on a

theory of respondeat superior for a constitutional tort committed by one of its employees. Id. at 691.

A municipality is only responsible for a constitutional harm if the execution of one of its customs

ot policies caused the injury. Id. at 694.

To impose liability on a municipality under § 1983, a plaintiff must prove the existence of

three elements: (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights

whose “moving force” is the policy. Piotrowski v. Cty. of Hous., 237 F.3d 567, 578 (5th Cir. 2001)

(citing Monell, 436 U.S. at 694). Requiring a plaintiff to identify an official policy ensures that

municipalities will only be held liable for constitutional violations that result from the decisions of

govetnment officials whose acts can be fairly attributed to those of the municipality itself. Bryan

Cnty. Comm'rs v. Brown, 520 U.S. 397, 404-05 (1997). To establish the existence of a custom or

unofficial policy, a plaintiff must allege that the unconstitutional conduct occurred in cases other

than his own or, in rare circumstances, that a final policymaker took a single unconstitutional

action. Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 169 (5th Cir. 2010). “A customary

municipal policy cannot ordinarily be inferred from single constitutional violations.” Piotrowski, 237

F.3d at 581.

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Unfortunately for Plaintiffs, their pleading regarding an official policy is conclusory and not

supported by any facts. “Plaintiffs cannot prevail by styling their complaints about the specific

injury suffered as” Mone// claims. Roberts v. Cty. of Shreveport, 397 F.3d 287, 293 (th Cir. 2005). To

state a Mone// claim, Plaintiffs “must allege with specificity how a particular” policy—e., training

program, supervision, investigation, discipline, etc.—“‘is defective.” Anokwuru, 990 F.3d at 965

(internal quotation marks and citations omitted). “A plaintiff may do so by alleging that the

municipality had notice of a pattern of similar violations, which were fairly similar to what

ultimately transpired.” Id at 966 (internal quotation marks and citation omitted). However,

Plaintiffs’ complaint falls short of pleading any pattern or practice to show “that the City was

deliberately indifferent to [McGlothen’s] rights.” Id. The Court will allow Plaintiffs leave to amend

their complaint regarding these claims.

XII. Supervisor Liability Claims

Plaintiffs’ supervisor liability claims against Chief Raymond and Chief Wolverton appeat to

mirror their Mone// claims regarding deficient policies or practices as it relates to officer training,

investigation, discipline, etc. For the same reasons, Plaintiffs have failed to plead sufficient facts to

impose supervisor lability upon Chief Raymond or Chief Wolverton. Plaintiffs may amend their

complaint regarding these claims.

6 Plaintiffs do plead that the Police Officer Defendants had prior disciplinary records. However,

the alleged discipline does not appear to pertain to excessive force or the denial of medical cate,

except maybe the statement that Officer LeClare fired a gun, which he was not approved to carry,

at a suspect. Additionally, the alleged disciplinary records also involve less incidents than other

cases where this Court has found a valid Mone// claim for inadequate officer discipline. See Mus/ow

v. Cty. of Shreveport, 491 F. Supp. 3d 172, 189-98 (W.D. La. 2020); Bagley v. Kolb, No. CV 19-10, 2021

WL 3376830, at *13-16 (W.D. La. Aug. 3, 2021).

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XIII. State Law Claims

Defendants contend that Plaintiffs’ Louisiana law claims should be dismissed because they

mirror the federal law claims. To a limited extent, Defendants ate correct as to excessive force as a

tort under state law, though Louisiana recognizes vicarious liability for torts. See Deville, 567 F.3d

at 174 (citing Brasseaux v. Town of Mamou, 1999-1584 (La. 1/19/00); 752 So. 2d 815). Plaintiffs

counter that they ate not asserting state law claims that mirror their federal claims but instead are

assetting negligence claims. Record Document 40 at 32. Indeed, Plaintiffs’ complaint lists

negligence as the cause of action, which encompasses a wide vatiety of claims, such as the failure

to ptovide medical care, the failure to monitor, etc. Louisiana negligence claims are governed by a

duty-risk analysis under Louisiana Civil Code article 2315, which requires the plaintiff to prove the

following:

(1) the conduct in question was the cause-in-fact of the resulting harm;

(2) defendant owed a duty of care to plaintiff; .

(3) the requisite duty was breached by the defendant,

(4) the risk of harm was within the scope of protection afforded by the duty

breached.

Strotk v. Ponseti, 96-2897 (La. 9/9/97); 699 So. 2d 1072, 1077; see Audler v. CBC Innovis, Inc. 519 F.3d

239, 249 (5th Cir. 2008) (stating a fifth element: actual damages) (quoting Lemann v. Essen Lane

Daiquiris, Inc., 2005-1095 (La. 3/10/06); 923 So. 2d 627, 633). As Defendants failed to address the

Louisiana law negligence standard, the motion to dismiss must be DENIED because they have

not shown their right to judgment as a matter of law.

XIV. Leave to Amend

It is the Plaintiffs’ burden to allege particular facts that refute the qualified 1mmunity

defense. And even outside of the qualified immunity context, it is their burden to set forth direct

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factual allegations to state plausible claims for relief. Plaintiffs have, quite simply, failed to carry

their burden as to a majority of their claims. However, despite having twice amended their

complaint, it is not clear to the Court that Plaintiffs have actually pled their “best case.” Morin v.

77 F.3d 116, 121 (5th Cir. 1996). Thus, the Court will allow Plaintiffs a chance to amend.

The amended complaint must set forth sufficient allegations to overcome Defendants’ qualified

immunity defense and establish plausible claims for relief. Failure to comply will expose Plaintiffs’

claims to dismissal for the reasons discussed above. While the Court will allow Plaintiffs to amend

their complaint, Plaintiffs may not amend their complaint regarding the claims that the Coutt

dismissed with prejudice.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss [Record Document 34] is

GRANTED IN PART and DENIED IN PART. It is GRANTED to the extent the following

claims ate dismissed with prejudice: Plaintiffs’ excessive force claims under the Fourteenth

Amendment standard and the official capacity claims against Police Chief Raymond, McCarter,

Ross, Johnson, LeClate, Fire Chief Wolverton, Glass, Yelvington, and Richardson. It is DENIED

in all other respects with the right to reurge upon Plaintiffs’ filing of an amended complaint.

Plaintiffs’ amended complaint must be filed by April 29, 2022.

THUS DONE AND SIGNED this 31st day of March, 2022.

ELIZABETH E OOTE

UNITED STATES RICT JUDGE

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