Wilder v. Morgan

UNITED STATES DISTRICT COURT □

. WESTERN DISTRICT OF LOUISIANA .

LAFAYETTE DIVISION

KEVIN WILDER CASE NO. 6:20-CV-01383

VERSUS . JUDGE ROBERT R. SUMMERHAYS

SCOTT MORGAN ET AL MAGISTRATE JUDGE CAROL B.

WHITEHURST

MEMORANDUM RULING

The present matters before the Court are two motions to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure: (1) a Motion to Dismiss filed by the Lafayette Police Department

(the “LPD Motion to Dismiss”) [ECF No. 17], and (2) a Motion to Dismiss filed by defendants

Scott Morgan and the Lafayette City-Parish Consolidated Government (the “LCG/Morgan Motion

to Dismiss”) [ECF No. 18]. As explained below, the Court GRANTS the LPD Motion to Dismiss.

The Court GRANTS IN PART and DENIES IN PART the LCG/Morgan Motion to Dismiss.

I.

BACKGROUND

Members of the Lafayette Police Department (““LPD”) responded to a report of a single-

vehicle accident on October 24, 2019. Plaintiff Kevin Wilder alleges that when LPD Officer “D.

Smith” arrived on the scene, Wilder “was calmly sitting on the curb,” and Officer Smith “read Mr.

Wilder his Miranda Rights and instructed him to walk to the front of a [LPD vehicle] some yards

away.”! Wilder alleges that he was unsure where to walk based on Officer Smith’s instructions.”

When Wilder did not stop walking when he reached the front of the LPD vehicle as instructed,

| First Amended Complaint [ECF No. 10] at $f 4-5.

2 Td. at J 6.

,

Officer Smith “then forcefully grabbed Mr. Wilder by the arm and repositioned him with his back

‘to the police unit and his body facing” defendants Baudoin, Shanahan, and four “John Doe”

defendants; these defendants allegedly witnessed Smith grabbing Wilder.’ Wilder alleges that, at

this time, his right arm “was resting on the police unit, and his left hand was by his side with his

cell phone visible.’”* Wilder alleges that none of the officers observed or believed that Wilder

possessed a gun or other dangerous weapon during this interaction.° Officer Smith than requested

that Wilder hand him the phone in Wilder’s hand.° When Wilder did not comply, Smith “attempted

to grab Mr. Wilder’s phone out of his left hand.”’ Wilder alleges that Smith than “quickly and

vigorously” grabbed him and tried to restrain him with handcuffs.® According to Wilder, Smith

clenched his right arm while defendant Mouton took hold of his left arm. Wilder alleges that

Mouton than “pushed [him] forward [and] then seemingly leaped onto [Wilder’s] back while

Officer Smith dragged him down by the arm.”” Wilder alleges that Mouton and Smith caused him

to slam “head-first into the concrete pavement, splitting the left side of his head and causing him

to lay in a puddle of his own blood.”!° Wilder further alleges that Mouton then “knelt on Mr.

Wilder’s neck, obstructing his ability to breath.”!! Wilder contends that he did not resist arrest or

otherwise take any action that would justify the use of force under the circumstances.

Wilder alleges that defendant Smith attempted to cover-up his use of force based on body-

camera footage after Wilder was placed under arrest.'? Specifically, Wilder alleges that Smith

3 Id.

4 Id. at] 7.

8 Id.

7 Id. 8.

8 Id.

9 Td. at 99.

10 Td. at § 10.

Id at § 11.

2 Td. at | 13.

falsely told his supervisor, defendant Shanahan, and another LPD officer that Wilder failed to

follow his instructions and walked away from him.’ Wilder further alleges that Mouton “conveyed

a different tale to his fellow officers, telling them that Mr. Wilder ‘kept pulling away’ when they

tried to confiscate his phone and that when they were going to handcuff him, he ‘pulled away some

more.’”!* Wilder alleges that body-cam footage does not support Smith’s or Mouton’s version of

the interaction between Wilder and the officers.

Wilder filed the present action under 42 U.S.C. § 1983 against LPD Chief of Police Scott

Morgan, the Lafayette Consolidated Government (“LCG”), LPD, four “John Doe” members of the

LPD, and two unnamed insurance companies.'> Wilder asserts claims under the Fourth and

Fourteenth Amendments to the United States Constitution.'© Wilder also asserted state law claims

for, inter alia, assault, battery, intentional misrepresentation, negligent and intentional infliction

of emotional distress, abuse of process, and malfeasance in office; he requests compensatory,

special, and punitive damages.'’ The defendants filed an initial round of motions to dismiss the

Original Complaint.'® The Court denied these motions and ordered Wilder to file an amended

complaint.!? Wilder then filed the present First Amended Complaint, adding defendants “D.

Smith,” “T. Mouton,” “K. Baudoin,” and “R. Shanahan.” The First Amended Complaint continues

to name the four “John Doe” defendants but corrects the name of LCG to the Lafayette City-Parish

Government. Defendants then filed the present motions to dismiss.

13 Td. at 13.

M4 Td. at 4 16.

Original Complaint [ECF No. 1] at J{1-2.

16 Id. at YJ8-10.

at $51.

18 ECF No. 4-6.

19 ECF No. 9.

II.

STANDARD OF REVIEW . □

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is

appropriate when a complaint fails to state a legally cognizable clam.”° In other words, a Rule

12(b)(6) motion “admits the facts alleged in the complaint, but challenges plaintiffs rights to relief

based upon those facts.”?! When deciding a Rule 12(b)(6) motion, “[t]he court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.”?? “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,

a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.””?

Moreover, “the plaintiff must plead enough facts ‘to state a claim to relief that is plausible on its

face.””*4 The requirement that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.”> In considering a Rule 12(b)(6) motion, a court

must limit itself to the contents of the complaint, including documents attached to or incorporated

by the complaint, and matters of which judicial notice may be taken, including matters of public

record.”°

20 Ramming v. United States, 281 F.3d 158, 161 (5 Cir. 2001).

21 Td. at 161-62.

22 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5 Cir. 2007) (internal quotation marks omitted).

3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations, quotation marks, and brackets

omitted).

24 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (Sth Cir. 2007) (quoting Twombly, 550 U.S. at 570).

25 Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Twombly, 550 U.S. at 555).

26 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); Lovelace v. Software Spectrum Inc., 78

F.3d 1015, 1017-18 (Sth Cir. 1996); Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (Sth Cir. 2007).

Iii.

LPD MOTION TO DISMISS

Defendant contends that Plaintiffs claims against LPD must be dismissed because LPD is

not a separate and distinct juridical entity from the City of Lafayette, and thus lacks capacity to be

sued.”” Rule 17(b) of the Federal Rules of Civil Procedure provides that “[c]apacity to sue or be

sued shall be determined ... by the law of the state in which the court is located ...”*8 Under

Louisiana law, an entity must qualify as a juridical person to possess the capacity to be sued.2?7 A

person may be either natural or juridical. “A natural person is a human being” and a “juridical

person is an entity to which the law attributes personality, such as a corporation or partnership.”°°

In Roberts v. Sewerage & Water Board of New Orleans,*' the Louisiana Supreme Court explained

that “a local government unit may be deemed to be a juridical person separate and distinct from

other government entities[] when the organic law grants it the legal capacity to function

independently and not just as the agency or division of another governmental entity.” Thus, where

there is no constitutional or statutory authority for the entity to sue or be sued, that entity is without

capacity under the Roberts analysis.** Accordingly, courts have consistently held that city police

departments are merely “branches or parts of the greater corporate body politic or judicial entity”

and thus lack the capacity to be sued.*? The City of Lafayette is governed by a Home Rule Charter

and, under that charter, the police department is a division of the City’s administrative branch. But

that charter does not grant the police department the status of a corporate body or place it under a

27 ECF No. 5 at 1; ECF No. 14 at 1.

28 Fed. R. Civ. P. 17(b).

2 La. C. C. Art. 24.

3° La. Civ. Code Art. 24.

31 So. 2d 341, 347 (La. 1994).

2 City Council of Lafayette v. Bowen, 649 So.2d 611, 613-616 (La.App. 3rd Cir.1994), writ denied, 650 So.2d 244

(La.1995).

3 Clark v. Lafayette Police Dept., No. 18-CV-58, 2018 (Citing Brown v. City of Alexandria, No. 17-CV-798 (W.D.

La. 2018)).

separate board with powers of self-government; nor does it otherwise grant LPD the legal capacity

to function independently.** As a result, courts have consistently held that LPD does not have the

legal capacity to be sued.*° In sum, applying the Roberts analysis to the present case, the Court

agrees that LPD is not a separate juridical person under Louisiana law. Accordingly, the LPD

Motion to Dismiss is GRANTED and the claims asserted against LPD are dismissed with

prejudice.

IV.

LCG/Morgan Motion to Dismiss

A. Claims Asserted Against Chief Morgan.

Defendant Morgan argues that the federal claims against him should be dismissed because

they are duplicative of claims asserted against LCG. “Section 1983 provides a remedy against ‘any

person’ who, under color of state law, deprives another of rights protected by the Constitution.”°

Section 1983 “is not itself a source of substantive rights; it merely provides a method for

vindicating federal rights conferred elsewhere.”>’ To state a claim under Section 1983, a plaintiff

must: (1) allege a violation of rights secured by the Constitution or laws of the United States, and

(2) demonstrate that the alleged violation was committed by a person acting under color of state

34 Edmond v. Lafayette Consol. Gov't, 2016 WL 3693653 (W.D. La. May 24, 2016).

35 Td. (citing Broussard v. Lafayette Consol. Gov't, 45 F. Supp. 3d 553, 571 & n. 4 (W.D. La. 2014)); Lavergne v.

Lafayette City Police Dep't, No. 6:13-2146, 2014 U.S. Dist. LEXIS 30885, 2014 WL 931517, at *4 (W_D. La. Mar.

10, 2014), aff'd sub nom. Lavergne v. Bajat, 591 Fed. Appx. 270 (Sth Cir. 2015), cert. dismissed, 135 S. Ct. 2810,

192 L.Ed. 2d 845 (2015), reconsideration denied, 136 S. Ct. 291, 193 L.Ed. 2d 19 (2015); Brown v. Lafayette City-

Par. Consol. Gov't, No. 6:13-2436, 2013 U.S. Dist. LEXIS 185582, 2014 WL 1217960, at *1 (W.D. La. Feb. 28,

2014); Marceaux v. Lafayette Consol. Gov't, 921 F. Supp. 2d 605, 624 (W.D. La. 2013); Cormier v. Lafayette City

Parish Consol. Government, No. 6:09-cv-0703, 2011 U.S. Dist. LEXIS 125283, 2011 WL 5156862, at *3 (W.D. La.

Oct. 28, 2011), rev'd on other grounds, 493 Fed. Appx. 578 (Sth Cir. 2012); Domingue v. Lafayette City Parish

Consolidated Government, No. 05-2151, 2008 U.S. Dist. LEXIS 21277, 2008 WL 728654, at *5 n. 13 (W.D. La.

Mar. 17, 2008); Batiste v. Bonin, No. 06-1352, 2007 U.S. Dist. LEXIS 44355, 2007 WL 1791219, at *4 (W.D. La.

June 13, 2007).

36 Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992) (citing 42 U.S.C. § 1983).

37 Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999).

6

“A judgment in a § 1983 lawsuit against an official in his official capacity imposes liability

against the entity he represents.”°’ Therefore, it is “well settled that a suit against a municipal

official in his or her official capacity is simply another way of alleging municipal liability.’*°

Here, the First Amended Complaint expressly asserts Section 1983 Claims against Morgan

in his official capacity as the Lafayette Chief of Police.*! The claims and remedies sought against

Morgan and LCG in this case are the same. Since Morgan is an official of LCG and LCG is a

defendant in this action, the claims asserted against Morgan are duplicative of the claims asserted

against LCG. The Court therefore GRANTS the LCG/Morgan Motion to Dismiss with respect to

the claims asserted against Morgan. These claims are dismissed with prejudice.

B. Monell Claims Asserted Against LCG.

LCG next challenges Wilder’s Monell claims. LCG may not be held liable under Section

1983 on a theory of vicarious liability.” It may, however, be liable under Monell v. Dep’t of Soc.

Servs., when allegedly unconstitutional conduct “implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.’”?

In other words, the unconstitutional conduct at issue must be directly attributable to the

municipality through some sort of official action. To state a Section 1983 Monell claim, a plaintiff

must allege facts demonstrating that (1) an official policy; (2) promulgated by the municipal

policymaker, (3) was the moving force for the violation of a constitutional right.“ Official policies

38 Southwestern Bell Telephone, LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008).

39

40 Howell v. Town of Ball, No. 12-951, 2012 WL 3962387, at *4 (W.D. La. Sept. 4, 2012) (citing Monell v. New

York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); Hafer v. Melo, 502

U.S. 21 (1991); Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005).

41 First Amended Complaint [ECF No: 10] at { 1a (“{Morgan] was at all times Chief of Police at the Lafayette Police

Department... [h]e is sued in his official capacity”).

Hicks-Fields v. Harris Cty., Texas, 860 F.3d 803, 808 (5th Cir. 2017), cert. denied sub nom. Hicks-Fields v.

Harris Cty. Tex., __ U.S. ___, 138 S. Ct. 510 (2017).

8 436 U.S. 658, 690 (1978).

44 Blanchard-Daigle v. Geers, No. 18-51022, 2020 WL 730586, at *2 (5th Cir. Feb. 12, 2020).

may exist in the form of “written policy statements, ordinances, or regulations, but may also arise

in the form of a widespread practice that is so common and well-settled as to constitute a custom

that fairly represents municipal policy.”*° To plead a Monell claim on the basis of a wide-spread

practice, the plaintiff must plead facts showing “sufficiently numerous prior incidents,” as opposed

to “isolated instances.’“° A plaintiff “must do more than describe the incident that gave rise to his

injury.”“” The facts pled must also show incidents similar to the conduct at issue in the instant

case—that is, “[p]rior indications cannot simply be for any and all ‘bad’ or unwise acts, but rather

must point to the specific violation in question.”“*

Wilder bases his Monell claim against LCG on “a clear pattern of excessive and improper

use of force against citizens like Mr. Wilder.”*? Wilder alleges that “between 2010 and 2019, there

were 107 civil lawsuits filed against LPD.”°° Wilder then briefly identifies fourteen of these

lawsuits as involving allegations of excessive force from 2007 through 2020—approximately one

case per year.°! Wilder further alleges that from 2010 through 2019, LPD officers submitted “1,172

use of force reports...equating to one approximately every 3 days.”*? Wilder’s remaining

allegations of a pattern of excessive force are conclusory and do not satisfy the Twombley/Iqbal

requirement that the plaintiff plead facts, not conclusions to support a plausible claim.*

45 Id.

46 McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir.1989).

47 Ratliff y. Aransas Cty., Texas, 948 F.3d 281, 285 (Sth Cir. 2020).

48 Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 851 (5th Cir. 2009) (quoting Estate of Davis ex rel. McCully v.

City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).

49 ECF No. 10 at 136.

Td.

51 Jd. at FJ 30-31. In { 32 of the First Amended Complaint, Wilder alleges that, in 2012, “LPD was sued for their

lack of supervision and proper discretion in hiring and training officers, for their misconduct, in handling of

evidence.” Id. at 32. Wilder, however, pleads no facts showing that the allegations of this 2012 lawsuit are similar

to the excessive force allegations at issue in the present case. In other words, this allegation does not satisfy the

“similarity” requirement for pleading a “wide-spread practice” claim under Monell.

2 Id. at ] 28.

53 For example, Wilder alleges that “the LPD, as part of LCG, has a history of not properly disciplining or firing

officers when they engage in illegal or improper conduct, including excessive use of force and improper deadly use

of force.” /d. at ]35. Wilder alleges no other facts to support this conclusory statement other than his previous

A plaintiff may point to prior occurrences of constitutional violations to plead a Monell □

claim against a municipality. Those prior occurrences, however, must be not only similar to

conduct at issue in the plaintiffs case but also persistent as opposed to sporadic or isolated. This

persistency requirement ensures that the alleged pattern of unconstitutional actions by municipal

officers is based on conduct that has “occurred for so long and with such frequency that the course

of conduct demonstrates the [municipality’s] knowledge and acceptance of the disputed

conduct.” The Fifth Circuit also requires the plaintiff to plead more than a list of past actions

alleged to be unconstitutional; a plaintiff must place these past occurrences in context to support

the inference that the municipality knew about and accepted a wide-spread course of

unconstitutional conduct. For example, in Peterson v. City of Fort Worth, Tex.,°> the plaintiff

identified 27 excessive force complaints of against the Fort Worth Police Department over

approximately four years. The court held that these prior occurrences did not support a Monell

claim because the plaintiff “failed to provide context” to those 27 excessive force complaints

sufficient to show that the complaints reflected municipal policy: “Twenty-seven incidents in four

years, with no context as to the overall number of arrests or any comparisons to other cities, is not

sufficient evidence of a pattern rising to the level of a policy.”°°

Here, Wilder’s allegations do not show a wide-spread practice or pattern that rises to the

level of municipal policy. Wilder’s allegation of 107 lawsuits filed against LPD from 2010 through

allegations with respect to use of force claims asserted against LPD from 2010 through 2019. Wilder need not plead

the relevant policy or widespread practice in exhaustive detail. Thomas v. City of Galveston, Texas, 800 F. Supp. 2d

826, 842-46 (S.D. Tex. 2011). Nor is Wilder subject to a heightened pleading standard. Leatherman v. Tarrant

County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) (holding that Monell claims are not subject

to a heightened pleading standard). However, the bare requirements of notice pleading under Rule 8 of the Federal

Rules of Civil Procedure require that “[t]he description of a policy or custom and its relationship to the underlying

constitutional violation ... cannot be conclusory; it must contain specific facts.” Spiller vy. City of Texas City, Police

130 F.3d 162, 167 (Sth Cir.1997) (citation omitted) (emphasis added).

Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 169 (Sth Cir. 2010).

5 588 F.3d at 851~52.

6 Td at 851n.4.

2019 does not show such a wide-spread practice because the First Amended Complaint does not

show that these lawsuits involve conduct similar to the conduct at issue in the present case. With

respect to the fourteen excessive force cases cited in Wilder’s complaint, these cases were filed

over a thirteen-year period—more than three times longer than four-year period and 27 complaints

that the Peterson court found insufficient to establish a municipal policy. Moreover, as with

Peterson, Wilder does not place these fourteen complaints in context to show that they reflect a

pattern that rises to the level of LCG policy.

Nor does Wilder’s allegation that 1,172 use-of-force reports were filed by LPD officers

from 2010 through 2019 show such a pattern without additional context. A use-of-force report

standing alone does equate to a constitutional violation absent facts showing the context for that

use of force. Wilder pleads no facts showing that this number of use-of-force reports is so unusual

or extreme that it supports an inference of a persistent pattern of excessive force violations. For

example, Wilder does not place this statistic into the context by showing the total number of arrests,

nor does he offer comparisons to other, similarly situated municipalities.

In contrast, in Flanagan v. City of Dallas,*’ the court held that the plaintiff sufficiently pled

a Monell claim based on a pattern of excessive force applied by members of the Dallas Police

Department. There, the plaintiff pled a combination of statistics, past incidents, and statements by

city officials.°* The plaintiffs allegations included statistics comparing the City of Dallas to

similarly situated municipalities as far as police misconduct, the number of grand juries convened

and internal affair investigations conducted regarding police misconduct, and the number of

shootings of unarmed individuals by Dallas police officers during the same year that the plaintiff

57 48 F.Supp. 3d 941, 953 (N.D. Tex. 2014).

38 Id.

10

was subjected to unreasonable force.*? Unlike Flanagan, Wilder’s allegations do not provide the

context required to support a plausible Monell claim.

Wilder also appears to allege a Monell claim based on allegations that Morgan, LPD, and

LCG failed to supervise and train LPD officers. Specifically, Wilder alleges that “Defendants

Morgan, Shanahan, LPD as part of LCG did not properly train, supervise, and/or discipline

Defendant Officers Smith, Mouton, and Baudouin with regard to proper police practices.”° “A

municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on

a failure to train.”°! To state a claim of municipal liability for a failure to train municipal

employees, the plaintiff must plead facts showing that: “(1) the municipality's training policy

procedures were inadequate, (2) the municipality was deliberately indifferent in adopting its

training policy, and (3) the inadequate training policy directly caused the constitutional

violation.”©

The failure to train must thus reflect a “deliberate” or “conscious” choice by the

municipality—on other words, rise to the level of municipal policy—for that municipality to be

held liable for such a failure.© “‘[D]eliberate indifference’ is a stringent standard of fault, requiring

proof that a municipal actor disregarded a known or obvious consequence of his action.” “For an

official to act with deliberate indifference, the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.”® There are two ways a plaintiff can establish a municipality's deliberate indifference

to the need for proper training. First, the plaintiff may demonstrate that a municipality had “[nJotice

Td. at 953.

6° ECF No.

51 Connick v. Thompson, ___ U.S. __, 131 S.Ct. 1350, 1359, 179 L.Ed. 2d 417 (2011).

® Kitchen v. Dallas Cty. 759 F.3d 468, 484 (Sth Cir, 2014).

83 Td. at 389.

Board of County Comm'rs v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed. 2d 626 (1997).

65 Smith v. Brenoettsy, 158 F.3d 908, 912 (Sth Cir. 1998).

11

of a pattern of similar violations,” which were “fairly similar to what ultimately transpired” when

the plaintiff's own constitutional rights were violated.© The second approach to pleading a failure-

to-train claim is the limited exception for “single-incident liability,” which represents the rare case

where a constitutional violation results from “the highly predictable consequence” of a particular

failure to train.°’

With respect to the first approach, Wilder has not pled facts showing a pattern of similar

violations that should have placed LCG or LPD on notice. Wilder's reliance on the 130 lawsuits

filed against LCG and LPD does not demonstrate this pattern because—as explained in connection

with Wilder’s claim based on a “wide-spread practice”—Wilder's allegations do not show that

these lawsuits were grounded on conduct similar to the conduct at issue in the present case.

Moreover, the fourteen use-of-force complaints cited by Wilder do not support his failure-to-train

claim for the same reason that they do not support a claim based on a pervasive pattern of

misconduct that rises to the level of municipal policy. Specifically, Wilder does not plead facts

showing that these fourteen complaints over a thirteen-year period reflect a persistent pattern of

misconduct versus isolated incidents.

Nor do Wilder's allegations state a plausible claim based on the “single-incident liability”

exception. Specifically, Wilder does not plead facts describing how Morgan or the other

defendants with a supervisory role failed to adequately train or supervise the other defendants.

Instead, Wilder alleges the facts of his excessive force claim and then merely adds the

conclusionary and formulaic assertion that this conduct resulted from LCG’s failure to adequately

train and supervise the defendant officers who allegedly applied excessive force in his arrest.

8 Kitchen, 759 F.3d at 484.

87 Id.

88 ECF No. 10 at 424.

12

Wilder must plead more than “generic, boilerplate recitations of the elements of claims against a

‘municipality for an unconstitutional custom or practice, failure to adequately train or supervise,

and negligent hiring of officials” to adequately allege a Monell claim based on a failure to train or

supervise.

In sum, Wilder’s First Amended Complaint does not adequately plead a Monell claim

against LCG. The Court, however, must next consider whether Wilder should be given an

opportunity to amend the complaint and re-plead his Monell claim. Rule 15(a) of the Federal Rules

of Civil Procedure provides that courts should “freely” grant leave to amend when “justice so

requires.” “Courts should ordinarily grant a plaintiff at least one opportunity to amend before

dismissing a complaint with prejudice for failure to state aclaim.””° One key exception to this

generous standard is where the amendment would be futile.” In determining futility, courts

“apply the same standard of legal sufficiency as applies to Rule 12(b)(6).”””

Here, Wilder has been previously granted leave to file an amended complaint. This would

ordinarily: weigh against granting Wilder an opportunity to re-plead. However, three factors weigh

in favor of allowing Wilder to re-plead his Monell claim against LCG. First, the prior opportunity

to amend did not follow a substantive ruling on the first round of motions to dismiss. Such a merits

ruling may have provided Wilder with guidance on any pleading deficiencies with respect to his

Monell claim. Second, granting leave to amend will not unduly delay the proceeding because

defendants have recently filed a new motion to dismiss, and a ruling on that motion may affect the

6 Thomas, 800 F. Supp. 2d at 845. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555 (internal citations, quotation marks, and brackets omitted).

Reed v. Gautreaux, No. CV 19-130, 2019 WL 6219780, at *3 (M.D. La. Nov. 21, 2019) (citing Matthews v.

Stolier, No. 13-6638, 2014 WL 5214738 at *12 (E.D. La. Oct. 14, 2014)); Hart v. Bayer Corp., 199 F.3d 239, 247

n.6 (5th Cir. 2000)).

1 See Stripling v. Jordan Production Co., LLC, 234 F.3d 863, 872-73 Cir. 2000).

72 Id.

13

scope of the case.” Third, the Court cannot conclude that an amendment of Wilder’s Monell claim

to address the deficiencies outlined in this ruling would be futile. Accordingly, the Court DENIES

the LCG/Morgan Motion to Dismiss without prejudice and orders that Wilder file an amended

complaint that addresses the deficiencies outlined in this ruling. The amended complaint must be

filed with twenty (20) days of the date of the Court’s ruling on the newly filed motion to dismiss,

ECF No. 28.

C. Conspiracy Claim under Section 1985(3).

Finally, LCG argues that Wilder has not plead a viable conspiracy claim. To allege a

conspiracy claim under 42 U.S.C. § 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 deprivation of any right or privilege of a citizen of

the United States.” Section 1985(3) creates no rights, but “is a purely remedial statute, providing

a civil cause of action when some otherwise defined federal right—the equal protection of the laws

or equal privileges and immunities under the laws—is breached by a conspiracy in the manner

defined by the section.””° Where all of the alleged participants in a conspiracy are members of the

same collective entity, the conspiracy does not involve two or more people and cannot support a

conspiracy claim.’ LCG argues that because Morgan and the other defendants are all members of

the same collective entity—LCG—Wilder’s allegations cannot support a conspiracy claim.

ECF No. 28.

™% Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994).

® Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 376, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979).

Hilliard, 30 F.3d at 653; see also Moody v. Jefferson Parish Sch. Bd., 803 F.Supp. 1158, 1166 (E.D.La.1992)

(School Board, Principal, Vice-Principal, and various teachers are all employed by the Jefferson Parish School

Board and, thus, are a single entity), aff'd, 2 F.3d 604 (Sth Cir. 1993); Hankins v. Dallas Indep. Sch. Dist., 698

F.Supp. 1323, 1330 (N.D. Tex. 1988) (high school and its officials constitute a single entity); Chambliss v. Foote,

421 F.Supp. 12, 15 (E.D. La. 1976) (“the university and its officials are considered as constituting a single legal

14

Wilder counters that he has pled a viable conspiracy claim against Morgan, LCG, and the

defendants. However, it is not clear from the First Amended Complaint whether Wilder’s

allegations state an independent conspiracy claim against any of the defendants. The only reference

to a conspiracy in the Third Amended Complaint is a brief reference in paragraph 1(j) of the

complaint where Wilder identifies the named defendants and alleges: “at all times relevant to this

complaint, all defendants acted under the color of state law, in concert and conspiracy, and were

jointly and severally responsible for the harms caused to plaintiff.” Wilder asserts his federal and

state claims in paragraphs 39-50 of the First Amended Complaint, but does not expressly plead a

conspiracy claim against the defendants or the elements of a conspiracy claim under section

1985(3). Nor does the complaint reference section 1985(3). In sum, the First Amended Complaint

does not assert a viable conspiracy claim under section 1985(3). To the extent that Wilder seeks to

amend his complaint and add a new conspiracy claim, the Court denies leave to amend on the

grounds that an amendment would be futile under Hilliard v. Ferguson.” The LCG/Morgan

Motion to Dismiss is GRANTED with respect to a conspiracy claim under section 1985(3). □

D. State Law Claims.

The motion to dismiss does not expressly address the state law claims asserted against

defendant Morgan, LCG, and the other defendants. Specifically, in paragraphs 49-50 of the First

Amended Complaint, Wilder asserts state law claims for assault, battery, intentional and negligent

infliction of emotional distress, negligent hiring, negligent supervision, abuse of process, and

malfeasance in office against Morgan and LCG. Wilder argues in his Opposition that he has stated

viable state law claims against Morgan and LCG.” In their reply brief, Morgan and LCG argue

entity which cannot conspire with itself”), affid, 562 F.2d 1015 (Sth Cir. 1977), cert. denied, 439 U.S. 839, 99 S.Ct.

127, 58 L.Ed. 2d 137 (1978).

77 30 F.3d 649.

78 ECF No. 20 at 21.

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that the state law claims against Morgan are not viable under state law. The Court will not address

new grounds for dismissal raised for the first time in a reply brief. Accordingly, to the extent that

Morgan and LCG move to dismiss Wilder's state law claims, the motion is DENIED.

IV.

CONCLUSION

For the reasons set forth above, the LPD Motion to Dismiss [ECF No. 17] is GRANTED.

Plaintiff's claims against LPD are DISMISSED WITH PREJUDICE. |

The LCG/Morgan Motion to Dismiss [ECF No. 18] is GRANTED IN PART and DENIED

IN PART. The court GRANTS the motion to dismiss with respect to Wilder's claims against

defendant Morgan in his official capacity. These claims are DISMISSED WITH PREJUDICE.

The court further GRANTS the Motion to Dismiss with respect to Wilder's conspiracy claim under

section 1985(3). This claim is DISMISSED WITH PREJUDICE. The court DENIES the Motion

to Dismiss with respect to Wilder's Monell claims against LCG, but orders Wilder to file an

amended complaint that addresses the deficiencies in his Monell allegations identified in this

ruling. Wilder must file his amended complaint within twenty (20) days of the Court's ruling on

the newly filed motion to dismiss, ECF No. 28. In all other respects, the LCG/Morgan motion to

dismiss is denied. To the extent that Morgan and LCG move for a more definite statement under

Rule 12(e) of the Federal Rules of Civil Procedure, that motion is DENIED.

THUS DONE in Chambers on this 18th day of March, 2022. □

UNITED STATES DISTRICT JUQGE

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