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 partial motion to dismiss, filed by Defendants Shreveport Police

Chief Ben Raymond (“Raymond”); Shreveport Police Officers Treona McCarter (“McCarter”),

Brian Ross (“Ross”), D’marea Johnson (“Johnson”), and James LeClare (“LeClare”); Shreveport

Fire Chief Scott Wolverton (“Wolverton”); Shreveport Fire Captain Billy Glass (“Glass”);

Shreveport Fire Engineer Joshua Yelvington (“Yelvington”); Shreveport Firefighter Clint

Richardson (“Richardson”); and the City of Shreveport (collectively, “Defendants”). [Record

Document 58].! The motion has been fully briefed. For the reasons below, Defendants’ partial

motion to dismiss [Record Document 58] is GRANTED IN PART and DENIED IN PART.

1. Background

The Court provided an extensive background section in its first memorandum ruling, see

Record Document 47 at 1-4, which it will recount below.

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

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

with McCarter, Ross, Johnson, and LeClare (collectively, the “Police Officer Defendants”).

' Defendant American Alternative Insurance Corporation (“American Insurance’’) did not join this

partial motion to dismiss. The only claim brought against American Insurance is a direct action

claim pursuant to Louisiana Revised Statute § 22:1269 as the insurance provider for the City of

Shreveport. Record Document 56 at 4 225.

Record Document 56. Plaintiffs allege that at about 5:29 p.m., McGlothen’s father called 911 to

request assistance because McGlothen, a paranoid schizophrenic, was not taking his medication

and was experiencing a mental breakdown. Jd. at J 14-16. Johnson responded to the call and

advised the family that McGlothen did not meet the criteria for commitment. /d. at { 19. Plaintiffs

claim that Johnson advised the family that they could call the police if the situation worsened or

contact the Caddo Coroner’s Office the following day to commit McGlothen. Jd.

At approximately 6:30 p.m., McGlothen had a second encounter with Shreveport Police

Officers. Jd. at § 23. According to Plaintiffs, an individual stopped Ross to report a concerning

encounter with McGlothen. Jd. at ¢ 24. The individual claimed that he had parked his car to send a

text message when, suddenly, McGlothen opened the rear door of the vehicle and got into the

back seat. /d. Plaintiffs aver that the individual punched McGlothen, who then exited the vehicle

“without further incident.” Jd.

Plaintiffs represent that Ross and McCarter located and approached McGlothen. Jd. at J]

23, 25. Plaintiffs allege that Ross asked McGlothen to put his hands on the patrol unit. Jd. at § 25.

Plaintiffs claim that Ross asked McGlothen to state his name, to which McGlothen answered,

“Dale Bey North American National.” Jd. Plaintiffs allege that Ross, without warning or notice,

“threw McGlothen to the ground where he proceeded to handcuff him without incident.” Jd. at J

26. Ross then placed McGlothen in the back of his patrol unit. /d. at 31. Plaintiffs allege that Ross

proceeded to question McGlothen about entering the individual’s vehicle, his address, his

birthday, and his understanding of his Miranda rights. Id. Plaintiffs claim that McGlothen could

not answer any of Ross’s questions. /d. Plaintiffs allege that Ross released McGlothen because

Shreveport Police Officers were prohibited from transporting individuals to jail for non-violent

crimes due to the COVID-19 pandemic. /d. at § 32. Plaintiffs claim that Ross told McGlothen

that he “failed at being a sovereign citizen” and that “Trump would be disappointed,” which made

McCarter laugh. Jd. at 35.

Plaintiffs allege that shortly thereafter, a homeowner called 911 to report that McGlothen

followed her car into her driveway and was standing in her yard. Jd. at {J 42-43. Plaintiffs claim

that the woman’s husband confronted McGlothen, who then followed the husband inside the

couple’s home. Jd. at 44-45. Plaintiffs allege that the husband pulled a gun on McGlothen. Jd.

at § 45. Plaintiffs claim that McGlothen retreated from the home back to the front yard, where he

remained until around 7:42 p.m. Id. at 46-51.

McGlothen had his third and final interaction with Shreveport Police Officers as they

arrived at the couple’s home. Jd. at J] 51-53. Plaintiffs contend that the Police Officer Defendants

verbally and physically engaged McGlothen immediately upon arrival. Jd. at {{] 58-75. Plaintiffs

maintain that during this encounter, the Police Officer Defendants punched and kicked

McGlothen. /d. Plaintiffs further assert that Ross pepper sprayed McGlothen, hit him with his

baton, and tased him six times for thirty-four seconds total, twenty-nine of which were

continuous. Jd. at J 60, 74, 100. After handcuffing McGlothen, Plaintiffs claim that McCarter

and LeClare punched him in the face and that Johnson forcibly shoved him to the ground. /d. at □□□

101-103. Additionally, Plaintiffs allege that LeClare slammed McGlothen on the hood of the

patrol vehicle and elbowed him in the face. Jd. at 4 104.

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

floorboard and his feet in the air.” Jd. at § 76. Plaintiffs allege that at 7:54 p.m., McGlothen can be

heard saying “I can’t breathe” and “don’t kill me.” /d. at ¢ 78. At approximately 7:58 p.m., Glass,

Yelvington, and Richardson (collectively, the “Responding Fire Defendants”) arrived at the

scene. Jd. at § 81. Plaintiffs maintain that one of the Responding Fire Defendants provided the

Police Officer Defendants with a spit hood to put on McGlothen to stop him from spitting. Id.

Plaintiffs claim that the spit hood was placed on McGlothen “by an employee of [the City of

Shreveport].” Jd. at { 83.

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

Responding Fire Defendants could evaluate him. Jd. at § 85. According to Plaintiffs, this

evaluation was cursory and lasted only one minute and sixteen seconds before he was returned to

the back of the patrol unit.? Jd. at 9 85. Plaintiffs assert that at about 8:20 p.m., McGlothen

stopped breathing and became unresponsive and unconscious. /d. at § 86-87. At approximately

8:36 p.m.—sixteen minutes later—one of the Police Officer Defendants realized that McGlothen

had no pulse. Jd. at § 88. The officers removed McGlothen from the vehicle and attempted to

perform CPR until EMS arrived. Jd. at § 90-91. McGlothen was then transported to Willis-

Knighton North Hospital where it was discovered that he was severely acidotic, in severe shock,

and hypotensive. /d. at 93-94. McGlothen was pronounced dead on April 6, 2020. Jd. at { 107.

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

cardiac arrest.” Id. at 92.

After McGlothen’s death, Plaintiffs claim that neither the Shreveport Fire Department nor

the Shreveport Police Department launched a timely investigation into the responding officials’

conduct surrounding McGlothen’s death. /d. at § 153, 207, 209. On September 18, 2020, a

Caddo Parish Grand Jury indicted Ross, LeClare, McCarter, and Johnson on charges of

malfeasance in office and negligent homicide. Jd. at 2. This suit followed.

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

death. See Record Document 56. Defendants filed a motion to dismiss in which they sought

? It is not clear whether McGlothen was returned to the back seat of the vehicle in an upside-down

position or whether he was still wearing the spit hood.

dismissal of all claims and asserted qualified immunity. Record Document 34. The Court granted

Defendants’ motion as to Plaintiffs’ official capacity claims against the Police Officer and

Responding Fire Defendants. Record Document 47 at 5, 22. It also granted the motion with

respect to Plaintiffs’ Fourteenth Amendment excessive force claims. /d at 11, 22. The Court

denied Defendants’ motion to dismiss pertaining to Plaintiffs’ Fourth Amendment excessive force

claims for the period after McGlothen was handcuffed and regarding Plaintiffs’ failure to provide

medical care claims against the Police Officer Defendants. Jd. at 9, 16, and 22. It denied as moot

Plaintiffs’ unlawful arrest claim because Plaintiffs asserted that there was no unlawful arrest claim

to be dismissed. Jd. at 6. Finally, the Court permitted Plaintiffs the opportunity to amend their

complaint pertaining to their claims: 1) that excessive force was employed against McGlothen

before he was handcuffed, that McGlothen’s Equal Protection rights were violated, and that the

responding officials conspired to violate McGlothen’s constitutional rights under 42 U.S.C. §§

1983 and 1985, against all Defendants; 2) that the Responding Fire Defendants failed to provide

medical care pursuant to the Eighth Amendment; 3) Plaintiffs’ municipal liability claims against

the City of Shreveport; and 4) Plaintiffs’ supervisory liability claim against Raymond and

Wolverton. /d. at 10, 12, 16, 18-22.

Plaintiffs filed a third amended complaint. See Record Document 56. Defendants then

filed the foregoing partial motion to dismiss. See Record Document 58. In their motion,

Defendants seek dismissal of the following claims: due process and/or summary punishment,

Equal Protection, failure to provide medical care against the Responding Fire Defendants, civil

conspiracy, conspiracy pursuant to 42 U.S.C. § 1985, municipal liability, and supervisory

liability. Record Document 58-1 at 3-4.

Il. Law and Analysis

a. Motion to Dismiss Standard

To survive 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) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Federal Rule of Civil Procedure 8(a)(2)

requires only ‘a short and plain statement of the claim showing that the pleader is entitled to

relief,’ in order to ‘give the defendant fair notice of what the .. . claim is and the grounds upon

which it rests.”” Twombly, 550 U.S. at 555 (internal citations omitted). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Jd. (quoting Twombly, 550 U.S. at 555). A court must accept as true

all of the factual allegations in the complaint in determining whether plaintiff has stated a

plausible claim. See id; In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (Sth 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). If a complaint cannot meet this

standard, it may be dismissed for failure to state a claim upon which relief can be granted. /gbal,

556 U.S. at 678-79. A court may dismiss an otherwise well-pleaded claim if it is premised upon

an invalid legal theory. Neitzke v. Williams, 490 U.S. 319, 327 (1989). 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 rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.

2004).

b. Section 1983 Claims

42 U.S.C. § 1983 (“Section 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 person acting under color of state law. Section 1983 does not create substantive rights

but provides 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 Okla. 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).

As previously mentioned, Defendants seek the dismissal of six of Plaintiffs’ Section 1983

claims: due process or summary punishment, Equal Protection, failure to provide medical care,

civil conspiracy, municipal liability, and supervisory liability. Record Document 58-1 at 3-4.

Defendants assert qualified immunity only relating to Plaintiffs’ claims that the Responding Fire

Defendants failed to provide medical care. Jd. at 7. The Court will address Plaintiffs’ claims in

turn below.

i. Due Process or Summary Punishment

Defendants seek dismissal of Plaintiffs’ due process and summary punishment claims.

Record Document 58-1 at 5. Despite the Court’s order that Plaintiffs were not to amend their

complaint pertaining to claims that the Court dismissed with prejudice, see Record Document 47

at 22, Plaintiffs’ third amended complaint raises due process and summary punishment claims

against Johnson, Ross, LeClare, McCarter, Glass, Richardson, and Yelvington, see Record

Document 56 at { 162. In their opposition to Defendants’ motion, Plaintiffs contend that they

have not asserted a claim for due process or summary punishment. Record Document 60 at 5.

Because these claims were already dismissed with prejudice, Defendants’ motion to dismiss

Plaintiffs’ due process and summary punishment claims is DENIED as moot. The Court cautions

Plaintiffs that amending their complaint to revive dismissed claims is not only in direct

contravention of the Court’s directives, see Record Document 47 at 11, 22, but is also inefficient

and a poor use of the Court’s resources.

ii. Equal Protection

“The Equal Protection Clause directs that persons similarly situated should be treated

alike.” Anokwuru v. City of Houston, 990 F.3d 956, 965 (Sth 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.” Gibson v. Tex. Dep’t of Ins.--Div. of Workers’

Comp., 700 F.3d 227, 238 (Sth Cir. 2012) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562,

564 (2000)) (internal quotation marks 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 vy.

Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997) (quoting Brennan y. Stewart, 834 F.2d 1248, 1257

(5th Cir. 1988)) (internal quotation marks omitted).

The Court permitted Plaintiffs to amend their complaint regarding their Equal Protection

claims, finding that they initially “failed to show that any defendant ‘intentionally discriminated’

against McGlothen because of his mental illness, nor [did] Plaintiffs alleg[e] facts to show that

McGlothen was ‘intentionally treated differently from others similarly situated.’” Record

Document 47 at 12. Defendants contend that Plaintiffs’ third amended complaint “is likewise

devoid of sufficient factual allegations sufficient to demonstrate discriminatory intent.” Record

Document 58-1 at 6. Plaintiffs argue that they allege—with enough specificity—how Defendants

violated McGlothen’s Equal Protection rights in paragraphs twenty-six through forty-one of their

third amended complaint. Record Document 60 at 6.

Upon a review of the third amended complaint, and specifically the paragraphs referenced

by Plaintiffs, the Court finds that the previously enumerated deficiencies were not remedied. In

those referenced paragraphs, Plaintiffs outline the interactions between the Police Officer

Defendants and McGlothen wherein they believe that McGlothen’s Equal Protection rights were

violated. According to Plaintiffs, the Police Officer Defendants used excessive force against

McGlothen, despite knowing that he was experiencing a mental health crisis. Record Document

56 at 26-41. Plaintiffs further claim that Ross laughed at and made fun of McGlothen. Jd. at □□

31-39. However, Plaintiffs do not enunciate how these allegations—even when taken as true—

constitute a violation of McGlothen’s Equal Protection rights. First, Plaintiffs do not explain how

the Police Officer Defendants’ actions constitute discrimination. See Gibson, 700 F.3d at 238.

Even if Plaintiffs’ allegations that Ross laughed and made fun of McGlothen are true, Ross’s

actions—unprofessional and inappropriate as they may be—do not constitute discrimination.

Second, Plaintiffs do not articulate how McGlothen was treated differently than others

similarly situated or outline the actions they believe the Police Officer Defendants would have

taken had McGlothen not been suffering from a mental health crisis. See Gibson, 700 F.3d at 238.

McGlothen had three separate interactions with the Shreveport Police Department; however, it is

unclear whether Plaintiffs are alleging that McGlothen’s Equal Protection rights were violated

during each encounter with the Police Officer Defendants or only during a single interaction.

Plaintiffs fail to enunciate how the Police Officer Defendants would have treated others similarly

situated during each of those interactions differently from how they treated McGlothen. Instead,

Plaintiffs simply assert that McGlothen’s Equal Protection rights were violated without

referencing or citing to any specific facts in support of this claim. Considering these deficiencies,

the Court finds that Plaintiffs have failed to allege their Equal Protection claims against the Police

Officer Defendants.

Plaintiffs do not oppose Defendants’ partial motion to dismiss as to their Equal Protection

claims against the Responding Fire Defendants. Upon an examination of the merits of the claim,

the Court similarly finds that Plaintiffs fail to enunciate how the Responding Fire Defendants

discriminated against McGlothen or in what ways they treated him differently from others who

were similarly situated.

Accordingly, Defendants’ partial motion to dismiss is GRANTED with respect to

Plaintiffs’ Equal Protection claims. These claims are DISMISSED WITH PREJUDICE.

ili. Failure to Provide Medical Care

Plaintiffs bring Section 1983 claims against the Responding Fire Defendants for failure to

provide medical care. See Record Document 56 at § 162. “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 (Sth Cir. 2020) (internal quotation marks 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 serious harm

exists, and (2) the official actually drew that inference.” /d. (internal quotation marks and citations

omitted). “Unsuccessful medical treatment, acts of negligence, or medical malpractice do not

constitute deliberate indifference.” Gobert v. Caldwell, 463 F.3d 339, 346 (Sth Cir. 2006).

“Rather, [a plaintiff] must show that the officials refused to treat him, ignored his complaints,

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intentionally treated him incorrectly, or 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 (Sth

Cir. 2019). Defendants have asserted qualified immunity as a defense.

1. Qualified Immunity

The doctrine of qualified immunity shields government officials from liability for claims

against them in their individual capacity “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity serves to shield government

officials from harassment, distraction, and liability when they perform their duties reasonably, and

it applies regardless of whether the official’s error is “a mistake of law, a mistake of fact, or a

mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). A Section

1983 complaint must allege that the constitutional or statutory deprivation was intentional or due

to deliberate indifference and not the result of mere negligence. Farmer v. Brennan, 511 U.S. 825,

834-35 (1994); Daniels v. Williams, 474 U.S. 327, 332 (1986).

Because qualified immunity is “an immunity from suit rather than a mere defense to

liability, . . . it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). Consequently, qualified immunity questions should be

resolved at the earliest possible stage in litigation. See Hunter v. Bryant, 502 U.S. 224, 227 (1991)

(per curiam). While qualified immunity is technically an affirmative defense, once it has been

raised, it is the plaintiffs burden to negate the defense. Poole v. City of Shreveport, 691 F.3d 624,

627 (Sth Cir. 2012).

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In Saucier vy. Katz, 533 U.S. 194, 201 (2001), the Supreme Court held that a court ruling

upon the issue of qualified immunity must apply a two-step analysis. First, the court must

determine whether “the facts alleged show the officer’s conduct violated a constitutional right.”

Id. Second, if a violation has been established, the court must determine whether the officer’s

actions were objectively reasonable in light of clearly established law at the time of the conduct in

question. See id; Freeman v. Gore, 483 F.3d 404, 411 (Sth Cir. 2007). The court may evaluate

these steps in whichever order it so chooses.’ “The touchstone of this inquiry is whether a

reasonable person would have believed that his conduct conformed to the constitutional standard

in light of the information available to him and the clearly established law.” Goodson v. City of

Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). 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. City of Edna, 410 F.3d 745, 750 (Sth Cir. 2005) (citing Malley v.

Briggs, 475 U.S. 335, 343 (1986) (holding that the qualified immunity standard “gives ample

room for mistaken judgments” by protecting “all but the plainly incompetent or those who

knowingly violate the law.”)). The question of whether an official’s conduct was objectively

reasonable is a question of law to be decided by the court. See Evett vy. DETNTFF, 330 F.3d 681,

688 (Sth Cir. 2003) (citing Mangieri v. Clifton, 29 F.3d 1012, 1016 (Sth Cir. 1994)).

To be clearly established, a legal principle must be found in the holdings of either

“controlling authority” or a “robust ‘consensus of cases of persuasive authority,” Ashcroft v. al-

Kidd, 563 U.S. 731, 741-42 (2011) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)), and

3 In Pearson, the Supreme Court held that while the sequence set forth in Saucier is often

appropriate, it is no longer mandatory. Pearson, 555 U.S. at 236. Instead, lower courts “should be

permitted to exercise their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular case at

hand.” Jd.

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defined with a “high ‘degree of specificity,” District of Columbia v. Wesby, 583 U.S. 48, 63

(2018) (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam)). It is not that a case must

be directly on point, but rather, existing precedent must have provided sufficient notice that the

acts violate the Constitution. See Darden v. City of Fort Worth, 880 F.3d 722, 727 (Sth Cir. 2018).

The “clearly established” test ensures that officials have “fair warning” that particular conduct

violates the Constitution. Anderson v. Valdez, 845 F.3d 580, 600 (Sth Cir. 2016) (quoting Kinney

v. Weaver, 367 F.3d 337, 350 (Sth Cir. 2004) (en banc)).

2. Analysis

In its previous ruling, the Court allowed Plaintiffs to amend their complaint pertaining to

their claim that the Responding Fire Defendants failed to provide McGlothen medical care.

Record Document 47 at 16. Specifically, the Court found that Plaintiffs could 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.” Jd.

Additionally, the Court found that Plaintiffs failed to 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.’” Jd.

In their third amended complaint, Plaintiffs contend that the Responding Fire Defendants

failed to take McGlothen’s vitals—blood pressure, temperature, pulse, pulse oxygenation, and

respiratory rate—during their one-minute and sixteen second evaluation; failed to request

additional details about McGlothen’s arrest; and failed to notice any of his injuries despite him

being visibly “battered, scratched, swollen, and bruised all about his face and body.” Record

Document 56 at {7 85, 136-138.

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Defendants contend that Plaintiffs’ argument incorrectly centers upon what the

Responding Fire Defendants should have known. Record Document 58-1 at 12. Specifically,

Defendants argue that Plaintiffs “continue to evince a disagreement with the medical care

provided to Mr. McGlothen and contend that he could or should have received better medical

care[;] [however,] there are simply no facts from which it can be reasonably inferred that the

Responding Fire Defendants showed a ‘wanton disregard’ for his ‘medical needs.’” /d. (citations

omitted).

The Court agrees. First, in their opposition, Plaintiffs argue that Defendants’ motion

should be denied because the Responding Fire Defendants placed a mask on McGlothen knowing

that he was pepper sprayed, which they contend constitutes deliberate indifference. Record

Document 60 at 8. This is not an allegation raised in the third amended complaint; instead, in their

third amended complaint, Plaintiffs claim merely that an unnamed responding official put the

mask on McGlothen to prevent him from spitting on them. See Record Document 56 at J 80. At

no point in their complaint do Plaintiffs explicitly name any of the Responding Fire Defendants as

being culpable for masking McGlothen.

Second, even taking their allegations as true, Plaintiffs have failed to plead facts that

establish deliberate indifference. Plaintiffs do not allege that the Responding Fire Defendants

failed to treat McGlothen; that they ignored a complaint or request for care by McGlothen; or that

they intentionally mistreated McGlothen. Taking Plaintiffs’ claims as true, the Responding Fire

Defendants’ actions may rise to the level of negligence. However, negligence does not constitute

deliberate indifference. Plaintiffs may disagree with the treatment that McGlothen received by the

Responding Fire Defendants, but a mere disagreement with the medical treatment provided to a

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pretrial detainee does not rise to the level of deliberate indifference. See Cadena v. El Paso

County, 946 F.3d 717, 729 (5th Cir. 2020) (citing Gobert, 463 F.3d at 346).

Even if Plaintiffs were able to establish that the Responding Fire Defendants failed to

provide McGlothen medical care, Plaintiffs did not advance any legal arguments or cite to any

facts regarding Defendants’ assertion of qualified immunity. Instead, Plaintiffs simply state that

the Responding Fire Defendants are not entitled to qualified immunity because their third

amended complaint remedied the prior deficiencies. See Record Document 60 at 8. Plaintiffs do

not list or discuss the two analytical prongs of qualified immunity, they neglect to discuss what an

objectively reasonable responder would have done under the circumstances, and they fail to

establish that the Responding Fire Defendants’ actions were unconstitutional under clearly

established law. Plaintiffs make only a vague reference to a case titled Bailey v. Dallas County,

No. 09-CV-0865-K, 2012 WL 1033502, at *1 (N.D. Tex. Mar. 28, 2012), aff'd sub nom, Bailey v.

Quiroga, 517 F. App’x 268 (5th Cir. 2013), in support of their assertion that the Responding Fire

Defendants are not entitled to qualified immunity. See Record Document 60 at 8. However, they

fail to summarize the facts or holding of that case, enunciate how the facts in Bailey are similar to

the case before the Court, or provide any analysis of that case in support of their claims.

In conclusion, Plaintiffs have failed to meet their burden. The third amended complaint

did not remedy the deficiencies outlined by the Court in its previous memorandum ruling.

Moreover, Plaintiffs were unable to rebut Defendants’ assertion of qualified immunity.

Accordingly, Defendants’ motion to dismiss on this issue is GRANTED, and Plaintiffs’ claims

against the Responding Fire Defendants for failure to provide medical care are DISMISSED

WITH PREJUDICE.

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iv. Civil Conspiracy

Defendants seek dismissal of Plaintiffs’ civil conspiracy claims under Section 1983. “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.” Latiolais v. Cravins, 484 F. App’x 983, 988-

89 (Sth Cir. 2012) (citing Hale v. Townley, 45 F.3d 914, 920 (Sth Cir. 1995)). The elements of a

civil conspiracy claim are “(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 (Sth Cir. 2010)

(citation omitted).

In its prior memorandum ruling, the Court found that Plaintiffs’ complaint was deficient

because it did not allege enough facts to plead a civil conspiracy claim or that Defendants had an

agreement to “batter McGlothen, deny him medical treatment, or cover up their actions.” Record

Document 47 at 17. Defendants contend that Plaintiffs have failed to remedy these issues. Record

Document 58-1 at 14-15. Plaintiffs contend that they alleged “with specificity that Defendants, all

acting in concert, used excessive and unreasonable force upon [McGlothen]” to deprive him of

medical attention. Record Document 60 at 10-11.

The Court agrees with Defendants. Just as before, Plaintiffs have failed to establish that

Defendants acted in concert with one another to deprive McGlothen of his constitutional rights.

Although Plaintiffs represent that Defendants conspired with one another to harm McGlothen,

they do not allege a meeting of the minds. Even if they did allege that the Defendants had an

agreement with one another to harm McGlothen or to deprive him of medical care, they fail to

articulate when a meeting of the minds took place or what the terms of their agreement involved.

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In their opposition to Defendants’ motion, Plaintiffs failed to cite to any law or paragraphs in their

complaint in support of their civil conspiracy claims, which is something the Court had noted in

its prior ruling. See Record Document 47 at 17 (finding that “Plaintiffs do not cite any law or

paragraphs in their complaint upon which to base their conspiracy claim[s].”). The Court is not

required to accept these conclusory statements as fact.

In sum, Plaintiffs failed to adequately plead a civil conspiracy claim against Defendants.

Thus, Defendants’ motion to dismiss on this issue is GRANTED, and Plaintiffs’ civil conspiracy

claims under Section 1983 are DISMISSED WITH PREJUDICE.

v. Municipal Liability Claims

Plaintiffs bring two municipal liability claims against the City of Shreveport, alleging that

it has adopted a series of policies, procedures, and customs that resulted in the violation of

McGlothen’s constitutional rights. Record Document 56 at {fj 181-182. Plaintiffs also claim that

the City of Shreveport fails to supervise and train its employees. Jd. In its prior memorandum

ruling, the Court found that Plaintiffs’ municipal liability claims were too conclusory and did not

sufficiently allege facts to support municipal liability claims. See Record Document 47 at 20.

Defendants argue that Plaintiffs’ third amended complaint fails to remedy the deficiencies

outlined by the Court. See Record Document 58-1 at 23, 25.

As previously mentioned, Section 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 person acting under color of state law. 42 U.S.C. § 1983. The Supreme

Court has held that municipalities are “persons” within the meaning of Section 1983. Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). However, “a municipality

cannot be held liable solely because it employs a [constitutional] tortfeasor.” Monell, 436 U.S. at

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691. A municipality is liable under Monell when the execution of one of its customs or policies

was responsible for the constitutional harm. Id. at 694.

To successfully prove municipal liability, a plaintiff must establish three elements: “(1) an

official policy (or custom), of which (2) a policy maker can be charged with actual or constructive

knowledge, and (3) a constitutional violation whose moving force is that policy (or custom).”

Pineda v. City of Hous., 291 F.3d 325, 328 (Sth Cir. 2002) (citing Piotrowski v. City of Hous. □ 237

F.3d 567, 578 (Sth Cir. 2001)) (internal marks omitted). An “official policy” can be evidenced

through “duly promulgated policy statements, ordinances or regulations,” or by a custom that is

such a persistent and widespread practice that, although not officially promulgated, it fairly

represents a municipal policy because it is “so common and well settled.” Webster v. City of

Hous., 735 F.2d 838, 841-42 (Sth Cir. 1984), on reh’g, 739 F.2d 993 (Sth Cir. 1984); see also

Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 168-69 (Sth Cir. 2010). 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 government officials whose acts can be fairly

attributed to those of the municipality itself. Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v.

Brown, 520 U.S. 397, 404-05 (1997). At the motion to dismiss stage, “a complaint’s description

of a policy or custom and its relationship to the underlying constitutional violation cannot be

conclusory; it must contain specific facts.” Henderson v. Harris County, Tex., 51 ¥.4th 125, 130

(5th Cir. 2022) (quoting Pefia v. City of Rio Grande City, 879 F.3d 613, 622 (Sth Cir. 2018))

(internal quotation marks omitted).

The existence of an official policy or custom can be established in one of two ways.

Zarnow, 614 F.3d at 169. “First, a plaintiff must prove either that a pattern of unconstitutional

conduct may be shown on the part of municipal actors or employees. .. . Alternatively, it may be

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shown that a final policymaker took a single unconstitutional action.” Jd. (internal citations

omitted). “A customary municipal policy cannot ordinarily be inferred from single constitutional

violations.” Piotrowski, 237 F.3d at 581; see Pefia, 879 F.3d at 622 (“To plausibly plead a

practice so persistent and widespread as to practically have the force of law, .. . a plaintiff must

do more than describe the incident that gave rise to his injury.” (cleaned up)). “A pattern requires

similarity, specificity, and sufficiently numerous prior incidents.” Davidson vy. City of Stafford,

Tex., 848 F.3d 384, 396 (Sth Cir, 2017) (citing Peterson v. City of Fort Worth, Tex., 588 F.3d 838,

851 (5th Cir. 2009)). “Prior indications cannot simply be for any and all ‘bad’ or unwise acts, but

rather must point to the specific violation in question.” Estate of Davis ex rel. McCully v. City of

N. Richland Hills, 406 F.3d 375, 383 (Sth Cir. 2005).

1. Official Policy or Custom

The Court finds that Plaintiffs failed to adequately plead a municipal liability claim with

the requisite specificity regarding the adoption of a policy or custom. Plaintiffs represent that they

have identified eighteen “policies, practices, and/or customs” adopted by the City of Shreveport

that have resulted in “under qualified and undertrained police force and EMS personnel that were

ill-equipped to perform obvious and necessary law enforcement activities without exposing the

public to unwarranted danger of injury.” Record Document 56 at § 182. Plaintiffs’ identification

of those “policies, practices, and/or customs” is listed as follows verbatim:

1) patrolling procedures; 2) Terry stops; 3) misdemeanor stops; 4) felony stops; 5)

use of force; 6) use of deadly force; 7) use of intermediate force weapons; 8)

apprehending/arresting suspects; 9) involuntary mental health holds/arrests; 10)

foot pursuits; 11) use of audio/video recording devices; 12) providing medical

attention; 13) summoning medical attention; 14) arresting procedures; 15)

completion of reports and collection of evidence; 16) completion of Use of Force

Reports; 17) investigating officer compliance with policy and procedure and

critical incidents; 18) monitoring officer compliance with policy including[:] []

crisis intervention[,| [] emotionally disturbed persons[,] [] early warning systems], |

and [| civil rights laws and violations.

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Record Document 56 at { 181.

First, this list set forth by Plaintiffs does not identify any specific policies, procedures, or

customs adopted or promulgated by the City of Shreveport. Instead, Plaintiffs have merely

provided a list of areas in which they believe the City of Shreveport has failed to provide adequate

guidance. Furthermore, Plaintiffs have failed to provide any contextual information about these

alleged policies, procedures, or customs, such as their name, date of enactment, or to whom they

apply. For example, Plaintiffs do not allege that the City of Shreveport has a specific policy

governing Terry stops, to whom the policy applies, what portions of the policy are flawed, what

additional provisions are required, or how Defendants were non-compliant with this policy. In

short, Plaintiffs have failed to identify a specific policy, custom, or practice that resulted in the

violation of McGlothen’s constitutional rights.

Second, Plaintiffs only identify a single additional incident where they contend that Ross

was accused of using excessive force against an individual. According to the third amended

complaint, “[i]Jn 2019, Defendant Ross was accused of excessive force by a female subject. After

an incomplete and biased investigation, he was exonerated. During this alleged encounter,

Defendant Ross was not utilizing a microphone.” Record Document 56 at § 116. However,

Plaintiffs fail to provide any additional contextual information about this incident. The Court does

not know the underlying facts of that incident or how the facts of that case compare to the facts in

the instant case. Plaintiffs do not allege that there were any additional complaints launched

against the Shreveport Police Department or Ross, or that two instances of reported excessive

force—which includes Plaintiffs’ complaint—are sufficient to constitute a pattern.

Third, Plaintiffs failed to allege how these alleged policies, procedures, or official customs

resulted in the violation of McGlothen’s constitutional rights. Plaintiffs aver that the policies

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“demonstrate[e] a deliberate indifference on the part of policymakers of the City [of Shreveport]

to the constitutional rights of citizens, including Mr. McGlothen, and [were] the proximate cause

of the injuries and damages sustained by Mr. McGlothen ... .” Jd. at ¢ 188. However, Plaintiffs

fail to allege how these alleged policies constitute deliberate indifference by the City of

Shreveport or how McGlothen would not have died but for these policies, practices, and customs.

Plaintiffs continue to rely upon conclusory allegations without specifically enunciating the causal

link between the policies and the actions they claim that Defendants took against McGlothen. In

other words, not only do Plaintiffs fail to identify a policy, practice, or custom, but they also fail

to allege facts that could connect those policies, practices, or customs to the underlying

constitutional violations. Plaintiffs’ third amended complaint is overly conclusory and does not

meet the pleading requirements. Accordingly, Defendants’ partial motion to dismiss is

GRANTED with respect to this issue, and this claim is DISMISSED WITH PREJUDICE.

2. Failure to Train and Supervise

Failure to train and supervise claims are types of Monell claims. See Hutcheson v. Dall.

Cnty., Tex., 994 F.3d 477, 482 (5th Cir. 2021). “The failure to train can amount to a policy if there

is deliberate indifference to an obvious need for training where citizens are likely to lose their

constitutional rights on account of novices in law enforcement.” Jd. (quoting Peterson, 588 F.3d

at 849) (internal quotation marks omitted). To succeed in their claim, Plaintiffs must demonstrate

the following: (1) inadequate training or supervision of the individuals involved; (2) the

inadequate training or supervision caused a violation of the plaintiff's constitutional rights; and

(3) the inadequate training and supervision constituted deliberate indifference of municipal

policymakers to the plaintiffs constitutional rights. Cousin v. Small, 325 F.3d 627, 637 (Sth Cir.

2003). “[T]he focus must be on adequacy of the training program in relation to the tasks the

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particular officer must perform.” Shumpert v. City of Tupelo, 905 F.3d 310, 317 (Sth Cir. 2018).

Deliberate indifference requires actual or constructive notice that a particular omission in a

training program causes city employees to violate citizens’ constitutional rights, yet the

municipality nevertheless chooses to retain that program. Connick v. Thompson, 563 U.S. 51, 61

(2011).

As the Fifth Circuit has explained, the evidence must demonstrate more than “a mere “but

for’ coupling of cause and effect. The deficiency in training must be the actual cause of the

constitutional violation.” Shumpert, 905 F.3d at 317. A pattern of similar constitutional violations

by untrained and unsupervised employees is ordinarily necessary to demonstrate deliberate

indifference. Jd. “Without notice that a course of training is deficient in a particular respect,

decision makers can hardly be said to have deliberately chosen a training program that will cause

violations of constitutional rights.” Jd.

Plaintiffs contend that the City of Shreveport failed to train and supervise its employes on

the same eighteen topics that the Court has already enumerated. See Record Document 56 at §

182. In their opposition, Plaintiffs raise the same arguments regarding the failure to train and

supervise as their official policy, procedure, and custom claim. See id. at {§ 182-193.

The Court finds that Plaintiffs have failed to plead a municipal liability claim for the

failure to train and supervise. Plaintiffs do not name a specific supervisory procedure or training

program they believe the City of Shreveport was required—but did not—provide. Instead,

Plaintiffs again list the same eighteen topics, identifying them in this portion of their argument as

the deficient areas in which they believe the City of Shreveport’s employees should be trained.

Plaintiffs also fail to specifically allege how the City of Shreveport’s current training programs or

supervision procedures are deficient or with which training or supervisory standards the City of

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Shreveport fails to comply. Plaintiffs also fail to adequately allege how the deficiencies in

employee training and supervision resulted in the alleged constitutional violations, or how these

alleged deficiencies rose to the level of deliberate indifference. Plaintiffs’ third amended

complaint continues to raise a series of overly conclusive allegations. These claims do not provide

Defendants with adequate notice of what specific actions or decisions Plaintiffs believe to have

resulted in the alleged constitutional violations. Accordingly, Defendants’ partial motion to

dismiss is GRANTED with respect to this issue, and this claim is DISMISSED WITH

PREJUDICE.

vi. Supervisory Liability

As the Court has already mentioned, Plaintiffs bring supervisory liability claims against

Raymond and Wolverton. Record Document 56 at 49. “Section 1983 does not create supervisory

or respondeat superior liability.” Brown v. Taylor, 911 F.3d 235, 245 (Sth Cir. 2018) (quoting

Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002)) (internal marks omitted). Instead, “a plaintiff

must show either [that] the supervisor personally was involved in the constitutional violation or

that there is a ‘sufficient causal connection’ between the supervisor’s conduct and the

constitutional violation.” Jd. (quoting Evett, 330 F.3d at 688) (internal quotation marks omitted).

However, “[s]upervisory liability exists even without overt personal participation in the offensive

act if supervisory officials implement a policy so deficient that the policy ‘itself is a repudiation

of constitutional rights’ and is ‘the moving force of the constitutional violation.” Thompkins v.

Belt, 828 F.2d 298, 304 (5th Cir. 1987) (quoting Grandstaff v. City of Borger, 767 F.2d 161, 169-

170 (Sth Cir. 1985)).

In its prior ruling, the Court permitted Plaintiffs to amend their complaint pertaining to

their supervisory liability claims, finding that “Plaintiffs’ supervisor[y] liability claims against

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Chief Raymond and Chief Wolverton appear to mirror their Monell 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 liability ....” Record

Document 47 at 20.

The Court finds that Plaintiffs were unable to remedy their deficient complaint regarding

their supervisory liability claims. Plaintiffs do not allege that Raymond and Wolverton were

personally involved in the events leading up to McGlothen’s death. Instead, they reiterate their

contention that the policies governing the City of Shreveport’s employees—including those

governing investigations of alleged constitutional violations were so deficient that Raymond

and Wolverton should be held liable. See Record Document 60 at 21.

Plaintiffs’ supervisory liability claims continue to appear duplicative of their municipal

liability claims. The Fifth Circuit evaluates supervisory liability claims using the same standard

that is used to assess municipal liability claims. See Rios v. City of Del Rio, Tex., 444 F.3d 417,

426 (5th Cir. 2006) (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (Sth Cir. 1994)). Just

as it found regarding Plaintiffs’ municipal liability claims, the Court finds that Plaintiffs failed to

plausibly and sufficiently allege a causal relationship between the alleged policy deficiencies

governing investigations and the alleged violations of McGlothen’s constitutional rights.

Accordingly, Plaintiffs have failed to adequately plead supervisory liability claims against

Raymond and Wolverton. Defendants’ partial motion to dismiss is GRANTED, and these

Plaintiffs’ claims are DISMISSED WITH PREJUDICE.

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c. Conspiracy Under Section 1985

In its prior ruling, the Court allowed Plaintiffs to amend their complaint regarding their

conspiracy claims brought pursuant to 42 U.S.C. § 1985(3). Record Document 47 at 18.

Specifically, the Court found:

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. Because of the lack of argument as to this specific claim, the Court

considers this claim to be abandoned. 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.

Id. (internal quotation marks and citations omitted).

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

person or property, or a deprivation of any right 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.

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

Defendants seek dismissal of these conspiracy claims, arguing that Plaintiffs fail to allege

any facts that establish the existence of an agreement between Defendants or that such agreement

was motivated by a class-based animus. Record Document 58-1 at 14-15. The Court agrees and

finds that Plaintiffs were unable to cure the above-referenced deficiencies. In their opposition to

Defendants’ motion, Plaintiffs only discuss their conspiracy claims generally and do not allege

any facts, advance any legal argument, or cite to any authority specific to their Section 1985

conspiracy claims, including that this conspiracy was motivated by a class-based animus. In fact,

Plaintiffs fail to write “Section 1985” a single time in their opposition brief. The Court has

already dismissed Plaintiffs’ civil conspiracy claims under Section 1983. Considering the lack of

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specific briefing on this issue, the Court sees no reason to depart from its finding here.

Defendants’ motion to dismiss on this issue is GRANTED. Plaintiffs’ conspiracy claims under

Section 1985 are DISMISSED WITH PREJUDICE.

WI. Conclusion

For the foregoing reasons, IT IS ORDERED that Defendants’ partial motion to dismiss

[Record Document 58] is GRANTED with respect to the following claims: Equal Protection,

civil conspiracy, and conspiracy under Section 1985 against all Defendants; failure to provide

medical care against the Responding Fire Defendants; municipal liability against the City of

Shreveport; and supervisory liability claims against Raymond and Wolverton. Those claims are

hereby DISMISSED WITH PREJUDICE. Defendants’ partial motion to dismiss is DENIED as

moot with respect to the due process and summary punishment claims because these issues were

previously dismissed. The remaining claims for trial include: excessive force, failure to intervene,

and wrongful death pursuant to Louisiana state law against all Defendants; the failure to provide

medical care against the Police Officer Defendants; and the direct action claim against American

Alternate Insurance Corporation.

THUS DONE AND SIGNED this 28th day of September, 2023.

UNITED STATES DISTRICT JUDGE

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