# Fusilier v. Zaunbrecher

> District Court, W.D. Louisiana · March 13, 2019

URL: https://www.frixlaw.com/law-library/cases/10741836

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** March 13, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

DAMEON R. FUSILIER, ET AL. : CIVIL ACTION NO. 17-cv-1212

VERSUS : UNASSIGNED DISTRICT JUDGE

ELIZABETH ZAUNBRECHER, ET AL. : MAGISTRATE JUDGE KAY

REPORT AND RECOMMENDATION

Before the court is a Motion to Dismiss filed by defendants Lieutenant Elizabeth
Zaunbrecher, Detective C. Michael Trosclair, Sergeant Jerod Abshire, Deputy Aaron Shelton,
Sheriff Tony Mancuso, and Berkley Insurance Company. Doc. 46. Plaintiff Dameon R. Fusilier
opposes dismissal. Doc. 50. The motion has been referred to the undersigned for review, report,
and recommendation in accordance with the provisions of 28 U.S.C. § 636.
For the reasons stated below, IT IS RECOMMENDED that the Motion to Dismiss be
GRANTED, the plaintiff’s 42 U.S.C. § 1983 claims be DISMISSED WITH PREJUDICE and
the plaintiff’s state law claims be DISMISSED WITHOUT PREJUDICE.
I.
BACKGROUND

This case arises from a civil rights complaint filed by Dameon R. Fusilier,1 following his
arrest, 29-day incarceration without bail, and trial for false personation of a peace officer and
criminal trespass, in the 14th Judicial District, Calcasieu Parish, Louisiana, for which he was

1 The initial complaint included loss of consortium claims [doc. 1, p. 24] put forth by Ryan S. Benoit and by Kayla
Lynn Fusilier, individually, and on behalf of her minor children, D. Deshotel and H. Fusilier. Doc. 1, pp. 1–2. On July
18, 2018, all claims, except those asserted by Dameon R. Fusilier, were dismissed with prejudice. Doc. 32.
acquitted. Doc. 1. According to plaintiff, on January 7, 2016, he was driving in Iowa, LA, when
he observed a vehicle driving in “an erratic and unsafe manner.” Id. at 7–8. He followed the driver
and began flashing the LED security lights he had affixed to his car to get the driver’s attention.
Id. He alleges that he followed the vehicle onto a driveway, out of concern for the driver. Id. at 8.
The car was driven by Lieutenant Elizabeth Zaunbrecher, an off-duty Calcasieu Parish Sheriff’s

deputy. Id. at 8–9; doc 46, att. 1, pp. 2–3. Plaintiff alleges that Zaunbrecher was angry and that,
after a brief exchange, plaintiff left the scene, later reporting Zaunbrecher’s driving to the police.
Doc. 38, p. 11.
Plaintiff was arrested later that day for false personation of a peace officer, a violation of
Louisiana Revised Statute § 14:112.1; and misdemeanor criminal trespass, a violation of Louisiana
Revised Statute § 14:63. Doc. 50, att. 2. Following his arrest he was held without bail for 29 days,
until February 4, 2016. 2 Id. at 4; doc. 38, pp. 20, 24. Plaintiff asserts that during this 29-day period,
he lost 25 pounds, was denied medication, and was in tremendous pain due to a gallbladder
removal on December 26, 2015. Doc. 38, pp.22–24.

On September 22, 2017, plaintiff filed suit in this court seeking damages under federal and
state law. Doc. 1. Made defendants therein were the four employees of the Calcasieu Parish
Sheriff’s Office (“CPSO”) alleged to be involved in plaintiff’s arrest and detainment—
Zaunbrecher, Detective C. Michael Trosclair, Sergeant Jerod Abshire, and Deputy Aaron Shelton.
See id. at 12–17, 20–21. Also made defendants were Calcasieu Parish Sheriff Tony Mancuso, in
his official capacity, and CPSO’s insurer. Id. at 3.
Plaintiff initially asserted federal claims under 42 U.S.C. § 1983, alleging that the CPSO
employees violated his constitutional rights under the Fourth, Eighth, and Fourteenth Amendment.

2 Under Article 312 of the Louisiana Code of Criminal Procedure, a person in custody who is charged with the
commission of an offense is entitled to bail before his conviction (barring a few exceptions not applicable to this case).
Id. at 20–21. In an amended complaint, plaintiff puts forth claims under Louisiana law and § 1983
for malicious prosecution, and under § 1983 for unlawful seizure. Doc. 38, pp. 26–28.His claims
are asserted against Tony Mancuso in his official capacity and against the CPSO employees in
their personal and official capacities, and against Berkley Insurance Company as the insurer of the
CPSO. Id. at 3.

On November 6, 2018, defendants filed the instant Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), and alternatively pursuant to Rule 12(c). Doc. 46. They argue
that no federal cause of action for malicious prosecution exists and that plaintiff has not alleged
the factual basis necessary to sustain a claim based on Fourth Amendment violations. Doc. 46, att.
1, pp. 4–10. They also assert that the CPSO employees are entitled to qualified immunity, and that
certain unspecified claims have prescribed. Id. at 10–15. Plaintiff opposes dismissal, arguing he
has put forth enough facts to sustain his claim. Docs. 50, 57.
II.
LAW AND ANALYSIS

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for dismissal of a claim when
a plaintiff “fail[s] to state a claim upon which relief can be granted.” When reviewing such a
motion, the court should focus exclusively on the complaint and its attachments.3 Wilson v.
Birnberg, 667 F.3d 591, 595 (5th Cir. 2012). Such motions are also reviewed with the court
“accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the
plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (citing Walker v. S. Cent. Bell Tel.
Co., 904 F.2d 275, 276 (5th Cir. 1990)).

3 Defendants improperly submitted various exhibits in support of their motion. See doc. 46, atts. 2–3; doc. 51, att. 1.
Because we find it unnecessary to consider these exhibits in determining the merits of the motion, we ignore them
rather than converting this motion into one for summary judgment.
The court’s task in evaluating a motion to dismiss under Rule 12(b)(6) is “not to evaluate
the plaintiff’s likelihood of success,” but instead to determine whether the claim is both legally
cognizable and plausible. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010) (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). However, “[w]hile the
district court must accept as true all factual allegations in the complaint, it need not resolve unclear

questions of law in favor of the plaintiff.” Kansa Reinsurance Co., Ltd. v. Congressional Mortgage
Corp. of Texas, 20 F.3d 1362, 1366 (5th Cir.1994) (citations omitted).
A. Federal Claims under § 1983
At the outset, we note that although plaintiff connects his § 1983 claims to “malicious
prosecution” [doc. 38, p. 28], his claims are more properly assessed as Fourth Amendment claims.
Section 1983 provides a cause of action against those who “under color of any statute, ordinance,
regulation, custom, or usage, of any State,” deprive another “of any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “[T]o proceed under 42 USC
§ 1983 such a claim must rest upon a denial of rights secured under federal and not state law.”

Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003). “[N]o such freestanding constitutional
right to be free from malicious prosecution exists.” Id. at 945. Nevertheless, a claim can be brought
under § 1983 for an unlawful arrest and detention if such events violate a person’s Fourth
Amendment protections against unreasonable search and seizure. See id. at 953–54; see also
Manuel v. City of Joliet, III., 137 S.Ct. 911, 914 (2017).
In reviewing a claim under § 1983, “[a] district court ‘may raise the defense of limitations
sua sponte . . . and dismissal is appropriate if it is clear from the face of the complaint that the
claims asserted are barred by the applicable statute of limitations.’”4 Stanley v. Foster, 464 F.3d

4 As noted above, the defendants asserted that unspecified claims had prescribed in their motion. To the extent that
this argument was waived for failure to brief, we revive it sua sponte here.
565, 568 (5th Cir. 2006) (quoting Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999))
(alterations omitted). “Because there is no federal statute of limitations for § 1983 claims, district
courts use the forum state’s personal injury limitations period.” Moore v. McDonald, 30 F.3d 616,
620 (5th Cir. 1994). “In Louisiana, the one-year prescriptive period established in Civil Code
Article 3492 applies to § 1983 claims.” Marceaux v. Lafayette City-Parish Consol. Gov’t, 921

F.Supp.2d 605, 645 (W.D. La. 2013). However, while “state law controls the limitations period
for section 1983 claims, federal law determines when a cause of action accrues.” Rodriguez v.
Holmes, 963 F.2d 799, 803 (5th Cir. 1992).
Under federal law, “the statute of limitations upon a § 1983 claim seeking damages for
false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal
proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.”
Wallace v. Kato, 127 S.Ct. 1091, 1100 (2007). However, if the claim is based on an arrest with a
warrant, “the limitations period begins to run when the suspect’s ‘false imprisonment comes to an
end,’ which occurs when the suspect ‘appears before the examining magistrate and is bound over

for trial.’” McGuire v. Larpenter, 592 Fed.Appx. 272, 275 (5th Cir. 2014) (quoting Wallace, 127
S.Ct. at 1091)) (alterations omitted).
Plaintiff’s federal claims under 42 U.S.C. § 1983 are based on his arrest, which he alleges
was conducted pursuant to a warrant. Doc. 38, pp. 16–20, 26. This seizure took place on January
7, 2016. Id. at 2. After appearing before the magistrate on February 3, 2016, the plaintiff was
released on bond the following day. Id. at 2, 24–25. Given that the original complaint was filed
September 22, 2017 [doc. 1], plaintiff’s § 1983 claims are time-barred. Accordingly, we
recommend that these be dismissed with prejudice and we decline to consider the other bases
asserted by defendants under Rule 12(b)(6).
B. State Law Claims
Under 28 U.S.C. § 1367(c)(3), a district court enjoys “wide discretion” in determining
whether to retain supplemental jurisdiction over state law claims after the federal claims are
dismissed. Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). As the Supreme Court has
emphasized, “[n]eedless decisions of state law should be avoided both as a matter of comity and

to promote justice between the parties, by procuring for them a surer-footed reading of applicable
law.” Id. (quoting United Mine Workers of America v. Gibbs, 86 S.Ct. 1130, 1139 (1966)). Given
that the only remaining claims are non-constitutional torts asserted against state actors, we
recommend the court decline to continue exercising supplemental jurisdiction in this matter and
dismiss the state law claims without prejudice.
III.
CONCLUSION

For the reasons stated above, IT IS RECOMMENDED that the Motion to Dismiss be
GRANTED, the plaintiff’s 42 U.S.C. § 1983 claims be DISMISSED WITH PREJUDICE and
plaintiff’s state law claims be DISMISSED WITHOUT PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties have fourteen (14) days from receipt of this Report and Recommendation to
file written objections with the Clerk of Court. Failure to file written objections to the proposed
factual findings and/or the proposed legal conclusions reflected in this Report and
Recommendation within fourteen (14) days of receipt shall bar an aggrieved party from attacking
either the factual findings or the legal conclusions accepted by the District Court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1429–30
(5th Cir.1996).
THUS DONE AND SIGNED in Chambers this 13" day of March, 2019.

THLEE
UNITED STATES MAGIS TE JUDGE

-7-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10741836. Public record. Not legal advice.