Hermes v. Greenwood Police Dept

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

HARRY JARED HERMES CIVIL ACTION NO. 23-1441

VERSUS JUDGE S. MAURICE HICKS, JR.

GREENWOOD POLICE DEPT., ET AL. MAGISTRATE JUDGE MCCLUSKY

MEMORANDUM RULING

Before the Court is a Motion to Dismiss Pursuant to FRCP 12(b)(6) brought by

Defendants Town of Greenwood,1 Jerry Steele (“Steele”), George Shaul (“Shaul”), and

Chris Faris (“Faris”) (collectively “Defendants”). See Record Document 9. Plaintiff Harry

Jared Hermes (“Hermes”) opposed the motion and Defendants replied. See Record

Documents 13 & 14. For the reasons stated below, Defendants’ motion is GRANTED IN

PART and DENIED IN PART.

BACKGROUND

The facts are alleged in the Complaint as follows. On September 12, 2022,

Hermes’s parents contacted Shane Gibson (“Gibson”),2 the Chief of Greenwood Police

Department, to complain that Officer Faris was targeting, harassing, and intimidating

Hermes. See Record Document 1 at ¶ 5. Hermes’s parents alleged that as part of his

pattern of harassment, Faris issued a felony warrant for Hermes based on “made up”

information. See id. In response to the complaint, Gibson explained that “Faris was a

good cop” but “promised to investigate” the allegations. Id.

1 Town of Greenwood is incorrectly named “City of Greenwood” in the Complaint. See

Record Document 1 at ¶ 4. Town of Greenwood is sued through its police department.

See id.

2 Shane Gibson was not named as a party in this case.

On October 12, 2022, Hermes was present at his parents’ home in Greenwood,

Louisiana when Steele, Shaul, and Faris (collectively “Officers”) arrived at the family’s

home. See id. at ¶¶ 5-6. “The purported purpose of the visit was to serve a warrant, though

on route to the Hermes’ residence, Defendant Faris confirmed with the Caddo Parish

Sheriff Department that [Hermes] had been previously served with the warrant and that

[Hermes] had complied with the same.” Id. at ¶ 6. Later, it was explained that the purpose

of the visit was to investigate a neighbor’s complaint that Hermes drove by their home

and yelled curse words. See id. at ¶¶ 6-7.

When the Officers arrived, they searched “the outside perimeter of the home.” See

id. at ¶ 6. Shaul approached the front door and rang the video doorbell. See id. at ¶¶ 6-7.

Through the video doorbell, Shaul informed Hermes’s parents that “if he did not get

Plaintiff’s side of the story . . . he would have to issue an arrest warrant for Plaintiff.” Id. at

¶ 7. Hermes’s parents contacted Hermes, who then came to the door. See id. at ¶ 8. At

the door, Hermes answered Shaul’s questions and denied his neighbor’s allegations. See

id. at ¶¶ 8-9. When Shaul asked Hermes to step out of the house, Hermes declined and

explained that he did not feel comfortable doing so given his history with Greenwood

Police Department. See id. at ¶ 8. Hermes asked Shaul to leave. See id.

Steele and Faris joined Shaul at the door. See id. at ¶ 9. At that time, Hermes and

his father (through the video doorbell) asked the Officers to leave the home. See id. When

Hermes and his father noticed Faris was present, they specifically demanded Faris leave

the home. See id. After they asked Faris to leave the home, Faris “violently grabbed

Plaintiff by his wrists, drew his taser and threatened to use it on Plaintiff.” See id. at ¶ 9.

Faris forced Hermes out of the home and arrested him. Neither Steele nor Shaul

attempted to stop Faris from grabbing, threatening, or arresting Hermes. See id. Hermes

was subsequently charged with Disturbing the Peace and Resisting Arrest. The charge

for Disturbing the Peace was dropped. See id.

Hermes filed the instant suit against Town of Greenwood, and against Steele,

Shaul, and Faris in their individual and official capacities, seeking declaratory, injunctive,

and monetary relief pursuant to 42 U.S.C. § 1983 and the Fourth and Fourteenth

Amendments to the United States Constitution. See id. at ¶¶ 1, 4. Hermes asserts federal

claims of false arrest, illegal search, excessive force, equal protection, bystander liability,

and Monell claims, and state law claims of invasion of privacy, denial of humane

treatment, torture and cruel, excessive and unusual punishment, gross negligence, and

intentional torts.

Defendants filed a Motion to Dismiss (Record Document 9) seeking dismissal of

all of Hermes’s claims. Defendants contend that the official capacity claims against

Steele, Shaul, and Faris are duplicative of the claims against Town of Greenwood, and

that the individual capacity claims are barred by qualified immunity. They further contend

Hermes alleged insufficient facts to establish the Monell claims against Town of

Greenwood and the bystander liability claims against Steele, Shaul, and Faris. Finally,

Defendants contend that the state law claims are barred by state law immunity under

Louisiana Revised Statute § 9:2798.1.

LAW AND ANALYSIS

Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the requirements for

pleadings that state a claim for relief and requires that a pleading contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” To determine

whether a complaint is adequate under Rule 8(a)(2), courts now apply the “plausibility”

standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and its

progeny. Under this standard, “factual allegations must be enough to raise a right to relief

above the speculative level . . . on the assumption that all the allegations in the complaint

are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56. If a pleading only contains

“labels and conclusions” and “a formulaic recitation of the elements of a cause of action,”

the pleading does not meet the standards of Rule 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citation omitted).

Federal Rule of Civil Procedure 12(b)(6) allows parties to seek dismissal of a

party’s pleading for failure to state a claim upon which relief may be granted. In deciding

on a Rule 12(b)(6) motion to dismiss, a court generally “may not go outside the pleadings.”

Colle v. Brazos County, 981 F.2d 237, 243 (5th Cir. 1993). Additionally, courts must accept

all allegations in a complaint as true. See Iqbal, 556 U.S. at 678. However, courts do not

have to accept legal conclusions as fact. See id. Courts considering a motion to dismiss

under Rule 12(b)(6) are only obligated to allow those complaints that are facially plausible

under the Iqbal and Twombly standard to survive. See id. at 678-79. If the complaint does

not meet this standard, it can be dismissed for failure to state a claim upon which relief

can be granted. See id.

Defendants seek to dismiss the following claims under Rule 12(b)(6): (1) claims

against Steele, Shaul, and Faris in their official capacities; (2) claims for punitive damages

against Steele, Shaul, and Faris in their official capacities; (3) claims against Steele,

Shaul, and Faris in their individual capacities; (4) bystander liability claims against Steele

and Shaul; (5) Monell claims against Greenwood PD; and (6) state law claims.

I. Official Capacity Claims

Defendants seek dismissal of Hermes’s claims against Steele, Shaul, and Faris in

their official capacities because the official capacity claims are duplicative of those

brought against Town of Greenwood. Hermes has agreed to voluntarily dismiss his official

capacity claims and punitive damages claims against the Officers in their official

capacities. See Record Document 13 at 23. Hermes’s official capacity claims against the

Officers and Hermes’s claims for punitive damages against the Officers in their official

capacities are DISMISSED.

II. Individual Capacity Claims

Hermes brings claims against Shaul, Steele, and Faris in their individual capacities

for false arrest, illegal search, excessive force, and equal protection. Defendants argue

that all the individual capacity claims should be dismissed because the individual Officers

are entitled to qualified immunity.

“When a defendant asserts a qualified-immunity defense in a motion to dismiss,

the court has an ‘obligation . . . to carefully scrutinize [the pleadings] before subjecting

public officials to the burdens of broad-reaching discovery.’” Longoria Next Friend of M.L.

v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 263-64 (5th Cir. 2019) (quoting

Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986)). To overcome a defense of

qualified immunity on a motion to dismiss, a plaintiff “must plead specific facts that both

allow the court to draw the reasonable inference that the defendant is liable for the harm

he has alleged and that defeat a qualified immunity defense with equal specificity.” Backe

v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). A district court should only “defer its qualified

immunity ruling if further factual development is necessary to ascertain the availability of

that defense.” See id.

The Court engages in a two-step analysis to determine the applicability of a

qualified immunity defense. First, the Court considers whether plaintiff alleged the

“violation of a clearly established constitutional right.” Pierce v. Smith, 117 F.3d 866, 872

(5th Cir. 1997) (quoting Siegert v. Gilley, 500 U.S. 226, 231 (1991)). Second, the Court

considers whether “defendant’s conduct was ‘objectively reasonable,’ measured by

reference to the law as clearly established at the time of the challenged conduct.’” Id.

(quoting Meadowbriar Home for Child., Inc. v. Gunn, 81 F.3d 521, 530 (5th Cir. 1996)).

Therefore, the issue is whether Hermes alleged sufficient facts to raise a

reasonable inference that a violation of a clearly established constitutional right occurred

and that Defendants’ conduct was objectively unreasonable in light of that clearly

established law.

A. False Arrest

The existence of probable cause is a prerequisite to any constitutional arrest,

which is a “seizure” of a person under the Fourth Amendment. See Michigan v. DeFillippo,

443 U.S. 31, 37 (1979). “Probable cause” is defined as “facts and circumstances within

the officer's knowledge that are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances shown, that the suspect has

committed, is committing, or is about to commit an offense.” Id. “The facts [constituting

the basis for probable cause] must be known to the officer at the time of the arrest; post-

hoc justifications based on facts later learned cannot support an earlier arrest.” Club

Retro, LLC v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).3

The Fifth Circuit has held that where qualified immunity is asserted as a defense

to a false arrest, the plaintiff must show that it was “‘clearly established that the

circumstances with which’ the officer ‘was confronted did not constitute probable cause

and exigent circumstances.’” Pierce, 117 F.3d at 871 (quoting Anderson v. Creighton, 483

U.S. 635, 635 (1987)). “[T]here must not even ‘arguably’ be probable cause for the search

and arrest for immunity to be lost.” Brown v. Lyford, 243 F.3d 185, 190 (5th Cir. 2001)

(internal quotations omitted). This is because “[q]ualified immunity gives ample room for

mistaken judgments by protecting all but the plainly incompetent or those who knowingly

violate the law.” Id. Therefore, to prevail on a Section 1983 claim of false arrest, Hermes

“must show that [Faris] did not have probable cause to arrest him.” See Haggerty v. Tex.

S. Univ., 391 F.3d 653 (5th Cir. 2004).

At this stage of the proceeding, Hermes has sufficiently alleged facts that suggest

the Officers did not have probable cause for arrest. According to the Complaint, the

Officers came to Hermes’s home to serve a warrant. Despite learning in transit that

Hermes had already complied with that warrant, they continued to the Hermes home “to

purportedly investigate a neighbor’s complaint.” Record Document 1 at ¶ 6. Hermes

3 According to the Complaint, Faris was charged with disturbing the peace and resisting

an officer, both of which are misdemeanors in Louisiana. See La. R.S. §§ 14:103, 14:108.

This fact does not change the constitutional analysis because “[t]he United States

Constitution does not require a warrant for misdemeanors not occurring in the presence

of the arresting officer.” Fields v. City of South Houston, 922 F.2d 1183, 1189 (5th Cir.

1991) (citation omitted). Whether for a felony or misdemeanor arrest, “there is no cause

of action for ‘false arrest’ under section 1983 unless the arresting officer lacked probable

cause.” See id. (citation omitted).

denied the Officers’ allegations about the neighbor’s complaint. Hermes’s pleading

alleges that the Officers retroactively justified their visit based on allegations of a

neighbor’s complaint that Hermes denied. The Court cannot find at this juncture that

probable cause existed for Hermes’s arrest for the neighbor’s complaint. Whether the

arrest was lawful is intertwined with the disputed facts underlying the neighbor’s alleged

complaint and the Officers’ visit.

Defendants further argue that the arrest was lawful because Hermes “did not

comply with the lawful requests of the responding Defendant Officers,” citing Louisiana

Revised Statute § 14:108. See Record Document 14 at 6. However, the Louisiana statute

for resisting an officer makes it a crime to resist or obstruct an officer that is “authorized

by law to make a lawful arrest, lawful detention, or seizure of property or to serve any

lawful process or court order.” La. R.S. § 14:108(A). A question remains as to whether the

Officers were authorized by law to make a lawful arrest or detention; therefore, it is unclear

whether Hermes had any statutory duty to comply with the demands. The Motion to

Dismiss is DENIED with respect to the Section 1983 claim for false arrest.

B. Illegal Search

It is clearly established that a warrantless entry into the home violates the Fourth

Amendment. The United States Supreme Court has unequivocally held that absent

probable cause and exigent circumstances, the entrance to a home “may not reasonably

be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590 (1980); see also

Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) (“[W]arrantless felony arrests in the home

are prohibited by the Fourth Amendment, absent probable cause and exigent

circumstances.”). For the purposes of the Fourth Amendment, the “area ‘immediately

surrounding and associated with the home,’” also referred to as the “curtilage,” is “part of

the home itself for Fourth Amendment purposes.” Collins v. Virginia, 584 U.S. 586, 592

(2018) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)). “[T]he Fourth Amendment's

protection of curtilage has long been black letter law.” Id. Officers have probable cause to

search a residence “if ‘under the totality of the circumstances, there is a fair probability

that contraband or evidence of a crime will be found in a particular place.’” United States

v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011) (quoting United States v. Newman, 472 F.3d

233, 237 (5th Cir. 2006)).

Hermes alleges the Officers searched the curtilage of his home without a warrant

and that Faris breached the threshold of his home to pull him out and effectuate an arrest.

Under the circumstances as alleged in the Complaint and at the Rule 12(b)(6) stage, the

Court cannot say that the Officers had probable cause to conduct any search. According

to the Complaint, the Officers explained they visited the Hermes home to investigate a

neighbor’s complaint that Hermes drove by their home and yelled profanities. The Officers

did not have a warrant to search, and there are no facts set forth in the Complaint

suggesting that probable cause existed to search the residence. Hermes’s alleged

misdemeanor offense of driving and yelling at a neighbor’s home would have been

unlikely to produce any contraband or evidence that would have been discoverable by

the Officers.

Further, to the extent that the reach into the home is implicated, as explained supra,

factual questions remain as to whether the arrest was lawful. Hermes has alleged

sufficient facts to establish that Steele, Shaul, and Faris engaged in behavior that may be

considered objectively unreasonable in light of his clearly established right. Thus, the

Motion to Dismiss is DENIED with respect to the Section 1983 claim for illegal search.

C. Excessive Force

An excessive force claim requires the plaintiff show that while he was being

arrested, he suffered “(1) an injury that (2) resulted directly and only from the use of force

that was excessive to the need and that (3) the force used was objectively unreasonable.”

Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (internal quotations omitted).

“Although a showing of ‘significant injury’ is no longer required in the context of an

excessive force claim, ‘we do require a plaintiff asserting an excessive force claim to have

suffered at least some form of injury.’” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.

2001) (quoting Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). For example,

allegations that a plaintiff was “handcuff[ed] too tightly, without more, does not amount to

excessive force.” Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005) (quoting Glenn,

242 F.3d at 314). The threshold for what constitutes an injury is subjective and is “defined

entirely by the context in which the injury arises.” Schmidt v. Gray, 399 F. App’x 925, 928

(5th Cir. 2010).

According to the Complaint, Faris pulled Hermes out of his home, threatened to

tase him, “roughly handle[d]” him, and ultimately “place[d] him in tightly bound handcuffs.”

See Record Document 1 at ¶ 9. Hermes alleges that as a result, he faced physical injury

for which he sought medical treatment, as well as emotional injury. See id. at ¶¶ 10-11.

By simply claiming injury, without any specificity as to what injury he suffered, Hermes

fails to properly plead his claim of excessive force. Precedent makes clear that the

handcuffing alone is insufficient to sustain a claim of excessive force. See Tarver, 410

F.3d at 752. Similarly, rough handling, with no facts as to what injuries were suffered, is

insufficient.

As to his emotional injuries, Hermes claims that he “suffered significant emotional

injury, extreme humiliation and mental anguish.” See Record Document 1 at ¶ 11.

However, “[o]nly substantial psychological injuries are sufficient to meet the injury element

of a claim for excessive force under the Fourth Amendment.” Carter v. Diamond URS

Huntsville, LLC, No. 14-CV-2776, 2016 WL 8711499, at *5 (S.D. Tex. Sept. 30, 2016)

(citing Flores v. City of Palacios, 381 F.3d 391, 397-98 (5th Cir. 2004)). Hermes’s claim

that he suffered emotional injury, without more, is insufficient to meet the pleading

standard. Hermes’s Section 1983 claim of excessive force is DISMISSED.

D. Equal Protection

To successfully plead an equal protection violation, a plaintiff must present factually

supported allegations that (1) “he was treated differently than persons similarly situated

to him” and (2) “that such treatment stemmed from discriminatory intent.” Anokwuru v.

City of Houston, 990 F.3d 956, 965 (5th Cir. 2021) (citing Fennell v. Marion Indep. Sch.

Dist., 804 F.3d 398, 412 (5th Cir. 2015)). Discriminatory intent requires a showing that

“the decision maker singled out a particular group for disparate treatment and selected

his course of action at least in part for the purpose of causing its adverse effect on an

identifiable group.” Id. (citing Fennell, 804 F.3d at 412).

Hermes’s Complaint lacks any factual support for his equal protection claim. His

sole allegation related to this claim is an overly broad statement that Defendants

“deliberately sought to deprive Plaintiff of equal protection of the laws.” See Record

Document 1 at ¶ 13. While the standard for overcoming a Rule 12(b)(6) motion does not

require minute detail, “an unadorned, the-defendant-unlawfully-harmed-me accusation”

is not enough. See Twombly, 550 U.S. at 555. Hermes's Section 1983 claim for violation

of equal protection is DISMISSED.

III. Bystander Liability

“[A]n officer who is present at the scene and does not take reasonable measures

to protect a suspect from another officer's use of excessive force may be liable under

section 1983.” Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995) (citing Harris v. Chanclor,

537 F.2d 203, 205-06 (5th Cir. 1976)). To assert a claim of bystander liability, a plaintiff

must show that the officer “(1) knows that a fellow officer is violating an individual's

constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3)

chooses not to act.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (citation omitted);

see also Hale, 45 F.3d at 919 (considering whether the other law enforcement officers

present “had a reasonable opportunity to realize the excessive nature of the force and to

intervene to stop it”). Claims of bystander liability are not limited to acquiescence to

excessive force; they may also relate to other constitutional violations. See Hanna, 726

F.3d at 646 n.11.

Hermes only asserts facts relevant to Steele and Shaul’s failure to intervene in

Faris’s alleged excessive force used in effectuating the arrest. See Record Document 1

at ¶ 9. However, as explained supra, Hermes cannot establish that Faris was violating his

constitutional rights through excessive force. Therefore, neither Steele nor Shaul can be

liable for failing to intervene and the claims for bystander liability are DISMISSED.

IV. Monell Claims

In the context of Section 1983 Monell claims against municipalities, courts have

held that relevant policy or widespread practice need not be pled in exhaustive detail. See

Maze v. Garber, No. 19-CV-0953, 2020 WL 2892174, at *3 (W.D. La. June 1, 2020) (citing

Thomas v. City of Galveston., 800 F. Supp. 2d 826, 842-46 (S.D. Tex. 2011) (“[O]nly

minimal factual allegations should be required at the motion to dismiss stage.”)). A plaintiff

alleging Section 1983 Monell claims against municipalities must plead sufficient facts “to

state a claim for relief that is plausible on its face,” that is, enough “to raise a reasonable

expectation that discovery will reveal evidence” to support the claim. Id. (citing Twombly,

550 U.S. at 570). A plaintiff must at least identify the relevant policy, custom or practice

that was the motivating force for the alleged constitutional violation and 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. See Maze, 2020 WL 2892174, at *3.

A municipal entity is not liable under Section 1983 on the theory of vicarious liability.

See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). Under

Monell, a municipal entity may be liable only if its official policy or custom is the “moving

force” behind the plaintiff's alleged constitutional right violation. See Rivera v. Hous.

Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (citations omitted). To succeed on a

Monell claim against a local government entity, a plaintiff must establish three elements:

(1) an official policy or custom; (2) of which a policy maker can be charged with actual or

constructive knowledge; and (3) a constitutional violation whose moving force is that

policy or custom. See Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010).

Official policy is generally found in “duly promulgated policy statements, ordinances or

regulations.” Id. A policy can also be evidenced by custom. A custom is a “persistent,

widespread practice of City officials or employees, which, although not authorized by

officially adopted and promulgated policy, is so common and well-settled as to constitute

a custom that fairly represents municipal policy.” Hinojosa v. Butler, 547 F.3d 285, 296

(5th Cir. 2008).

A municipality can be liable for failure to train, supervise, or discipline its employees

“when the municipality's failure shows a deliberate indifference to the rights of its

inhabitants.” Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010). “Claims

of inadequate training generally require that the plaintiff demonstrate a pattern.” Id.

Moreover, the previous acts must be “fairly similar to what ultimately transpired and, in

the case of excessive use of force, that the prior act must have involved injury to a third

party.” Id. Monell plaintiffs must also establish both the causal link (“moving force”) and

the City's degree of culpability (“deliberate indifference” to federally protected rights).

Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001).

While Hermes need not plead his Monell claims in exhaustive detail, here he

provides no more than generic, boilerplate recitations of the elements of claims against

the Town of Greenwood. Defendants correctly argues that the allegations are conclusory.

Hermes broadly states that the Town of Greenwood has carried out policies that gave rise

to his injuries, including policies of continuing warrantless arrests, disregarding probable

cause requirements, use of force, disregarding serious medical needs, failure to

“terminate” abusive practices, failure to discipline, failure to train, failure to promulgate

training policies, and facilitating constitutional violations. See Record Document 1 at ¶¶

16-17. However, Hermes has not done more than list the elements of a Monell violation

outside of his conclusory allegation that the policies “caused injury to the Plaintiff.” See

id. at ¶ 15.

Hermes argues his claim as to failure to discipline should survive the Motion to

Dismiss because he alleges his parents put Town of Greenwood on notice of Faris’s

harassment. However, the Complaint does not plead any facts as to the harassment nor

does it allege that the Greenwood Police Department failed to discipline Faris. In fact, the

Complaint alleges that Gibson took Hermes’s parents’ complaints and “promised to

investigate the matter.” Id. at ¶ 5.

Based on the foregoing, Hermes’s Monell claims against Town of Greenwood are

DISMISSED.

V. State Law Claims

Hermes also adds state law claims for invasion of privacy, denial of humane

treatment, torture and cruel, excessive and unusual punishment, gross negligence, and

intentional torts under Louisiana Civil Code Article 2315 and Louisiana Constitution Article

1, §§ 2 and 5. Defendants contend that the state law claims must be dismissed because

Hermes cannot overcome the immunity to which Defendants are entitled under Louisiana

Revised Statute § 9:2798.1.

Under Louisiana Revised Statute § 9:2798.1, public entities and their officers and

employees are immune for any actions or omissions undertaken in the performance of

“policymaking or discretionary acts when such acts are within the course and scope of

their lawful powers and duties.” To overcome this immunity, a plaintiff must show that

either: (1) the “acts or omissions . . . are not reasonably related to the legitimate

governmental objective for which the policymaking or discretionary power exists” or (2)

the “acts or omissions . . . constitute criminal, fraudulent, malicious, intentional, willful,

outrageous, reckless, or flagrant misconduct.” La. R.S. § 9:2798.1(C). Alternatively, a

plaintiff can overcome immunity by establishing gross negligence. See Mercer v. Lowe,

217 So. 3d 1235, 1238 (La. App. 2 Cir. 2017).

Defendants address Hermes’s state law claims only by asserting state law

immunity and asserting that Hermes did not point to any particular law or authority

Defendants violated that would overcome this immunity. However, to overcome immunity,

Hermes need not show that the actions were unlawful. He can also overcome immunity

by showing that the Defendants’ acts and/or omissions were malicious, intentional, willful,

outrageous, reckless, or flagrant misconduct. Hermes has sufficiently alleged conduct

that could fall into that category and—as with the claims as to individual liability under

federal law—more facts are necessary to determine whether state law immunity will

protect Defendants from liability. The Motion to Dismiss is DENIED with respect to the

state law claims.

CONCLUSION

Based on the reasons explained above,

IT IS ORDERED that Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)(6)

(Record Document 9) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that the Motion to Dismiss Pursuant to FRCP 12(b)(6)

is GRANTED with respect to Hermes’s claims against the Officers in their official

capacities, excessive force and equal protection claims against the Officers in their

individual capacities, bystander intervention claims, and Monell claims. These claims are

DISMISSED.

IT IS FURTHER ORDERED that the Motion to Dismiss Pursuant to FRCP 12(b)(6)

is DENIED with respect to Hermes’s claims for false arrest and illegal search against the

Officers in their individual capacities, and state law claims.

An order consistent with this ruling shall issue herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 27th day of December,

2024.

kpc [beef

UNITED STATES DISTRICT COURT

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