# Hermes v. Greenwood Police Dept

> District Court, W.D. Louisiana · December 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10771771

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** December 27, 2024
- **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
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

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10771771. Public record. Not legal advice.