Sibley v. Dick

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BRANDON SIBLEY, ET AL. CIVIL ACTION NO. 23-0024

VERSUS JUDGE S. MAURICE HICKS, JR.

SHELLY D. DICK, ET AL. MAGISTRATE JUDGE WHITEHURST

MEMORANDUM RULING

Before the Court is a Rule 12(b)(1) and 12(b)(6) Motion to Dismiss filed by the

Marshal Defendants: the United States Marshals Service (“USMS”); United States

Marshal Brown (“Marshal Brown”); Deputy United States Marshal Jeff Bowie (“Deputy

Bowie”); Supervisory Deputy United States Marshal Michael Attaway (“Deputy Attaway”);

Attorney General Merrick Garland; and Director Ronald L. Davis (“Director Davis”) of the

USMS.1 See Record Document 60. Plaintiff Howard Brown (“Brown”) opposed the

Motion to Dismiss. See Record Documents 78 & 79. The Marshal Defendants filed a

reply. See Record Document 80. For the reasons set forth below, the Marshal

Defendants’ Motion to Dismiss (Record Document 60) is GRANTED.2

BACKGROUND

Acting pro se, Plaintiffs Brown, Brandon Sibley (“Sibley”), and Melanie Jerusalem

(“Jerusalem”) filed the instant lawsuit alleging a violation of constitutionally protected

rights (Bivens action), violation of 42 U.S.C. § 1985 (conspiracy to violate constitutional

rights), common law conspiracy, violation of 42 U.S.C. § 2000(a), and grossly negligent

1 Marshal Brown, Deputy Bowie, and Deputy Attaway were sued in their official and

individual capacities. Attorney General Merrick Garland and Director Davis were sued in

their official capacity.

2 Plaintiffs have also filed a Motion for Summary Judgment (Record Document 116)

requesting the Court to enter an order granting judgment in their favor. All defendants

opposed such motion and Plaintiffs replied. See Record Documents 118-122. As set

forth infra, because all of Plaintiffs’ claims have been dismissed, their Motion for Summary

Judgment (Record Document 116) is DENIED.

infliction of emotional distress. See Record Document 22 at 8. Their complaint centers

around three COVID-related orders issued by Chief Judge Dick in the Middle District of

Louisiana. See id. at 9. Plaintiffs maintain that these orders – Administrative Order Nos.

2020-8, 2021-5, and 2022-3 – were unconstitutional on their face. See id. They seek a

declaratory judgment that the Administrative Orders (“AOs”) are unconstitutional, to enjoin

the enforcement of the AOs, and damages for each alleged denial of entry to the Russell

B. Long Federal Building and United States Courthouse (“the Courthouse”).

Administrative Order No. 2020-8 (Pandemic Related Curtailed Operations) was

issued on June 30, 2020 and provided in pertinent part:

All employees and persons having business in the Russell B. Long

Courthouse and Federal Building shall be required to wear masks when in

any public space in the buildings, shall observe social distancing, and shall

observe all posted signs and placards.

Record Document 22-1 at 3. Administrative Order No. 2021-5 (Pandemic Related

Curtailed Operations) was issued on July 22, 2021 and provided in pertinent part:

All employees and persons having business in the Russell B. Long Federal

Building and United States Courthouse and the United States Bankruptcy

Court shall be required to wear masks when in any public space in the

buildings, shall observe physical distancing, and shall observe all posted

signs and placards, regardless of vaccination status.

Record Document 22-3 at 3. Administrative Order No. 2022-3 (Revised Pandemic

Masking Requirements) (“AO 2022-3) was issued on March 15, 2022 and provided in

pertinent part:

[P]ursuant to the authority granted to the Chief Judge presiding over a

primary courthouse building and pursuant to the approval granted by the

Facility Security Committee governing multi-tenant facilities, fully

vaccinated individuals are no longer required to wear a mask within the

Russell B. Long Federal Building and United States Courthouse and the

U.S. Bankruptcy Court (“the Courthouses”). In order to unmask, individuals

having business in the Courthouses must provide proof of vaccination upon

entry. Acceptable forms of proof of vaccination include the Centers for

Disease Control’s (CDC’s) COVID-19 Vaccination Record Card issued by

the vaccine provider or, for attorneys and others permitted to enter the

Courthouses with personal electronic devices, the SMART Health Card

record that can be found in the LA Wallet application for mobile devices. If

proof of vaccination is not provided upon entry, the individual must wear a

mask at all times in the Courthouses. Individuals who are not fully

vaccinated shall be required to wear masks. Anyone who fails or refuses to

comply will be required to leave the Courthouses immediately. This Order

does not prohibit individuals from electing to wear a mask, regardless of

vaccination status.

Record Document 22-2 at 2-3. “Fully vaccinated” was “defined as two weeks after

receiving the second dose of a two-dose vaccine (Pfizer or Moderna) or the single-does

vaccine (Johnson & Johnson).” Id. at 2 n.1. All three AOs were signed by Chief Judge

Dick. The orders were carried out by the USMS and/or Metropolitan Security Services,

Inc., also known as Walden Security, acting pursuant to a contract with, and under the

direction of, the USMS. See Record Document 22 at 18, 21, 26, & 32. On March 29,

2023, Chief Judge Dick issued Administrative Order No. 2023-2 (“AO 2023-2”). AO 2023-

2 is entitled Rescission of Pandemic Masking Requirements and is available on the

Middle District of Louisiana’s website under rules and general orders. See United States

District Court, Middle District of Louisiana, https://www.lamd.uscourts.gov

/orders/public_orders/AO%202023-2.pdf (last visited March 11, 2025). AO 2023-2

rescinded AO 2022-3 and provided that “entrants to the Russell B. Long Federal Building

and United States Courthouse and the U.S. Bankruptcy Court are no longer required to

wear a mask, regardless of vaccination status.” Id.3

3 Federal Rule of Civil Procedure Rule 201(b) provides that “the court may judicially notice

a fact that is not subject to reasonable dispute because it: (1) is generally known within

the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.” Judicial notice of matters of

public record includes materials like court orders. See Davis v. Bayless, 70 F.3d 367,

372 (5th Cir. 1995) (taking judicial notice of state court orders). Generally, the court does

not look beyond the face of the pleadings in deciding a Rule 12(b)(6) motions. However,

courts are permitted to consider materials subject to judicial notice. See Norris v. Hearst

At various times, Plaintiffs were denied entry to the Courthouse since they did not

provide proof of vaccination and would not wear a mask. Plaintiffs allege the AOs at issue

allowed for no exemptions, thus chilling and deterring their right for self-determination and

access to the courts for grievances. See Record Document 22 at 20. The Marshal

Defendants have now moved to dismiss all of Plaintiffs’ claims. See Record Document

60. The Marshal Defendants submit that Plaintiffs’ claims for declaratory and injunctive

relief are moot since the AOs have been rescinded. See Record Document 60-1 at 6-10.

Next, the Marshal Defendants argue that Plaintiffs have failed to assert cognizable claims

against them under Bivens, Section 1985, or Section 2000(a). See id. at 11-15, 17-20.

Finally, the Marshal Defendants maintain that this Court lacks jurisdiction over Plaintiffs’

state law claims. See id. at 21-22. Plaintiff Brown opposed the Motion to Dismiss. See

Record Documents 78 & 79.

LAW AND ANALYSIS

I. Rule 12(b)(1) and 12(b)(6) Standards.

“Under Federal Rule of Civil Procedure 12(b)(1), a claim is properly dismissed for

lack of subject-matter jurisdiction when the court lacks the statutory or constitutional

power to adjudicate the claim.” Turner v. Scott, No. 18-00998, 2019 WL 3771751, at *1

(M.D. La. Aug. 9, 2019) (quoting In re FEMA Trailer Formaldehyde Prods. Liability

Litigation, 668 F. 3d 281, 286 (5th Cir. 2012)). Furthermore, “[a] motion to dismiss under

Rule 12(b)(1) is analyzed under the same standard as a motion to dismiss under Rule

12(b)(6).” Id. (citing Benton v. United States, 960 F. 2d 19, 21 (5th Cir. 1992)). The party

asserting jurisdiction has the burden of proof under Rule 12(b)(1). See Wells v. Dep’t of

Trust, 500 F.3d 454, 461 (5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion

to take judicial notice of matters of public record.”).

Children and Family Servs., No. 23-354, 2024 WL 3319925, at *2 (M.D. La. Jan. 24,

2024).

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. FED. R.

CIV. P. 12(b)(6). In deciding a Rule 12(b)(6) motion to dismiss, a court generally “may

not go outside the pleadings.” Colle v. Brazos Cnty., Tex., 981 F. 2d 237, 243 (5th Cir.

1993). Additionally, courts must accept all allegations in a complaint as true. See Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). However, courts do not have

to accept legal conclusions as facts. 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 standards to survive such a motion. See id. at 678-79,

1949-50. 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.

“Although a ‘pro se complaint is to be construed liberally with all well-pleaded

allegations taken as true,’ a pro se plaintiff nevertheless must plead sufficient factual

matter that supports her claim to relief in order to survive a Rule 12(b)(6) motion to

dismiss.” Craig v. Bolner, No. 15-00815, 2017 WL 4228757, at *1 (M.D. La. Sept. 22,

2017) (quoting Johnson v. Atkins, 999 F. 2d 99, 100 (5th Cir. 1993)). Furthermore, “[e]ven

a liberally construed pro se civil rights complaint, however, must set forth facts giving rise

to a claim on which relief may be granted.” Id.

II. Sovereign Immunity.

An action against a federal official in his official capacity is actually a suit against

the sovereign – the United States. See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407,

413-14 (5th Cir. 2004). Federal courts generally lack jurisdiction to entertain such claims

in accordance with principles of sovereign immunity. See McCarrell v. Davis, No. A-17-

CV-668-LY-ML, 2017 WL 11221248, at *2 (W.D. Tex. July 31, 2017), report and

recommendation adopted, No. 1:17-CV-668-LY, 2017 WL 11221249 (W.D. Tex. Aug. 25,

2017). The United States may not be sued without its consent. See United States v.

Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965 (1983). The existence of consent is a

prerequisite for jurisdiction. See id. “A waiver of sovereign immunity cannot be implied

but must be unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538, 100

S.Ct. 1349, 1351 (1980). “Thus, a party seeking to bring a claim against a federal official

acting in his or her official capacity – and therefore, as a matter of law, against the United

States—must identify a specific waiver of immunity in order to establish jurisdiction.”

McCarrell, 2017 WL 11221248, at *2.

III. Bivens

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388, 91 S.Ct. 1999 (1971), recognized an implied cause of action against federal

employees for unreasonable searches and seizures in violation of the Fourth

Amendment. See Butler v. S. Porter, 999 F.3d 287, 293 (5th Cir. 2021). The Supreme

Court has extended Bivens in only two more cases: Davis v. Passman, 442 U.S. 228,

248-49, 99 S.Ct. 2264, 2278-2279 (1979) (gender discrimination in violation of the Fifth

Amendment) and Carlson v. Green, 446 U.S. 14, 16–18, 100 S.Ct. 1468, 1470-1471

(1980) (failure to treat a prisoner’s medical condition in violation of the Eighth

Amendment). See id.

Courts confronting Bivens claims generally must first ask two questions: (1) do the

claims fall into one of the three existing Bivens actions; and (2) if not, should a new Bivens

action be recognized here? See Oliva v. Nivar, 973 F.3d 438, 441-42 (5th Cir. 2020).

“Today, Bivens claims generally are limited to the circumstances of the Supreme Court’s

trilogy of cases in this area: (1) manacling the plaintiff in front of his family in his home

and strip-searching him in violation of the Fourth Amendment; (2) discrimination on the

basis of sex by a congressman against a staff person in violation of the Fifth Amendment;

and (3) failure to provide medical attention to an asthmatic prisoner in federal custody in

violation of the Eighth Amendment.” Id. at 442 (internal citations omitted). “Virtually

everything else is a new context.” Id. “New context” is interpreted as broad because

“even a modest extension of the Bivens trilogy is still an extension.” Id., citing Ziglar v.

Abbasi, 582 U.S. 120, 147, 137 S.Ct. 1843, 1864 (2017). The Supreme Court “has made

clear that expanding the Bivens remedy is now a disfavored judicial activity” and “it has

consistently refused to extend Bivens to any new context or new category of defendants.”

Ziglar, 582 U.S. at 135, 137 S.Ct. at 1857, citing Correctional Services Corp. v. Malesko,

534 U.S. 61, 68, 122 S.Ct. 515, 520 (2001).

IV. Analysis.

A. Claims Against the USMS and All Official Capacity Claims.

Plaintiffs have not alleged, and the Court is not aware, that the USMS has waived

its right to sovereign immunity by means of statute or other method with regard to the

Bivens claims. Thus, with regard to Plaintiffs’ Bivens claims against the USMS, the Court

finds the claims are barred by the doctrine of sovereign immunity, rendering such claims

subject to dismissal for want of jurisdiction. See Sheid v. United States Marshal Serv.,

No. 08-CV-3295, 2009 WL 1750379, at *7 (S.D. Tex. June 17, 2009) (holding USMS

protected by sovereign immunity), aff’d, 379 F. App’x 345 (5th Cir. 1999), cert denied,

562 U.S. 1223 (2011).

Moreover, even if the USMS is not protected by sovereign immunity, it is not

subject to a Bivens action. Although a plaintiff may bring a Bivens action against federal

officials in their individual capacities for alleged constitutional violations, a plaintiff may

not bring a Bivens action against the United States or its agencies. See Zuspann v.

Brown, 60 F.3d 1156, 1160–61 (5th Cir. 1995). Thus, because the USMS is a federal

agency, Plaintiffs have failed to state a claim for which relief can be granted with regard

to the USMS.

Plaintiffs have also sued Marshal Brown, Deputy Bowie, Deputy Attaway, Attorney

General Merrick Garland, and Director Davis in their official capacities. Suits against

government officers in their official capacities are considered suits against the

government itself. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1985). Any claims

against these defendants in their official capacities is merely a claim against the USMS

or the federal government. Accordingly, for the same reasons Plaintiffs’ claims against

the USMS are barred and subject to dismissal for want of jurisdiction, so are any claims

against Marshal Brown, Deputy Bowie, Deputy Attaway, Attorney General Merrick

Garland, and Director Davis in their official capacities.

B. Declaratory and Injunctive Relief.

The Court will now address Plaintiffs’ claims for declaratory and injunctive relief,

namely that the AOs are unconstitutional and that this Court should enjoin the

enforcement of such orders. As noted previously, AO 2023-2 rescinded the previous

COVID-19 restrictions, specifically stating that “entrants to the Russell B. Long Federal

Building and United States Courthouse and the U.S. Bankruptcy Court are no longer

required to wear a mask, regardless of vaccination status.” See United States District

Court, Middle District of Louisiana, https://www.lamd.uscourts.gov/orders/public_

orders/AO%202023-2.pdf (last visited March 11, 2025). Because the AOs at issue in this

case have all been rescinded, there is no longer a concrete effect on Plaintiffs. Resolution

of Plaintiffs’ disputes regarding the lawfulness of the AOs no longer presents a live case

or controversy.

The Fifth Circuit recently discussed mootness in the context of challenges to

statutes, orders, and ordinances, reasoning:

Mootness is one of the doctrines that ensures federal courts are only

deciding live cases or controversies. Campbell-Ewald Co. v. Gomez, –––

U.S. ––––, 136 S. Ct. 663, 669, 193 L.Ed.2d 571 (2016). A matter is moot

“when it is impossible for a court to grant any effectual relief whatever to the

prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298,

307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (quotations omitted).

It makes sense, then, that a case challenging a statute, executive

order, or local ordinance usually becomes moot if the challenged law has

expired or been repealed. See, e.g., Veasey v. Abbott, 888 F.3d 792, 799

(5th Cir. 2018) (“Ordinarily, a[n] [action] challenging a statute would become

moot by the legislature's enactment of a superseding law.”). Once the law

is off the books, there is nothing injuring the plaintiff and, consequently,

nothing for the court to do. See N.Y. State Rifle & Pistol Ass’n, Inc. v. City

of New York, ––– U.S. ––––, 140 S. Ct. 1525, 1526, 206 L.Ed.2d 798 (2020)

(holding that a claim for injunctive relief against a law was moot when the

law was amended to give “the precise relief that [the plaintiffs] requested”);

Amawi v. Paxton, 956 F.3d 816, 819, 821 (5th Cir. 2020) (dismissing an

appeal as moot because a statutory amendment “provided the plaintiffs the

very relief their lawsuit sought”).

Spell v. Edwards, 962 F.3d 175, 178-179 (5th Cir. 2020). Notwithstanding, a defendant

cannot moot a case simply by ending its alleged unlawful conduct once sued. See

Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 727 (2013). “Government

officials in their sovereign capacity and in the exercise of their official duties are accorded

a presumption of good faith because they are public servants, not self-interested private

parties.” Yarls v. Bunton, 905 F.3d 905, 910-11 (5th Cir. 2018). Absent evidence to the

contrary, courts “assume that formally announced changes to official governmental policy

are not mere litigation posturing.” Id. at 911. Here, Plaintiffs have not presented any

contrary evidence. Moreover, the rescission of the pandemic masking requirements in

this case resulted from a fundamental change in public health conditions, that is, the end

of the Federal COVID-19 Public Health Emergency Declaration. See Record Document

51 at 9 n.2.

This case also does not fall within the “exceptional situation[]” covered by the

“capable-of-repetition doctrine.” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 988

(1998). This exception applies when two circumstances are simultaneously present: (1)

the challenged action is in its duration too short to be fully litigated prior to cessation or

expiration, and (2) there is a reasonable expectation that the same complaining party will

be subject to the same action again. See id. Focusing on circumstance number two,

Plaintiffs cannot meet their burden to establish the capable-of-repetition doctrine

exception applies. Plaintiffs’ challenge of the AOs focused on the issuance of a mask

mandate to combat the spread of a novel pandemic in its early stages. The impacts of

the COVID-19 pandemic were felt worldwide and the majority of state and federal

government agencies had masking mandates or other COVID-19 restrictions in place.

There is no reasonable likelihood that Plaintiffs’ fact-specific dispute will repeat itself, nor

that another mask mandate will issue due to a serious public health danger arising from

a communicable disease. See, e.g., Spell, 962 F.3d at 180 (holding that challenge to an

expired COVID-19 stay-at-home order was not capable of repetition yet evading review

because it was “speculative, at best” that a similar order raising the same issues would

recur); County of Butler v. Governor of Pennsylvania, 8 F.4th 226, 230-231 (3rd Cir. 2021)

(similar); Brach v. Newsom, 38 F.4th 6, 15 (9th Cir. 2022) (similar); Resurrection Sch. v.

Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (similar). The Fifth Circuit requires more than a

mere theoretical possibility that the challenged conduct will occur again. See Lopez v.

City of Houston, 617 F.3d 336, 340 (5th Cir. 2010).

C. Bivens’ Individual Capacity Claims Against Marshal Brown, Deputy

Bowie, and Deputy Attaway.

As discussed above, this Court’s analysis of Plaintiffs’ Bivens claims must first

focus on whether such claims fall into one of the three existing Bivens actions. Here,

Plaintiffs’ allegations regarding masking and vaccinations mandates – imposed by the

AOs at issue in this case – do not fall into the context of Bivens, Davis, and/or Carlson.

The Court must now consider whether a new Bivens action should be recognized here.

The Supreme Court disfavors extending Bivens to any new context or category of

defendants. In deciding the new context issue, courts should focus on whether the case

differs in a meaningful way from previous Bivens cases decided by the Supreme Court,

not a three-judge court of appeals panel. See Canada v. United States, 950 F.3d 299,

308 (5th Cir. 2020). In Ziglar, the Supreme Court explained:

Without endeavoring to create an exhaustive list of differences that are

meaningful enough to make a given context a new one, some examples

might prove instructive. A case might differ in a meaningful way because of

the rank of the officers involved; the constitutional right at issue; the

generality or specificity of the official action; the extent of judicial guidance

as to how an officer should respond to the problem or emergency to be

confronted; the statutory or other legal mandate under which the officer was

operating; the risk of disruptive intrusion by the Judiciary into the functioning

of other branches; or the presence of potential special factors that previous

Bivens cases did not consider.

Ziglar, 582 U.S. at 139-40, 137 S.Ct. at 1859-60.

The Court declines to recognize a new Bivens action in this case. This case

involves a new categories of defendants – the Marshal Defendants, who are subject to a

different statutory mandate than the narcotics officers in Bivens. The USMS’s primary

role and mission is “to provide for the security and to obey, execute, and enforce all orders

of the United States District Courts . . . .” 28 U.S.C. § 566(a). The USMS must “execute

all lawful writs, process, and orders issued under the authority of the United States, and

shall command all necessary assistance to execute its duties.” 28 U.S.C. § 566(c). It is

of importance that the alleged constitutional violations in this case are directly linked to

the statutorily mandated enforcement and execution of administrative orders issued by

the Chief Judge of the Middle District of Louisiana.

Other special factors also counsel against extending the Bivens remedy in this

instance. There is an alternative form of relief in this matter, that is, the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2674. See Oliva, 973 F.3d at 444 (“Although

an alternative form of relief is not a necessary special factor, it may be a sufficient one. .

. . And when alternative methods of relief are available, a Bivens remedy usually is not.”).

Additionally, the USMS has a rigorous administrative process to address employee

misconduct. See 28 C.F.R. §§ 0.111(n) & 0.111(m); see also Egbert v. Boule, 596 U.S.

482, 497, 142 S. Ct. 1793, 1806 (2022) (“Congress has provided alternative remedies for

aggrieved parties in Boule’s position that independently foreclose a Bivens action here.

In Hernández, we declined to authorize a Bivens remedy, in part, because the Executive

Branch already had investigated alleged misconduct by the defendant Border Patrol

agent.”). The USMS is also subject to supervision by the Department of Justice’s Office

of Inspector General to address complaints of misconduct, such as civil rights violations.

See generally U.S. Dep’t of Justice, Office of the Inspector General,

https://oig.justice.gov/ (last visited March 10, 2025). Therefore, Plaintiffs’ purported

Bivens claims will not be recognized and will be dismissed.

D. 42 U.S.C. § 1985

Section 1985 “accords a cause of action to any person injured as a result of a

conspiracy to interfere with the civil rights described in the Act: Subsection 1 relates to a

conspiracy to prevent a public official from performing his duty; Subsection 2 relates to a

conspiracy to obstruct justice or to intimidate a party, a witness, or a juror; and Subsection

3 concerns the acts of two or more persons in conspiring to, or in going in disguise to,

deprive any person of certain rights.” Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir.

1987). Subsection 1 does not apply in this matter because Plaintiffs are not public

officials. Plaintiffs’ claims as to subsections 2 and 3 are foreclosed by Mack v. Alexander,

575 F.2d 488 (5th Cir. 1978). In Mack, the Fifth Circuit held that Section 1985, which

provides a remedy for deprivation of rights under color of state law, does not apply when

the defendants are acting under color of federal law. See id. at 489, citing Walker v.

Blackwell, 360 F.2d 66 (5th Cir. 1966). Here, Plaintiffs’ Section 1985 claims against the

Marshal Defendants all relate to their actions as federal actors under color of federal law.

Thus, such claims are barred by Mack. Therefore, Plaintiffs’ Section 1985 claims are

dismissed.

E. 42 U.S.C. § 2000a

Plaintiffs allege that the Marshal Defendants are subject to liability under Section

2000a for repeatedly denying them service at the Courthouse. Section 2000a prohibits

discrimination or segregation in places of public accommodation. The statute expressly

lists places of public accommodation. See 42 U.S.C. § 2000a(a)-(b). Courthouses are

not listed in the statute. See Poor & Minority Just. Ass’n v. Chief Judge, Tenth Jud. Cir.

Ct. of Fla., No. 8:19-CV-2889-T-02TGW, 2020 WL 3286140, at *3 (M.D. Fla. Mar. 27,

2020), citing Muhammad v. Bethel-Muhammad, 2013 WL 5531397 at *5 (S.D. Ala. Oct.

7, 2012) (“Because the Dallas County Courthouse is not a ‘place of public

accommodation’ under Section 2000a, the plaintiff has no claim under that provision.”);

Olague v. County of Sacramento, 2012 WL 3638320 at *6 (E.D. Cal. 2012) (same). In

their opposition, Plaintiffs submit that the Courthouse’s “small commissary/lunchroom”

and/or vending machines invokes Section 2000a. Record Document 78 at 22-23. Their

complaint may not be amended by their opposition brief. See Skinner v. Gautreaux, 549

F. Supp. 3d 493, 499 (M.D. La. 2021) (“[I]t is axiomatic that the complaint may not be

amended by briefs in opposition to a motion to dismiss.”). Notwithstanding, Plaintiffs have

failed to point this Court to binding case law that the mere presence of a lunchroom and/or

vending machines is enough to make a federal courthouse a place of public

accommodation under Section 2000a. Thus, Plaintiffs’ Section 2000a claims are

dismissed.

F. State Law Claims

Plaintiffs have alleged conspiracy claims (common law and/or state law) and

negligent infliction of emotional distress claims under Louisiana state law against the

Marshal Defendants. The Marshal Defendants submit that such claims are barred by

sovereign immunity and the Westfall Act.

The FTCA provides a limited waiver of sovereign immunity of the United States

from tort suits. See 28 U.S.C. §§ 1346(b)(1), 2674; Pleasant v. U.S. ex rel. Overton

Brooks Veterans Admin. Hosp., 764 F.3d 445, 448 (5th Cir. 2014). Pursuant to the FTCA,

recovery in tort is permitted against the United States for damages arising out of the

tortious conduct of a federal employee acting in the course and scope of her employment.

See 28 U.S.C. §§ 1346(b)(1), 2679(b)(1). Moreover, “a suit against the United States

under the FTCA is the exclusive remedy for tort claims arising from the actions of

government agencies or employees.” Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988)

(citing 28 U.S.C. § 2679(a)). Under the Westfall Act, FTCA claims may be brought only

against the United States “and not the responsible agency or employee . . . .” Id. at 183;

see also Levin v. United States, 568 U.S. 503, 509, 133 S. Ct. 1224, 1229 (2013) (The

Westfall Act “makes the remedy against the United States under the FTCA exclusive for

torts committed by federal employees acting within the scope of their employment, 28

U.S.C. § 2679(b)(1).”).

Plaintiffs have asserted common law/state law conspiracy claims and Louisiana

state law negligent infliction of emotional distress claims against the Marshal Defendants.

These claims can only be asserted against the United States, not individual defendants,

under the FTCA. Yet, Plaintiffs have not brought their claims under the FTCA.

Additionally, the FTCA requires that Plaintiffs submit their claims to the appropriate

federal agency for administrative consideration. See 28 U.S.C. § 2675(a). Plaintiffs have

not alleged any such exhaustion in this matter. Thus, their state law claims against the

Marshal Defendants must be dismissed for lack of jurisdiction. See McAfee v. 5th Circuit

Judges, 884 F.2d 221, 222-23 (5th Cir. 1989) (stating that exhaustion of administrative

remedies under the FTCA is jurisdictional).

CONCLUSION

For the reasons set forth above, the Motion to Dismiss (Record Document 60) filed

by the Marshal Defendants is GRANTED. All of Plaintiffs’ claims against the Marshal

Defendants are DISMISSED WITH PREJUDICE.

Plaintiffs also filed a Motion for Summary Judgment (Record Document 116)

requesting the Court to enter an order granting judgment in their favor. As set forth supra

and in this Court’s previous Memorandum Ruling and Order (Record Documents 123 &

124), all of Plaintiffs’ claims have been dismissed. Thus, their Motion for Summary

Judgment (Record Document 116) is DENIED.

A Judgment consistent with the terms of the instant Memorandum Ruling shall

issue herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 13th day of March,

2025.

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[Za States District le

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