Kador v. Gautreaux

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DYRONNET KADOR O/B/O HER CIVIL ACTION

MINOR CHILD, DYAUGNHA WILLIS

versus

23-cv-11-SDD-RLB

SHERIFF SIDNEY J. GAUTREAUX, III, ET AL.

CONSOLIDATED WITH

TRINELLE WILLIS, ET AL. CIVIL ACTION

versus

SID GAUTREAUX, ET AL. 23-cv-50-SDD-RLB

RULING

This matter comes before the Court on the Motion to Dismiss1 filed by Defendants

Sheriff Sid J. Gautreaux, III, in his official capacity as Sheriff of East Baton Rouge Parish

(“Sheriff Gautreaux”), Deputy Eno Guillot, in his official capacity (“Deputy Guillot”)

(collectively, the “Sheriff Defendants” or “Defendants”). Plaintiffs, Trinelle Willis (“Willis”)

and Leonard Wilson (“Wilson”), individually and on behalf of their minor children, S’Rhen

Wilson and Jordan Wilson (collectively “Plaintiffs”) filed an Opposition,2 to which the Sheriff

Defendants filed a Reply.3 For the reasons set forth below, Defendants’ Motion will be

granted in part and denied in part.

1 Rec. Doc. 86. The Motion to Dismiss at Rec. Doc. 86 appears duplicative of the Motion to Dismiss at Rec.

Doc. 80. Because Rec. Doc. 86 is the most recent motion, the Court will refer to this Motion as the operative

Motion to Dismiss.

2 Rec. Doc. 91.

3 Rec. Doc. 93.

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiffs originally filed their Petition in the 19th Judicial District Court for the State

of Louisiana, asserting federal and state claims arising out of an incident that occurred on

January 8, 2022, when deputies from the East Baton Rouge Sheriff’s Office (“EBRSO”)

and Baton Rouge Police Department (“BRPD”) officers went to the Plaintiffs’ apartment

looking for Keaughn (“Keaughn”) Willis. During the course of events, Deaughn

(“Deaughn”) Willis, Keaughn’s twin brother, was shot and killed. The matter was removed

to this Court and consolidated with a related suit filed on behalf of Deaughn Willis’s minor

child as the foregoing caption reflects.

Plaintiffs allege the following facts. On the afternoon of January 8, 2022, a group of

EBRSO deputies and BRPD officers arrived at Plaintiffs’ apartment in Baton Rouge,

purportedly for the purpose of arresting Keaughn.4 The officers were dispatched to the

apartment for a well check for a runaway, and they surrounded Plaintiffs’ third-floor

apartment.5

The group of officers positioned themselves out of view of the apartment’s peephole

and blocked all possible exits.6 The exact number and identity of the officers and deputies

is unknown, but there were enough armed officers to constitute a hostile approach.7 Just

outside the door was Deputy Eno Guillot (“Deputy Guillot”), previously trained as a sniper,

who was armed with an automatic assault rifle drawn and in shooting position.8 Deputy

4 Rec. Doc. 76, ¶ 25.

5 Id.

6 Id.

7 Id. at ¶ 26.

8 Id. at ¶ 25.

Jane Doe and Officer John Doe were also just outside the door.9

Willis, Wilson, their minor children, and Deaughn, age 25, were all in the apartment

that morning.10 The “posse” made no attempt to knock on the door and did not announce

their presence; rather, they approached heavily armed and positioned themselves outside

the door’s peephole so they could not be seen by those inside the apartment.11 Without

warning, Deputy John Doe banged loudly against the door with his fist five times but still

said nothing.12

The occupants inside asked who was at the door, but they were met with silence.

Plaintiffs believed there was potential danger outside, and the officers “could hear the

occupants on the inside asking them to announce themselves.”13 Deputy John Doe

banged on the door a second time and allegedly joked to fellow officers that the family

“were going to F—ing know it is the police.”14

Plaintiffs were still unaware of who was at their door; in fact, Willis dialed 911 to

report the disturbance.15 Deaughn “proceed[ed] to the door and cautiously crack[ed] open

the door, not knowing who was there, and immediately [began] to close the door.”16

Plaintiffs allege Deaughn did not pose a threat to anybody or provoke this interaction.17

Nevertheless, while the door was partially open, “without any warning, Eno Guillot

fire[d] shots and Deaughn cried out that he had been shot.”18 Plaintiffs allege that there

9 Id. at ¶ 28.

10 Id. at ¶ 27.

11 Id. at ¶¶ 25-27.

12 Id. at ¶ 28.

13 Id.

14 Id. at ¶¶ 28-29.

15 Id. at ¶ 29.

16 Id. at ¶ 31.

17 Id.

18 Id.

was neither probable cause nor a warrant for this intrusion.19 Nevertheless, Deputy Guillot

“shot through the door and killed Deaughn,” despite the occupants requesting from inside

the apartment for the officers to identify themselves.20 By firing at least three bullets into

plaintiff’s door, Deputy Guillot had no way of knowing how many people might be killed.21

Ultimately, Plaintiffs allege that Deaughn posed no threat to anyone and had not

committed any crime when he was fatally shot by Deputy Guillot.22 Plaintiffs claim Deputy

Guillot’s actions during this encounter were “intentional,” “willful,” “outrageous,” and

“reckless.”23

As Deaughn lay wounded, Willis, a trained nurse, began administering first aid to

her son while communicating with a 911 operator.24 Instead of calling for emergency

medical care after being informed of the situation, the 911 operator informed Willis that

each of the individuals inside the house needed “to come out with their hands up.”25 Willis

complied and “lef[t] her son there to ultimately die without medical attention.”26 Despite

Willis’s pleas, officers refused to get Deaughn medical attention.27 Willis was arrested,

handcuffed, and placed in the back of a Sheriff’s vehicle.28

Wilson was also ordered to come out with his hands up, forcing him to leave his

two minor children behind in the apartment with their dying brother.29 It was clear that

19 Id.

20 Id. at ¶ 2.

21 Id. at ¶ 53.

22 Id. at ¶¶ 51-53.

23 Id. at ¶¶ 57, 80.

24 Id. at ¶ 32.

25 Id. at ¶¶ 3, 34.

26 Id. at ¶ 34.

27 Id. at ¶ 35.

28 Id.

29 Id. at ¶ 34.

Wilson was also arrested when he was confined to his vehicle and ordered not to leave.30

The minor children, ages 15 and 10, were also ordered to exit the apartment with their

hands up; they were arrested without cause and ordered to sit in Wilson’s vehicle.31 As

each individual exited, the officers and deputies pointed guns and assault rifles at them.32

The officers did not have a warrant for these arrests.33 Each Plaintiff had to walk past

Deaughn, bleeding and dying on the floor, to exit the apartment.34

As the officers entered the apartment, they searched the home but did not render

any aid to Deaughn.35 While in the apartment, law enforcement seized the Plaintiffs’ cell

phones, and the phones had not been returned as of the date the Petition was filed.36

Defendants never produced a search warrant for the phones.37

Plaintiffs filed this lawsuit asserting numerous claims under federal and state law,

including: Section 1983 Monell claims against Sheriff Gautreaux for alleged

unconstitutional search and seizure policy, improper hiring, retention, supervision, and

discipline of Deputy Guillot, failure to train and/or deficient training, and ratification of

Deputy Guillot’s pattern of misconduct; Monell claims against Deputy Guillot in his official

capacity for excessive force; state law tort claims against the Defendants for excessive

force, false arrest, negligent hiring, supervision and training; intentional and negligent

infliction of emotional distress; general negligence; abuse of process; assault and battery,

and vicarious liability. Plaintiffs also seek punitive damages.

30 Id. at ¶ 35.

31 Id. at ¶¶ 34-35.

32 Id. at ¶ 34.

33 Id.

34 Id.

35 Id. at ¶¶ 35-36.

36 Id. at ¶ 36.

37 Id.

On March 10, 2023, the Sheriff Defendants filed a Motion to Dismiss pursuant to

Rule 12(b)(6) for failure to state a claim upon which relief can be granted.38 The Willis-

Wilson Plaintiffs filed a Memorandum in Opposition,39 to which the Sheriff Defendants filed

a Reply.40 Over a year after the Motion was filed, the Plaintiffs filed a Motion for Leave to

Amend the Complaint on March 26, 2024.41 The Court then denied the Sheriff Defendants’

Motion to Dismiss without prejudice to their right to move to reinstate the Motion to Dismiss

if the Motion for Leave to Amend the Complaint was denied.42 The Court subsequently

granted Plaintiffs’ Motion for Leave, and they filed the First Amended Complaint into the

record on April 23, 2024.43 Thereafter, the Defendants filed the motion presently before

the Court.

II. LAW AND ANALYSIS

A. Rule 12(b)(6) Motion to Dismiss Standard

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”44 The Court

may consider “the complaint, its proper attachments, documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.”45 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a

claim to relief that is plausible on its face.’”46

38 Rec. Doc. 23.

39 Rec. Doc. 49.

40 Rec. Doc. 56.

41 Rec. Doc. 71.

42 Rec. Doc. 72.

43 Rec. Doc. 75.

44 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin v. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

45 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

46 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007)).

In Twombly, the United States Supreme Court set forth the basic criteria necessary

for a complaint to survive a Rule 12(b)(6) motion to dismiss. “While a complaint attacked

by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s

obligation to provide the grounds of his entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.”47

A complaint is also insufficient if it merely “tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’”48 However, “[a] claim has facial plausibility when the plaintiff pleads

the factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”49 In order to satisfy the plausibility

standard, the plaintiff must show “more than a sheer possibility that the defendant has

acted unlawfully.”50 “Furthermore, while the court must accept well-pleaded facts as true,

it will not ‘strain to find inferences favorable to the plaintiff.’”51 On a motion to dismiss,

courts “are not bound to accept as true a legal conclusion couched as a factual

allegation.”52

B. Waiver/Abandonment of Claims

Defendant moves to dismiss, inter alia, the following claims: 42 U.S.C. § 1983

Monell claims against the Sheriff, including claims for unconstitutional policies, improper

hiring, failure to properly train and supervise, and ratification; § 1983 claims against

Deputy Guillot in his official capacity; claims for punitive damages; State law claim for

47 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)

(hereinafter Twombly).

48 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted) (hereinafter “Iqbal”).

49 Id.

50 Id.

51 Taha v. William Marsh Rice Univ., 2012 WL 1576099, at *2 (S.D. Tex. 2012) (quoting Southland Sec.

Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).

52 Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209

(1986)).

abuse of process; and the State law claim against the Sheriff for negligent hiring,

supervision, and training. Plaintiffs failed to argue against dismissal of these claims in their

Opposition. This Court has held on numerous occasions that the “failure to brief an

argument in the district court waives that argument in that court,”53 and the “failure to

oppose the substance of an argument is a waiver and dismissal is proper on these grounds

alone.”54 Accordingly, pursuant to Middle District Local Rule 7(f) and applicable

jurisprudence, these claims are deemed abandoned, and they are dismissed with

prejudice.

Plaintiffs contend they intended to sue Deputy Guillot in his individual capacity

under Section 1983 and that suing him in his official capacity was a “clerical error.”55

Plaintiffs ask the Court for leave to amend to cure this error, arguing that Guillot was sued

in his individual capacity in the original complaint, so there is no prejudice to him as he has

been on notice of this claim since the inception of the lawsuit.56

The Court agrees. First, Guillot cannot show any prejudice to being sued in his

individual capacity, and he is defending an individual capacity claim in the consolidated

matter arising out of the same incident. Second, The Fifth Circuit has stated that

“Louisiana's excessive force tort mirrors its federal constitutional counterpart.”57 “Under

Louisiana law, the torts of assault and battery, when raised against a law enforcement

officer acting in the course of employment, require a showing that the law enforcement

53 JMCB, LLC v. Bd. of Commerce & Indus., 336 F.Supp.3d 620, 634 (M.D. La. 2018).

54 Bourgeois v. Walmart Inc., 2020 WL 1161928, *3 (M.D. La. 2020).

55 Rec. Doc. 91, p. 5.

56 Id.

57 Elphage v. Gautreaux, 969 F. Supp. 2d 493, 515–16 (M.D. La. 2013) (citing Deville v. Marcantel, 567 F.3d

156, 172–73 (5th Cir. 2009)).

officer acted with unreasonable or excessive force.”58 Because Plaintiffs’ assault, battery,

and excessive force claims, which have not been waived or abandoned, are essentially

state law corollaries of would-be § 1983 claims for excessive force, the Court’s findings

and analysis as to these claims would be the same. Accordingly, Plaintiffs will be granted

leave to amend for the sole purpose of correcting this “clerical error.” Further, because

the Court will allow this amendment to cure the clerical error, and because the Fourth

Amendment analysis applies in the same manner to the state law corollaries of excessive

force, unlawful seizure, false arrest, assault, and battery, the Court’s analysis and

conclusions would apply equally to any Section 1983 individual capacity asserted against

Deputy Guillot if Plaintiffs amend their complaint to correct this clerical error.

C. Qualified Immunity

Deputy Guillot has asserted the affirmative defense of qualified immunity. The state

of Louisiana “applies qualified immunity principles to state constitutional law claims based

on the same factors that compelled the Supreme Court of the United States to recognize

a qualified good faith immunity for state officers under § 1983.”59 The doctrine of qualified

immunity “balances two important interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield officials from harassment,

distraction and liability when they perform their duties reasonably.”60 In striking this

balance, qualified immunity shields “government officials performing discretionary

58 Id. at 515 (citing Gerard v. Parish of Jefferson, 424 So. 2d 440, 444 (La. App. 5 Cir. 1982)); see also Taylor

v. United States, 1991 WL 280066 (E.D. La. Dec. 19, 1991) (“Under Louisiana law, in the absence of the

use of excessive force, a law enforcement officer cannot be held liable for assault and battery if the assault

and battery occurred during a lawful arrest.”).

59 Sanders v. CEOC LLC, 586 F.Supp.3d 519, 527 (citing Moresi v. State, 567 So.2d 1081, 1093 (La. 1990)).

60 Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

functions” from civil liability “insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”61

When a public official asserts the defense of qualified immunity, the plaintiff has the

burden of establishing a constitutional violation and overcoming the defense.62 To meet

this burden, a plaintiff must show “(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.”63 The court has discretion to decide these prongs in any order.64

At the 12(b)(6) stage, the court must determine whether, taking the alleged facts in

the light most favorable to the plaintiff, the plaintiff has alleged that the defendant’s conduct

violated a constitutional right.65 For the second step, “[f]or a right to be clearly established,

‘[t]he contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’”66 “In other words, existing precedent

must have placed the statutory or constitutional question beyond debate.”67 If a plaintiff

alleges that an official's conduct violated a clearly established right, the court must then

determine “whether the official's conduct was objectively reasonable under the law at the

time of the incident.”68

An official's conduct is not objectively unreasonable “unless all reasonable officials

61 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Ashcroft v. al-

Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (“Qualified immunity gives government

officials breathing room to make reasonable but mistaken judgments about open legal questions.”).

62 Jackson v. Texas, 959 F.3d 194, 201 (5th Cir. 2020) (citing McClendon v. City of Columbia, 305 F.3d 314,

323 (5th Cir. 2002) (en banc)).

63 Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc).

64 Jackson, 959 F.3d at 200.

65 Morgan, 659 F.3d at 384; Lytle v. Bexar Cty., Tex., 560 F.3d 404, 410 (5th Cir. 2009).

66 Turner v. Lieutenant Driver, 848 F.3d 678, 685 (5th Cir. 2017) (quoting Anderson v. Creighton, 483 U.S.

635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (alteration in original).

67 Jackson, 959 F.3d at 201 (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d

985 (2012)).

68 Michalik v. Hermann, 422 F.3d 252, 258 (5th Cir. 2005); see also Thompson v. Upshur Cnty., Tex., 245

F.3d 447, 457 (5th Cir. 2001).

in the [official's] circumstances would have then known that the [official's] conduct violated

the plaintiff's rights.”69 When denying qualified immunity, a court must point to “controlling

authority—or a robust consensus of persuasive authority—that defines the contours of the

right in question with a high degree of particularity.”70 Precedent existing at the time of the

challenged conduct “must have placed the statutory or constitutional question beyond

debate.”71

When the defense of qualified immunity is raised in a Rule 12(b)(6) motion, “it is the

defendant's conduct as alleged in the complaint that is scrutinized for ‘objective legal

reasonableness.’”72 The plaintiff's must “assert facts which, if true, would overcome the

defense of qualified immunity.”73 A plaintiff seeking to overcome qualified immunity “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.”74

Plaintiffs have sued Deputy Guillot for excessive force and false arrest/unlawful

seizure under the Louisiana State Constitution. Deputy Guillot has asserted the defense

of qualified immunity under Moresi v. State. The Court notes that “Louisiana applies the

same standards to analyze claims of false arrest, excessive force, and negligent training

or supervision as the standards utilized under federal law.”75 Additionally, Louisiana

69 Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015).

70 Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013).

71 al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074.

72 McClendon, 305 F.3d at 323 (emphasis in original) (quoting Behrens v. Pelletier, 516 U.S. 299, 309, 116

S.Ct. 834, 133 L.Ed.2d 773 (1996)).

73 Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014).

74 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).

75 Sanders v. CEOC L.L.C., 586 F.Supp.3d 519, 527 (W.D. La. 2022)(citing Colston v. Barnhart, 130 F.3d

96, 99 (5th Cir. 1997), rehearing denied 146 F.3d 282, cert. denied, 525 U.S. 1054, 119 S.Ct. 618, 142

L.Ed.2d 557 (1998)).

applies qualified immunity principles to state constitutional law claims based on the same

factors that compelled the Supreme Court of the United States to recognize a qualified

good faith immunity for state officers under § 1983.76 Accordingly, the Court will apply

Fourth Amendment jurisprudence to Plaintiffs’ state law excessive force, false

arrest/unlawful seizure, assault, and battery claims.

D. Excessive Force

“To prevail on a Fourth Amendment excessive-force claim, a plaintiff must establish:

(1) an injury; (2) that the injury resulted directly from the use of excessive force; and (3)

that the excessiveness of the force was unreasonable.”77 “To gauge the objective

reasonableness of the force, ‘[the Court] must balance the amount of force used against

the need for force.’”78

Because “[t]he test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application,” Bell v. Wolfish, 441

U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), ... its proper

application requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.

See Tennessee v. Garner, 471 U.S. at 8–9, 105 S. Ct. at 1699–1700 (the

question is “whether the totality of the circumstances justifie[s] a particular

sort of ... seizure”).79

“That second factor is the most important: [The Court] must determine whether [Plaintiffs]

‘posed an immediate threat to the safety of the officers or others.’”80 “The ‘[u]se of deadly

76 Moresi v. State, 567 So.2d 1081, 1093 (La. 1990).

77 Carnaby, 636 F.3d at 187 (citing Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).

78 Id. at 187–88 (quoting Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (internal quotation marks

and citation omitted)).

79 Graham, 490 U.S. at 396, 109 S.Ct. 1865; see also Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.

2004) (“This balancing test ‘requires careful attention to the facts and circumstances of each particular

case.’” (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865)).

80 Malbrough v. Stelly, 814 F. App'x 798, 803 (5th Cir. 2020) (quoting Graham, 490 U.S. at 396, 109 S.Ct.

1865).

force is not unreasonable when an officer would have reason to believe the suspect poses

a threat of serious harm to the officer or others.’”81 In other words, “[t]he use of deadly

force may be proper regardless of an officer's negligence if, at the moment of the shooting,

he was trying to prevent serious injury or death.”82

“[T]he proper inquiry is an objective one.”83 The “Fourth Amendment's concern with

‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the

subjective intent.”84 That is, “[t]he ‘reasonableness inquiry is objective: the question is

whether the officers’ actions are objectively reasonable in light of the facts and

circumstances confronting them, without regard to their underlying intent or motivation.’”85

Thus, an officer's “subjective intent is irrelevant to the reasonableness determination.”86

Additionally, the Court's “inquiry into reasonableness is fact-specific and ‘must be

judged from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.’”87 The Court must evaluate such instances as “‘a reasonable

officer on the scene,’ and [ ] ‘allow[ ] for the fact that police officers are often forced to

make split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.’”88 The

Court “cannot allow the ‘theoretical, sanitized world of our imagination to replace the

dangerous and complex world that policemen face every day.’”89

81 Carnaby, 636 F.3d at 188 (quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)).

82 Id. (citations omitted).

83 Hudspeth, 270 F. App'x at 337 (citing Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d

537 (2004)).

84 Id. (quoting Devenpeck, 543 U.S. at 153, 125 S.Ct. 588).

85 Davis v. Romer, 600 F. App'x 926, 931 (5th Cir. 2015) (quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th

Cir. 2011)).

86 Id.

87 Carnaby, 636 F.3d at 188 (quoting Graham, 490 U.S. at 396–97, 109 S.Ct. 1865).

88 Flores, 381 F.3d at 399 (quoting Graham, 490 U.S. at 396–97, 109 S.Ct. 1865).

89 Malbrough, 814 F. App'x at 806 (quoting Stroik v. Ponseti, 35 F.3d 155, 158 (5th Cir. 1994)).

Defendants maintain Plaintiffs have failed to state a claim for excessive force and,

further, that Plaintiffs have failed to overcome the qualified immunity defense offered by

Deputy Guillot. First, Defendants contend Plaintiffs fail to satisfy the first element because

they do not allege any injuries to themselves; rather, they only alleged that they have

suffered “mental and emotional injuries as a result of witnessing Deaughn Willis being shot

at by Deputy Eno Guillot.”90 Defendants argue Plaintiffs lack standing to assert any claims

for the alleged use of force against Deaughn under La. C.C. art. 2315.2 and La. C.C. art.

2315.1 since Deaughn’s daughter rightfully asserted those claims.91 Further, Defendants

claim Plaintiffs failed to assert bystander claims under La. C.C. art. 2315.6; however,

Plaintiffs did assert this claim in their First Amended Complaint.92

Second, Defendants argue Plaintiffs cannot show that the officers’ actions were

unreasonable under the circumstances. Defendants cite to Supreme Court and Fifth

Circuit jurisprudence holding that police officers may “take such steps as [a]re reasonably

necessary to protect their personal safety and maintain the status quo during the couse of

90 Rec. Doc. 76, ¶ 33.

91 In Plaintiffs’ original Complaint, they did assert claims on behalf of Deaughn; it appears Plaintiffs dropped

these claims in the Amended Complaint. To the extent any allegations in the Amended Complaint may be

read as claims brought on behalf of Deaughn, those claims are dismissed for lack of standing. Under

Louisiana Civil Code Articles 2315.1 and 2315.2, the right of a survival or wrongful death action is afforded

to four exclusive categories of survivors. However, the statutes do not allow for all classes of survivors to

bring actions. Rather, the existence of a person qualifying within a higher class precludes a person in a

lower class from filing suit. See Kumasi v. Cochran, No. 2015 WL 4429192 at *3 (M.D. La. July 17, 2015).

The primary category under both 2315.1 and 2315.2 includes the surviving spouse and/or children of the

decedent. Thus, pursuant to Articles 2315.1 and 2315.2, surviving siblings may only recover in the event

that the decedent was not survived by a spouse, child, or parent. Id. And further, as to parents, the Louisiana

Supreme Court holds, “[w]hen a tort victim is survived by a child, the parents of the tort victim have no right

to recover for the damages sustained by the victim or for their own damages for the victim's wrongful death.”

Jenkins v. Mangano Corp., 2000-0790 (La. 11/28/00), 774 So. 2d 101, 105. See also, Melancon v. Louisiana,

No. 11-1794, 2013 WL 1288702, at *2 (W.D. La. Mar. 26, 2013) (holding that the decedent’s mother had no

standing to pursue her claims because he had children). In the consolidated case of Kador v. Gautreaux,

Plaintiff Dyronnet Kador asserts Deaughn’s claims on behalf of her minor child, D.W., the biological daughter

of Deaughn. Because a child of the decedent precedes parents and siblings in the categories of survivors,

only she may assert claims on behalf of Deaughn, and she has done so.

92 Id. at ¶ 7.

the stop.”93 Defendants rely on Lionel v. Turner wherein the Fifth Circuit upheld a district

court’s finding that the officer who handcuffed and detained the plaintiff in the back of a

police car for two hours after she witnessed the police shoot and kill her father was entitled

to qualified immunity.”94

Plaintiffs respond, arguing that the officers fired into their residence and intruded

into their home without a warrant, and the Fifth Circuit has held that “[a] warrantless search

of a home is presumptively unreasonable,” unless an exception to the warrant requirement

applies.95

Plaintiffs also decry Defendants’ claim that firing upon their residence was

unreasonable under the circumstances. Plaintiffs allege that Deputy Guillot and the other

officers intruded into their home without a warrant,96 failed to announce themselves despite

numerous requests to do so, and Deputy Guillot fired several shots in the residence where

Plaintiffs were present.97 Thus, they have alleged the violation of a constitutional right.

Further, Defendants have not argued that Plaintiffs used or attempted to use any form of

violence that would have threatened the officers’ safety, and Deputy Guillot fired into their

home without a warrant and in the absence of exigent circumstances; thus, Plaintiffs have

alleged an excessive force claim and have overcome Deputy Guillot’s assertion of the

qualified immunity defense.

93 United States v. Campbell, 178 F.3d 345, 348-49 (5th Cir. 1999)(citing United States v. Hensley, 469 U.S.

221, 235 (1985)).

94 874 F.3d 833 (5th Cir. 2017).

95 Carrol v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015).

96 Plaintiffs note that Defendants attached a warrant to their brief, but the warrant was signed on January 9,

2022 at 1:43 am, and the incident occurred the day before, on January 8, 2022 at approximately 3 pm.

Plaintiffs further contend the warrant contained an inaccurate apartment number. See Rec. Doc. 91, pp. 8-

9.

97 Rec. Doc. 76, ¶¶ 28-31.

Defendants respond, arguing that Plaintiffs have not specifically alleged Deputy

Guillot’s personal involvement in the incident; rather, Plaintiffs have referred to all officers

collectively as “Defendants” and have offered only conclusory allegations. Defendants also

argue they were not at the residence to execute a warrant; rather, they were investigating

a possible kidnapping, and they approached the resident to conduct a “knock-and-talk.”

Defendants also argue Plaintiffs fail to allege facts to support their assertion that

they suffered severe psychological and emotional injuries. Defendants further argue that,

based on the circumstances, ordering Plaintiffs to exit their home at gunpoint was not

unreasonable because “[p]olice officers may ‘take such steps as [a]re reasonably

necessary to protect their personal safety and maintain the status quo during the course

of the stop.’”98

Defendants highlight Plaintiffs’ allegations that, at the time law enforcement

approached their residence, Deaughn was at the door, Willis was resting in bed, Wilson

was cooking in the kitchen, and S’Rhen was also in bed. Thus, Defendants argue

Plaintiffs’ allegations demonstrate that they were not in the room with Deaughn and were

not in the line of fire.99 Defendants cite Fifth Circuit jurisprudence holding that “witnessing

the use of force is not enough”100; “[b]ystander excessive force claims can only succeed

when the officer directs the force toward the bystander – that is to say, when the bystander

is not really a bystander.”101

Finally, Defendants maintain “Plaintiffs [have] conveniently omitted any factual

98 Rec. Doc. 93, p. 4 (quoting United States v. Campbell, 178 F.3d 345, 348-49 (5th Cir. 1999)(citing United

States v. Hensley, 469 U.S. 221, 235 (1985))).

99 Rec. Doc. 76, ¶ 27.

100 Crane v. City of Arlington, 50 F.4th 453, 468 (5th Cir. 2022).

101 Harmon v. City of Arlington, 16 F.4th 1159, 1168 (5th Cir. 2021).

allegations in their Amended Complaint regarding Deaughn Willis’ actions which

contributed to the shooting;” thus, “it is clear” that the police officers were investigating a

kidnapping, and due to the shooting, “the scene needed to be secured.”102

The Court turns to its analysis of the excessive force claims.

Collective Pleadings against “Doe” Officers

The Court finds that dismissal of the Jane and John Doe officers is warranted. In

Navejas v. Jaso, the court explained how the Fifth Circuit’s treatment of this type of

collective pleading has evolved.

At one time, the Fifth Circuit countenanced “a careful procedure,” whereby a

district court could “defer its qualified immunity ruling if further factual

development [was] necessary to ascertain the availability of that defense.”

Carswell v. Camp, 54 F.4th 307, 311 (5th Cir. 2022) (quoting Zapata v.

Melson, 750 F.3d 481, 485 (5th Cir. 2014)). Under that line of cases, courts

approached motion-to-dismiss-stage assertions of qualified immunity from

unparticularized allegations of unconstitutional conduct against multiple

officers in two steps. See Sinegal v. City of El Paso, 414 F. Supp. 3d 995,

1004 (W.D. Tex. 2019) (collecting cases). First, they “determin[ed] whether

the alleged actions—regardless of which defendant took them—would state

a claim for a constitutional violation.” Id. (first citing Dyer v. City of Mesquite,

No. 15-cv-2638, 2017 WL 118811, at *3–4 (N.D. Tex. Jan. 12, 2017); and

then citing Khansari v. City of Houston, 14 F. Supp. 3d 842, 854–60 (S.D.

Tex. 2014)). Second, if the plaintiff had plausibly alleged that unconstitutional

acts had been done by some officer, courts authorized narrow discovery

tailored to ascertaining which defendant did what. Id. at 1004–05 (citing

Khansari, 14 F. Supp. 3d at 861).

In 2022, the Fifth Circuit held that this and similar procedures had been

abrogated by an intervening Supreme Court decision. See Carswell, 54

F.4th at 312 (“[W]here the pleadings are insufficient to overcome [qualified

immunity], the district court must grant the motion to dismiss without the

benefit of pre-dismissal discovery.”). The Court is sympathetic to the notion

that “a § 1983 plaintiff who alleges mistreatment at the hands of a group of

officers may not yet be able to describe with particularity the actions taken

by each of them individually.” Sinegal, 414 F. Supp. 3d at 1004 (citations

omitted). Such considerations are particularly apt here, where Mr. Navejas,

who appears to be the only person other than the Officers who could give a

first-hand account of what happened, has died. Nevertheless, even where

102 Rec. Doc. 93, p. 5.

it is “unclear exactly [which officer] was responsible for each

decision,” a “plaintiff must [ultimately show] that each Government-

official defendant, through the official's own individual actions, has

violated the Constitution.” Cope, 3 F.4th at 207 n.7 (citing Iqbal, 556 U.S.

at 675, 129 S.Ct. 1937). And at the motion-to-dismiss stage, the plaintiff must

plausibly allege as much. See Carswell, 54 F.4th at 312.103

Accordingly, the Court finds that, to the extent any claims against the Jane and John Doe

officers have not been abandoned, the claims against them must be dismissed under this

Supreme Court and Fifth Circuit jurisprudence.

The Court, however, finds that the personal involvement of Deputy Guillot is

sufficiently pled by Plaintiffs as to their excessive force and unlawful arrest claims. They

allege that Deputy Guillot shot through their living room door into the residence,104 and

they specifically allege that Deputy Guillot held them at gunpoint, ordered them out of their

home, and detained them in police vehicles.105

Psychological Harm/Bystander Claims

Defendants urge dismissal of Plaintiffs’ excessive force claims, arguing that they

have alleged no physical injury and only psychological harm not related to their own

detention but “as a result of witnessing Deaghn Willis being shot at by Deputy Eno

Guillot.”106 Plaintiffs challenge these arguments, stating that the Deputy Guillot’s firing into

the residence they occupied constituted excessive force upon them, not just Deaughn,107

and being held at gunpoint while it was clear they posed no threat also constituted

excessive force upon them.108 Plaintiffs also contend they have suffered extreme mental

103 700 F.Supp.3d 532, 537 (W.D. Tex. 2023).

104 Rec. Doc. 76, ¶ 33.

105 Id. at ¶ 38.

106 Rec. Doc. 86-1, p. 17 (quoting Rec. Doc. 76, ¶ 33).

107 Rec. Doc. 76, ¶¶ 28-31; 33.

108 Rec. Doc. 91, pp. 2-3; Rec. Doc. 76, ¶ 38

anguish, difficulty sleeping, nightmares, and they are now “nervous and afraid” as citizens

of Baton Rouge based on this encounter with law enforcement.109

In Singleton v. Casanova, the Fifth Circuit recently affirmed a district court’s denial

of qualified immunity to an officer accused of using excessive force when, without warning,

he opened fire into the living room of a private residence wherein three individuals were

visiting and listening to music.110 Purportedly conducting a knock and talk investigation of

an assault reported just minutes before, the officers approached the home, allegedly

known as a “drug house.”111 The officers knocked on the door, and when it was opened,

they entered without announcing themselves and with their flashlights trained on the room.

The plaintiffs alleged they could not see that the officers were law enforcement because

they were blinded by the flashlights.112 As one man began to approach the door and

questioned who was there, Casanova ordered him to show his hands and simultaneously

fired two shots. The bullets struck and killed this man, grazed another man, and a bullet

“continued past Singleton’s head (who still sat on the sofa) before becoming lodged in the

wall behind her.”113

Singleton alleged that Casanova intentionally used excessive force by firing into the

living room; Casanova countered that Singleton had no claim because she was not the

target of direct police action.114 The Fifth Circuit noted that Singleton’s allegations were

sufficient to state a claim for excessive force against her:

That Singleton's claimed injuries are merely psychological is immaterial.

“Psychological injuries may sustain a Fourth Amendment claim.” Flores, 381

109 Rec. Doc. 76, ¶ 37.

110 Singleton v. Casanova, No. 22-50327, 2024 WL 2891900 (5th Cir. June 10, 2024).

111 Id. at *1.

112 Id. at *2-3.

113 Id. at *3.

114 Id. at *16.

F.3d at 398. Furthermore, Singleton's Fourth Amendment claim, as pled, is

not premised on her having seen her friends shot. See Harmon, 16 F.4th at

1168 (“no constitutional right to be free from witnessing ... police action”

exists (quoting Grandstaff v. City of Borger, Tex., 767 F.2d 161, 172 (5th Cir.

1985))). Rather, Singleton maintains that she too was the object of direct

police action, not a mere bystander, and only narrowly, and fortuitously,

escaped physical contact with Casanova's bullets.115

In Singleton, the Fifth Circuit cited to its previous decision in Harmon v. City of

Arlington, TX, wherein it explained the distinction between being a bystander to excessive

force and being the target of excessive force.116 The Fifth Circuit held that the plaintiff’s

“bystander theory fails because ‘there is no constitutional right to be free from witnessing

... police action.’”117 The court continued:

Bystander excessive force claims can only succeed when the officer directs

the force toward the bystander—that is to say, when the bystander is not

really a bystander. See Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir.

1986). In Coon, for instance, a police officer allegedly fired heavy buckshot

into a trailer home while trying to apprehend its owner. Id. at 1159-60. Coon's

four-year-old daughter was in the trailer when the police officer shot. Id. at

1160. Coon's wife, on the other hand, watched from behind the firing line. Id.

at 1161. Coon's wife and daughter brought § 1983 claims against the police

officer, arguing that he violated their Fourth Amendment rights. Id. at 1160.

This court rejected the wife's claim, but because the daughter was in the

trailer and thus subject to the officer's gunfire, the court allowed the

daughter's claim to proceed. Id. at 1160-61. Indeed, the court noted, “[t]here

was no evidence that any act of the deputies was directed towards” the wife.

Id. at 1161. In this case, Harmon does not allege that Tran fired

indiscriminately into the car. Rather, he alleges that Tran “stuck his gun

through the passenger window—mere inches away from the face of

Harmon—and fired.” Like Coon's wife, he was not within the purview Tran's

gunfire. Thus, Harmon's bystander theory fails.118

Notably, the Harmon court cited its prior decision in Coon v. Ledbetter, where the

officer fired into a trailer wherein the target’s four-year-old daughter was present, while the

115 Id. at *16, n. 21.

116 16 F.4th 1159 (5th Cir. 2021).

117 Id. at 1168 (quoting Grandstaff v. Borger, 767 F.2d 161, 172 (5th Cir. 1985)).

118 Id.

target’s wife stood outside watching the scene. The court held that the daughter’s claims

for excessive force survived because she was “subject to the officer’s gunfire.”119

The Court finds that Plaintiffs have stated a claim for excessive use of force upon

them when Deputy Guillot fired multiple shots into the door of the residence. Plaintiffs pled

that, at the time law enforcement approached their residence and banged harshly on the

door, Willis was in bed resting, Wilson was cooking in the kitchen, S’Rhen was also resting

in bed, and Jordan was also home.120 Plaintiffs further pled that, based on the neighbor’s

ring camera video, the [o]fficers could hear the occupants on the inside asking them to

announce themselves.”121 Plaintiffs allege that Willis, when no response came from the

officers, called 911 to seek police assistance for what she believed was an attempted break

in.122 They also allege that they each witnessed “Deaghn Willis being shot at by Deptuy

Eno Guillot.”123 Considering that Plaintiffs have alleged that they all witnessed Deaughn

being shot by Deputy Guillot, which the Court must accept as true, they have plausibly

alleged that they were subject to Deputy Guillot’s gunfire. These allegations allow for the

inference that each Plaintiff moved to the living room during the encounter since they

witnessed Deaughn being shot. Thus, the Court finds that Plaintiffs have sufficiently pled

that they were subjected to excessive force by Deputy Guillot resulting in their alleged

severe psychological harm.

Held at Gunpoint

Defendants also contend that it was reasonable for the officers to hold Plaintiffs at

119 Id. (citing Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir. 1986)).

120 Rec. Doc. 76, ¶ 27.

121 Id. at ¶ 28.

122 Id. at ¶ 29.

123 Id. at ¶ 33.

gunpoint under the circumstances while they assessed the scene and investigated

whether there was a threat to their safety. Plaintiffs do not dispute the law but claim that

the officers belabored holding them at gunpoint long after the scene was secure and

without any reason to believe that any of them were dangerous.

In Bagley v. Guillen, the Fifth Circuit affirmed the district court’s denial of qualified

immunity on summary judgment to police officers who allegedly used excessive force on

the plaintiff (Bagley) after a traffic stop.124 Despite Bagley getting out of the car as

instructed, the officer continued to point a taser at him and then tasered him when claimed

he posed no threat and was cooperating. The court stated:

We agree with the district court that Bagley has presented sufficient evidence

of excessive force to defeat qualified immunity at the summary judgment

stage. At the time of the conduct in question, it was clearly established that

an officer may not use force on a suspect who is complying with his

commands. See, e.g., Darden v. City of Fort Worth, 880 F.3d 722, 728–30

(5th Cir. 2018); Newman v. Guedry, 703 F.3d 757, 761–64 (5th Cir. 2012)

(objectively unreasonable for officers to injure a man whose “behavior [does]

not rise to the level of active resistance”) (internal quotation mark omitted);

see also Joseph, 981 F.3d at 342 (“Officers engage in excessive force when

they physically strike a suspect who is not resisting arrest.”). As we have long

held, “[c]laims of excessive force are fact-intensive” and “depend[ ] on the

facts and circumstances of each particular case.” Newman, 703 F.3d at 761.

“[R]elevant considerations include the severity of the crime at issue, whether

the suspect posed an immediate threat to the safety of the officers or others,

and whether he was actively resisting arrest or attempting to evade arrest by

flight.” Id. (cleaned up).

Naturally, officers may use force in ways “that corresponded to [a suspect's]

escalating verbal and physical resistance.” Poole v. City of Shreveport, 691

F.3d 624, 629 (5th Cir. 2012). But where a suspect initially resists, force

“must be reduced once [he] has been subdued.” Joseph, 981 F.3d at 335.

Once a suspect is “subdued” and “no longer resisting, an officer's

subsequent use of force is excessive.” Carroll v. Ellington, 800 F.3d 154, 177

(5th Cir. 2015). See also Joseph, 981 F.3d at 341 (“continuing to inflict force

despite [a suspect] committing no crime, posing no threat, and giving no

active resistance” violates clearly established law); Newman, 703 F.3d at 764

n.8 (officer “should have known that he could not continue to shock the

124 90 F. 4th 799 (5th Cir. 2024).

suspect with the taser after he was no longer resisting arrest”) (cleaned up).

An officer cannot use force against a citizen who has “committed no

crime, posed no threat to anyone's safety, and did not resist the officers

or fail to comply with a command.” Newman, 703 F.3d at 762, 764.125

The Fifth Circuit has also explained that “an exercise of force that is reasonable at

one moment can become unreasonable in the next if the justification for the use of force

has ceased.”126 Because force must be proportionate to the perceived threat, the

continued use of force becomes unreasonable when that threat ceases to exist.127 In Pigott

v. Gintz, the Fifth Circuit addressed claims that a police officer continued to brandish his

firearm in a threatening manner although the plaintiffs were compliant.128 The court stated

that, “despite the Pigotts' overall compliance and lack of resistance, Deputy Gintz never

holstered his firearm until after Deputy Lacaze arrived. According to the Pigotts, Deputy

Gintz instead opted to escalate the situation by continuing to brandish his firearm in a

threatening manner, pointing it at the children and pressing it against the back of Mr.

Pigott's head.”129 The court emphasized that “the district court's ruling failed to consider

all of the relevant facts, including that the Pigotts were compliant and not actively resisting

or attempting to flee” thus ignoring “precedent that an officer may not use force—non-

deadly or otherwise—on a person who is complying with the officer's commands, is not

otherwise resisting, and poses no threat to the safety of others.”130 The court held that

125 Id. at 803 (emphasis added).

126 Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir. 2009); see also Tucker v. City of Shreveport, 998 F.3d

165, 181–82 (5th Cir. 2021) (“[A] use of force that may begin as reasonably necessary in order to obtain

compliance may cease to be so as a suspect becomes more compliant.”); Joseph, 981 F.3d at 335 (“Force

must be reduced once a suspect has been subdued.”).

127 See Tucker, 998 F.3d at 181–82; Lytle, 560 F.3d at 413.

128 2024 WL 5087911 (5th Cir. Dec. 12, 2024)

129 Id. at *7 (citing Lytle, 560 F.3d at 413; Joseph, 981 F.3d at 335; see also Doss v. Helpenstell, 626 F.

App'x 453, 459–60 (5th Cir. 2015) (holding that an officer should receive no qualified immunity if he “quickly

escalate[s]” an encounter with a nonthreatening, passively resisting driver who poses little risk of escape by

employing overwhelming force “rather than continu[ing] to negotiate”)).

130 Id. (citing e.g., Ramirez v. Killian, 113 F.4th 415, 424–25 (5th Cir. 2024) (“An officer may not

constitutionally use force on a non-threatening subject offering no resistance or merely ‘passive’

just because the deputy “did not actually resort to the use of physical or deadly force does

not alter this analysis. Drawing a gun constitutes use of force.”131 The court cited its

previous decision in Petta v. Rivera, where the Fifth Circuit held: “A police officer who

terrorizes a civilian by brandishing a cocked gun in front of that civilian's face may not

cause physical injury, but he has certainly laid the building blocks for a section 1983

[excessive force] claim against him.”132

Applying the foregoing jurisprudence, the Court finds that Plaintiffs have

successfully stated a claim for excessive force because they allege that Deputy Guillot

“held them at gunpoint” while they were compliant and posed no threat.133

Objective Reasonableness of Deputy Guillot’s conduct

It is axiomatic that, at the time of this incident, the law was clearly established that

persons in their homes are protected under the Fourth Amendment and Louisiana law

from warrantless entry into their homes without probable cause and free from the use of

excessive force.134 The primary focus in determining whether the alleged use of force was

excessive and/or whether Deputy Guillot is entitled to qualified immunity is the objective

resistance.”); Bagley, 90 F.4th at 803 (collecting cases to support holding that, as of May 2019, “it was clearly

established that an officer may not use force on a [person] who is complying with his commands”); Joseph,

981 F.3d at 341 (holding that “continuing to inflict force despite [a suspect's] committing no crime, posing no

threat, and giving no active resistance” violates clearly established law); Carroll v. Ellington, 800 F.3d 154,

177 (5th Cir. 2015) (holding that once a suspect is “subdued” and is “no longer resisting, an officer's

subsequent use of force is excessive”); Newman v. Guedry, 703 F.3d 757, 761–64 (5th Cir. 2012) (holding

that it was objectively unreasonable for an officer to use force when the suspect “committed no crime, posed

no threat to anyone's safety, and did not resist the officers or fail to comply with a command”)).

131 Id. at *8 (citing See Smith v. Heap, 31 F.4th 905, 912 & n.7 (5th Cir. 2022) (noting that officers

“approach[ing] a vehicle with weapons drawn” is a “use of force” and citing authority discussing same); Petta

v. Rivera, 143 F.3d 895, 905 (5th Cir. 1998) (“A police officer who terrorizes a civilian by brandishing a

cocked gun in front of that civilian's face may not cause physical injury, but he has certainly laid the building

blocks for a section 1983 [excessive force] claim against him.” (quoting Checki v. Webb, 785 F.2d 534, 538

(5th Cir. 1986))))(emphasis added).

132 143 F.3d 895, 905 (5th Cir. 1998) (quoting Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986)).

133 Rec. Doc. 76, ¶¶ 34, 38.

134 U.S.C.A. Const. Amend. IV; LSA-Const. Art. 1 § 5; Smith v. Lee, 73 F. 4th 376 (5th Cir. 2023); Graham

v. Connor, 490 U.S. 386 (1989).

reasonableness of the force.

Defendants claim they were at the Willis residence to perform a “knock and talk,”

and Deaughn created the exigent circumstances by possessing a gun. Defendants

criticize Plaintiffs for “conveniently omit[ing]” these facts from their Amended Complaint.

The Defendants made the same argument in the consolidated case, and the Court rejected

it. Plaintiffs’ allegations go beyond conclusions; Plaintiffs assert that Guillot and the officers

acted without a warrant and without probable cause. Plaintiffs supported this alleged fact

with allegations that the officers approached their residence in a “hostile” manner by

Deputy Guillot pointing his sniper rifle at the door, the officers’ persistent refusal to

announce themselves, and the officers positioning themselves beyond the view of the

peephole.135

Defendants’ argument that Plaintiffs’ claims should be dismissed because they

failed to plead any facts relating to Deaughn’s conduct, particularly that he possessed a

gun, is “unavailing” according to the Fifth Circuit’s recent decision in Lewis v. Inocencio,

wherein the court stated:

[T]he officers argue that the conclusions that Lockett posed no threat to

anyone and that the officers fired without cause are improper interpretations

of Lewis's allegations. The officers contend that Lewis's actual allegation—

that Lockett was sitting in his parked vehicle when officers began firing—is

insufficient on its own to give rise to such inferences. According to the

officers, Lewis was required to plead additional facts, such as whether

Lockett's hands were in plain sight. This argument is unavailing. Even

when a defendant puts forth a qualified-immunity defense, the pleading

standard is not heightened. Allen, 65 F.4th at 743. At this stage, Lewis has

satisfied her burden to plead facts that “if proved, would defeat [the] claim of

immunity.” Guerra, 82 F.4th at 285 (alteration in original) (quoting Waller,

922 F.3d at 599). The factual “allegations need ‘not conclusively establish’

the plaintiffs’ theory of the case.” Waller, 922 F.3d at 600 (quoting Doe v.

Robertson, 751 F.3d 383, 389 (5th Cir. 2014)). “For now, it suffices that”

135 Rec. Doc. 76, ¶¶ 25, 26, 28.

Lewis's allegations “are not ‘naked assertions devoid of further factual

enhancement.’” Id.136

Plaintiffs have also successfully pled facts that undermine the reasonableness of the

“knock and talk” investigation utilized by law enforcement in this encounter. “Under the

Fourth Amendment, a warrantless search of a person's home is presumptively

unreasonable, and it is the government's burden to bring the search within an exception

to the warrant requirement.”137 “Exigent circumstances is such an exception.”138 The

application of the exigent-circumstances exception is considered on a case-by-case

basis.139 “It is available only on a showing by the government that the officers’ entry into

the home was supported by probable cause and justified by an exigent circumstance.”140

“[N]o amount of probable cause can justify a warrantless search or seizure absent [such]

exigent circumstances.”141 “In other words, even if the officers had probable cause to

search the ... home, they had to have exigent circumstances to enter without a warrant.”142

Relevant here, the Fifth Circuit instructs that, to determine the presence of exigent

circumstances, courts must consider “the degree of urgency involved and the amount of

time necessary to obtain a warrant,” and “the possibility of danger to the police officers

guarding the site of contraband while a search warrant is sought.”143 Even where an

exigency exists, the court must determine whether law enforcement created the

exigency.144 “In assessing whether the officers created the exigency, we focus on the

136 No. 23-20098, 2024 WL 229274, at *3 (5th Cir. Jan. 22, 2024)(emphasis added).

137 United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011) (citing Payton v. New York, 445 U.S. 573, 586

(1980); United States v. Gomez–Moreno, 479 F.3d 350, 354 (5th Cir. 2007)).

138 Id.

139 Lange v. California, 594 U.S. 295 (2021); Birchfield v. North Dakota, 579 U.S. 438 (2016).

140 Aguirre, 664 F.3d at 610 (citing United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001)).

141 Id. (quoting Horton v. California, 496 U.S. 128, 137 n.7 (1990)).

142 Id.

143 Id. at 611 (quoting United States v. Mata, 517 F.3d 279, 287 (5th Cir. 2008)).

144 United States v. Daniels, 930 F.3d 393, 401 (5th Cir. 2019)(citing King, 563 U.S. at 461, 131 S.Ct. 1849)).

‘reasonableness of the officers' investigative tactics leading up to the warrantless

entry.’”145

The Court must accept Plaintiffs’ allegations as true. As stated above, Plaintiffs

alleged that law enforcement refused to identify themselves, despite being asked

repeatedly who was at the door; they intentionally concealed their identities by positioning

themselves outside the view of the apartment door’s peephole; and they banged

aggressively on the door with Guillot’s sniper drawn, and Plaintiffs claim these allegations

are confirmed by the neighbor’s ring camera video.146

Cognizant of the Supreme Court’s instruction that the gravity of the underlying

offense giving rise to the warrantless home entry is relevant to the inquiry,147 the officers’

alleged conduct during the “knock and talk” does not comport with the alleged purpose for

the visit. Further, because it is alleged that Deputy Guillot began shooting unprovoked as

Deaghn was closing the door,148 Plaintiffs’ allegations sufficiently raise a question

regarding both whether an exigency existed, and if so, whether this exigency was created

by the officers. The Court notes that, even if Deaghn had a firearm, which the Court cannot

assume at this stage, the Fifth Circuit has consistently held that the presence of a firearm

alone does not create an exigency without reason to believe that a suspect is aware of

police surveillance.149

Defendants’ reference to contradicting evidence relates to factual disputes more

appropriately resolved at the summary judgment or trial stages, not within the context of

145 Jones, 239 F.3d at 720 (quoting Blount, 123 F.3d at 838).

146 Rec. Doc.. 76, ¶ 28.

147 Lange v. California, 594 U.S. 295 (citing Welsh v. Wisconsin, 466 U.S. 740, 753 (1984)).

148 Rec. Doc. 76, ¶ 53.

149 Jones, 239 F.3d at 720.

their Motion to Dismiss. The question before the Court is not whether Plaintiff will prevail

at trial. Rather, the key issue is whether the operative complaint (1) on its face (2) contains

enough factual matter (taken as true) (3) to raise a reasonable hope or expectation (4) that

discovery will reveal relevant evidence of each element of a claim.150

In sum, viewing the factual allegations of the amended Complaint in the light most

favorable to Plaintiffs and considering the totality of the circumstances, Plaintiff has

sufficiently stated a claim against Deputy Guillot for violation of their Fourth Amendment

right to be free from excessive force. The Court also finds that every reasonable officer in

Deputy Guillot’s position would have known, beyond doubt, that intentionally firing into the

closed front door of a residence where there is no determination that an immediate threat

to officer safety was present was objectively unreasonable under clearly established law.

Thus, Plaintiffs have sufficiently alleged a constitutional violation to support their § 1983

and state law excessive force claims against Deputy Guillot to withstand dismissal based

on the qualified immunity defense.

E. Unlawful Seizure/False Arrest

Under Louisiana law, false arrest and imprisonment occur when one arrests and

restrains another against their will without a warrant or other statutory authority.151

Additionally, “Louisiana applies the same standards to analyze claims of false arrest … as

the standards utilized under federal law.”152

150 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009)(cleaned up).

151 Deville v. Marcantel, 567 F.3d 156, 172 (5th Cir. 2009); Elphage v. Gautreaux, 969 F.Supp.2d 493, 514

(M.D. La. 2013)(citing Kyle v. City of New Orleans, 353 So.2d 969, 971 (La.1977)).

152 Sanders v. CEOC LLC, 586 F.Supp.3d 519, 527 (citing Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir.

1997), rehearing denied 146 F.3d 282, cert. denied, 525 U.S. 1054, 119 S.Ct. 618, 142 L.Ed.2d 557 (1998)).

Considering the facts alleged, the Court must determine if Plaintiffs’ allegations fit

squarely within false arrest or some alternative type of unreasonable detention/seizure.

The Fourth Amendment prohibits only “unreasonable ... seizures.”153 “The extent of [the

Fourth Amendment's] constitutional protection varies with the type of seizure at issue.”154

In Zinter v. Salvaggio, the court explained:

First are “arrests,” which must be supported by probable cause. United States

v. Massi, 761 F.3d 512, 520 (5th Cir. 2014) (citing United States v. Zukas,

843 F.2d 179, 181–82 (5th Cir. 1988)). Next are “detentions,” which are “brief

seizure[s] that must be supported by reasonable suspicion.” Id. (quoting

Zukas, 843 F.2d at 181). Last are “investigatory, suspicionless seizure[s],”

which require a court to weigh the public's concern and interest against the

interference with individual liberty. Lincoln v. Scott, 887 F.3d 190, 196 (5th

Cir. 2018) (citing Brown v. Texas, 443 U.S. 47, 50–51, 99 S.Ct. 2637, 61

L.Ed.2d 357 (1979)).155

In Elphage v. Gautreaux, this Court noted that “[t]he Louisiana Supreme Court has

held that a ‘valid investigatory stop’ that falls short of an arrest precludes liability for false

arrest under Louisiana law.”156 In Elphage, the plaintiffs claimed the individual “was placed

into a police car in handcuffs, but was eventually released without an arrest after it was

realized that a mistake(s) had been made.”157 Thus, his claim would be “analyzed through

the Fourth Amendment standards for unlawful detention as opposed to unlawful arrest.”158

In Lincoln v. Turner, a case decided in 2017, the Fifth Circuit held that the Fourth

Amendment’s reasonableness requirement applies to the detention of potential witnesses,

153 U.S. Const. amend. IV; Lincoln v. Turner, 874 F.3d 833, 840 (5th Cir. 2017).

154 Lincoln v. Turner, 874 F.3d at 942.

155 610 F.Supp.3d 919, 942 (W.D. Tex. 2022).

156 Elphage, 969 F.Supp.2d at 515 (citing Harrison v. State Through Dept. of Pub. Safety and Corr., 721

So.2d 458, 462–63 (La.1998); see also O'Dwyer v. Nelson, 310 Fed.Appx. 741, 745 n. 4 (5th Cir.2009)

(citing Harrison for the proposition that “Fourth Amendment principles underpin Louisiana law relating to

false arrests” and discussing federal and state law claims for false arrest in conjunction)).

157 Id. at 502 (citation omitted).

158 Id. (citing United States v. Campbell, 178 F.3d 345, 349 (5th Cir.1999) (“[D]rawn guns and handcuffs do

not necessarily convert a detention into an arrest.”)).

even for brief periods.159 The Court found that a witness who was handcuffed and placed

in the back of a police car for approximately two hours sufficiently pled an unreasonable

seizure that “may rise to the level of a de facto arrest that must be supported by probable

cause.”160 However, the court determined that the officers were entitled to qualified

immunity on the basis that the plaintiff did not show “that the contours of the right were so

clearly established that ‘a reasonable official would understand that what he is doing

violates that right.’”161 The court supported this finding as follows:

Finally, we note that there may well be an emerging trend toward holding it

unreasonable to detain a police shooting witness for an extended period of

time, absent either reasonable suspicion or probable cause to believe that a

crime has been committed.162 While we may look to other circuits to find

clearly established law, we must consider “the overall weight” of such

authority.163 A “trend” alone is just that. As of December 2013, only two

circuits had weighed in on the “contours of the right.” These cases alone do

not provide sufficient authority to find that the law was clearly established.164

One year later in 2018, relying on Lincoln v. Turner, the Fifth Circuit addressed

similar claims in Lincoln v. Scott.165 In Scott, a witness, who was present when police

officers shot and killed her father during a standoff, asserted that her constitutional rights

were violated when the officers unlawfully detained her following the shooting.166 The court

noted that “SWAT officers had to physically remove Erin from her father's side to secure

the scene and provide John medical attention. When the officers removed Erin, she was

159 874 F.3d 833 (5th Cir. 2017).

160 Id. at 841.

161 Id. at 850 (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). Plaintiffs represent in their

opposition memorandum that the Fifth Circuit held that the plaintiff in this case alleged enough facts to

overcome qualified immunity (Rec. Doc. 91, p. 13). This is clearly erroneous.

162 Id. (citing Walker, 451 F.3d at 1151; Maxwell, 708 F.3d at 1084).

163 Id. (citing Melear v. Spears, 862 F.2d 1177, 1184 n.8 (5th Cir. 1989) (“Relying solely on Fifth Circuit and

Supreme Court cases, for example, would be excessively formalistic, but they will loom large in our

inquiries.”)).

164 Id.

165 887 F.3d 190 (5th Cir. 2018).

166 Id.

handcuffed, taken through the back exit of the house, and placed in the back seat of a

CPD officer car.”167 Erin alleged that her rights were violated when she “was physically

removed from the scene, placed in a cop car, and—although never told she had to stay

there—felt that she was not free to leave.”168 The court found that, “[a]t a minimum, Erin's

seizure was an investigatory, suspicionless seizure, triggering a Fourth Amendment

reasonableness analysis.”169

The court acknowledged that “it may have been reasonable ‘to detain Erin for some

amount of time to determine her role in the situation[,]” the officers “exceeded this authority

when [they] ... detained her in the back of a police car for two hours.”170 Additionally, these

officers “extended the seizure through the time Erin was interviewed at the CPD station—

a total of roughly four hours.”171 Finding that Erin stated a claim, the court concluded “[i]t

may have been reasonable for the officers to remove her from the scene given her

proximity, but it does not necessarily follow that they had unbound authority to hold her for

roughly four hours, notably without probable cause.172 ‘In doing so, [they] violated Erin's

constitutional rights.’”173 However, once again, the Fifth Circuit found that the officers were

entitled to qualified immunity because the law was not clearly established.174 In upholding

the district court’s grant of qualified immunity, the Fifth Circuit concluded:

The intricate facts here—reasonableness of detaining a sole, compliant

witness to a police shooting—have never been directly addressed or clearly

established by this Circuit or the Supreme Court. See Turner, 874 F.3d at

849. The Supreme Court has “repeatedly stressed that courts must not

‘define clearly established law at a high level of generality, since doing so

167 Id. at 193.

168 Id. at 196.

169 Id. (citing Brown v. Texas, 443 U.S. 47, 50–51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)).

170 Id. at 197 (quoting Lincoln v. Turner, 874 F.3d at 849).

171 Id.

172 Id. (citing Maxwell, 708 F.3d at 1083).

173 Id. (quoting Turner, 874 F.3d at 849; see also Walker, 451 F.3d at 1149).

174 Id.

avoids the crucial question whether the official acted reasonably in the

particular circumstances that he or she faced.’” Wesby, 138 S.Ct. at 590

(quoting Plumhoff v. Rickard, ––– U.S. ––––, 134 S.Ct. 2012, 2023, 188

L.Ed.2d 1056 (2014)) (emphasis added). Our inability to point to a string of

cases establishing “settled law” that these facts amount to a Fourth

Amendment violation demonstrates that the violated right was not so clearly

established that these officers can be liable. See id.175

In 2022, the same year the incident in this case occurred, the Western District of

Texas addressed similar claims in Zinter. There, the court found that the plaintiffs carried

their burden of demonstrating they were unconstitutionally seized and de facto arrested.176

However, the court also held that the police officers were entitled to qualified immunity

because, at the time of the constitutional violations, “Fifth Circuit case law had not clearly

established that [the plaintiff’s] seizure – for 30-45 minutes, with handcuffs removed at

some point – violated the Fourth Amendment.”177

The Court finds that, based on the foregoing jurisprudence, the facts alleged

describe something between an investigatory, suspicionless seizure and a detention that,

prolonged, could be considered a de facto arrest, at least for Willis who was handcuffed.

And, based on the facts alleged, the court finds that Plaintiffs have sufficiently pled a Fourth

Amendment constitutional violation based on their seizure/detention. However, once the

defense of qualified immunity is raised, “a plaintiff has the burden to rebut the qualified

immunity defense … We do not require that an official demonstrate that he did not violate

clearly established federal rights; our precedent places that burden upon plaintiffs.”178

Plaintiffs made no effort to address this requirement; rather, Plaintiffs erroneously stated

175 Id. at 198.

176 Zinter, 610 F.Supp.3d at 942.

177 Id. at 947.

178 Kelly v. Stassi, 587 F.Supp.3d 409, 425 (M.D. La. 2022)(quoting Estate of Davis v. City of N. Richland

Hills, 406 F.3d 375, 380 (5th Cir. 2005)).

that Fifth Circuit caselaw supported the denial of qualified immunity when it clearly ruled

otherwise based on the lack of clearly established law.179 Further, the Court did not find a

“robust consensus of persuasive authority” such that the denial of qualified immunity on

this issue would be warranted. Accordingly, Plaintiffs’ unlawful seizure/detention/arrest

claims are dismissed based on qualified immunity.

F. Assault and Battery

The Fifth Circuit has stated that “Louisiana's excessive force tort mirrors its federal

constitutional counterpart.”180 “Under Louisiana law, the torts of assault and battery, when

raised against a law enforcement officer acting in the course of employment, require a

showing that the law enforcement officer acted with unreasonable or excessive force.”181

Because Plaintiffs’ assault, battery, and excessive force claims are essentially state law

corollaries of the § 1983 claims for excessive force, the foregoing analysis of Plaintiff's §

1983 excessive force claims against Deputy Guillot in his individual capacity also applies

to Plaintiff's state law claims for excessive force, assault, and battery. Accordingly,

Defendants’ motion as to these claims against Deputy Guillot is denied.

G. Negligence

Louisiana utilizes the duty/risk analysis to evaluate negligence claims.182 “The

duty/risk analysis consists of the following factors: (1) did the defendant owe a duty to the

plaintiff; (2) was the duty breached; (3) was the conduct in question a substantial factor in

179 Rec. Doc. 91, p. 13.

180 Elphage v. Gautreaux, 969 F. Supp. 2d 493, 515 (M.D. La. 2013) (citing Deville v. Marcantel, 567 F.3d

156, 172–73 (5th Cir. 2009)).

181 Id. at 515 (citing Gerard v. Parish of Jefferson, 424 So. 2d 440, 444 (La. App. 5 Cir. 1982)); see also

Taylor v. United States, 1991 WL 280066 (E.D. La. Dec. 19, 1991) (“Under Louisiana law, in the absence of

the use of excessive force, a law enforcement officer cannot be held liable for assault and battery if the

assault and battery occurred during a lawful arrest.”).

182 Causer v. Ard, 2019 WL 3849155, at *7 (M.D. La. Aug. 15, 2019).

bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which

occurred; (4) was the risk, and harm caused, within the scope of protection afforded by

the duty breached; and (5) actual damage.”183 Additionally, “under Louisiana law, a police

officer has a duty to act reasonably under the totality of the circumstances.”184

Defendants argue that, because Deputy Guillot acted reasonably under the

circumstances, Plaintiffs have not stated a claim for negligence under Louisiana law.

Plaintiffs oppose this motion, arguing that they have presented allegations showing that

Deputy Guillot’s conduct was not reasonable, and they have adequately pled the elements

for negligence.

In the Amended Complaint, Plaintiffs allege violations of La. C.C. art. 2315 and

2316, which provide, respectively, that “[e]very act whatever of man that causes damage

to another obliges him by whose fault it happened to repair it[;]” and “[e]very person is

responsible for the damage he occasions not merely by his act, but by his negligence, his

imprudence, or his want of skill;” they set forth the foregoing elements for negligence, with

the exception of element 4; and they allege facts demonstrating that each element is

met.185 Plaintiffs state that law enforcement has a duty to protect citizens from danger and

from violations of their rights.186 Plaintiff specifically allege that Deputy Guillot breached

his duty “by firing several shots into the residence of the Plaintiff’s (sic) while they were

inside. He and other officers and deputies breached their duty by failing to act reasonably

under the circumstances, by failing to act in accordance with what the law requires (“knock

183 Id. (citing Williams v. Domino's Pizza, Inc., 2001 WL 6724, at *4 (E.D. La. Jan. 2, 2001); Roberts v. Benoit,

605 So. 2d 1032, 1041 (La. 1991); see also Wiltz v. Bayer CropScience, Ltd. P'ship, 645 F.3d 690, 698 (5th

Cir. 2011)).

184 Perron v. Travis, No. 20-221, 2021 WL 1187077, at *8 (M.D. La. Mar. 29, 2021) (citing Mathieu v. Imperial

Toy Corp., 94-0952, p. 10 (La. 11/30/94), 646 So. 2d 318, 325).

185 Rec. Doc. 76, ¶¶ 81-82.

186 Id. at ¶ 83.

and announce”).”187 Plaintiffs allege that Deputy Guillot’s breach of his duty “caused

Plaintiffs’ injuries for which they have accumulated damages.”188 While Plaintiffs did not

allege the scope of protection element, the facts alleged sufficiently satisfy this element as

well.

The Court finds that whether Deputy Guillot’s conduct was reasonable is a factual

dispute that cannot be resolved at the Rule 12(b)(6) stage. It is enough that Plaintiffs

alleged how and why they assert that his conduct was unreasonable. The Court finds that

Plaintiff has successfully pled Louisiana negligence claims. Notably, if it is later determined

that Deputy Guillot’s actions were reasonable under the totality of the circumstances,

Plaintiffs’ negligence claims will fail; but in testing the sufficiency of the pleadings at this

stage, the negligence claims survive dismissal.

H. Intentional/Negligent Infliction of Emotional Distress

(“IIED/NIED”)/Bystander Claims under La. C.C. art. 2315.6

Defendants move to dismiss Plaintiffs’ IIED and NIED claims and argue that

Plaintiffs have not asserted a bystander claim under La. C.C. art. 2315.6. However, as

noted above, Plaintiffs specifically assert this claim in paragraph 7 of the First Amended

Complaint: “Plaintiffs allege a cause of action pursuant to Louisiana Civil code Article

2315.6 for mental anguish and intentional infliction of emotional distress.”

Plaintiffs oppose these motions, arguing that their pleadings adequately state

claims for these torts; further, under the IIED claim, Plaintiffs state: “Alternatively, this was

a negligent infliction of emotional distress and is recoverable under La. Civ. Code 2315.”189

187 Id.

188 Id.

189 Rec. Doc. 76, ¶ 80.

Intentional Infliction of Emotional Distress

To maintain an action for IIED in Louisiana, Plaintiff must establish that (1)

Defendants’ conduct was extreme and outrageous; (2) Plaintiff suffered severe emotional

distress; and (3) Defendant desired to inflict severe emotional distress or knew that severe

emotional distress would be certain or substantially certain to result from its conduct.190

The conduct requirement for IIED is difficult to meet; the standard does not reach “mere

insults, indignities, threats, annoyances, petty oppressions, or other trivialities;” rather, the

behavior must “go beyond all possible bounds of decency, [and must] be regarded as

atrocious and utterly intolerable in a civilized community.”191 “Unlike an action grounded in

negligence, an action sounding in intentional tort causes us to focus on whether the

tortfeasor desired or knew that the harm facing the plaintiff as a result of the complained-

of conduct was substantially certain to result from the conduct.”192

The Court finds that Plaintiffs have failed to adequately plead an IIED claim because

they have failed to plead allegations to satisfy the third element that Deputy Guillot desired

to inflict severe emotional distress or knew that severe emotional distress would be certain

or substantially certain to result from its conduct. Plaintiffs allege facts to support the first

two elements:

Plaintiffs witnessed the brutal murder of their son and brother at the hands

of Defendant Eno Guillot. They each watched him die a slow death at the

hands of officers who thereafter held each of the Plaintiffs at gunpoint,

ordering them, against their wishes, out of their own home, leaving their

loved one to die alone. These actions were intentional and certainly inflicted

severe emotional distress on each of the Plaintiffs.193

190 White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).

191 Id.; see also Iturralde v. Shaw Grp., Inc., 512 Fed.Appx. 430, 435 (5th Cir.2013) (“Under Louisiana Civil

Code Article 2315, plaintiffs must meet a high burden of proof to prevail on an IIED claim.”).

192 Bourgeois v. Curry, 921 So.2d 1001, 1010 (La.App. 4 Cir. 12/14/05).

193 Rec. Doc. 76, ¶ 80.

Although Plaintiffs state the element that requires intentional or substantially certain acts,

Plaintiffs plead in conclusory fashion that “[t]hese actions were intentional …”194 The

Court finds this allegation conclusory and insufficient to sustain a claim for IIED.

Negligent Infliction of Emotional Distress

In Louisiana, a claim for negligent infliction of emotional distress without physical

injury is viable under La.Civ.Code art. 2315(A), which provides: “Every act whatever of

man that causes damages to another obliges him by whose fault it happened to repair it.”

The general negligence duty-risk analysis is utilized in determining whether one may

recover under La.Civ.Code art. 2315.195

In Spencer v. Valero Refining Meraux, L.L.C.,196 the Louisiana Supreme Court

recently explained the requirements for NIED:

For liability to attach, a plaintiff must prove five separate elements: (1) the

defendant had a duty to conform his or her conduct to a specific standard

of care (the duty element); (2) the defendant failed to conform his or her

conduct to the appropriate standard (the breach of duty element); (3) the

defendant's substandard conduct was a cause-in-fact of the plaintiff's

injuries (the cause-in-fact element); (4) the defendant's substandard

conduct was a legal cause of the plaintiff's injuries (the scope of liability or

scope of protection element); and, (5) actual damages (the damages

element). Mathieu v. Imperial Toy Corp., 94-952, pp. 4-5 (La. 11/30/94), 646

So.2d 318, 322.197

[F]or negligent infliction of emotional distress claims absent physical

damage/injury, a plaintiff must prove “the especial likelihood of genuine and

serious mental distress, arising from the special circumstances, which

serves as a guarantee that the claim is not spurious.” Moresi, 567 So.2d at

1096. This rule must be “stringently applied” in cases that are inherently

speculative in nature. Bonnette, 837 So.2d at 1235. The actions of the

defendant must constitute negligence. The plaintiff's mental disturbance

must be “serious.” Moresi, 567 So.2d at 1096. Evidence of generalized fear

or evidence of mere inconvenience is insufficient. Evidence of medical

194 Id.

195 Doe v. McKesson, 21-929, p. 7 (La. 3/25/22), 339 So.3d 524, 531.

196 2022-00469 (La. 1/27/23), 356 So.3d 936.

197 Id. at 949.

treatment is not required, nor is expert medical testimony; however, a

plaintiff bears the burden of presenting sufficient evidence of the nature and

extent of the mental anguish suffered that was caused by the defendant's

conduct. Whether the mental distress is “serious” is a matter of proof.

Finally, we reiterate that these guidelines must be applied with the policy

considerations discussed herein.198

The court then elaborated “on what is not required to be proven by a plaintiff seeking

damages for negligent infliction of emotional distress absent physical damage/injury.”199

The court relaxed some of the requirements originally set forth in Lejeune:

The existence of a special, direct duty owed by the defendant is not

required. We also decline to impose a requirement of outrageous conduct

on the part of a defendant. A claim for negligent infliction of emotional

distress is a claim that, by definition, requires a plaintiff to prove negligence.

Further, we expressly reject application of the standard set forth in Lejeune,

556 So.2d 559. The emotional distress suffered by a plaintiff need not be

“reasonably foreseeable,” nor “severe and debilitating.” Lejeune, 556 So.2d

at 571.200

The Court finds that Plaintiffs have sufficiently pled claims for NIED. First, the

Court incorporates its findings above that Plaintiffs have stated a claim for general

negligence under the duty/risk analysis. Further, the very special circumstances of

witnessing their son/brother be shot and killed supports that an especial likelihood of

genuine and serious mental distress would result such that these claims are not spurious.

Defendants’ Motion to Dismiss Plaintiffs’ NIED claims is denied.

Bystander Claims under La. C.C. art. 2315.6

Under Louisiana Civil Code article 2315.6, certain family members, including

parents and siblings, may recover damages for mental anguish or emotional distress if

they witness an event causing injury to another person or come upon the scene soon

198 Id. at 950.

199 Id.

200 Id.

thereafter. A bystander claim is an independent cause of action.201

To recover under this article, a plaintiff must show that: (1) they viewed the

event causing injury to the direct victim or came upon the scene soon after;

(2) the direct victim suffered such harm that it can reasonably be expected

that the plaintiff would suffer serious mental anguish from the experience; (3)

the emotional distress plaintiff sustained is both serious and reasonably

foreseeable; and (4) plaintiff and the direct victim have the requisite familial

relationship. Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990); See

also La.Civ.Code art. 2315.6. Additionally, a plaintiff must show that as they

witnessed the injury-causing event, or the scene of injury soon after, they

were contemporaneously aware that the event had caused harm to the

victim. Trahan, 728 So.2d 1273.202

The Court notes that, as Deaughn’s stepfather, Wilson does not fall within the class

of persons entitled to recover for the damages available in La. C.C. art. 2315.6. In Irvin v.

Foti, the court held that, “[t]o be considered a ‘mother’ or ‘father’ under the statute, a

plaintiff must be the biological or adoptive mother or father of the victim.”203 And in

Daigrepont v. Louisiana State Racing Com'n, the court held that a stepmother could not

recover damages for mental anguish or emotional distress based upon statute giving the

cause of action to “the father and mother of the injured person, or either of them;” rather,

statute applies only to the birth mother or mother by adoption.204 Accordingly, Wilson’s

bystander claim must be dismissed as a matter of law.

In Trahan v. McManus, the Louisiana Supreme Court explained that bystander

damages are intended to compensate for the immediate shock of witnessing a traumatic

event that caused the direct victim immediate harm that is severe and apparent.205 The

requirement of temporal proximity between the tortious event, the victim's observable

201 Castille v. Louisiana Medical Mut. Ins. Co., 2014-519 (La. App. 3 Cir. 11/15/14), 150 So.3d 614, 619.

202 Id. at 619-20.

203 No. 99-1526, 1999 WL 504916, at *4 (E.D. La. July 13, 1999).

204 663 So.2d 840 (La. App. 4 Cir. 10/26/95), writ denied, 666 So.2d 1085 (1996).

205 97-1224 (La. 3/2/99), 728 So.2d 1273, 1279.

harm, and the plaintiff's mental distress is crucial.206

Accordingly, for the Plaintiffs to have a valid bystander claim under Louisiana Civil

Code article 2315.6, they must demonstrate that they were present at the scene of the

shooting, or came upon the scene soon thereafter, and were contemporaneously aware

that the shooting caused harm to their son/brother. If they did not witness the event or

were not aware of the harm at the time, their claim is likely to fail under the statute.

In Allen v. City of New Orleans, the 20-year-old decedent was shot and killed by

police in his mother’s home during the execution of a search warrant.207 The decedent’s

mother, half-siblings, and full sibling brought suit and asserted Article 2315.6 bystander

claims. The defendant City of New Orleans moved for summary judgment on the bystander

claims, arguing that the plaintiffs could not prove damages “because none of them sought

medical treatment or received any type of counseling for their mental injuries.”208 The City

also argued that none of the bystander plaintiffs in the house actually witnessed the

shooting of the decedent, which occurred on the stairs.209 The court denied summary

judgment on the bystanders’ claims finding that the City failed to support its arguments

with any “legal authority whatsoever” and noted that the claims should be presented to a

jury.210

In Smith v. Urban Oil & Gas Group, the natural father, natural mother, natural sister,

and twin brother of the decedent asserted Article 2315.6 bystander claims against the oil

company that operated a battery (“the Battery”) of tanks connected to nearby oil wells.211

206 Id.

207 No. 13-422, 2015 WL 6738529 (E.D. La. Nov. 4, 2015).

208 Id. at *5.

209 Id.

210 Id.

211 Smith v. Urban Oil & Gas Group, LLC, No. 2:21-cv-04402, 2022 WL 1098950 (W.D. La. Apr. 12, 2022).

Plaintiffs alleged their fourteen-year-old son Zalee was on top of an oil tank when it

suddenly exploded.212 The court applied the foregoing jurisprudence and found that the

plaintiffs had sufficiently pled an action for bystander liability based on these allegations:

(1) the plaintiffs viewed the explosion that killed Zalee or arrived at the scene soon

thereafter; and (2) “they were aware that Zalee was at the Battery when the tank exploded

and realized that as soon as they saw that the tank had been blown hundreds of feet away

by the explosion, they immediately realized that Zalee had been severely harmed and

almost certainly killed.”213

Applying the foregoing legal principles to the facts alleged, Plaintiffs Willis, S’Rhen,

and Jordan have successfully stated a claim for bystander damages under Louisiana law.

The allegations plainly state that they each witnessed Deaughn be shot and killed in the

living room, and they were forced to sit and watch as he was dying and no medical aid

was sought. While Defendants erroneously claim Plaintiffs did not file a bystander claim,

to the extent their Motion to Dismiss the NIED claims overlaps on this issue, the Motion to

Dismiss is DENIED.

I. Vicarious Liability

Under La. Civ. Code art. 2320, “an employer is subject to vicarious liability for the

tortious conduct of his employee, irrespective of his title, while acting within the course and

scope of employment.”214 Governmental entities “do not enjoy special protection from

vicarious liability under Louisiana law and are subject to respondeat superior like every

212 Id. at *1.

213 Id. at *8.

214 Brasseaux v. Town of Mamou, 752 So. 2d 815, 821 (La. 2000).

other employer.”215 The Louisiana Supreme Court has “stated that an employee's conduct

is generally within the course and scope of his employment if the conduct is of the

character and nature that he is employed to perform, occurs substantially within the

authorized limits of time and space, and is activated at least in part by a purpose to serve

the employer.”216

Plaintiffs have alleged that Deputy Guillot was acting in the course and scope of his

employment during this incident.217 Defendants argue that “if the State law claims against

Eno Guillot are dismissed, then the claims against Sheriff Gautreaux for vicarious liability

should also be dismissed.”218 Because the Court has found that Plaintiffs stated claims

against Deputy Guillot for assault, battery, excessive force, bystander liability, negligence,

and NIED under Louisiana law, there is a potentially culpable employee for which Sheriff

Gautreaux could be held vicariously liable. Accordingly, the Sheriff’s motion will be denied

as to this claim with respect to the state law claims that remain.

III. CONCLUSION

Accordingly, for the foregoing reasons, Defendants’ Motion to Dismiss219 is

GRANTED IN PART and DENIED IN PART. Defendants’ Motion to Dismiss at Rec. Doc.

80 is denied as moot as it is duplicative. Plaintiffs’ 42 U.S.C. § 1983 Monell claims against

the Sheriff, including claims for unconstitutional policies, improper hiring, failure to properly

train and supervise, and ratification; § 1983 claims against Deputy Guillot in his official

capacity; claims for punitive damages; State law claim for abuse of process; and the State

215 Deville v. Marcantel, 567 F.3d 156, 174 (5th Cir. 2009) (citing Brasseaux, 752 So. 2d at 815); see also

Bussey v. Dillard Dep't. Stores, Inc., 984 So. 2d 781, 784 (La. App. 1 Cir. 2008) (“[V]icarious liability [under

art. 2320] applies to law enforcement employers as well.” (citations omitted)).

216 Brasseaux, 752 So. 2d at 820 (internal citations omitted).

217 Rec. Doc. 76, ¶ 91.

218 Rec. Doc. 86-1, p. 28.

219 Rec. Doc. 86.

law claim against the Sheriff for negligent hiring, supervision, and training are all dismissed

as abandoned. Plaintiffs’ unlawful seizure/detention/arrest claims are dismissed because

Deputy Guillot is entitled to qualified immunity on these claims. All claims asserted against

Jane and John Doe officers/deputies are dismissed for failure to state a claim. Plaintiffs’

IIED claims are dismissed for failure to state a claim. Plaintiff Wilson’s bystander claim

under Louisiana law is dismissed for failure to state a claim. Defendants’ Motion to Dismiss

is DENIED as to all other claims asserted.

Plaintiffs are granted to leave to amend their Amended Complaint for the sole

purpose of correcting the clerical error regarding Section 2983 claims against Deputy

Guillot’s in his individual capacity, and they shall amend the Complaint on or before April

16, 2025. Plaintiffs are not permitted to add any new claims, parties, legal theories, or

factual allegations.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana, on this _3_1_st_ day of March, 2025.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA