Varnado

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LAKEISHA VARNADO, ET AL. CIVIL ACTION

VERSUS 24-133-SDD-RLB

JOSEPH CARBONI, ET AL.

RULING

This matter is before the Court on the Motion to Dismiss' filed by Defendant Tafari

Beard (“Beard”). Plaintiffs Lakeisha Varnado ("“Varnado”), individually and on behalf of

minors K.A.V. and K.E.V., and Tredonovan Raby, on behalf of minor T.R., filed an

Opposition,? to which Beard filed a Reply.° For the following reasons, Beard’s Motion

shall be granted in part and denied in part.

I. BACKGROUND

This case involves police officers’ alleged treatment of individuals who were

detained during the execution of a search warrant. The operative Complainf alleges the

following facts: In the early hours of June 6, 2023, Varnado and her three minor sons

K.A.V.,K.E.V., and T.R. (“Plaintiffs”) were at their home in East Baton Rouge Parish when

several Baton Rouge police officers burst in through the front door and windows.® The

officers were executing a search warrant on the house.’ K.A.V. and K.E.V. attempted to

Doc. 49.

Rec. Doc. 56.

3 Rec. Doc. 59.

4 Rec. Doc. 49.

5 Rec. Doc. 48.

6 Id. at p. 3.

at p. 34.

Page 1 of 21

exit the house as they allegedly believed the house was being burglarized.® Defendant

Unknown Officer 2 detained K.A.V. in the kitchen.°

K.E.V., meanwhile, exited from the rear of the house.'® Defendant Unknown Officer

1 then detained K.E.V., hit him in the face with a taser, and handcuffed him.'’ While K.E.V.

was handcuffed and shackled, Beard used his taser to threaten K.E.V.'? During their

confrontations with the officers, both K.A.V. and K.E.V. complained to officers on the

scene, including Beard, about the amount of force being used against them.'? The officers

allegedly failed to document the use of force.

T.R. was asleep in his room when the officers entered the house.'® He heard the

officers announce themselves as Baton Rouge Police Department (“BRPD’).'§ T.R., while

wearing only his underwear, was instructed by an officer to “come out with [his] hands

up,” and T.R. was then taken to the SWAT truck.'” T.R., who was 11 years old at the time,

asked to be with his mom, so officers moved T.R. to the back of Beard’s vehicle with

Varnado."8

T.R. then sat in the back of Beard’s vehicle, wearing only his underwear, for an

hour or two.'? While sitting in Beard’s vehicle, T.R. asked Beard and other officers if he

could use the restroom approximately six times in thirty minutes.2° Neither Beard nor the

8 id. at p. 4.

9 Id.

10 Iq.

"Id.

"2 Id,

13 Id. at p. 5.

14 I.

18 id. at pp. 4, 6.

18 Id. at p. 4.

7 Id,

8 id at p. 5.

19 Id.

20 Id.

Page 2 of 21

other officers allowed T.R. to use the restroom.*' After hours of T.R. sitting in Beard’s

vehicle in only his underwear, Beard escorted T.R. into the house to get dressed.”? T.R.

got dressed in front of Beard and other officers and was then put back into Beard’s

vehicle.?°

Beard, Coleman, and other officers left Plaintiffs’ house unlocked and open to the

elements.”4 Plaintiffs were then taken to the “BRAVE Cave,” a facility used by the BRPD

Street Crimes Unit.2° Beard transported Varnado and T.R., and other officers transported

K.A.V. and K.E.V.76

Over the span of several hours in the BRAVE Cave, T.R. and Varnado asked

officers to contact T.R.’s father or other relatives to pick T.R. up, but those requests were

denied.2’ At some point, a BRPD officer threatened to call Child Protective Services if

T.R. could not quickly make contact with his father.2® Varnado alleges she was subjected

to a strip and visual body cavity search by Carboni.?9

After almost two hours at the BRAVE Cave, T.R. again asked to use the

restroom.®° Carboni took him to the restroom and then performed a strip and body cavity

search on T.R.31 Beard stood watch by the door while the search occurred.*? Plaintiffs

also allege that Beard “observed the acts against T.R.”°% During the search, Carboni told

21 Id. at p. 6.

22 Id,

23 Id,

24 Id. at pp. 67.

25 Id. at pp. 6, 10.

26 Id, at pp. 6, 21.

27 Id. at pp. 9, 21.

28 Id. at p. 35.

23 Id. at p. 8.

30 Id,

31 Id,

82 Id,

33 Id. at p. 23.

Page 3 of 21

T.R. to strip, held T.R.’s penis, spread T.R.’s buttocks, and touched T.R.’s anus.*4 TLR.

was then taken back to Varnado, and he told her about the search.*° T.R. was eventually

released without formal arrest.*6

K.E.V. was also separated from Varnado while at the BRAVE Cave.%’ While

handcuffed, Coleman allegedly dragged K.E.V. into a holding cell, choked him, and left

him in the holding cell shackled to a cement block.°® Later, while K.E.V. was still shackled

in the holding cell, Kennedy hit K.E.V., which knocked him unconscious.°? Kennedy left

the unconscious K.E.V. in the holding cell.*°

Plaintiffs assert the following claims against all Defendants:*" state law claims for

battery, assault, intentional infliction of emotional distress, and negligence; and claims for

the violation of Article |, Sections 2 and 5 of the Louisiana Constitution.4? Against Tafari

Beard, Joseph Carboni, Lorenzo Coleman, David Kennedy, Unknown Officer 1, and

Unknown Officer 2, Plaintiffs assert an unreasonable seizure claim under the Fourth

Amendment, a claim for failure to intervene under the Fourth Amendment, and a claim of

cruel and unusual punishment under the Eighth and Fourteenth Amendments.* Plaintiffs

also assert a claim of unreasonable search under the Fourth Amendment against Joseph

Carboni.*4 Additionally, Plaintiffs assert an excessive force claim against Joseph Carboni,

34 Id. at p. 9.

35 Id.

36 Id at p. 14.

37 Id. at p. 9.

38 Jd. at pp. 9, 39.

38 fd. at pp. 9, 23, 36, 39.

40 Id. at pp. 9-10.

41 Plaintiffs also raise these claims against Murphy Paul, who is not a party to this matter. /d. at pp. 34-37.

42 Id.

43 Id at pp. 21-23, 38-39.

44 Id. at p. 22.

Page 4 of 21

Lorenzo Coleman, David Kennedy, Unknown Officer 1, and Unknown Officer 245

Plaintiffs assert a claim for municipal liability under Mone/lP® and a failure to train,

supervise, and discipline claim against the City of Baton Rouge and Parish of East Baton

Rouge.*’ Plaintiffs seek compensatory damages, special damages, punitive damages,

and attorney's fees and costs.*® Tafari Beard’s motion to dismiss on the grounds of

qualified immunity is presently before the Court.

li. LAW AND ANALYSIS

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

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."49 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.”°° The Court

may also consider documents attached to a motion to dismiss if those documents “are

referred to in the plaintiffs complaint and are central to her claim.”*' “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.’”°?

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

45 Id, at pp. 23-24.

48 Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978).

47 Rec. Doc. 48, pp. 24-33.

48 Id. at p. 39.

49 In re Katrina Canal Breaches Litig., 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)).

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

51 Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016) (quoting Collins v. Morgan Stanley

Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).

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

(2007)).

Page 5 of 21

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

of ‘further factual enhancement.’’>4 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.”©° In order to satisfy the plausibility

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

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

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

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

allegation.”°®

In the operative Complaint, Plaintiffs referenced footage from Beard’s body worn

camera and the camera inside his police vehicle on the date of the incident.°? Beard urges

the Court to consider the footage in conjunction with his Motion. Because the footage is

referenced in the operative Complaint and depicts the events that are central to Plaintiffs’

claims, the Court has reviewed the footage. However, the events depicted in the footage

are subject to interpretation, and that interpretation is within the province of the factfinder.

53 Twombly, 550 U.S. at 555 (2007).

54 Ashcroft v. iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted) (hereinafter, “/qba/’).

55 Id,

56 I,

57 Taha v. William Marsh Rice Univ., No. H-11-2060, 2012 WL 1576099, at *2 (S.D. Tex. May 3,2012)

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

58 Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

59 Rec. Doc. 48, pp. 16-17.

Page 6 of 21

Thus, the footage will not be considered in the Court's analysis, and the Court will rely

solely on the facts alleged in the operative Complaint in its analysis of the Motion.

Additionally, “it is axiomatic that the complaint may not be amended by briefs in

opposition to a motion to dismiss.”©° The parties briefed the issue of a § 1983 excessive

force claim against Beard; however, the § 1983 excessive force count in the operative

Complaint does not name Beard. Plaintiffs also raise an argument about a § 1983

conspiracy for the first time in their Opposition.®' The Court will not consider the parties’

arguments regarding a § 1983 excessive force claim against Beard or a § 1983

conspiracy claim because neither is pled in the operative Complaint.

B. Section 1983 Generally

The Civil Rights Act of 1964, 42 U.S.C. § 1983, creates a private right of action for

redressing the violation of federal law by those acting under color of state law.® It

provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State ... subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured....®

“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method

for vindicating federal rights elsewhere conferred.’””°4

69 Roebuck v. Dothan Sec. Inc., 515 F. App’x 275, 280 (5th Cir. 2013) (quoting Car Carriers, Inc. v. Ford

Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)).

81 Rec. Doc. 56, pp. 15-16.

62 See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82 (1984); Middlesex Cnty. Sewerage

Auth. v. Nat’) Sea Clammers Ass'n, 453 U.S. 1, 19 (1981).

8 42 U.S.C. § 1983.

84 Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, (1979));

accord Graham v. Connor, 490 U.S. 386, 393-94 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808,

816 (1985); Jackson v. City of Atlanta, Tex., 73 F.3d 60, 63 (5th Cir. 1996); Young v. City of Killeen, 775

F.2d 1349, 1352 (5th Cir. 1985).

Page 7 of 21

To prevail on a § 1983 claim, a plaintiff must prove that a person acting under the

color of state law deprived him of a right secured by the Constitution or laws of the United

States.©° A § 1983 complainant must support his claim with specific facts demonstrating

a constitutional deprivation and may not simply rely on conclusory allegations.®©

C. Qualified Immunity

Public officials are entitled to qualified immunity unless the plaintiff demonstrates

that (1) the defendant violated an actual constitutional or federal statutory right that is

clearly established under existing law, and (2) if so, that the defendant's conduct was

objectively unreasonable in light of clearly established law at the time of that conduct.§”

Therefore, to survive a motion to dismiss based on qualified immunity, the plaintiff must

allege sufficient facts, which, taken as true, show that the defendant violated his

constitutional rights which were clearly established at the time of the violation. If the court

determines that there was a violation of a right secured by the Constitution, then it must

determine whether the defendant could have reasonably thought his actions were

consistent with the rights they are alleged to have violated.®* The protections afforded by

the qualified immunity defense turn on the “objective legal reasonableness” of the

defendant's conduct examined by reference to clearly established law.®9

85 See Blessing v. Freestone, 520 U.S. 329, 340 (1997), holding modified by Harz v. Borough of Spring

Lake, 234 N.J. 317 (2018); Daniels v. Williams, 474 U.S. 327, 330 (1986); Augustine v. Doe, 740 F.2d 322,

324-25 (5th Cir. 1984).

86 See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995); Fee v. Herndon, 900 F.2d 804, 807 (5th Cir.

1990): Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.1986); Angel v. City of Fairfield, 793 F.2d 737, 739

(5th Cir. 1986).

87 Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011); Hart v. Tex. Dep't of Crim. Just., 106 F.App'x 244,

248 (5th Cir. 2004).

68 Anderson v. Creighton, 483 U.S. 635, 638 (1987).

69 Id. at 639.

Page 8 of 21

D. Unreasonable Seizure

Varnado and T.R. allege that their transportation to and detention at the BRAVE

Cave constituted an unreasonable seizure.” Specifically, Plaintiffs focus on the seizure

of T.R. (age 11), who they assert “was not under arrest or accused of committing a

criminal act.””' Beard argues he acted reasonably when seizing Varnado and T.R. while

executing a search warrant and is therefore entitled to qualified immunity.”

The qualified immunity defense has two prongs: whether an official's conduct

violated a constitutional right of the plaintiff; and whether the right was clearly established

at the time of the violation. A court may rely on either prong of the defense in its analysis.’°

The Court begins with the clearly established prong. “The relevant question is

whether a reasonable officer could have believed his or her conduct to be lawful, in light

of clearly established law and the information the officers possessed,”’* Plaintiff must

point “to a legislative directive or case precedent that is sufficiently clear such that every

reasonable official would have understood that what he is doing violates that law.””° The

Supreme Court does not “require a case directly on point for a right to be clearly

established, [but] existing precedent must have placed the statutory or constitutional

question beyond debate.”’6

“The Fourth Amendment guarantees the right to be free from ‘unreasonable

searches and seizures.”””’ Generally, Fourth Amendment seizures are reasonable only if

70 Rec. Doc. 48, p. 21.

Id.

Rec. Doc. 49-1, pp. 12-13.

73 Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).

74 Keller v. Fleming, 952 F.3d 216, 225 (5th Cir. 2020) (quoting Anderson, 483 U.S. at 641) (cleaned up).

78 Id.

78 White v. Pauly, 580 U.S. 73, 79 (2017) (cleaned up).

77 Davis v. Romer, 600 F. App’x 926, 929 (5th Cir. 2015), as revised (Feb. 3, 2015) (quoting U.S. Const.

amend. IV).

Page 9 of 21

based on probable cause to believe that the individual has committed a crime.’® However,

pursuant to Michigan v. Summers, officers are permitted to detain occupants of a

premises without probable cause while a search warrant for contraband is being

executed.’”? A lawful seizure “‘can become unlawful if it is prolonged beyond the time

reasonably required to complete that mission.’”®° Therefore, the right not to be detained

by law enforcement without probable cause for hours after a warranted search ceases is

clearly established. Furthermore, no reasonable officer could have believed that the

continued detention of a minor without probable cause was lawtul.

The Court must now consider whether Plaintiffs have adequately alleged that

Beard violated their constitutional rights. Plaintiffs allege that T.R. was detained in Beard’s

vehicle for hours while officers were executing a search warrant upon Plaintiffs’ house.®"

Beard then transported T.R. to the BRAVE Cave, where Beard continued to detain T.R.°

Plaintiffs allege that their house was left unsecured by BRPD when they were transported

to the BRAVE Cave.®° Plaintiffs further claim T.R., wno was 11 years old, was detained

for over four hours without being accused of committing a criminal act.§4 T.R.’s requests

to use the restroom were denied multiple times during this hours-long detention, and

when he was finally allowed to go to the restroom, he was subjected to a strip and body

cavity search.®

78 Bailey v. U.S., 568 U.S. 186, 192 (2013).

78 Id. at 193 (citing Michigan v. Summers, 452 U.S. 692, 705 (1981)).

80 Wuehler v. Mena, 544 U.S. 93, 101 (2005) (quoting Iilinois v. Caballes, 543 U.S. 405, 407 (2005)).

81 Rec. Doc. 48, pp. 21, 34.

82 Id. at p. 21.

83 Id. at p. 6.

54 Id. at p. 21.

85 Id. at pp. 6, 8-9.

Page 10 of 21

The Court is required to draw reasonable inferences in favor of Plaintiffs at this

stage. Plaintiffs’ allegation that the officers left the house without securing it and

transported the Plaintiffs to the BRAVE Cave creates a strong inference that the warrant

search had concluded. The Court, therefore, determines that the Summers exception to

the Fourth Amendment did not apply to T.R.’s transportation to and detention at the

BRAVE Cave because the execution of the search warrant had concluded. Accordingly,

Beard needed a warrant or probable cause to continue to detain T.R. On these facts,

T.R.’s Fourth Amendment right to be free from unreasonable seizure was violated.

E. Cruel and Unusual Punishment

Plaintiffs claim Defendants subjected them to cruel and unusual punishment in

violation of the Eighth Amendment to the United States Constitution as well as the Due

Process Clause of the Fourteenth Amendment.®6 The Eighth Amendment of the United

States Constitution prohibits the infliction of “cruel and unusual punishments.”®’” The Due

Process Clause of the Fourteenth Amendment to the United States Constitution prohibits

the States from “depriv[ing] any person of life, liberty, or property, without due process of

law.”88 Plaintiffs allege that certain actions by “several BRPD officers” as well as acts of

certain specified officers, i.e., Coleman, Kennedy, and Carboni, constituted punishment

of the Plaintiffs.8° However, Plaintiffs make no factual allegations that Beard contributed

to this alleged punishment. Therefore, Plaintiffs have not adequately stated a plausible

86 Rec. Doc. 48, p. 38.

Const. amend. VIII.

88 U.S. Const. amend. XIV.

89 Rec. Doc. 48, pp. 38-39.

Page 11 of 21

claim to relief for cruel and unusual punishment against Beard, and that claim is dismissed

with prejudice.%°

F. Failure to Intervene/Bystander Liability

To state a bystander liability claim under the Fourth Amendment, a plaintiff must

allege that: (1) the officer knew that a fellow officer was violating the plaintiff's rights; (2)

the officer had a reasonable opportunity to prevent the harm; and (3) the officer chose not

to act. A plaintiff must establish that the officer “knows that a fellow officer is violating

an individual’s constitutional rights."°* However, “[mJere presence at the scene of the

alleged use of excessive force, without more, does not give rise to bystander liability.”°

The officer must have a “reasonable opportunity to realize the excessive nature of the

force and to intervene to stop it.”%4 “In resolving whether a plaintiff has sufficiently alleged

a bystander liability claim we also consider whether an officer acquiesce[d] in the alleged

constitutional violation.” “In making the determination of whether or not an officer

acquiesced to the excessive force, courts consider the duration of the alleged use of force

and the location of the suspect in relationship to the observing officer.”°%

99 Since Plaintiffs have now had three opportunities to state claims against Beard (i.e., Rec. Doc. 1, Rec.

Doc. 9, and Rec. Doc. 48) and have failed to do so, the Court will not grant leave to further amend.

31 Whitley v. Hanna, 726 F.3d 631, 646 (Sth Cir. 2013).

92 See McDonald v. McClelland, 779 F. App'x 222, 226 (5th Cir. 2019) (per curiam).

93 Vasquez v. Chacon, No. 3:08-CV-2046-M(BH), 2009 WL 2169017, at *6 (N.D. Tex. July 20, 2009), aff'd,

390 F. App’x 305 (5th Cir. 2010) (citing Nowell v. Acadian Ambulance Serv., 147 F. Supp. 2d 495, 507(W.D.

La. 2001)); see also Brown v. Wilkinson Cty. Sheriff Dep't, 742 F. App'x 883, 884 (5th Cir. 2018) (per curiam)

(“[plaintiff] concedes that he was harmed by three inmates and that an officer's mere presence, without

more, does not give rise to a bystander liability claim.”).

%4 Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 2013 (citations omitted).

Whitley, 726 F.3d at 647 (citations omitted).

96 Garrett v. Crawford, No. SA-15-CV-261-XR, 2016 WL 843391, at *9 (W.D. Tex. March 1, 2016).

Page 12 of 21

1. Liability for the Search of T.R.

Plaintiffs have adequately pled a bystander liability claim against Beard as to T.R.’s

strip and cavity search. The law was clearly established at the time of this incident that a

warrant or probable cause was needed to perform a strip search.°’ The Court accepts the

facts alleged in the operative Complaint as true. Plaintiffs claim that Beard transported

Varnado and T.R. to the BRAVE Cave and that Beard had notice that everyone who goes

to the BRAVE Cave gets strip searched.%* Beard therefore knew that T.R., who was being

held without probable cause, was likely to be strip searched at the BRAVE Cave. Because

T.R. was observed getting dressed and was under continued surveillance leading up to

the search,2° the Court can infer that there was little to no chance that T.R. was hiding

contraband. Considering that no facts indicate a justification for the search, the Court

finds that on the facts pled, the strip and cavity search was without probable cause.

Plaintiffs allege Beard stood watch by the door and observed without intervening

while T.R. was subjected to a strip and cavity search.'©° Plaintiffs assert that Beard had

a reasonable opportunity to intervene because he was within close proximity to the

search, and he viewed and heard what was occurring. Beard, however, chose not to

act.'°' Therefore, Plaintiffs have adequately pled a bystander liability claim against Beard

for T.R.’s strip and cavity search, and Beard is not entitled to qualified immunity.

2. Liability for the Use of Force Against K.E.V.

97 See Lee v. Lawrence, No. 23-1229, 2024 WL 3385644, at **10-11 (M.D. La. July 12, 2024) (citing Sims

v. City of New Orleans, No. 03-3169, 2005 WL 1400440, at *14 (E.D. La. June 6, 2005) (concluding

Supreme Court and Fifth Circuit precedent find strip searches without probable cause to be unlawful)).

98 Rec. Doc. 48, pp. 6, 11, 14, 21.

89 Id. at p. 8.

109 id. at pp. 8-9, 23.

101 Id. at p. 23.

Page 13 of 21

Plaintiffs also claim Beard is liable for his failure to intervene when K.E.V. was

allegedly choked and knocked unconscious by two other officers.1°? However, Plaintiffs

make no factual allegations establishing that Beard knew K.E.V. was about to be attacked

or that he made a deliberate choice not to act. Plaintiffs also failed to allege facts that

show Beard was in a proximity to observe and/or intervene in K.E.V.’s alleged attack. The

operative Complaint does not contain sufficient factual allegations to determine whether

Beard knew about the use of force or had the opportunity to react to the situation.

Therefore, Plaintiffs have failed to plead a claim for bystander liability against Beard

regarding the use of force against K.E.V., and that claim is dismissed with prejudice. □□□

G. State Law Claims

Beard argues that Plaintiffs’ state law claims against him must fail because

“Plaintiffs have failed to adequately plead any sufficient facts that support these [claims]

or overcome Officer Beard’s right to qualified immunity." Beard relies on his argument

to dismiss the § 1983 claims to urge dismissal of the state law claims.'© In doing so,

Beard invites the Court to apply federal qualified immunity to Plaintiffs’ state law claims.'°

As Plaintiffs correctly state, federal qualified immunity does not apply to state law

claims.'°” In Louisiana, however, a similar immunity is available for officials sued for

actions performed within the course and scope of their official duties.'°° Beard’s qualified

102 Id.

103 Since Plaintiffs have now had three opportunities to state claims against Beard (i.e., Rec. Doc. 1, Rec.

Doc. 9, and Rec. Doc. 48) and have failed to do so, the Court will not grant leave to further amend.

104 Rec. Doc. 49-1, p. 15.

105 Id.

106 Id.

107 Rec. Doc. 56, p. 16.

108 See Knapper v. Connick, 96-0434 (La. 10/15/96), 681 So. 2d 944, 947 (noting the Louisiana state

immunity rules have been harmonized with federal immunity principles). See a/so Louisiana Revised

Statute 9:2798.1 (grants immunity to public entities, as well as their officers and employees, for

discretionary acts performed within the course and scope of their official duties).

Page 14 of 21

immunity arguments will be interpreted as arguments for the application of Louisiana's

equivalent immunity. Only the state law claims that are redundant to the federal claims

pled are subject to the same qualified immunity reasoning and analysis.'°? The Court will

discuss the state law claims in turn.

1. Assault and Battery

“Under Louisiana law, a battery is defined as an intentional harmful or offensive

contact with a person.”''!° The plaintiff must allege that the person accused of battery

“intended to inflict an offensive contact without the plaintiff's consent.”'"' “Assault is the

imminent threat of a battery.”''? The plaintiff must allege that they were placed in

“reasonable apprehension of harmful or offensive contact.”"'? Corrections officers cannot

be held liable for use of force, unless that force is excessive.''* “Under Louisiana law, the

same standard is used in analyzing a state law claim of excessive force as a federal

constitutional claim—reasonableness under the circumstances.”''® "The reasonableness

of an officer's conduct is not measured [from] the view point of the victim but from that of

a reasonable man in the officer's position.”'"® Louisiana’s state law qualified immunity is

“lijdentical to the federal standard.”""”

109 See Moresi v. State Through Department of Wildlife & Fisheries, 567 So. 2d 1081, 1085 (La. 1990)

(stating immunity is available for an official's conduct that “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known’).

110 Fontenot v. Gusman, No. 11-1772, 2012 WL 5196426, at *16 (E.D. La. Oct. 18, 2012) (citing Doss v.

Morris, 86 F. App'x. 25, 27-28 (5th Cir.2004)).

111 Id.

112 Doss, 86 F. App'x at 28.

113 Fontenot, 2012 WL 5196426, at *17.

4114 Id.

115 Escort v. Miles, No. 6:17-CV-00484, 2018 WL 3580656, at *8 (W.D. La. July 25, 2018).

146 (citing Picou v. Terrebonne Par. Sheriff's Off., 343 So.2d 306 (La. App. 1st Cir. 1977)).

117 jd. See also, Perrilloux v. City of Kenner, No. 08-4287, 2009 WL 10680057, at *3 (E.D. La. Oct. 9, 2009).

Page 15 of 21

Plaintiffs allege that officers with BRPD “initiated contact” with Plaintiffs while

executing a search warrant.''® However, when Plaintiffs specify the contact that allegedly

constituted a battery, neither Beard nor his alleged actions are mentioned."'® In fact,

Plaintiffs have alleged no facts regarding any physical contact Beard made with any

Plaintiff, much less contact that was harmful or offensive. Therefore, Plaintiffs have not

adequately pled a claim for battery against Beard, and that claim is dismissed with

prejudice. 12°

Plaintiffs also allege that Beard used a taser to threaten K.E.V. with physical

harm.‘21 Plaintiffs claim this incident occurred while K.E.V. was handcuffed at his wrists

and shackled at his ankles, and therefore, posed no threat to officers or himself.'22

Plaintiffs assert that Beard’s threat to use the taser placed K.E.V. in reasonable

apprehension of a battery.'78

Beard, relying on footage from his body worn camera, claims he pointed his taser

at K.E.V. when he opened the vehicle’s door to address K.E.V.’s actions.'*4 According to

Beard, K.E.V. was kicking and knocking the vehicle’s interior in an attempt to break the

window and refused to stop doing so.'*5 Beard further asserts that the interaction lasted

less than 12 seconds.'26 However, these arguments rely on facts that were not in the

118 Rec. Doc. 48, p. 34.

119 at pp. 34-35.

120 Since Plaintiffs have now had three opportunities to state claims against Beard (i.e., Rec. Doc. 1, Rec.

Doc. 9, and Rec. Doc. 48) and have failed to do so, the Court will not grant leave to further amend.

121 Id. at p. 35.

122 Id. at p. 4.

123 Id.

124 Rec. Doc. 49-1, p. 8.

125 Id, at p. 9.

126 Id.

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operative Complaint and footage that the Court has declined to consider in its analysis of

this Motion.

The facts alleged in the operative Complaint, when taken as true, sufficiently allege

that Beard’s action of pointing a taser at K.E.V. placed K.E.V. in reasonable apprehension

of harmful or offensive contact. Therefore, Plaintiffs have adequately pled sufficient facts

to state an assault claim against Beard that is plausible on its face. Furthermore, if the

facts in the Complaint are true, then K.E.V., a minor, posed little to no risk to the officers

and had no chance of escape when Beard threatened him with a taser because K.E.V.

was handcuffed at his wrists and shackled at his ankles. A reasonable man in Beard’s

position would not find using a taser to threaten a handcuffed and shackled minor to be

a reasonable use of force. Therefore, Beard is not entitled to qualified immunity for

Plaintiffs’ state law assault claim.

In sum, Plaintiffs have not pled a claim for battery as to Beard. Plaintiffs have

adequately alleged a claim for assault against Beard, and Beard is not entitled to qualified

immunity for that claim.

2. Negligence

Louisiana utilizes the duty/risk analysis to evaluate negligence claims.'*’ “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 bringing about the harm to the plaintiff, ie., was it a cause-in-fact of the harm which

127 Causer v. Ard, No. 18-779-SDD-RLB, 2019 WL 3849155, at *7 (M.D. La. Aug. 15, 2019).

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

the duty breached; and (5) actual damage.”"78

Louisiana’s negligence analysis does not mirror the analysis utilized for any of the

federal claims Plaintiffs have pled against Beard. Therefore, Beard cannot rely on his

arguments under § 1983 to seek dismissal of Plaintiffs’ negligence claim. “[T]he movant

has the burden to show dismissal is warranted under Rule 12(b)(6).”'29 As Beard makes

no relevant arguments as to why dismissal of Plaintiffs’ negligence claim is warranted, he

does not satisfy his burden as the movant under Rule 12(b)(6). Therefore, the Motion is

denied as to the negligence claim against Beard.

3. Intentional Infliction of Emotional Distress

Plaintiffs have asserted a claim for intentional infliction of emotional distress.'%°

The Louisiana Supreme Court has held that

in order to recover for intentional infliction of emotional distress, a

plaintiff must establish (1) that the conduct of the defendant was extreme

and outrageous; (2) that the emotional distress suffered by the plaintiff

was severe; and (3) that the defendant desired to inflict severe emotional

distress or knew that severe emotional distress would be certain or

substantially certain to result from his conduct.'!

The conduct complained of must be so outrageous in character and so extreme in degree

that it goes beyond all possible bounds of decency and is regarded as utterly intolerable

in a civilized community.'*2 Liability arises only where the mental suffering or anguish is

128 Id. (citing Williams v. Domino's Pizza, Inc., No. 00-1043, 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).

129 Cantu v. Guerra, No. SA-20-CV-0746-JKP-HJB, 2021 WL 2636017, at *1 (W.D. Tex. June 25, 2021)

(citing Ehiemua-Wiggins v. Napolitano, No. H-09-2286, 2010 WL 519704, at *1 (S.D. Tex. Feb. 8, 2010)).

130 Rec. Doc. 48, p. 34.

131 Nicholas v. Allstate Ins. Co., 1999-2522, p. 1 (La. 8/31/00), 765 So. 2d 1017, 1022 (quoting White v.

Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991)).

132 White, 585 So. 2d at 1209-10.

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extreme, and the distress suffered must be such that no reasonable person could be

expected to endure it.'9%

Louisiana’s intentional infliction of emotional distress analysis does not mirror the

analysis utilized for any of the federal claims Plaintiffs have pled against Beard. Therefore,

Beard cannot simply incorporate by reference his § 1983 arguments to seek dismissal of

this claim. “[T]he movant has the burden to show dismissal is warranted under Rule

12(b)(6).""94 Because Beard makes no relevant arguments as to why dismissal of

Plaintiffs’ intentional infliction of emotional distress claim is warranted, he does not satisfy

his burden as the movant under Rule 12(b)(6). Therefore, the Motion is denied as to the

intentional infliction of emotional distress claim against Beard.

4. Violation of Due Process Pursuant to La. Const. Art. |, § 2

Plaintiffs allege a due process violation by Beard under the Louisiana Constitution.

Article |, Section 2 of the Louisiana Constitution, like its federal counterpart, provides that

“InJo person shall be deprived of life, liberty, or property, except by due process of law.”

The Article |, Section 2 analysis does not mirror the analysis utilized for any of the federal

claims Plaintiffs have pled against Beard. Thus, for the same reasons presented above,

Beard has not carried his burden under Rule 12(b)(6). Therefore, the Motion is denied as

to the Article |, Section 2 claim against Beard.

5. Unreasonable Search and Seizure Pursuant to La. Const. Art. |, § 5

Plaintiffs allege Beard violated Article |, Section 5 of the Louisiana Constitution,

which provides:

Every person shall be secure in his person, property, communications,

houses, papers, and effects against unreasonable searches, seizures, or

134 Cantu, 2021 WL 2636017, at *1 (citing Ehiemua-Wiggins, 2010 WL 519704, at *1).

Page 19 of 21

invasions of privacy. No warrant shall issue without probable cause

supported by oath or affirmation, and particularly describing the place to be

searched, the persons or things to be seized, and the lawful purpose or

reason for the search. Any person adversely affected by a search or seizure

conducted in violation of this Section shall have standing to raise its illegality

in the appropriate court.

This article is the state law corollary to the Fourth Amendment to the United States

Constitution. The analysis of Plaintiffs’ Article |, Section 5 claim tracks the analysis of their

federal § 1983 unreasonable seizure claims. The Court has already held that Plaintiffs

have adequately pled a § 1983 claim for unreasonable seizure and that Beard is not

entitled to qualified immunity for that claim. Because the analysis for the state law

corollary of this claim is the same, the Motion must be denied as to Plaintiffs’ Article I,

Section 5 claim.

CONCLUSION

Beard’s Motion to Dismiss'*® is granted in part and denied in part. The following

claims against Beard are dismissed with prejudice:'%® the failure to intervene claim

regarding the use of force against K.E.V.; the battery claim; and the cruel and unusual

punishment claim. The following claims asserted against Beard survive Beard’s Motion:

unreasonable seizure; failure to intervene regarding the strip and body cavity search of

T.R.; state law assault; state law negligence; intentional infliction of emotional distress;

the claim under Article 1, Section 2 of the Louisiana Constitution; and the claim under

Article 1, Section 5 of the Louisiana Constitution.

IT 1S SO ORDERED.

185 Rec. Doc. 49.

136 Since Plaintiffs have now had three opportunities to state claims against Beard (i.e., Rec. Doc. 1, Rec.

Doc. 9, and Rec. Doc. 48) and have failed to do so, the Court will not grant leave to further amend.

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Signed in Baton Rouge, Louisiana on November i 2029,

JUDGE ne D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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