Cyr

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHRISTIAN M. CYR CIVIL ACTION

VERSUS NO. 24-1973

DEPARTMENT OF PUBLIC SAFETY AND SECTION: “P” (2)

CORRECTIONS, ET AL.

ORDER AND REASONS

The Court, having considered the record, the applicable law, the Report and

Recommendation of the United States Magistrate Judge (R. Doc. 65), Plaintiff’s Objection to the

Report and Recommendation (R. Doc. 70), and Defendants’ Objection to the Report and

Recommendation (R. Doc. 71), accepts in part and modifies in part the Magistrate Judge’s

recommended disposition, as set forth herein.

I. PROCEDURAL BACKGROUND

Plaintiff, Christian M. Cyr, instituted this action against several defendants for conduct that

occurred while Plaintiff was incarcerated at B.B. Rayburn Correctional Center (“Rayburn”) in

Louisiana.1 Defendants are five correctional officers, with varying ranks and titles, who worked at

Rayburn during the relevant period: Justin Rester, Jeremy Mizell, Henry McMurray, Johnathan

Jones, and Jessica O’Keefe.2 Plaintiff asserts four claims in his operative complaint. The first is a

claim under 42 U.S.C. § 1983, brought against all defendants, for allegedly violating Plaintiff’s

right be free from cruel and unusual punishment and excessive force by correctional officers under

the Eighth Amendment of the Constitution of the United States.3 Plaintiff’s other three claims arise

under Louisiana state law. These are: a claim for battery against Defendants Rester, Mizell, and

1 R. Doc. 39.

2 Id. at 1–3.

3 Id. at 10–12.

McMurray;4 a claim for assault against Defendants Rester and Mizell;5 and a claim for intentional

infliction of emotional distress against Defendants Rester, Mizell, Jones, and O’Keefe.6

Defendants filed a motion to dismiss Plaintiff’s claims pursuant to Federal Rule of Civil

Procedure 12(b)(6).7 Defendants also moved to strike the affidavit attached to Plaintiff’s operative

complaint pursuant to Federal Rules of Civil Procedure 12(f) and 10(c).8 Plaintiff opposed both

motions filed by Defendants.9 Defendants then filed a motion to strike impertinent and scandalous

claims contained in Plaintiff’s oppositions pursuant to Federal Rule of Civil Procedure 12(f).10

The Court referred the three motions filed by Defendants to the United States Magistrate Judge for

report and recommendations.11

The Magistrate Judge issued her Report and Recommendation shortly thereafter. For the

reasons stated in the report, the Magistrate Judge recommended that “Defendants’ Motion to Strike

Affidavit Attached to Amended Complaint and Defendants’ Motion to Strike Impertinent and

Scandalous Claims in Plaintiff’s Oppositions be DENIED,” and that “Defendants’ Motion to

Dismiss be GRANTED IN PART AND DENIED IN PART, dismissing the § 1983 claims against

Defendants Rester, Mizell, Jones and O’Keefe based on verbal threats, dismissing the § 1983 claim

against Defendant McMurray, and dismissing the intentional infliction of emotional distress

claims, but denying the motion as to the § 1983 excessive force claims against Defendants Rester

and Mizell.”12 Plaintiff and Defendants filed objections to the Report and Recommendation.13

4 Id. at 12–13.

5 Id. at 14–15.

6 Id. at 15–16.

7 R. Doc. 43.

8 R. Doc. 44.

9 R. Docs. 49, 52.

10 R. Doc. 56.

11 R. Doc. 64.

12 R. Doc. 65 at 1.

13 R. Docs. 70, 71.

II. LAW AND ANALYSIS

Plaintiff objects to each of the Magistrate Judge’s recommendations that certain of his

claims should be dismissed. Defendants do not specifically object to any of the findings by the

Magistrate Judge, but they request that the Court clarify and, to the extent necessary, modify the

Magistrate Judge’s recommended dispositions as to Defendant McMurray and Defendants Jones

and O’Keefe.

The Federal Rules of Civil Procedure require that the district judge “determine de novo

any part of the magistrate judge’s disposition that has been properly objected to.”14 After reviewing

a report and recommendation, “[t]he district judge may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the magistrate judge with

instructions.”15

A. Objections related to recommendation that the Court dismiss Plaintiff’s § 1983 claims

against Defendants Rester, Mizell, Jones and O’Keefe based on verbal threats.

The Court first turns to the Magistrate Judge’s recommendation that the Court dismiss

Plaintiff’s § 1983 claims against Defendants Rester, Mizell, Jones and O’Keefe based on verbal

threats. Plaintiff does not take issue with the Magistrate Judge’s conclusion that verbal threats

alone do not amount to constitutional violations and thus are insufficient to state a plausible § 1983

claim, but Plaintiff argues that his claims should not be dismissed because he “does not allege

mere verbal threats.”16 Plaintiff contends that his complaint outlines several weeks of threats of

great bodily harm towards him by Defendants Rester, Mizell, Jones, and O’Keefe, and that

14 FED. R. CIV. P. 72(b)(3).

15 Id.

16 R. Doc. 70-1 at 5.

eventually this great bodily harm did occur when he was brutally attacked by Defendants Rester

and Mizell.17

Plaintiff’s argument rests on a misunderstanding of the law. That Defendants Mizell and

Rester ultimately followed through on their verbal threats does not change the fact that the threats

themselves did not amount to constitutional violations.18 As the Magistrate Judge correctly

recognized, Plaintiff has plausibly alleged a constitutional violation, in the form of an excessive

force claim, based on the allegations that Defendants Rester and Mizell physically attacked

Plaintiff without provocation and continued to do so even after restraining Plaintiff on the ground,

causing severe injuries to Plaintiff, including broken teeth and damage to his ankles, legs, jaw,

face, and neck.19 In this case, it is the physical attack of Plaintiff that amounts to a constitutional

violation and gives rise to a § 1983 claim; the verbal threats do not.20 Accordingly, Plaintiff’s

§ 1983 claims against Defendants Rester, Mizell, Jones and O’Keefe based on the verbal threats

made by these defendants must be dismissed.

Plaintiff separately argues that “[e]ven if verbal threats alone are insufficient under § 1983,

dismissal is improper because [Plaintiff] also pleads a valid state-law assault claim.”21 Plaintiff

appears to be under the mistaken belief that the Magistrate Judge’s recommendation would result

17 Id.

18 See, e.g., Robertson v. Plano City of Tex., 70 F.3d 21, 24 (5th Cir. 1995) (“In the Eighth Amendment context, our

circuit has recognized as a general rule that mere threatening language and gestures of a custodial officer do not, even

if true, amount to constitutional violations.” (citation modified)); Rader v. Lubbock Cnty., No. 01-258, 2003 WL

21145788, at *13 (N.D. Tex. Apr. 25, 2003) (dismissing prisoner’s claim that defendant verbally taunted and

threatened him because mere threats do not rise to the level of a constitutional violation).

19 See R. Doc. 39 at ¶¶ 13–17, 20.

20 See McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (“Clearly, an allegation of an unjustified serious physical

assault against an inmate raises an arguable section 1983 claim. On the other hand, as a rule, mere threatening language

and gestures of a custodial office do not, even if true, amount to constitutional violations.” (citation modified)); Siglar

v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (“It is clear that verbal abuse by a prison guard does not give rise to

a cause of action under § 1983.”); Farmer v. Brennan, 511 U.S. 825, 832 (1994) (explaining that a prison official

violates the Eighth Amendment’s prohibition against cruel and unusual punishment when the official uses excessive

physical force against prisoners).

21 R. Doc. 70-1 at 5.

in the dismissal of all of his claims that are based on threats made to Plaintiff, including not only

the portions of his § 1983 claim based on verbal threats but also his state-law assault claim. As

Plaintiff also recognized in his objections,22 however, the Magistrate Judge Report and

Recommendation did not address Plaintiff’s state-law assault claim.23 Accordingly, only the

§ 1983 claim is the subject of the Magistrate Judge’s recommended disposition. Plaintiff’s

argument regarding his state-law assault claim is thus moot. The § 1983 claim against Defendants

Rester, Mizell, Jones and O’Keefe based on the verbal threats will be dismissed. Plaintiff’s state-

law assault claim, which is brought against Defendants Rester and Mizell,24 remains pending.

B. Objections related to recommendation that the Court dismiss Plaintiff’s § 1983 claim

against Defendant McMurray.

1. Plaintiff’s Objection

In addition to the verbal threats by Defendants Rester, Mizell, Jones and O’Keefe and the

physical beating by Defendants Rester and Mizell, Plaintiff also alleges that Defendant McMurray

violated his Eighth Amendment right to be free from cruel and unusual punishment when

Defendant McMurray forcefully pushed Plaintiff while escorting him to the infirmary, causing

Plaintiff to trip and fall to the ground. The Magistrate Judge found that Plaintiff did not set forth

sufficient allegations to support a constitutional violation claim under § 1983 against Defendant

McMurray and thus recommended the dismissal of this claim. The Magistrate Judge appears to

have considered Plaintiff’s claim against Defendant McMurry as an excessive force claim and as

a deliberate indifference claim. Plaintiff objects to the Magistrate Judge’s finding that he did not

sufficiently allege a plausible excessive force claim against Defendant McMurray.

22 R. Doc. 70-1 at 6.

23 See R. Doc. 65.

24 See R. Doc. 39 at ¶ 42.

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

“a claim to relief that is plausible on its face.”25 A claim is facially plausible when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.26 The Court must accept all well-pleaded facts as true and view

those facts in the light most favorable to the plaintiff.27

Here, Plaintiff alleges that he was brought into an un-monitored employee breakroom

inside the Rain Unit of Rayburn and was physically attacked by Defendants Rester and Mizell.28

After Plaintiff fell to the ground from the continuous beating, Plaintiff was placed in handcuffs

and shackles.29 Even after Plaintiff was restrained, Defendants Rester and Mizell continued to

punch and kick Plaintiff and also slammed his face into the ground, causing his teeth to break.30

Defendant Rester then called on his radio for all units to head towards the breakroom inside of the

Rain Unit, and Defendant McMurray was the first to arrive.31 According to Plaintiff’s complaint,

Defendant McMurray grabbed Plaintiff from the floor and onto his feet and

forcefully walked Plaintiff out of Rain Unit and towards the infirmary. Plaintiff

pleaded for Defendant McMurray to understand that he was not resisting, but

needed him to slow down as Plaintiff could not keep up with the pace while being

shackled. Defendant McMurray refused to slow down and forcefully pushed

Plaintiff’s body forwards, causing Plaintiff to trip and fall in the hallway leading to

the infirmary.32

Plaintiff alleges that, as a result of the above-mentioned uses of force, “he suffered serious injuries,

including, without limitation, broken teeth and damage to his ankles, legs, jaw, face, and neck.”33

25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)).

26 Id. at 678.

27 Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).

28 R. Doc. 39 at ¶¶ 11–17.

29 Id. at ¶ 16.

30 Id. at ¶¶ 16–17.

31 Id. at ¶ 17.

32 Id.

33 Id. at ¶ 20.

An excessive force claim requires (1) an injury (2) which resulted directly and only from a

use of force that was clearly excessive, and (3) the excessiveness of which was clearly

unreasonable.34 In evaluating an excessive force claim, the core judicial inquiry focuses on the

“nature of the force—specifically, whether it was nontrivial and applied maliciously and

sadistically to cause harm.”35 That said, not “every malevolent touch by a prison guard gives rise

to a federal cause of action.”36 “The Eighth Amendment’s prohibition of cruel and unusual

punishments necessarily excludes from constitutional recognition de minimus uses of physical

force, provided that the use of force is not of a sort repugnant to the conscience of mankind.”37

Although a plaintiff need not plead a “significant injury” as a threshold requirement for

stating an excessive force claim, the extent of the injury suffered by the plaintiff may still be

relevant to the Eighth Amendment inquiry because it “may provide some indication as to the

amount of force applied.”38 Such is the case here, where Plaintiff attempts to bring an excessive

force claim against Defendant McMurray based on Defendant McMurray “forcefully push[ing]

Plaintiff’s body forward, causing Plaintiff to trip and fall in the hallway leading to the infirmary.”39

As the Supreme Court has explained, “[a]n inmate who complains of a ‘push of shove’ that causes

no discernable injury almost certainly fails to state a valid excessive force claim.”40 Thus, the

extent of Plaintiff’s injury caused by Defendant McMurray’s forceful push is highly relevant to

the Court’s inquiry into whether Plaintiff has stated a valid excessive force claim against

Defendant McMurray. Upon review of the allegations in the operative complaint, however,

Plaintiff does not specify which, if any, of his alleged injuries were caused by Defendant

34 Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007).

35 Wilkins v. Gaddy, 559 U.S. 34, 39 (2010).

36 Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

37 Id. at 9–10 (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)).

38 Wilkins, 559 U.S. at 37.

39 R. Doc. 39 at ¶ 17.

40 Wilkins, 559 U.S. at 38 (citing Hudson, 503 U.S. at 9).

McMurray’s push as opposed to the punching, kicking, and head slamming by Defendants Rester

and Mizell.41 Without any information regarding the extent of injury Plaintiff suffered at the hands

of Defendant McMurray, the Court is unable to find that Plaintiff has alleged more than a

malevolent, de minimus use of force by Defendant McMurray. Such force is not protected by the

Eighth Amendment. Accordingly, Plaintiff’s § 1983 claim against Defendant McMurray must be

dismissed for failure to state a claim.

2. Defendants’ Objection

Defendants do not object to the Magistrate Judge’s finding that Plaintiff failed to allege a

plausible § 1983 excessive force claim against Defendant McMurray. Instead, Defendants argue

that although the Magistrate Judge’s Report and Recommendation was silent as to Plaintiff’s state-

law battery claim against Defendant McMurray, the Court should modify the recommended

disposition and also dismiss the state-law battery claim against Defendant McMurray because

Defendants raised the defense of qualified immunity as to all of Plaintiff’s claims, including the

state-law claims, and because the Magistrate Judge’s findings related to Plaintiff’s failure to allege

a plausible § 1983 claim against Defendant McMurray are enough to sustain the dismissal of the

state-law battery claim as well.

Conducting a de novo review of this issue, the Court determines that Defendants did not

adequately brief the applicability of qualified immunity to any of Plaintiff’s state-law claims, much

less the specific battery claim against Defendant McMurray. The Court acknowledges that

Defendants’ memorandum in support of their motion to dismiss does state “Plaintiff’s claims

should be dismissed pursuant to Qualified Immunity” and that “Defendants assert this affirmative

defense to all of Plaintiff’s claims including Plaintiff’s Constitutional claims asserted under the

41 See R. Doc. 39 at ¶ 20 (“As a consequence to the incident on August 14, 2023, Plaintiff alleges he suffered serious

injuries, including, without limitation, broken teeth and damage to his ankles, legs, jaw, face, and neck.”).

Eight Amendment and Plaintiff’s state law claims.”42 Defendants’ actual briefing on the issue of

qualified immunity, however, relates only to qualified immunity under federal law with respect to

Plaintiff’s claims that his Eighth Amendment rights were violated.43 Federal qualified immunity

does not apply to state-law claims, and Defendants provided no argument or reference to legal

authority on the issue of whether they are entitled to qualified immunity as a matter of Louisiana

law.44 Moreover, Defendants’ additional argument raised in their objection—that Plaintiff’s state-

law battery claim must fail if there is no viable excessive force claim under § 1983—was not raised

in Defendants’ briefing on the motion to dismiss. It is not incumbent on the Court to make legal

arguments for the parties or to address issues that have not been properly briefed.45 Because

Defendants failed to adequately brief these issues in the memorandum in support of their motion

to dismiss, the state-law battery claim against Defendant McMurray is not subject to dismissal at

this time.

C. Objections related to recommendation that the Court dismiss Plaintiff’s state-law

claims for intentional infliction of emotional distress.

Next, the Magistrate Judge recommended that the Court dismiss Plaintiff’s state-law claims

for intentional infliction of emotional distress (“IIED”) against Defendants Rester, Mizell, Jones,

and O’Keefe, on the basis that Plaintiff’s allegations of verbal threats are insufficient to state a

42 R. Doc. 43-1 at 10.

43 R. Doc. 43-1 at 10–17.

44 See Brown v. Miller, 519 F.3d 231, 239 (5th Cir. 2008) (explaining that “[i]n evaluating a motion to dismiss a state

claim on the grounds of qualified immunity, federal courts must apply the state’s substantive law of qualified

immunity” and declining to address a defendant’s argument that the state-law claims against him should have been

dismissed on the basis of qualified immunity under Louisiana law when he only argued the federal law of qualified

immunity in his briefing).

45 State Farm Life Ins. Co. v. Bryant, No. 3:18-CV-1628-L, 2020 WL 2812866, at *6 (N.D. Tex. May 30, 2020); see

also Local Civil Rule 7.4 (“All contested motions must be accompanied by separate memoranda which must contain

a concise statement of reasons supporting the motion and citations of authorities.”).

plausible IIED claim under Louisiana law. Plaintiff objects to the Magistrate Judge’s finding that

he did not sufficiently allege an IIED claim.

To state a plausible IIED claim under Louisiana law, Plaintiff must allege facts that, when

accepted as true, 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.”46

In the section of Plaintiff’s complaint in which Plaintiff specifically discusses his IIED

claims against Defendants Rester, Mizell, Jones, and O’Keefe, Plaintiff alleges:

Leading up to the brutal attack on Plaintiff by Defendants Acting Lts. Rester and

Mizell, Plaintiff was subjected to on-going threats of violence. Defendants Acting

Lts. Rester and Mizell, Lt. Jones, Sgt. O’Keefe, and John Does 1-2 threatened

Plaintiff over the course of several weeks. The threats were not only threats of

violence, but threats of great bodily harm. The aforementioned Defendants all

intended to inflict severe emotional distress on Plaintiff that no reasonable member

of society could tolerate, especially in Plaintiff’s environment where death could

happen at any moment. Plaintiff was severely distressed from these threats, so much

so that he reported it several times to outside members of society and to

Schaubhut.47

Elsewhere in the complaint, Plaintiff describes these alleged threats with more

particularity. The threats purportedly began with Defendant Rester, who Plaintiff alleges

summoned Plaintiff into the Captain’s office and asked Plaintiff if he liked his teeth.48 After

Plaintiff responded that he did like his teeth, Defendant Rester asked Plaintiff if he would want to

give Defendant Rester any reason to take Plaintiff’s teeth from him.49 When Plaintiff responded

that he did not, Defendant Rester “told Plaintiff that he would put Plaintiff into the hospital if he

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

47 R. Doc. 39 at ¶ 47.

48 R. Doc. 39 at ¶ 5.

49 Id.

saw Plaintiff at the ‘key’ (the certain area of a prison unit/dorm where correctional officers sit),

again, talking to [Schaubhut],” another correctional officer at Rayburn.50

Plaintiff further alleges that due to the jealousy of Defendants Rester and Mizell concerning

Plaintiff’s conversations with Schaubhut, Defendants Rester and Mizell sent other correctional

officers to threaten Plaintiff as well.51 On one occasion, Defendant Jones approached Plaintiff and

asked him whether “he was the one going to the ‘key’ and talking to that ‘girl.’”52 After Plaintiff

responded that it was him, Plaintiff alleges Defendant Jones “aggressively responded that

[Plaintiff] better stay away from the ‘key’ or they were going to ‘f*ck [Plaintiff] up.’”53 On another

occasion, Defendant Jones threatened Plaintiff “by telling Plaintiff that he was going to suffer

severe physical consequences if he did not listen to them and stop coming up to the ‘key’ to talk

to [Schaubhut].”54 Then, on the date of the attack, Plaintiff alleges that after he was brought into

the unmonitored breakroom (but before the physical attack began), Defendant Mizell began

questioning Plaintiff about whether he liked his teeth, and Defendant Rester asked Plaintiff

whether he remembered what he told Plaintiff would happen if he caught Plaintiff talking to

Schaubhut again.55 Plaintiff further alleges that before he could respond to Defendants Rester and

Mizell, they began their physical attack, which included beating, striking, and kicking Plaintiff,

restraining Plaintiff after he fell to the ground, continuing to beat him after he was restrained, and

slamming Plaintiff’s face into the concrete floor, causing Plaintiff’s teeth to break.56

50 Id.

51 Id. at ¶¶ 8–9.

52 Id. at ¶ 9.

53 Id.

54 Id.

55 Id. at ¶ 13.

56 Id. at ¶¶ 13–17.

Plaintiff alleges Defendants Rester, Mizell, Jones, and O’Keefe are liable to him for IIED,

given the outrageous conduct towards Plaintiff, over a span of several weeks, by these Defendants

who were in a position of power over Plaintiff.57

Defendants moved to dismiss Plaintiff’s IIED claims against them on the basis that

Plaintiff’s allegations are insufficient to support a finding that any of the defendants engaged in

conduct that would be considered “extreme” and “outrageous” or that the distress suffered by

Plaintiff meets the level of severity necessary to state a plausible IIED claim.

With respect to Defendants’ first argument, the Louisiana Supreme Court has explained

that to satisfy the first element of an IIED claim “[t]he conduct must be so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community.”58 “Liability does not extend to mere

insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must

necessarily be expected to be hardened to a certain amount of rough language, and to occasional

acts that are definitely inconsiderate and unkind.”59

Having conducted a de novo review of the issue, the Court concludes Plaintiff has not

alleged facts sufficient to satisfy the first element of an IIED claim with respect to Defendants

Jones and O’Keefe. While the Court in no way endorses such conduct, the singular threats by each

of these defendants does not rise to the level of extreme and outrageous conduct necessary to state

a plausible IIED claim. The Court cannot say the same, however, with respect to the allegations

pertaining to Defendants Rester and Mizell, who not only threatened or insinuated that they would

physically harm Plaintiff by breaking his teeth for talking to another correctional officer, but who

57 Id. at ¶ 50.

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

59 Id.

actually followed through on their threats. This conduct, which the Court must accept as true at

this stage, by correctional officers who were in a position of authority over Plaintiff, certainly goes

beyond all possible bounds of decency and is atrocious and utterly intolerable in a civilized

community. Plaintiff has therefore plausibly alleged extreme and outrageous conduct by

Defendants Rester and Mizell.

Despite satisfying the first element, Plaintiff’s IIED claims against Defendants Rester and

Mizell are nevertheless subject to dismissal for the reasons raised in Defendants’ second

argument—that is, Plaintiff has not alleged facts that, if true, would meet the high threshold for

severe emotional distress under Louisiana law. As the Louisiana Supreme Court has explained,

“[t]he distress suffered must be such that no reasonable person could be expected to endure it.

Liability arises only where the mental suffering or anguish is extreme.”60 In Smith v. Amedisys

Inc., the Fifth Circuit, applying Louisiana law, found that the impact of persistent verbal and

physical sexual harassment on the plaintiff—who testified that, as a result of the conduct, she felt

angry, embarrassed, disgusted, humiliated, horrified, repulsed, belittled, incompetent, horrible,

very offended, devastated, mad, and very depressed; and who suffered from and sought treatment

for depression, headaches, and a loss of appetite—was insufficient to meet the high threshold for

severity.61 Here, Plaintiff alleges only that he was “severely distressed from [Defendants’] threats,

so much so that he reported it several times to outside members of society and to Schaubhut.”62

This allegation regarding the severity of Plaintiff’s distress is conclusory.63 To state a facially

plausible IIED claim, Plaintiff must allege facts that, if true, would plausibly suggest Plaintiff’s

60 Id. at 1210.

61 Smith v. Amedisys Inc., 298 F.3d 434, 450 (5th Cir. 2002).

62 R. Doc. 39 at ¶ 17.

63 See Ashcroft v. Iqbal, 556 U.S. 662, 680–681 (2009) (explaining that bare assertions, amounting to nothing more

than a formulaic recitation of the elements of the claim, are conclusory and not entitled to the assumption of truth).

emotional distress was so severe that no reasonable person could be expected to endure it.

Plaintiff’s conclusory allegation is insufficient to carry his burden.64

Accordingly, Plaintiff’s IIED claims against Defendants Jones, O’Keefe, Rester, and

Mizell are subject to dismissal for the respective reasons set forth herein.

D. Request for leave to amend.

Though Plaintiff objects to the recommended dismissal of his claims, he alternatively

argues that, in the event the Court does find deficiencies in his complaint, dismissal with prejudice

is improper, and he must be given leave to amend his complaint. Under Federal Rule of Civil

Procedure 15(a)(2), “[t]he court should freely give leave when justice so requires.” According to

the Fifth Circuit, “district courts must entertain a presumption in favor granting parties leave to

amend.”65 This presumption can be overcome, however, if the Court finds undue delay, bad faith,

or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, or futility of amendment.66

Here, the Court has determined, for the reasons stated above, that the following claims are

subject to dismissal: (1) Plaintiff’s § 1983 claims against Defendants Rester, Mizell, Jones and

O’Keefe based on the verbal threats; (2) Plaintiff’s § 1983 claim against Defendant McMurray;

and (3) Plaintiff’s IIED claims against Defendants Jones, O’Keefe, Rester, and Mizell. With

respect to Plaintiff’s § 1983 claims against Defendants Rester, Mizell, Jones and O’Keefe based

on the verbal threats as well as Plaintiff’s IIED claims against Defendants Jones and O’Keefe, the

Court finds these claims should be dismissed with prejudice, without leave to amend, because any

64 See id. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.”).

65 Mayeaux v. Louisiana Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004).

66 See id.; Foman v. Davis, 371 U.S. 178, 182 (1962).

amendment would be futile as to these claims.67 As to Plaintiff’s § 1983 claim against Defendant

McMurray and Plaintiff’s IIED claims against Defendants Rester and Mizell, however, the Court

finds these claims should be dismissed without prejudice, with leave to amend, to the extent the

Plaintiff can allege facts sufficient to cure the above-identified deficiencies. There are no

circumstances present that would justify denying leave to amend, with respect to these specific

claims, at this time.

E. Unobjected-to Recommendations

There were no objections to the Magistrate Judge’s recommendations to: (1) deny

Defendants’ motion to strike the affidavit attached to Plaintiff’s operative complaint pursuant to

Federal Rules of Civil Procedure 12(f) and 10(c); (2) deny Defendants’ motion to strike

impertinent and scandalous claims contained in Plaintiff’s oppositions pursuant to Federal Rule of

Civil Procedure 12(f); and (3) deny Defendants’ Rule 12(b)(6) motion to dismiss with respect to

Plaintiff’s § 1983 claims against Defendants Rester and Mizell for use of excessive force. When

no objection is filed, the Court need not conduct a de novo review; rather, the Court need only

satisfy itself that there is no clear error on the face of the record in order to accept the

recommendation.68 Having reviewed the unobjected-to portions of the Magistrate Judge’s Report

and Recommendations, the Court concludes the recommendations are not clearly erroneous or

contrary to law. Accordingly, the Court accepts the Magistrate Judge’s recommendations to deny

67 As set forth above, verbal threats alone do not amount to a constitutional violation; thus, there is no additional set

of facts Plaintiff could allege that would state a facially plausible § 1983 claim for a violation of the Eighth Amendment

based on verbal threats. Additionally, mere threats do not constitute the type of extreme and outrageous conduct

necessary to state a plausible IIED claim. Thus, in this case, where Plaintiff has not indicated the existence of any

additional conduct by Defendants Jones and O’Keefe, any amendment would be futile as to the IIED claims against

them.

68 See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989); see also FED. R. CIV. P. 72(b) advisory committee's

note to 1983 addition.

Defendants’ motions to strike and to deny Defendants’ motion to dismiss with respect to Plaintiff’s

§ 1983 claims against Defendants Rester and Mizell for use of excessive force.

III. CONCLUSION

For all the foregoing reasons,

IT IS ORDERED that Defendants’ motion to strike the affidavit attached to Plaintiff’s

operative complaint pursuant to Federal Rules of Civil Procedure 12(f) and 10(c) (R. Doc. 44) is

DENIED.

IT IS FURTHER ORDERED that Defendants’ motion to strike impertinent and

scandalous claims contained in Plaintiff’s oppositions pursuant to Federal Rule of Civil Procedure

12(f) (R. Doc. 56) is DENIED.

IT IS FURTHER ORDERED that Defendant’s motion to dismiss Plaintiff’s claims

pursuant to Federal Rule of Civil Procedure 12(b)(6) (R. Doc. 43) is GRANTED IN PART AND

DENIED IN PART, as set forth herein. Accordingly, IT IS FURTHER ORDERED that:

- Plaintiff’s § 1983 claims against Defendants Rester, Mizell, Jones and O’Keefe based

on the verbal threats are DISMISSED WITH PREJUDICE, without leave to amend;

- Plaintiff’s IIED claims against Defendants Jones and O’Keefe are DISMISSED

WITH PREJUDICE, without leave to amend;

- Plaintiff’s § 1983 claim against Defendant McMurray is DISMISSED WITHOUT

PREJUDICE, with leave to amend, to the extent Plaintiff can cure the deficiencies

identified herein; and

- Plaintiff’s IIED claims against Defendants Rester and Mizell are DISMISSED

WITHOUT PREJUDICE, with leave to amend, to the extent Plaintiff can cure the

deficiencies identified herein.

- Theclaims not subject to dismissal at this time are: (1) Plaintiffs § 1983 claims against

Defendants Rester and Mizell for use of excessive force; (2) Plaintiff's state-law battery

claims against Defendants Rester, Mizell, and McMurray; and (3) Plaintiffs state-law

assault claims against Defendants Rester and Mizell.

IT IS FURTHER ORDERED that Plaintiff's second amended complaint is due by

Monday, March 16, 2026. Failure to file by this deadline may result in dismissal with prejudice

of the claims presently dismissed without prejudice.

IT IS FURTHER ORDERED that because this Order and Reasons dismisses all claims

against Defendants Jones and O’Keefe with prejudice, the Clerk of Court shall terminate these

defendants on the Court’s docket.

New Orleans, Louisiana, this 23rd day of February 2026.

pare patter Uepisi

UNITED STATES DISTRICT JUDGE

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