# Cyr

> District Court, E.D. Louisiana · February 23, 2026

URL: https://www.frixlaw.com/law-library/cases/11268194

## Case

- **Full name:** Christian M. Cyr v. Department of Public Safety and Corrections, et al.
- **Court:** District Court, E.D. Louisiana
- **Decided:** February 23, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11268194

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11268194. Public record. Not legal advice.