O'Dwyer v. State of Louisiana

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 19, 2009

No. 08-30052 Charles R. Fulbruge III

Clerk

ASHTON R O’DWYER, JR

Plaintiff-Appellee

v.

JOHN NELSON, Louisiana State Trooper;

CHRISTOPHER IVY, Louisiana State Trooper;

LOUISIANA STATE POLICE; CHARLES B PLATTSMIER, JR;

OFFICE OF THE DISCIPLINARY COUNSEL FOR THE LOUISIANA

SUPREME COURT; CATHERINE D KIMBALL

Defendants-Appellants

Appeal from the United States District Court

Eastern District of Louisiana

USDC No. 2:06-CV-7280

Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellants Catherine D. Kimball (“Kimball”), John Nelson

(“Nelson”), Christopher Ivy (“Ivy”), Louisiana State Police, Office of the

Disciplinary Counsel for the Louisiana Supreme Court (“ODC”) and Charles B.

Plattsmier, Jr. (“Plattsmier”) appeal the district court’s denial of their motion to

*

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR .

R. 47.5.4.

No. 08-30052

dismiss claims made against them under 42 U.S.C. §1983 by Appellee Ashton

O’Dwyer (“O’Dwyer”). Nelson, Ivy and the Louisiana State Police also appeal the

denial of their motion to dismiss pendent state law claims. We REVERSE the

district court as to the claims against Defendant-Appellants Kimball, Plattsmier,

and the ODC; and REVERSE the district court as to the false arrest, excessive

force and state law claims against Nelson, Ivy, and the Louisiana State Police.

FACTS AND PROCEEDINGS

O’Dwyer’s §1983 suit arises out of his arrest and incarceration for public

intoxication in September of 2005, soon after Hurricane Katrina.1

In the aftermath of the hurricane, O’Dwyer made statements to the

national news media regarding mandatory evacuations ordered by the mayor of

New Orleans. The public statements he made were discussed at a meeting

attended by, among others, Kimball, who is an Associate Justice of the Louisiana

Supreme Court, and Plattsmier, who is Chief Disciplinary Counsel in the

Louisiana Office of Disciplinary Counsel. At the meeting Kimball stated in

reference to O’Dwyer: “Somebody has to shut that guy up; he’s giving us all a bad

name.” In response, Plattsmier stated that he knew some of O’Dwyer’s former

law partners and would contact them to learn more about him.

Following this meeting, O’Dwyer was visited at his home by an

“entourage” consisting of two other attendees of the meeting, including the then-

president of the Louisiana Bar Association and an employee of the Louisiana

Department of Justice. O’Dwyer was informed that complaints had been made

about him “at the highest levels of government.”

Three days later, O’Dwyer was sitting in his driveway drinking a glass of

wine when a Louisiana State Police vehicle pulled up. O’Dwyer told the police

1

Here, we set out the relevant facts pertaining to the arrest as alleged by O’Dwyer in

his complaint.

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troopers Nelson and Ivy that they were not authorized to be on his property.

O’Dwyer claims that the police responded by telling him that he was coming

with them, either voluntarily or by force. O’Dwyer stated that he would not

resist, but that the police would have to remove him from his property by force;

the police then attempted to enter his home but were prevented from doing so

by a houseguest of O’Dwyer’s. O’Dwyer alleges that the police then took him to

a “temporary detention facility” where he was subjected to pepper spray and to

being shot with “bean bag rounds” from a twelve-gauge shotgun; O’Dwyer claims

he was then kept in a small cage for the next several hours. Upon his release,

O’Dwyer was given an affidavit that listed the charge of public intoxication.

O’Dwyer avers that he was not informed of the charge against him at any time

before his incarceration, nor was he arraigned for the charge at any time

following the events described.

O’Dwyer filed a §1983 suit in district court against various officials and

offices of the State of Louisiana. All but the claims against Kimball, Ivy, Nelson

and Plattsmeier were dismissed by the court below. The defendants filed an

interlocutory appeal of the district court’s denial of their motion to dismiss,2

arguing that they are shielded from suit by the doctrine of qualified immunity.

STANDARD OF REVIEW AND APPLICABLE LAW

We review de novo the district court’s denial of a motion to dismiss under

F ED. R. C IV. P. 12(b)(6), “accepting all well-pleaded facts as true and viewing

them in the light most favorable to the plaintiff.” Brown v. Miller, 519 F.3d 231,

236 (5th Cir. 2008)(internal citations omitted). In order to survive a motion to

dismiss, a plaintiff’s complaint must allege enough facts to state a claim that is

plausible on its face. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th

Cir.2007).

2

An interlocutory appeal of a district court’s denial of a motion to dismiss on the basis

of qualified immunity is permitted by Mitchell v. Forsyth, 472 U. S. 511, 527 (1985).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate first,

a violation of the Constitution or of federal law; and second, that the violation

was committed by someone acting under color of state law. Atteberry v. Nocona

Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005)(internal citations omitted).

A defendant may plead qualified immunity as a defense from suit. Once

a defendant properly invokes qualified immunity, the burden is on the plaintiff

to show why the defense does not apply. Id. at 253. In evaluating the plaintiff’s

showing that qualified immunity is inapplicable, we ask whether the defendant’s

conduct violated a constitutional right and whether that right was clearly

established at the time the alleged violation occurred.3 Mesa v. Prejean, 543 F.3d

264, 269 (5th Cir. 2008). For immunity to attach, the “actions of the officer must

be objectively reasonable under the circumstances, such that a reasonably

competent officer would not have known his actions violated then-existing

clearly established law.” Id. (internal citations omitted).

ANALYSIS

1. Catherine D. Kimball

O’Dwyer claims that Kimball violated his constitutional rights by stating,

at a meeting where several Louisiana state officials were present, that

“[s]omebody has to shut [O’Dwyer] up; he’s giving us all a bad name.” O’Dwyer

alleges that this statement led to actions by other state officers that culminated

in his arrest and incarceration. The district court found that O’Dwyer had

sufficiently alleged “the unusual sequence of events” for the purposes of

overcoming a motion to dismiss.

3

This two-prong inquiry was set out in Saucier v. Katz, 533 U.S. 194, 201 (2001).

Recently, the Supreme Court modified the holding in Saucier to state that the sequence of this

inquiry is no longer mandatory, and that lower courts may use their discretion in deciding

whether to apply the Saucier procedure. Pearson v. Callahan, --- S.Ct. ----, 2009 WL 128768

(Jan. 21, 2009).

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The district court erred in denying the motion to dismiss. Section 1983

jurisprudence requires that a causal connection be shown between the officer’s

actions and the alleged violation of the plaintiff’s constitutional rights. See

Reimer v. Smith, 663 F.2d 1316, 1322 n.4 (5th Cir.1981) (“It is axiomatic that a

plaintiff cannot succeed in a § 1983 action if he fails to demonstrate a causal

connection between the state official’s alleged wrongful action and his

deprivation of life, liberty, or property.”) O’Dwyer does not argue that Kimball’s

statement on its own violated his constitutional rights; rather, he states that it

was part of a conspiracy to falsely arrest and imprison him. However, O’Dwyer’s

complaint does not allege the facts necessary to link Kimball’s statement at the

meeting to his arrest and incarceration nine days later. O’Dwyer claims that the

statement led to the threatening visit at his home and ultimately to the actions

of the state troopers; however, in the absence of any factual allegations that

Kimball directed or was involved with O’Dwyer’s arrest and imprisonment, the

chain of events between her statement and the subsequent arrest/incarceration

is simply too attenuated to support the inference of a causal connection. See,

e.g., Henzel v. Gerstein, 608 F.2d 654, 658 (5th Cir. 1979)(“Supervisory officials

need not have participated personally in an act in order to be liable under § 1983

for the consequences of the act, but the plaintiff must show some causal

connection between an act of the official and the alleged violation.”) The absence

of any causal connection also supports Kimball’s defense of qualified immunity.

Because the link between Kimball’s statement and any possible constitutional

violation is tenuous at best, Kimball cannot be said to have violated O’Dwyer’s

constitutional rights, clearly established or otherwise.

The district court also based its denial of Kimball’s motion to dismiss on

the fact that she “is alleged to have knowledge of the conditions of treatment

allegedly received by the plaintiff after the arrest. . . .” However, no such

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allegation appears on the face of O’Dwyer’s complaint. The district court thus

erred in premising its denial on facts not alleged in the plaintiff’s complaint.

2. Charles B. Plattsmier, Jr. and Office of Disciplinary Counsel

The district court erred in denying Plattsmier’s and the ODC’s motion to

dismiss for the same reasons stated above. Plattsmier’s comment at the meeting

that he would contact O’Dwyer’s law partners in order to find out more about

him is too far removed from the incident of arrest/incarceration, and thus any

violation of O’Dwyer’s constitutional rights, to state a claim under § 1983 or

state law. Again, in the absence of any factual allegations that Plattsmier was

directly involved in O’Dwyer’s arrest and imprisonment and thus participated

in a constitutional violation, the motion to dismiss should have been granted.

As the basis of the claim against the ODC was its vicarious liability for

Plattsmier’s actions, dismissal of the claim against Plattsmier necessitates

dismissal of the claims against ODC as well.

3. John Nelson, Christopher Ivy and Louisiana State Police

O’Dwyer alleges that Louisiana state troopers Nelson and Ivy violated his

rights under the Fourth Amendment by committing a false arrest and by using

excessive force to effectuate that arrest. Nelson and Ivy moved to dismiss,

arguing that they are entitled to qualified immunity. The district court denied

Nelson’s and Ivy’s motion. The district court previously denied the motion to

dismiss filed by the Louisiana State Police as to O’Dwyer’s state law claims,

holding that the agency is subject to vicarious liability for the tortious conduct

of its officers.

a. False Arrest

Nelson and Ivy argue that their arrest of O’Dwyer was objectively

reasonable and did not violate clearly-established Fourth Amendment law. 4 The

4

O’Dwyer asserts both federal and state law claims for false arrest against the

defendants. Because Fourth Amendment principles underpin Louisiana law relating to false

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district court denied the motion to dismiss as it found that O’Dwyer had

sufficiently pled the following facts supporting a Fourth Amendment violation:

(1) he was arrested for public intoxication despite being within the confines of

his property when he was arrested; (2) he was not advised of the basis of his

arrest.

“[T]o prevail in a § 1983 claim for false arrest, a plaintiff must show that

he was arrested without probable cause in violation of the Fourth Amendment.”

Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007). As applied to the qualified

immunity inquiry, the plaintiff must show that the officers could not have

reasonably believed that they had probable cause to arrest the plaintiff for any

crime. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004); see also Prejean, 543

F.3d at 269 (“A mistake reasonably made as to probable cause justifies qualified

immunity.”)(internal citations omitted).

O’Dwyer was arrested under the C ITY OF N EW O RLEANS M UN. C ODE O RD.

54-405, which states:

It is unlawful for any person to appear in a public place manifestly under

the influence of alcohol, narcotics or other drugs, not therapeutically

administered, to the degree that he may endanger himself or other

persons or property. [Emphasis added]

The Municipal Code defines “public place” as:

[A]n area generally visible to public view and includes streets, sidewalks,

bridges, alleys, plazas, parks, driveways, parking lots, automobiles

(whether moving or not), and buildings open to the general public

including those which serve food or drink or provide entertainment, and

the doorways and entrances to buildings or dwellings open to the public

as well as the grounds enclosing them. [Emphasis added].

arrests, the Fourth Amendment inquiry here is applicable to both O’Dwyer’s federal and state

law claims. See, e.g., Harrison v. State Through Dept. of Pub. Safety and Corr., 721 So.2d 458,

462-63 (La. 1998).

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C ITY OF N EW O RLEANS M UN. C ODE O RD. 54-1.

Given that the definition of “public place” under 54-405 encapsulates

driveways, and that O’Dwyer was sitting in his driveway when he was arrested

by the police, we cannot say that it was objectively unreasonable for the police

to believe that they had probable cause to arrest O’Dwyer for a crime. O’Dwyer

concedes that alcohol was present, stating that he was having a “glass of wine”

when the police pulled up to his driveway. Though O’Dwyer argues that he was

not “manifestly under the influence of alcohol . . . to the degree that he may

endanger himself or other persons or property” as 54-405 requires, he states in

his complaint that he was verbally confrontational with the police officers.

O’Dwyer’s behavior as set out in his complaint could give rise to a reasonable

belief on the part of the officers that he was a potential danger to persons or

property. In any event, there is no “clearly-established” law that the officers’

actions in this context violated the Fourth Amendment.

The district court also erred in finding that the fact that the police did not

advise O’Dwyer of the basis of his arrest gave rise to a constitutional violation

for the purposes of qualified immunity. The Fourth Amendment contains no

requirement that an arresting officer advise the arrestee of the reason for his

arrest. See Devenpeck, 543 U.S. at 155. Thus, because O’Dwyer does not state

a claim for false arrest against Nelson and Ivy, the motion to dismiss O’Dwyer’s

federal and state law claims relating to false arrest should have been granted.

Because Nelson’s and Ivy’s allegedly tortious conduct is the basis for the claim

against the Louisiana State Police, the Louisiana State Police’s motion to

dismiss as to the false arrest claim should have been granted as well.

b. Excessive Force

The district court found that O’Dwyer satisfied F ED. R. C IV. P. 12(b)(6), and

overcame defendants’ assertion of qualified immunity, with respect to the claims

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that Nelson and Ivy had (1) used excessive force in arresting O’Dwyer in

violation of the Fourth Amendment and (2) committed battery under state law.

O’Dwyer’s excessive force and state law claims fail, as he has not

sufficiently alleged the requisite causal connection between Defendants Nelson

and Ivy and the events of his arrest. In stating a § 1983 claim, the plaintiff is

required to “identify defendants who were either personally involved in the

constitutional violation or whose acts are causally connected to the

constitutional violation alleged.” Anderson v. Pasadena Indep. Sch. Dist., 184

F.3d 439, 443 (5th Cir. 1999). Under the heightened pleading standard

applicable to cases defended on qualified immunity grounds, the plaintiff must

plead “with factual detail and particularity, not mere conclusory allegations.”

Id. (internal quotation marks omitted).

O’Dwyer does not allege with sufficient particularity or detail that Officers

Nelson and Ivy were among the officers who arrested him. In his complaint, the

only link he provides between the troopers and the arrest is the presence of

Officer John Nelson’s name and badge number on the affidavit he was given

upon his release from detention. However, O’Dwyer does not state specifically

that Officers Nelson and Ivy were among the arresting officers. Rather, his

complaint states that:

[D]efendants Nelson and Ivy had actual knowledge of the false pretext for

plaintiff's being taken into police custody on September 20, 2005, and his

being illegally detained, and tortured, thereafter, and did nothing to stop

the travesty of justice with which the plaintiff was visited. One or both of

them also rough-handled plaintiff at his home, which was totally

unnecessary.

Fifth Circuit case law establishes that this does not rise to the level

required to overcome the asserted defense of qualified immunity. See, e.g.,

Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996) (holding that Plaintiff did not

state a claim where Plaintiff alleged that defendant “knew or should have

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known” that the statements of defendant were false). O’Dwyer provides no

factual allegations that Nelson and Ivy were directly or personally involved with

the excessive force he claims was used during the course of his arrest. For this

reason, O’Dwyer’s excessive force claims and his ancillary state law battery

claims should have been dismissed by the district court. Again, because the

allegedly tortious conduct of the officers was the basis for the claims against the

Louisiana State Police, all claims against the Louisiana State Police should have

been dismissed as well.

For the foregoing reasons, we REVERSE the district court as to the claims

against Defendant-Appellants Kimball, Plattsmier, and the ODC; and

REVERSE the district court as to the false arrest, excessive force and state law

claims against Nelson, Ivy, and the Louisiana State Police.

10