Floyd v. City of Kenner

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 29, 2009

No. 08-30637 Charles R. Fulbruge III

Clerk

CEDRIC FLOYD

Plaintiff - Appellant

v.

CITY OF KENNER, Louisiana; NICK A CONGEMI, Former Chief of Police,

City of Kenner, Louisiana, Individually and in his official capacity; STEVE

CARAWAY, Chief of Police, City of Kenner, Individually and in his official

capacity; MICHAEL CUNNINGHAM, Police Officer, Kenner Police

Department, Individually and in his official capacity; CLIFF DEROCHE,

Police Officer, Kenner Police Department, Individually and in his official

capacity

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:06-CV-6414

Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Cedric Floyd brought civil rights claims against the City of Kenner,

Louisiana. and four of its police officers. The district court dismissed Floyd’s suit

after determining that he failed to state claims upon which relief could be

*

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. 08-30637

granted. For the reasons that follow, we affirm the district court’s judgment in

part and reverse it in part.

I. BACKGROUND

This case arose out of the relief effort that followed Hurricane Katrina. As

Kenner’s chief administrative officer, Floyd was charged with overseeing a

center that distributed food and supplies. The center operated during the month

of September 2005 and was patrolled both by National Guardsmen and Kenner

policemen.

Floyd maintains that he occasionally delivered supplies to individuals who

could not reach the center during normal hours of operation. He would load the

supplies and take them away from the center. Those activities, juxtaposed with

charges that Floyd misappropriated supplies, are key to this dispute.

Floyd contends that Kenner’s mayor once directed him to deliver items to

a local apartment complex. Upon arriving at the complex, he says he was

confronted by then-Chief of Police Nick Congemi. Floyd claims that Congemi

saw him as a political nemesis because Floyd helped derail Congemi’s earlier bid

for mayor. At the apartment complex, Floyd claims that Congemi became

“flustered, embarrassed, and angry” due to their verbal exchange.

Within one business day of the confrontation, National Guardsmen from

the center complained that Floyd was illegally distributing some supplies. Later

that same day, one of the National Guardsmen who lodged the complaint was

patrolling the neighborhood where Floyd lived. With him was Officer Cliff

Deroche. Deroche alleges that they heard Floyd’s house alarm go off. They then

allegedly went onto Floyd’s property and saw relief items in plain view. They

reported the discovery to a Kenner police detective, Michael Cunningham. He

then used the information as a basis to file an affidavit in support of search and

arrest warrants. Steve Caraway, the then-chief of investigations, is said to have

approved Cunningham’s filing.

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No. 08-30637

A search warrant was issued and executed. Kenner police seized relief

supplies from Floyd’s home. Floyd was arrested for malfeasance in office but

never prosecuted.

Floyd subsequently filed a pro se civil rights action against the City of

Kenner, as well as Caraway, Congemi, Cunningham, and Deroche, both in their

individual and official capacities. Less than four months later, Floyd obtained

counsel. An amendment was filed which named additional defendants.1 He

maintains that the Defendants “were all part of [an] effort to illegally search his

residence and falsely arrest him for theft/malfeasance” and that it was all

“motivated by the political animus” that Congemi had towards him.

The Defendants filed a motion to dismiss, arguing that Floyd failed to

allege facts sufficient to defeat qualified immunity. Before ruling on the motion,

the district court ordered Floyd to file a reply in order to “provide ‘greater detail’

and [to] assist the Court in deciding whether qualified immunity is proper given

the specific facts and allegations raised in [Floyd]’s [c]omplaint.” After

evaluating the response, the district court dismissed Floyd’s claims with

prejudice. Floyd’s appeal followed.

II. DISCUSSION

We review a Rule 12(b)(6) dismissal de novo. Ballard v. Wall, 413 F.3d

510, 514 (5th Cir. 2005). To survive a motion to dismiss, a plaintiff is required

to plead “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

1

The amended complaint added numerous National Guardsmen as defendants, but

Floyd later dismissed these individuals from the lawsuit.

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No. 08-30637

Caraway, Congemi, Cunningham, and Deroche have asserted a qualified

immunity defense. In reviewing those claims, we are guided both by the

ordinary pleading standard and by a heightened one.2 See Schultea v. Wood, 47

F.3d 1427, 1433-34 (5th Cir. 1995) (en banc). Schultea explained that, once a

defendant asserts the defense of qualified immunity, a district court may order

the plaintiff to submit a reply after evaluating the complaint under the ordinary

pleading standard. Id. We held that more than mere conclusions must be

alleged, stating specifically that “a plaintiff cannot be allowed to rest on general

characterizations, but must speak to the factual particulars of the alleged

actions, at least when those facts are known to the plaintiff and are not

peculiarly within the knowledge of defendants.” Id. at 1432. “Heightened

pleading requires allegations of fact focusing specifically on the conduct of the

individual who caused the plaintiff’s injury.” Reyes v. Sazan, 168 F.3d 158, 161

(5th Cir. 1999).

Floyd’s complaint alleged that the district court had jurisdiction under 42

U.S.C. §§ 1983, 1985, and 1986. Floyd’s complaint and Schultea reply make no

other reference to Sections 1985 or 1986. Instead, under his “Statement of

Claim,” Floyd focused solely on Section 1983. On appeal, Floyd makes only two

very general references to Sections 1985 and 1986. He never attempts to set

forth what those claims require or how he would satisfy such requirements. A

party waives arguments that are not adequately briefed. United States v.

2

We emphasize that this heightened pleading standard applies only to claims against

public officials in their individual capacities. The Supreme Court’s decision in Leatherman v.

Tarrant County Narcotics and Intelligence Coordination Unit, 507 U.S. 163 (1993), made clear

that a heightened pleading standard was inapplicable to suits against municipalities. Further,

the heightened standard is inapplicable to claims against public officials in their official

capacity, for we have “explained that official-capacity lawsuits are typically an alternative

means of pleading an action against the governmental entity involved . . . .” Baker v. Putnal,

75 F.3d 190, 195 (5th Cir. 1996).

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Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989). Accordingly, we will consider the

possibility of Section 1983 liability only.

To plead a Section 1983 claim, Floyd was required to allege facts

demonstrating that (1) a defendant violated the Constitution or federal law and

(2) that he or she was acting under color of state law while doing so. See

Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005). The

qualified immunity defense to such claims, which applies here only to the claims

against the four officers in their individual capacities, works to shield

government officials from liability when they are performing discretionary

functions, “insofar as their conduct does not violate clearly established statutory

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

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Once a defendant invokes the qualified immunity defense, the plaintiff

carries the burden of demonstrating its inapplicability. Club Retro, L.L.C. v.

Hilton, 568 F.3d 181, 194 (5th Cir. 2009). To satisfy the burden, a plaintiff must

meet a two-prong test. Id. “First, he must claim that the defendants committed

a constitutional violation under current law.”3 Atteberry, 430 F.3d at 253.

“Second, he must claim that the defendants’ actions were objectively

unreasonable in light of the law that was clearly established at the time of the

actions complained of.” Id. “To be clearly established for purposes of qualified

immunity, the contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Id. at 256

(citations, internal quotation marks, and alterations omitted). The objective

unreasonableness inquiry requires us to examine an officer’s belief that his or

3

The Supreme Court recently “relaxed the requirement, established in Saucier v. Katz,

533 U.S. 194 (2001), that we must decide if a constitutional violation occurred before we decide

if the law was clearly established.” Club Retro, 568 F.3d at 194 n.4 (emphasis in original).

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No. 08-30637

her actions were lawful under the particular circumstances. Bush v. Strain, 513

F.3d 492, 502 (5th Cir. 2008).

We now consider Floyd’s claims against each defendant.

A. Deroche

The district court held that, although Floyd “may have established a

possible constitutional violation,” Deroche was entitled to qualified immunity

because his conduct “was not objectively unreasonable in light of clearly

established law.” The conduct to which the district court referred was that of

Deroche’s entering Floyd’s backyard and viewing the supplies. This information

was later used to support search and arrest warrants against Floyd.

We start with an examination of the pleadings as to Deroche. The

Defendants’ answer stated that an unnamed officer (the record indicates it was

Deroche) and a National Guardsman responded to a burglar alarm at Floyd’s

residence. It was “as a result of responding to the burglar alarm numerous

items that appeared to have [been] misappropriated” were seen. The answer

also stated that the search on the next day was based on probable cause set forth

in a warrant.

In his Schultea reply, Floyd had to engage the allegations that supported

qualified immunity. Shultea, 47 F.3d at 1433-34. Floyd stated in the reply that

Deroche was dispatched for the specific purpose of entering the property “in an

effort to secure any means with which to embarrass Floyd, and then falsely

assert[] in an affidavit submitted to a neutral magistrate that the entry had been

in response to a burglar alarm.” Floyd alleges that the alarm company’s records

“reflect that the type of alarm which sounded . . . is that which occurs when

someone tests the door by jiggling the knob” and further contends that the alarm

company’s records “reflect notification that police were on the scene within one

minute of the initial record of the alarm.”

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No. 08-30637

The reasonable inferences that can be drawn from these statements are

that Deroche either intentionally set the alarm off after entering Floyd’s

property in order to provide an excuse for being on the premises, or Deroche

unintentionally set the alarm off while on the premises, then used it as

subterfuge. The Schultea reply directly challenges the claim that the alarm

created the probable cause for Deroche to go to Floyd’s residence.

The Defendants move beyond the point and counterpoint of the pleadings

and claim that Deroche’s conduct must “be examined against the backdrop of

circumstances that have never before existed in this country and which hopefully

will never come to pass again.” Even if Floyd’s allegations are accepted as true,

the Defendants argue, Deroche’s actions must be considered in light of the

exigent circumstances at play, particularly the “chaos and lawlessness that

followed in the wake of Hurricane Katrina and the necessity of insuring that the

vast amounts of donated goods reached those for whom [they were] intended,

rather than being misappropriated for the individual profit of the undeserving.”

We disagree. The complaint and the Schultea reply alleges that Deroche

took advantage of chaotic times in a troubled city as a screen for going to Floyd’s

residence to further the malicious schemes of a political antagonist. There may

be no supportive evidence. But the claim exists. It is presented with sufficient

clarity under our pleading rules to survive dismissal. Hurricane Katrina is an

explanation for many events. It is not a justification for intentional acts of the

sort that Floyd claims.

We note that, even beyond the pleadings, an exhibit to the Defendants’

motion to dismiss is the September 20 application for a search warrant. It

asserts that a National Guardsman and Deroche claimed to have gone to Floyd’s

residence in response to a burglar alarm. An affidavit by Detective

Cunningham, made three days after the search, made the same assertion.

Clearly, concerns about Floyd’s possible misappropriation of relief supplies were

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No. 08-30637

not asserted as the reason for Deroche’s trip to Floyd’s residence. Instead, it was

the burglar alarm. Floyd’s reply to the qualified immunity defense engages that

explanation sufficiently.

In Schultea, we adopted the rationale that, “in some cases, such as in

search cases, probable cause and exigent circumstances will often turn on facts

peculiarly within the knowledge of the defendants. And if there are conflicts in

the allegations regarding the actions taken by the police officers, discovery may

be necessary.” Schultea, 47 F.3d at 1432 (citing Anderson v. Creighton, 483 U.S.

635, 646 n.6 (1987)). Here, the Defendants ask us to accept that Deroche

entered the property for the sole purpose of determining if relief items were

present. At the time, Deroche alleged he entered because of the alarm. Floyd

asserts that Deroche knew that Floyd was not misappropriating relief items;

instead, the entry into the property was all about embarrassing Floyd because

of his past run-ins with then-Chief of Police Congemi.

This is the type of conflict that warrants discovery. The district court

should not have dismissed the claim.

B. Cunningham

Officer Cunningham was the affiant who applied for the search and arrest

warrants that were issued against Floyd. The central thrust of Floyd’s claim

against Cunningham is that both warrant applications contained false

statements and omitted information that would have undermined the validity

of the warrants.

The district court held that Floyd did not set forth sufficient facts to allege a

constitutional violation.

Like the claim against Deroche, the alleged constitutional violation against

Cunningham is of the Fourth Amendment. The Supreme Court has held that,

if an affiant “knowingly and intentionally, or with reckless disregard for the

truth,” includes a false statement in an affidavit, and without that false

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No. 08-30637

allegation probable cause would have been lacking, “the Fourth Amendment

requires that . . . the search warrant must be voided and the fruits of the search

excluded. . . .” Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (also discussing

proper hearing procedures). We have held that “the intentional or reckless

omission of material facts from a warrant application may amount to a Fourth

Amendment violation.” Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006).

From these articulations, it becomes clear that state of mind is a critical

element of the underlying constitutional violation. Our case law acknowledges

that the Supreme Court has “held that the public official’s state of mind [is]

generally no longer relevant in deciding a claim of qualified immunity.”

Tompkins v. Vickers, 26 F.3d 603, 607 (5th Cir. 1994) (emphasis added)

(discussing Harlow, 457 U.S. 800). Nonetheless, we have explained that “motive

or intent must be considered in the qualified immunity analysis where unlawful

motivation or intent is a critical element of the alleged constitutional violation.”

Id. This is one of those claims; namely, that an affiant intentionally acted by

way of an omission in order to cause a constitutional violation.

Floyd has consistently alleged that Cunningham acted at the direction of

then-Chief of Police Congemi, who is said to hold political animus towards Floyd.

At a later stage, Floyd will be required to “produce specific support for his claim

of unconstitutional motive.” Id. at 608. But at the pleading stage, his allegation

that Cunningham’s actions were spurred by Congemi’s ill will suffices.

To be sure, certain portions of Floyd’s Schultea reply are insufficient to

state a plausible claim. Floyd, for example, averred that Cunningham’s affidavit

contained “statements of which he had no personal knowledge” that were “sworn

to by him in reckless disregard of the truth.” The Supreme Court emphasized

in Iqbal that such “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” 129 S. Ct. at 1949.

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But viewed in their entirety, Floyd’s pleadings contain more. The Schultea

reply points out that Cunningham’s affidavit stated that Floyd was observed

loading supplies in a City of Kenner truck on September 19, 2005, at the center,

which is located at 2500 Williams Boulevard. Cunningham’s affidavit also

stated that the items seen in plain view by Deroche at Floyd’s home “were

identical to the ones observed on the bed of the City of Kenner truck” at the

center on September 19. Floyd’s pleadings allege that Cunningham knew this

statement to be false because the center was relocated from 2500 Williams

Boulevard on September 17 and 18, so a City of Kenner truck certainly was not

present at 2500 Williams Boulevard on September 19. Floyd further alleges that

Cunningham knew Floyd was the managing supervisor of the center and that

he possessed “full authority to handle[,] dispose and deliver all hurricane

supples.” It is said that Cunningham nonetheless left this relevant if not critical

information out of his affidavit in order to mislead the magistrate.

Taken as true, these facts are sufficient at least to survive Rule 12(b)(6)

dismissal. Floyd’s complaint alleges, with factual specificity, the type of harm

that was found unconstitutional in Franks. Accordingly, the alleged violation

was “clearly established” at the time Cunningham acted. In addition,

Cunningham’s alleged intentional actions were not objectively reasonable. We

therefore reverse the district court’s dismissal of the claims against

Cunningham.

C. Caraway

The allegations against Caraway are twofold. First, Floyd alleges that

Caraway “participated in, approved and directed the application for Arrest and

Search warrants based upon the assertion of facts he knew to be false, resulting

in the false arrest of Plaintiff Cedric Floyd without probable cause . . . .” At the

time the applications were filed, Caraway served as the police department’s chief

of investigations. Second, Floyd avers that, to date, Caraway has failed to return

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No. 08-30637

the items seized from his home, even though the district attorney directed that

the items be returned. Of particular relevance to this allegation is the fact that

Caraway now serves as Kenner’s chief of police and thus presumably controls the

release of the items.

We first review the allegations with respect to the warrant applications.

Floyd does not complain that Caraway himself filed the alleged unlawful

affidavit in support of the warrants. Instead, he claims that Caraway, in his

capacity as chief investigator, directed and approved the applications filed by

Cunningham. This is an alleged Fourth Amendment violation under Franks, as

we stated in addressing the claim against Cunningham.

“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff

must plead that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.

Liability under Section 1983 for a supervisor may exist based either on personal

involvement in the constitutional deprivation or “a sufficient causal connection

between the supervisor’s wrongful conduct and the constitutional violation.”

Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).

We must determine whether Floyd alleged the “factual particulars”

necessary to state a valid Fourth Amendment claim against Caraway. See

Schultea, 47 F.3d at 1432. The relevant allegation is that Caraway “participated

in, approved and directed” the filing of false and misleading affidavits.

In analyzing the issue, we turn to the Supreme Court’s recent decision in

Iqbal. 129 S. Ct. 1937. There, a Pakistani man detained following the

September 11, 2001 terrorist attacks alleged that former Attorney General John

Ashcroft and FBI Director Robert Mueller authorized an unconstitutional

detention policy. Id. at 1942. To state a cognizable claim, the plaintiff was

required to “plead sufficient factual matter to show that petitioners adopted and

implemented the detention policies at issue not for a neutral, investigative

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reason but for the purpose of discriminating on account of race, religion, or

national origin.” Id. at 1948-49. The Supreme Court described the factual

matter contained in the complaint:

The complaint contends that petitioners designated respondent a

person of high interest on account of his race, religion, or national

origin, in contravention of the First and Fifth Amendments to the

Constitution. The complaint alleges that “the [FBI], under the

direction of Defendant MUELLER, arrested and detained thousands

of Arab Muslim men . . . as part of its investigation of the events of

September 11.” It further alleges that “[t]he policy of holding post-

September-11th detainees in highly restrictive conditions of

confinement until they were ‘cleared’ by the FBI was approved by

defendants ASHCROFT and MUELLER in discussions in the weeks

after September 11, 2001.” Lastly, the complaint posits that

petitioners “each knew of, condoned, and willfully and maliciously

agreed to subject” respondent to harsh conditions of confinement “as

a matter of policy, solely on account of [his] religion, race and/or

national origin and for no legitimate penological interest.” The

pleading names Ashcroft as the ‘principal architect’ of the policy,

and identifies Mueller as “instrumental in [its] adoption,

promulgation, and implementation.”

Id. at 1944 (citations omitted).

After considering these factual particulars, the Court held that the

plaintiff had not “nudged his claims . . . across the line from conceivable to

plausible.” Id. at 1950-51 (quoting Twombly, 127 S. Ct. at 1974). They were

bare assertions, without detail or context. See id. One might speculate, and the

plaintiff there apparently did, that the actions and knowledge he alleged were

true. See id. It is clear, though, that in the arena of qualified immunity (but

surely not solely in this arena), discovery is not the place to determine if one’s

speculations might actually be well-founded. Consistent with our holding in

Schultea, the pleadings must have sufficient precision and factual detail to

reveal that more than guesswork is behind the allegation. Schultea, 47 F.3d at

1434.

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Certainly our precedents have acknowledged that some limited discovery

may at times be needed before a ruling on immunity is proper. As an example,

we referred to “search cases, [because] probable cause and exigent circumstances

will often turn on facts peculiarly within the knowledge of the defendants.” Id.

at 1432. In such a case, “if there are conflicts in the allegations regarding the

actions taken by the police officers, discovery may be necessary.” Id.

The importance of discovery in such a situation is not to allow the plaintiff

to discover if his or her pure speculations were true, for pure speculation is not

a basis on which pleadings may be filed. Rule 11 requires that any factual

statements be supported by evidence known to the pleader, or, when specifically

so identified, “will likely have evidentiary support” after discovery. Fed. R. Civ.

P. 11(b)(3) (emphasis added). There has to be more underlying a complaint than

a hope that events happened in a certain way. Instead, in the “short and plain”

claim against a public official, “a plaintiff must at least chart a factual path to

the defeat of the defendant's immunity, free of conclusion.” Schultea, 47 F.3d

at 1430. Once that path has been charted with something more than conclusory

statements, limited discovery might be allowed to fill in the remaining detail

necessary to comply with Schultea. Id. at 1433-34.

Under these standards, Floyd’s allegations against Caraway amount to

nothing more than speculation. The conclusory assertion that Caraway

“participated in, approved and directed” the filing of false and misleading

affidavits is consistent with finding a constitutional violation, but it needed

further factual amplification. See Iqbal, 129 S. Ct. at 1949. Floyd might not

know everything about what occurred, but the bare allegation does not make it

plausible that he knows anything. Unlike his allegations against Cunningham,

this bare assertion does not provide any detail about what Caraway, as chief of

investigations, did to seek to control Cunningham’s filing of an affidavit. Put

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differently, the conclusion presents nothing more than hope and a prayer for

relief.

An example of a situation that falls squarely within the kind of case

justifying limited discovery is discussed in a recently released but non-

precedential opinion by a panel of this court. Morgan v. Hubert, No. 08-30388,

2009 WL 1884605 (5th Cir. July 1, 2009). In Morgan, a plaintiff who was in

protective custody before Hurricane Katrina was transferred to a general prison

population following the storm. Id. at *1. After being beaten and stabbed, the

plaintiff filed a Section 1983 suit against the prison warden. Id. The complaint

presented sufficient detail to demonstrate a highly plausible allegation of an

Eighth Amendment violation. Id. at *6. The events cited were so clear, the

practical effects of such conduct so obvious, that the defendants’ responsibility

under Section 1983 for the plaintiff’s harm simply needed the detail that limited

discovery would either provide or deny. Id.

Unlike in Morgan, Floyd has shown nothing in his complaint to indicate

a basic plausibility to the allegation. His Section 1983 claim premised on a

Fourth Amendment violation therefore fails.

Floyd also alleges that Caraway refused to return Floyd’s seized property.

Floyd’s pleadings did not state which constitutional provision Caraway

supposedly violated. The district court correctly explained that the allegations

possibly fall within the realm of a Fourteenth Amendment due process claim.

Even so, the district court ultimately rejected Floyd’s claim after determining

that the City of Kenner had procedures in place for Floyd to get his property

back, that Floyd had failed to utilize those procedures, and that Floyd had failed

to set forth how the procedures available “deprived him of his property rights

and/or how the available procedures were inadequate.”

The district court’s ruling was consistent with the analysis required under

the Parratt/Hudson doctrine. Under the doctrine, the “unauthorized deprivation

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of a plaintiff’s property does not result in a violation of procedural due process

rights if the state provides an adequate postdeprivation remedy.” Alexander v.

Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995) (citations omitted); see also Zinermon v.

Burch, 494 U.S. 113, 128-32 (1990) (discussing the Parratt/Hudson doctrine).

In Louisiana, the civil tort of conversion exists to rectify the type of wrong Floyd

has alleged. Fuller v. XTO Energy, Inc., 989 So. 2d 298, 302 (La. App. 2d Cir.

2008) (“[A] conversion consists of an act in derogation of a plaintiff’s possessory

rights, and any wrongful exercise or assumption of authority over another’s

goods . . . .”). Because Louisiana provides a postdeprivation remedy, relief is not

available to Floyd under Section 1983. See Alexander, 62 F.3d at 712.

Floyd has failed to allege specific facts that constitute a deprivation of

either his Fourth or Fourteenth Amendment rights. Consequently, the district

court’s dismissal with respect to the claims against Caraway was correct.

D. Congemi

Similar to the claims against Caraway, it is alleged that then-Police Chief

Congemi acted in his supervisory role to violate Floyd’s constitutional rights. In

particular, Floyd states that Congemi personally directed the efforts to have

false and misleading affidavits filed against him and that the issuance of those

affidavits, in turn, led to an unlawful search of his home and an unlawful arrest.

He also maintains that Congemi attempted to persuade the district attorney to

prosecute him, even though Congemi knew that he was authorized to handle the

supplies found at his home.

We have already explained that Section 1983 liability for a supervisor may

be based either on personal involvement in the constitutional deprivation or “a

sufficient causal connection between the supervisor’s wrongful conduct and the

constitutional violation.” Thompkins, 828 F.2d at 304. The district court held

that “none of the ‘facts’ alleged as to Congemi amount to a violation of a clearly

established constitutional right.”

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We agree. Floyd has failed to provide sufficient factual detail concerning

Congemi’s alleged attempts at personally directing his subordinate officers to file

misleading affidavits. Other than a general background of why Congemi would

have animosity towards Floyd, no facts are alleged that reveal any specifics of

how Congemi personally told other officers to conspire against Floyd. Moreover,

Floyd’s sweeping statement that Congemi attempted to persuade the district

attorney to prosecute him, even though Congemi knew that Floyd was

authorized to handle the supplies, does not shed further light on the subject.

The claims against Congemi lack the detail needed to render them plausible.

See Iqbal, 129 S. Ct. at 1949. Accordingly, they were appropriately dismissed.

E. City of Kenner

Finally, we consider the district court’s dismissal of the City of Kenner.

“[A] municipality cannot be held liable under § 1983 on a respondeat superior

theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). “It is well

established that governmental liability under § 1983 must be premised on a

government policy or custom that causes the alleged constitutional deprivation.”

Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 436 (5th Cir.

2008). Floyd has alleged no facts that would support an inference that the police

officers acted pursuant to a policy or custom.

The district court appropriately dismissed the City.

III. CONCLUSION

We AFFIRM the district court’s dismissal with respect to Floyd’s claims

against the City of Kenner and Officers Caraway and Congemi. We REVERSE

the district court’s dismissal of the individual capacity claims against Officers

Cunningham and Deroche.

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