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Winding v. City of New Orleans

United States District Court, E.D. Louisiana

January 14, 2015



CARL J. BARBIER, District Judge.

Before the Court is a Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 6) filed by Defendants, the City of New Orleans ("the City") and the New Orleans Police Department ("NOPD") (collectively, "Defendants"), as well as an Opposition (Rec. Doc. 9) by Plaintiff, Lionel Winding ("Plaintiff"), and Defendants' Reply (Rec. Doc. 12). Having considered the motion, the parties' submissions, the record, and the applicable law, the Court finds, for the reasons expressed below, that the motion should be GRANTED.


Plaintiff alleges that on the night of June 9, 2010, while he was a passenger in a truck being driven by his close friend, Mr. Frenan Woolens, the pair were stopped by two New Orleans Police cars. Plaintiff denies that he or Mr. Woolens were engaged in any illegal conduct at the time he was stopped. Plaintiff alleges that Mr. Woolens pulled to the side of the road, while one police car, operated by Officer Kamil Kuczek, pulled in front of them, and a second car, operated by Officer N. Scautt, pulled behind them. Plaintiff claims that both Officer Kuczek and Officer Scautt approached the vehicle with their weapons drawn and ordered Plaintiff and Mr. Woolens to exit the car and lie face down on the ground. While on the ground, Plaintiff alleges that Officer Kuczek placed him in handcuffs, and when Plaintiff asked why he and Mr. Woolens were being placed under arrest, he claims that Officer Kuczek refused to answer and instead cursed at him and yelled at him to be quiet. Plaintiff alleges that Officer Kuczek then picked him off the ground and twice slammed him into the bed of the truck on the right side of the vehicle. Plaintiff further alleges that Officer Kuczek walked him to the front of the truck, where he again slammed his head into the front right side of the fender of the truck. As a result of this repeated slamming, Plaintiff alleges that he sustained severe bruising and swelling to his face. Plaintiff was then transported to Central Booking and was subsequently charged with one count of battery of an officer.

On October 27, 2014, Plaintiff filed a complaint against both the City of New Orleans and the NOPD, claiming that the defendants violated his civil rights pursuant to 42 U.S.C. § 1983 by unlawfully using excessive force during his arrest. Plaintiff seeks both compensatory damages for the swelling and bruising he allegedly sustained to his face, as well as punitive damages. Defendants filed the instant 12(b)(6) motion on December 22, 2014, seeking dismissal of Plaintiff's claim on the bases that the claim has prescribed and that the NOPD is not a juridical entity capable of being sued.


Defendants' argument for dismissal is two fold. First, Defendants contend that Plaintiff's § 1983 has long since prescribed, and the Court does not have jurisdiction to hear the matter. Defendants maintain that according to pertinent caselaw, the prescriptive period for § 1983 claims for use of excessive force during an arrest is one year, which begins to run from the date of the plaintiff's arrest. Because Plaintiff's arrest occurred on June 9, 2010, [1] Defendants submit that his claim was prescribed at the time it was filed, over four years later. Second, even if this Court finds that the claim has not prescribed, Defendants assert that Plaintiff's claim should be dismissed against the NOPD, as this Court has repeatedly recognized that the NOPD is not a juridical entity capable of being sued.

Plaintiff does not directly oppose either of the arguments raised by Defendants in their motion. However, Plaintiff asserts that he delayed in filing the present lawsuit because he was waiting for the completion of an investigation of the NOPD Officers' conduct during the incident which was being conducted by the New Orleans Independent Police Monitor. Plaintiff notes that this investigation was delayed by the NOPD's failure to timely provide the Monitor with a full report of the incident.


Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005). The allegations "must be simple, concise, and direct." FED. R. CIV. P. 8(d)(1).

"Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of his claim which would entitle him to relief." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 678.


Defendants argue that Plaintiff has failed to state a claim upon which relief may be granted because Plaintiff's claim has prescribed on its face and because Plaintiff ...

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