United States District Court, E.D. Louisiana
JUSTIN J. BOQUET
DANIEL BELANGER, ET AL
ORDER AND REASONS
LANCE M. AFRICK, District Judge.
The Court has pending before it motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by defendants, Craig LeBouef ("LeBouef") and Francis Armand Kouame ("Kouame"). Plaintiff, Justin J. Boquet ("Boquet"), has responded and the motions are now ripe for decision.
According to the first amended complaint,  on November 29, 2013, plaintiff went to a Walmart Supercenter in Houma, Louisiana. Plaintiff "was carrying a holstered Taurus PT609 semi-automatic pistol clearly visible on his right hip." Plaintiff alleges that "Walmart does not have a policy prohibiting customers from lawfully carrying firearms on their property" and that it has a protocol for confronting customers carrying firearms:
Walmart has a policy of permitting customers to carry firearms and to only intervene if someone expresses concern. Walmart's policy is that if and when someone has expressed concern, a salaried employee approaches and addresses the armed customer; the customer is then asked to remove the firearm from the premises. According to Walmart policy, the customer is only to be told to leave if the customer refuses to remove the firearm and is "extremely abusive or disruptive"; otherwise, customers who refuse to remove the firearm are allowed to keep it and remain. Walmart policy provides for involving law enforcement only if a customer refuses to leave after being told to do so twice, with the second such instruction including a notification that law enforcement will be contacted if they do not leave.
Plaintiff asserts claims against three individuals alleged to have been involved in the events which led to the filing of this lawsuit. Craig LeBouef is alleged to have been "at all times relevant to this complaint an employee of Walmart, employed in a security capacity at the Walmart" and "a retired police officer, formerly a Lieutenant of the Houma Police Department." Francis Armand Kouame is alleged to have been an Assistant Manager at the Walmart. Sergeant Daniel Belanger ("Sergeant Belanger") is alleged to have been "duly appointed and acting as an officer of the Houma Police Department." Plaintiff alleges that "Belanger was not a salaried employee of Walmart, " but he also appears to allege that Belanger was employed by Walmart in some capacity because "Kouame's job responsibilities include supervising other employees, including Sgt. Belanger."
According to plaintiff, both LeBouef and Kouame contacted Sergeant Belanger after seeing plaintiff in the Walmart with his gun on the day in question. LeBouef is alleged to have "informed Sgt. Belanger that Walmart had a policy against customers carrying firearms, despite actual knowledge on the part of Mr. LeBouef that this was not so." Then, as plaintiff "was standing at the sporting goods counter and had just returned a rifle to the store associate... he was suddenly, and without any warning, grabbed from behind by Sgt. Belanger." Ultimately, Sergeant Belanger took plaintiff's gun, handcuffed plaintiff, and escorted him from the Walmart. "Kouame was present at and witnessed the exchange but did not intervene" and he "did not correct Sgt. Belanger's false statement of Walmart's policy regarding customers with firearms." Furthermore, "Kouame physically assisted Sgt. Belanger's seizure of Mr. Boquet's firearm by providing an extra pair of hands to hold the firearm" while Sergeant Belanger handcuffed plaintiff. Plaintiff does not allege any facts suggesting LeBouef's presence or involvement during this incident.
After escorting plaintiff from the Walmart in handcuffs, Sergeant Belanger "requested backup" and another officer searched plaintiff and seized the handgun and magazine, a pocket knife, and fourteen additional rounds of ammunition. Plaintiff was then taken to jail. Plaintiff alleges that he requested the return of the fourteen rounds of ammunition, but that "an employee of the Houma Police Department claimed that there was a departmental policy against returning ammunition."
Count one of the first amended complaint alleges state-law claims of assault, battery, and false imprisonment against Sergeant Belanger, Kouame, and LeBouef. Count two of the first amended complaint alleges state-law claims of intentional and negligent infliction of emotional distress against Sergeant Belanger, Kouame, and LeBouef. Count three asserts a claim for damages pursuant to 42 U.S.C. § 1983 against Sergeant Belanger, Kouame, LeBouef, and the Terrebonne Parish Consolidated Government.
STANDARD OF LAW
A district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted if the plaintiff has not set forth a factual allegation in support of his claim that would entitle him to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). As the U.S. Court of Appeals for the Fifth Circuit explained in Gonzalez v. Kay:
"Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court recently expounded upon the Twombly standard, explaining that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id. It follows that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
577 F.3d 600, 603 (5th Cir. 2009).
This Court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must accept all well-pleaded facts as true and liberally construe all factual allegations in the light most favorable to the ...