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Thomas v. Gulotta

United States District Court, M.D. Louisiana

January 26, 2017




         Before the Court are two Motions to Dismiss: one filed by the City of Plaquemine and Chief of Police Orian Gulotta, and one filed by Plaquemine Police Officer John Little.[1]Plaintiff Maurice Thomas has filed an Opposition, [2] to which the Defendants have filed a joint Reply.[3] The Court's jurisdiction exists pursuant to 28 U.S.C. § 1331. Oral argument is unnecessary. For the following reasons, both of the Motions are GRANTED IN PART and DENIED IN PART.


         Maurice Thomas (hereinafter “Thomas” or “Plaintiff”) filed this civil rights action arising out of his July 3, 2014 arrest by Plaquemine Police Officer John Little (hereinafter “Officer Little”). Thomas claims that Officer Little had no probable cause to make the arrest. As a result of the arrest, Thomas was charged with disturbing the peace, two counts of resisting an officer, two counts of battery on an officer, two counts of assault on an officer, and one count of inciting to riot. Thomas contends that at the time of his arrest, he had a pending federal lawsuit against several officers of the Plaquemine Police Department, and the police officers were “out to get him” and were harassing him based upon the pending lawsuit.

         Thomas claims that prior to his July 3, 2014 arrest he was in the yard of a relative holding a conversation, while 60-80 people were assembled across the street shooting firecrackers. According to Thomas, Officer Little stopped his police vehicle and ordered Thomas to come to his car and place his hands upon it because he was under arrest. Thomas admits that he was reluctant to comply with Officer Little's orders. Subsequently, Officer Little called for backup, and another unknown officer arrived on the scene. The officers then proceeded to attempt to handcuff Thomas behind his back. Due to a preexisting injury to his rotator cuff, Thomas asserts that he and some of his relatives told the officers that he could not be handcuffed behind his body. Thomas was ultimately handcuffed in front of his body, without further incident, and spent two days in jail. Eventually, the District Attorney's Office summarily dismissed the charge of inciting to riot, and a city court judge found Thomas not guilty of the charges of battery on an officer, resisting an officer, and assault on an officer. The Court took the matter of Thomas' charge of disturbing the peace under advisement. Thomas claims the Court ultimately found him guilty of this charge.

         Three days after the judge rendered his not guilty verdicts, Officer Little and four other officers allegedly went to Thomas' residence and arrested him again. Thomas was charged with aggravated cruelty to an animal and four more counts of resisting an officer. During the arrest, Thomas contends that one of the officers falsely reported that during the pat-down of his person, a “small bag of pills/drugs” was found in Thomas' pocket. According to Thomas, any drugs that were found on his person were planted on him by the arresting officers.

         Thomas has alleged that the City of Plaquemine has maliciously prosecuted him based upon the July 3, 2014 charges. He further claims that he was convicted of disturbing the peace in spite of the law, facts, and evidence to the contrary. As for the Chief of Police, Thomas alleges Chief Gulotta knew that he had a pending lawsuit and failed to instruct his officers not to harass and pressure him with criminal charges. Thomas also claims that Chief Gulotta “has a history of not taking any steps to redress complaints filed against deputies and his office and subordinates, thereby he has shown a pattern that endorsed and ratified the improper actions of the deputies and staff and have become co-conspirators in the violations of plaintiff's rights.”[5]

         On July 3, 2015, Thomas filed a verified Complaint naming the City of Plaquemine, Plaquemine Chief of Police Orian Gulotta, and Plaquemine Police Officer John Little as Defendants.[6] Thomas has asserted 42 U.S.C. § 1983 claims against the City, the Police Chief, and Officer Little in their official and individual capacities for malicious prosecution, and allegedly violating his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. In addition, Thomas makes a separate 42 U.S.C. § 1985 conspiracy claim against the Defendants, and seeks attorney's fees under 42 U.S.C. § 1988. Thomas has also made parallel state law claims of assault and battery, false imprisonment, malicious prosecution, malfeasance in office, and intentional infliction of emotional distress against the Defendants.

         The Defendants now move for dismissal of Thomas' claims for failure to state a claim and, in the alternative, as being barred by the doctrine of qualified immunity.

         II. Initial Matters

         A. Plaintiff's Failure to Comply with the Court's Ruling To Amend

         On July 6, 2016, the Court entered a Ruling[7] denying the Motion to Dismiss filed by Defendants, Police Chief Gulotta and the City of Plaquemine. In that Ruling, the Court found, that for the reasons set forth in the Defendants' brief, Plaintiff had failed to state a viable claim for relief under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. The Court also noted that it agreed that Plaintiff had failed to allege sufficient facts to show that his constitutional rights had been violated by Chief Gulotta under the First, Fourth, Fifth, Sixth, Eighth, or Fourteenth Amendments, and therefore, Chief Gulotta was entitled to qualified immunity. In spite of these findings, the Court granted the Plaintiff's request to amend his complaint to cure the deficiencies raised by the Defendants. Plaintiff was ordered to file his amended complaint within 30 days of the Court's July 6, 2016 Ruling. Nonetheless, as of the date of this Order, Plaintiff has yet to comply.

         In the pending Motion to Dismiss, the City and Chief Gulotta essentially re-urge their 42 U.S.C. §§ 1983 and 1985 arguments.[8] In response, Plaintiff has simply re-submitted the same opposition he previously filed to contest the first Motion to Dismiss.[9]

         Considering the Plaintiff's failure to comply with the Court's Ruling, and, once again finding merit in the Defendants' arguments, the Court hereby GRANTS the Defendants' Motion to Dismiss for those reasons set forth in their memorandum.[10] Accordingly, Plaintiff Maurice Thomas' 42 U.S.C. § 1983 and 42 U.S.C. § 1985 claims against Defendants, the City of Plaquemine and Plaquemine Police Chief Orian Gulotta, are hereby dismissed. The viability of Thomas' state law claims against the City and Chief Gulotta shall be addressed herein, Subsection IV(E).

         B. Judicial Notice

         Thomas has submitted the Courtroom Minutes from Plaquemine City Court that state on December 15, 2015, the City Court Judge found that the Plaintiff was not guilty of disturbing the peace.[11] On a Rule 12(b)(6) motion the Court is ordinarily limited to review the contents of pleadings, including attachments, to determine whether claims have been properly stated. However, the Court may also take judicial notice of the contents of public records on a Rule 12(b)(6) motion without converting the motion to one for summary judgment.[12] Federal Rule of Evidence 201 provides that: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” In light of any potential Heck v. Humphrey[13] concerns that would bar Thomas from asserting any 42 U.S.C. § 1983 claims that would call into question or otherwise invalidate a conviction or sentence, [14] the Court shall take judicial notice of the Courtroom Minutes from Plaquemine City Court.

         III. LAW

         A. Rule 12(B)(6)

         When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'”[15] The Court may consider “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”[16] “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.'”[17] In Bell Atlantic Corp. v. Twombly, the United States Supreme Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss.[18] “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[19] A complaint is also insufficient if it merely “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”[20] However, “[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.”[21] In order to satisfy the plausibility standard, the plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully.”[22] “Furthermore, while the court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.'”[23] On a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”[24]

         B. 42 U.S.C. § 1983 Claims

         “Section 1983 imposes liability on anyone who, under color of state law, deprives a person ‘of any rights, privileges, or immunities secured by the Constitution and laws.'”[25]In order to state a claim under 42 U.S.C. § 1983, the plaintiff must establish two elements: “(1) that the conduct in question deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States; and (2) that the conduct or deprivation complained of was committed by a person acting under color of state law.”[26]As for the first element, 42 U.S.C. § 1983 only “imposes liability for deprivations of constitutionally protected rights, rather than for violations of tort duties of care.”[27] As for the second element, a “plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged.”[28]

         “The performance of official duties creates two potential liabilities, individual-capacity liability for the person and official-capacity liability for the municipality.”[29]Official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.[30] “However, to be liable in one's official capacity under § 1983, the defendant must have been delegated policy-making authority under state law.”[31] In contrast, a state actor may have Section 1983 liability in his/her individual capacity for actions causing the deprivation of a federal right taken under color of state law.[32]

         IV. ANALYSIS

         A. Plaintiff's Official Capacity Claims Against Officer Little

         Plaintiff has asserted 42 U.S.C. § 1983 claims against Officer Little in his official capacity. “A claim against a police officer in his official capacity is treated as a claim against the municipality that the officer serves.”[33] As previously mentioned, Thomas also named the City of Plaquemine, Officer Little's employer, as a separate Defendant in this case. “When the governmental entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”[34] Hence, the official capacity claim against Officer Little is redundant and serves no purpose. Moreover, the Court has already disposed of Thomas' official capacity claims against the City of Plaquemine, [35] thereby, also disposing of his official-capacity claims against Officer Little. Accordingly, the official capacity claims against Officer Little shall be dismissed.

         B. Qualified Immunity

         Officer Little argues that Thomas has failed to state any 42 U.S.C. § 1983 individual capacity claims against him arising under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment, or for malicious prosecution. In the alternative, Officer Little argues that even if Thomas has stated a viable individual capacity claim against him, such claims are barred by the doctrine of qualified immunity.

         “The qualified immunity defense entitles a defendant to avoid the ‘burdens of litigation' as well as liability.”[36] Qualified immunity protects an official acting under color of state law in his or her individual capacity “from liability of civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[37] When considering a qualified immunity defense raised in the context of a Rule 12(b)(6) motion, the court must determine whether “the plaintiff's pleadings assert facts which, if true, would overcome the defense of qualified immunity.”[38] Therefore, “[a] plaintiff seeking to overcome [the defense of] qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity.”[39]

         “To establish an entitlement to qualified immunity, a government official must first show that the conduct occurred while he was acting in his official capacity and within the scope of his discretionary authority.”[40] Once the defendant invokes the qualified immunity defense, the burden is on the plaintiff to rebut the applicability of the defense.[41] A plaintiff may meet this burden by alleging facts showing that: (1) “the officer's conduct violated a constitutional right”, [42] and (2) “the right was ‘clearly established' at the time of the challenged conduct.”[43] “To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”[44] Whether the right was clearly established at the time the defendant acted “requires an assessment of whether the official's conduct would have been objectively reasonable at the time of the incident.”[45]

         1. First Amendment Claim

         In his Complaint Thomas simply avers, without more, that Officer Little's actions “were in retaliation [for] his attempt to exercise his rights guaranteed under the First Amendment, his right to resist an unlawful arrest.”[46] To prevail on his First Amendment retaliation claim against Officer Little, Thomas must prove that: “(1) he was engaged in a constitutionally protected activity, (2) that the defendant's actions caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that protected activity, and (3) that the defendant's adverse actions were substantially motivated by the plaintiff's exercise of constitutionally protected conduct.”[47] Construing the allegations in the Complaint in a light most favorable to the Plaintiff, the Court finds that Thomas has failed to satisfy the first element. More precisely, Thomas has failed to allege any facts to suggest what First Amendment protected speech or conduct he had engaged in that led to his arrest. Rather, Thomas' claim is limited to one conclusory allegation that Officer Little violated his First Amendment rights. Accordingly, the Court finds that Thomas has failed to state a viable 42 U.S.C. § 1983 First Amendment claim and his claim shall be dismissed.

         2. Fourth/Fourteenth Amendment Claim of False Arrest and False Imprisonment

         Defendant Little argues that Thomas has failed to plead sufficient facts to show a violation of his constitutional right to be free from false arrest. Initially, the Court points out that the constitutional rights implicated in the claim of false arrest/false imprisonment are derived from the Fourth and Fourteenth Amendments. To prevail on his false arrest claim, Thomas “must sufficiently allege (1) that he was arrested, and (2) the arrest did not have the requisite probable cause.”[48] “An arrest is unlawful unless it is supported by probable cause.”[49] “Probable cause exists when the totality of facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect has committed or was committing an offense.”[50] “A law enforcement officer who reasonably but mistakenly concludes that probable cause is present is entitled to qualified immunity.”[51] And yet, “a qualified immunity defense cannot succeed where it is obvious that a reasonably competent officer would find no probable cause.”[52]

         In this case, Thomas has alleged that he was arrested without probable cause by Officer Little on July 3, 2014 and charged with disturbing the peace, resisting an officer, battery and assault on an officer, and inciting to riot.[53] As a result of his arrest, Thomas claims that he “spent two days in jail for this incident.”[54] Of these charges, Thomas has alleged that the charge of inciting a riot was dismissed by the District Attorney, and the judge found him not guilty of charges of assault and battery on an officer and resisting an officer. As previously noticed by the Court, Thomas was ultimately found not guilty of disturbing the peace.

         According to Thomas, at the time of his arrest, he was standing in the yard of a relative holding a conversation, while 60-80 people on the other side of the street were popping firecrackers. During this time, Thomas claims that Officer Little passed by several times before stopping and exiting from his vehicle. Officer Little then instructed Thomas to step towards the police vehicle and place his hands upon it, because Thomas was under arrest. Plaintiff admitted his reluctance to go with Officer Little, and that Officer Little called for backup. Thomas claims that during his actual arrest, he attempted to inform Officer Little of his injured rotator cuff and that he could not be handcuffed behind his back. Thomas also states that he asked one of the on-lookers to video the arrest so they could “see what [the police were] trying to do.”[55] It also appears that Thomas claims to have never uttered any loud or vulgar language at Officer Little preceding his arrest. Based on the foregoing, the Court finds that Thomas has alleged enough facts to set forth a plausible Fourth Amendment claim of unlawful arrest.

         Turning now to Officer Little's assertion of qualified immunity, the foregoing analysis demonstrates that Thomas sufficiently alleged a constitutional violation. Considering the allegations, it is unclear what basis there was for probable cause to bring the charges against Thomas. It is indisputable that if Thomas was, in fact, arrested without probable cause, then such an arrest was unreasonable in light of clearly established law. Hence, the Court finds that Officer Little has not established, at this time, that he is entitled to qualified immunity.

         Accordingly, the Court shall deny Officer Little's Motion as it pertains to Thomas' Motion to Dismiss for failure to state a claim. The Motion shall also be denied on the grounds of qualified immunity, without prejudice, to Officer Little reasserting the defense at a later stage.

         3. Fourth Amendment Excessive Force Claim

         Thomas also appears to assert a 42 U.S.C. § 1983 excessive force claim arising out of his arrest. The Supreme Court has held that “all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest … of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.”[56] “[T]o state a violation of the Fourth Amendment prohibition on excessive force, the plaintiff must allege: (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need, and (3) the use of force that was objectively unreasonable.”[57] Excessive force claims are fact-intensive, and depend upon “the facts and circumstances of each particular case, ”[58] and the Court may consider certain factors, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[59] Further, an excessive force claim “is separate and distinct from [an] unlawful arrest claim, and [the Court] must therefore analyze the excessive force claim without regard to whether the arrest itself was justified.”[60]

         Thomas' excessive force claim stems from Officer Little's attempt to handcuff him while being arrested for disturbing the peace, inciting a riot, resisting arrest, and assault and battery of a police officer. Thomas alleges that although he tried to explain that his arm could not be placed behind his back due to a rotator cuff injury, Officer Little and another unknown officer pulled and attempted to twist Thomas' arm behind his back to handcuff him, thereby aggravating his pre-existing shoulder injury.[61] However, Thomas further claims that, in response to protestations from family relatives also stating that the officers could not put Thomas' hands behind his back due to his hurt shoulder, Thomas was ultimately handcuffed in front of his body and arrested “without further incident.”[62]

         As correctly argued by Officer Little, Thomas has failed to state a viable excessive force claim because he has failed to allege that his injury resulted “directly and only from” Officer Little's use of force. The Fifth Circuit has held that the aggravation or exacerbation of a pre-existing injury does not comprise an actionable injury to support an excessive force claim because the injury does not result “directly and only” from the defendant officer's use of force.[63] Accordingly, Thomas has failed to state an actionable excessive force claim.

         And yet, even if Thomas had pled a viable excessive force claim, the Court finds that, in light of the recent decision of Johnson v. City of Bastrop, [64] Officer Little would be entitled to qualified immunity. In Johnson, the plaintiff had asserted an excessive force claim against the arresting officer for grabbing his wrist and twisting his arm behind his back in order to handcuff him during an October 4, 2014 incident.[65] In finding that the defendant officer was entitled to qualified immunity on the excessive force claim, the Johnson court concluded that “the handcuffing technique employed by [the defendant officer] is a fairly common and ordinarily accepted and non-excessive way to detain an arrestee.”[66] As alleged in Plaintiff's Complaint, Officer Little used the same “fairly common and ordinarily accepted and non-excessive” technique at the time of Thomas' 2014 arrest, that was employed by the defendant officer in Johnson. Accordingly, the Court finds that the force used by Officer Little was not unreasonable.

         The Court also finds that Thomas' claim that he attempted to tell Officer Little about his pre-existing injury and could not be handcuffed behind his back, does not defeat Officer Little's qualified immunity defense, because Officer Little had no clearly established duty to reposition his handcuffs.[67] As one court noted:

[A] police officer need not credit everything a suspect tells him. This idea is especially true when the officer is in the process of handcuffing a suspect. As another federal court recently noted, statements by suspects claiming (at the time of their arrest) to have pre-existing injuries are, “no doubt, uttered by many suspects who, if given the choice, would prefer not to be handcuffed at all and, if they must be restrained in that manner, would prefer that the handcuffs be in front.”[68]

         Accordingly, the Court finds that Thomas' claim of excessive force shall be dismissed.

         4. Malicious Prosecution Claim

         Construing his Complaint liberally, it appears that Thomas is alleging malicious prosecution as part of his 42 U.S.C. § 1983 claim.[69] In Castellano v. Fragozo, the Fifth Circuit held that there is no viable “freestanding” 42 U.S.C. § 1983 claim based solely on malicious prosecution.[70] The Castellano court further explained that:

The initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protections-the Fourth Amendment if the accused is seized and arrested, for example, or other constitutionally secured rights if a case is further pursued. Such claims of lost constitutional rights are for violation of rights locatable in constitutional text, and some such claims may be made under 42 U.S.C. § 1983.
Regardless, they are not claims for malicious prosecution and labeling them as such only invites confusion.[71]

         In Deville v. Marcantel, [72] the Fifth Circuit further explained that a malicious prosecution claim is not “independently cognizable”:

[I]t must be shown that the officials violated specific constitutional rights in connection with a “malicious prosecution.” For example, “the initiation of criminal charges without probable cause may set in force events that run afoul of the … Fourth Amendment if the accused is seized and arrested…or other constitutionally secured rights if a case is further pursued.” However, these “are not claims for malicious prosecution.” Accordingly, plaintiffs' claim under § 1983 for “malicious prosecution” in respect to the May 2006 arrest is not independently cognizable, and defendants are entitled to summary judgment on that claim.”[73]

         In this case, Thomas has alleged a lack of probable cause for his arrest. However, based on the foregoing Fifth Circuit precedent, such a claim is for a violation of a constitutional right, and not a claim for malicious prosecution. Consequently, Thomas' claim for 42 U.S.C. § 1983 malicious prosecution shall be dismissed.

         5. Fifth Amendment Due Process Claim

         Thomas summarily claims that he “was deprived of his liberty without due process of law.”[74] The Court construes such an allegation as support for his Fifth Amendment claim. “The Fifth Amendment applies only to violations of constitutional rights by the United States or a federal actor.”[75] The Fourteenth Amendment is the constitutional provision that guarantees due process rights against state actors.[76] Here, Plaintiff has not alleged that Officer Little was a federal employee or “acting under authority of the federal government” at the time of the incident giving rise to this suit.[77] Rather, he specifically alleges that at the time of his arrest, Officer Little was a Plaquemine Police Officer, employed by the City of Plaquemine. Therefore, Thomas' Fifth Amendment claim fails as a matter of law.

         6. Sixth Amendment Claim

         Thomas makes the conclusory allegation that the actions and omissions of Officer Little deprived him of his rights under the Sixth Amendment.[78] The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel of his defence.[79]

         The Court finds that Plaintiff's Complaint is completely devoid of any such allegations arising out of his July 3, 2014 arrest that would support a viable Sixth Amendment claim. Accordingly, Thomas' Sixth Amendment claim shall be dismissed.

         7. Eighth ...

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