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Aubin v. Columbia Casualty Co.

United States District Court, M.D. Louisiana

March 24, 2017




         Before the Court is the Motion to Dismiss Pursuant to Rule 12(B)(6) (sic) (Doc. 13) and the Motion to Dismiss Amended Comaplint (sic) Pursuant to Rule 12(B)(6) (sic) (Doc. 34) filed by Jason Ard, Sheriff of Livingston Parish, State of Louisiana ("Sheriff Ard"). In his motions, Sheriff Ard seeks to dismiss William Aubin's claims against him for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure ("Rule") 12(b)(6). Each party filed oppositions (Docs. 17, 37), replies (Docs. 28, 44), sur-replies (Doc. 32), and sur-sur replies (Doc. 39) where applicable. Jurisdiction is proper under 28 U.S.C. § 1331. Oral argument on Defendant's motions was held on January 31, 2017.

         I. BACKGROUND

         This action arises out of a physical altercation between Mr. Aubin and Deputy William Durkin ("Deputy Durkin") that occurred on April 30, 2015. On that date, Plaintiffs assert that they were at their home near Denham Springs, Louisiana, when Deputy Durkin drove down the street in a marked patrol car, allegedly responding to a complaint concerning Plaintiffs' neighbor. (Doc. 1 at ¶¶ 6, 7). Plaintiffs allege that they approached Deputy Durkin to discuss the matter concerning their neighbor with him, at which time Plaintiffs allege Deputy Durkin began cursing at Mr. Aubin and threatened to arrest him. (Doc. 1 at ¶¶ 10 - 12). Plaintiffs further allege that Mr. Aubin began retreating toward his home and attempted to place a telephone call to the Sheriffs Office to file a complaint about Deputy Durkin's conduct when Deputy Durkin grabbed Mr. Aubin, threw him on the front of his patrol unit, began hitting him on the head with handcuffs, twisted his arm, causing injury to his rotator cuff, hit him in the head and kicked him in the buttocks. (Doc. 1 at ¶¶ 13 - 17). The Complaint alleges that Mr. Aubin was handcuffed and charged with resisting an officer in violation of La. R.S. § 14:108; interfering with a law enforcement investigation in violation of La. R.S. § 14:329; and public intimidation and retaliation in violation of La. R.S. § 14:122.

         As a result of this alleged incident, Plaintiffs assert that Deputy Durkin is liable for "(a) battery, (b) assault, (c) false arrest, (d) false imprisonment, (e) unlawful seizure, (f) cruel and unusual treatment, (g) violation of the Constitution and other laws of the United States and of the State of Louisiana, (h) excessive use of force, (i) unreasonable use of force, (j) malicious prosecution, and for all other acts and omissions as will be shown at trial." (Doc. 1 at ¶ 29). Plaintiffs also allege that Deputy Durkin is liable for assault upon Mrs. Aubin and for her loss of consortium. (Doc. 1 at 111130-32).

         Plaintiffs further assert that "[Sheriff] Ard is vicariously liable unto the Aubins as a matter of Louisiana state law for the acts, omissions, torts and/or other misconduct of Durkin" and "for his ratification and endorsement of, and deliberate indifference to, the Conduct of Durkin, as well as for his failure to adequately train and supervise Durkin." (Doc. 1 at ¶¶ 33 - 34).

         Sheriff Ard filed his initial Motion to Dismiss (Doc. 13) on June 13, 2016, seeking to dismiss "all federal law claims asserted against Sheriff Ard, as well as all claims of independent liability under Louisiana state law." (Doc. 13-2 at p. 1). In response to Sheriff Ard's motion, Plaintiffs filed an Amended Complaint in accordance with Federal Rule of Civil Procedure ("Rule") 15(a)(1)(B), which they claim mooted Sheriff Ard's initial motion. (See Docs. 16, 17). Plaintiffs' Amended Complaint adds the following allegations against Sheriff Ard:

... Sheriff Ard failed to train and supervise his deputies, including Durkin, in the First Amendment protection of the speech of residents of Livingston Parish, including William Aubin, and in the proper, constitutional, scope of Louisiana's public intimidation law.
To the contrary, Sheriff Ards official policy is that his deputies are ministers of God, who derive their just authority from God, and who have a divine commission to punish wrongdoers including, allegedly, William Aubin in this case.
In particular, Sheriff Ard has testified that his deputies' divine authority is explained in Paul's epistle to the Romans, chapter 13, verse 4, and, accordingly, Sheriff Ard has emblazoned "13:4" on the Livingston ...

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