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Smith v. McKesson

United States District Court, M.D. Louisiana

October 27, 2017




         After the Court issued an Order to Show Cause Why This Action Should Not Be Dismissed for Failure to State a Claim (Doc. 42), the Court provided Plaintiff's Counsel an opportunity to file a response, (Doc. 48). Two of the named Defendants, DeRay McKesson and Johnetta Elzie, had previously filed Motions to Dismiss (Docs. 37, 38) to which Plaintiff's Counsel responded, (Docs. 46, 47). Also pending before the Court is a Motion to Proceed under Fictitious Names filed by Plaintiff's Counsel (Doc. 2).

         Before addressing the merits of the case, the Court must express its admiration and deepest sympathies for Officer John Doe Smith, who was grievously injured while protecting the citizens of Baton Rouge. That he suffered and continues to suffer from the injuries he sustained in the line of duty is not in question, nor should it be minimized. Nothing in the Court's ruling impugns the character and courage of Officer Smith.

         Despite the tragic events that gave rise to Officer Smith's injuries, however, Plaintiff's Counsel has utterly failed to state a plausible claim for relief against any named Defendant in this matter. Instead, Plaintiff's Counsel launches a confused attack against “Black Lives Matter” and other Defendants in this suit, whom she alleges are inspired by “a radical feminist and Marxist revolutionary.” (Doc. 48 at p. 10). For the following reasons, this action is DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         This is Plaintiff's Counsel's second attempt to hold McKesson and “Black Lives Matter” liable for injuries sustained by Baton Rouge Police Officers. See Doe v. McKesson, No. 16-742, F.Supp.3d, 2017 WL 4310240 (M.D. La. Sept. 28, 2017). On July 17, 2016, Officer Smith and other law enforcement officers were ambushed by an individual who, as Plaintiff's Counsel noted in her Motion for Leave of Court to Proceed as John Doe (Doc. 2), “has not been shown to be a member of BLACK LIVES MATTER” because “[t]he shooter was outraged with the Alton Sterling shooting, ” (Id. at ¶ 7). Officer Smith was seriously injured (see Doc. 1 at ¶¶ 66-83), three other officers were killed, (Doc. 2 at ¶ 7).

         Defendants in this action are DeRay McKesson and Johnetta Elzie, who Plaintiff's Counsel claims are leaders of “Black Lives Matters”; “Black Lives Matter, ” which Plaintiff's Counsel alleges is a national unincorporated association; Black Lives Matter Network, Inc., a Delaware corporation; “#BlackLivesMatter, ” which is alleged to be a national unincorporated association; and Alicia Garza, Patrisse Cullors, and Opal Tometi, who are alleged to be founders and leaders of “Black Lives Matter.” (Doc. 1 at ¶ 3).


         On July 7, 2017, Plaintiff's Counsel filed suit against Defendants in this matter. (Doc. 1). On September 12, 2017, Defendants DeRay McKesson and Johnetta Elzie filed separate motions to dismiss. (Docs. 37; 38). On September 28, 2017, the Court issued its ruling in the related case Doe, 2017 WL 4310240. On October 4, 2017, the Court issued a show cause order, notifying Plaintiff's Counsel of its intention to dismiss this action sua sponte for failure to state a claim. (Doc. 42). The Court provided Plaintiff's Counsel with ten days to respond. (Id.). Plaintiff's Counsel requested an extension of time to respond. (Doc. 43). After considering the request, the Court provided Plaintiff's Counsel an additional ten days to respond. (Doc. 45). Plaintiff's Counsel timely filed a response. (Doc. 48).


         A district court is empowered to dismiss a complaint sua sponte for failure to state a claim. See Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006). Before granting sua sponte dismissal, the court must provide the parties with “both notice of the court's intention and an opportunity to respond.” Id. (quoting Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam)).

         Federal Rule of Civil Procedure 8 requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, “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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “[F]acial plausibility” exists “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. at 678.

         Thus, a complaint need not set out “detailed factual allegations, ” but a complaint must contain something more than “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Id. (quoting Twombly, 550 U.S. at 555). When conducting its inquiry, the Court must “accept[] all well-pleaded facts as true and view[] those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” and therefore “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive dismissal. Iqbal, 556 U.S. at 678.

         IV. ...

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