United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT.
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).
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
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
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 ¶
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).
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).
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)).
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.
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.