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Gressett v. City of New Orleans

United States District Court, E.D. Louisiana

August 1, 2018


         SECTION “R” (2)



         The City of New Orleans moves to dismiss plaintiff's complaint.[1] Pro se plaintiff Andrew Gressett moves to set aside the Magistrate Judge's order denying leave to amend the complaint.[2] For the following reasons, the Court grants the City's motion to dismiss and denies plaintiff leave to amend.

         I. BACKGROUND

         This case arises out of alleged constitutional violations by a New Orleans Police Department (NOPD) officer. Plaintiff alleges that, on November 11, 2016, an unidentified NOPD officer made “anti-Trump” and “pro-Black” statements, including that, “[a]nyone that voted for Donald Trump is a racist, ” at a Waffle House in New Orleans.[3] Plaintiff further alleges that, on December 14, 2016, he was leaving the same Waffle House in New Orleans when he noticed the same unidentified officer “lying in wait” outside of the restaurant, standing between plaintiff and his vehicle.[4] The unidentified officer was allegedly standing with one hand on his holstered revolver and the other on his holstered Taser.[5] Plaintiff alleges that he stepped aside in an attempt to avoid the officer, but that the officer stepped into his path and said, “[y]ou're still being an [a]sshole.”[6] Plaintiff alleges he felt threatened and detained by the officer, but proceeded to his vehicle without issue.[7]

         Plaintiff brought suit against the City of New Orleans, the unidentified officer, and other unidentified law enforcement officers on December 11, 2017.[8] The complaint asserts claims for violations of “federal civil rights statutes” and for negligence.[9] On March 26, 2018, the City moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6).[10] Before responding to the City's motion to dismiss, plaintiff sought leave to amend his complaint.[11] The Magistrate Judge denied this motion on May 2, 2018.[12] Plaintiff then responded to the City's motion to dismiss and filed an objection to the Magistrate Judge's order.[13]


         The City moves to dismiss plaintiff's complaint under Rules 12(b)(1), 12(b)(5), and 12(b)(6).

         A. Rule 12(b)(1)

         Rule 12(b)(1) requires dismissal of an action if a court lacks jurisdiction over the subject matter of the plaintiff's claim. When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, subject matter jurisdiction must be decided first because “the court must find jurisdiction before determining the validity of a claim.” Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (quoting Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1988)). In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be true; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts and by the court's resolution of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).

         Plaintiff's original complaint alleges violations of “federal civil rights statutes and jurisprudence protecting individuals from threats, intimidation, injury, losses and damages.”[14] He alleges that he felt “detained” by the NOPD officer during the December 14, 2016 incident, and mentions the officer's use of “excessive force.”[15] These claims sound in the Fourth Amendment. Additionally, plaintiff clarifies in his opposition to the City's motion to dismiss that his complaint alleges violations of 42 U.S.C. § 1983 and 18 U.S.C. § 2261A (a statute that criminalizes stalking). These claims therefore arise under federal law. See 28 U.S.C. § 1331. Additionally, the Court may exercise supplemental jurisdiction over plaintiff's state law negligence claims. See 28 U.S.C. § 1367. Thus, the Court has subject matter jurisdiction over this matter.

         B. Rule 12(b)(5)

         Rule 12(b)(5) governs insufficient service of process. After the City moved to dismiss plaintiff's original complaint, plaintiff sought and obtained leave to complete service of process on the City.[16] Plaintiff obtained a waiver of service on April 6, 2018.[17] The City's Rule 12(b)(5) motion is therefore moot.

         C. Rule 12(b)(6)

         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “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)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

         A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal relevant evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. The claim must be dismissed if there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

         Courts “liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam). This does not mean, however, that a court “will invent, out of whole cloth, novel arguments on behalf of a pro se plaintiff in the absence of meaningful, albeit imperfect, briefing.” Jones v. Alfred, 353 Fed.Appx. 949, 952 (5th Cir. 2009). Even a liberally construed pro se complaint “must set forth facts giving rise to a claim on which relief may be granted.” Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993).

         As noted earlier, plaintiff has brought claims under 42 U.S.C. § 1983, 18 U.S.C. § 2261A, and state law negligence. The Court addresses each set of claims in turn.

         1. Section 1983

         “Section 1983 affords a private cause of action to any party deprived of a constitutional right under color of state law.” Tex. Manufactured Hous. Ass'n, Inc. v. City of Nederland, 101 F.3d 1095, 1106 (5th Cir. 1996). Plaintiff argues in his opposition to the City's motion to dismiss that the NOPD officer violated plaintiff's rights under the Fourth, Eighth, and Fourteenth Amendments.[18]

         As an initial matter, plaintiff's claims related to the first incident alleged in the original complaint are prescribed. Although Section 1983 contains no express limitations period, courts apply the statute of limitations for the analogous state law action-here, the one-year prescriptive period for Louisiana torts. See Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1987). The incident involving the NOPD officer's statement that “[a]nyone that voted for Donald Trump is a racist” allegedly occurred on November 11, 2016, shortly after the 2016 presidential election.[19] Plaintiff filed suit on December 11, 2017, more than one year after this incident allegedly occurred. Additionally, plaintiff fails to allege any relationship between this incident and the later incident that could plausibly support a continuing tort theory. Moreover, even if plaintiff's claims related to the officer's statement during the first incident were not prescribed, it is unclear how this statement affected plaintiff's Fourth, Eighth, or Fourteenth Amendment rights. Thus, plaintiff's allegations regarding the November 11, 2016 incident do not support the plausible inference that plaintiff's constitutional rights were violated, and any claims related to this incident must be dismissed.

         The second incident described in plaintiff's original complaint allegedly occurred on December 14, 2016.[20] Thus, plaintiff's claims ...

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