United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
City of New Orleans moves to dismiss plaintiff's
complaint. Pro se plaintiff Andrew Gressett
moves to set aside the Magistrate Judge's order denying
leave to amend the complaint. For the following reasons, the
Court grants the City's motion to dismiss and denies
plaintiff leave to amend.
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. 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. The unidentified
officer was allegedly standing with one hand on his holstered
revolver and the other on his holstered Taser. 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.” Plaintiff alleges he felt threatened and
detained by the officer, but proceeded to his vehicle without
brought suit against the City of New Orleans, the
unidentified officer, and other unidentified law enforcement
officers on December 11, 2017. The complaint asserts claims for
violations of “federal civil rights statutes” and
for negligence. 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). Before responding to the
City's motion to dismiss, plaintiff sought leave to amend
his complaint. The Magistrate Judge denied this motion
on May 2, 2018. Plaintiff then responded to the
City's motion to dismiss and filed an objection to the
Magistrate Judge's order.
City moves to dismiss plaintiff's complaint under Rules
12(b)(1), 12(b)(5), and 12(b)(6).
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).
original complaint alleges violations of “federal civil
rights statutes and jurisprudence protecting individuals from
threats, intimidation, injury, losses and
damages.” 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.” 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.
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. Plaintiff obtained a waiver of service
on April 6, 2018. The City's Rule 12(b)(5) motion is
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).
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).
“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).
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.
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
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. 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
second incident described in plaintiff's original
complaint allegedly occurred on December 14,
2016. Thus, plaintiff's claims ...