United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY MAG. JUDGE.
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE.
the undersigned Magistrate Judge, on reference from the
District Court, are two motions to dismiss: (1) a motion to
dismiss for failure to state a claim upon which relief can be
granted, filed by the Town of Bernice Police Department [doc.
# 9]; and (2) a motion to dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(4), 12(b)(5), and 12(b)(6) for
insufficiency of service and failure to state a claim upon
which relief can be granted, filed by Defendants Mayor
William M. Mitcham, Police Chief Ricky Albritton, the Bernice
Town Aldermen, and the Town of Bernice [doc. #10]. For
reasons set forth below, it is recommended that the motions
7, 2018, Plaintiff John Antuan Jackson filed a Petition for
Damages in the 3rd Judicial District Court, Parish of Union,
State of Louisiana, against numerous officials and entities
pursuant to 42 U.S.C. § 1983 for deprivation of his
constitutional rights under the United States and Louisiana
Constitutions. (see Petition, [doc. # 1-1]). In
Paragraph I of the Petition, Jackson identified the following
officials and entities as defendants: Town of Bernice aka
Town Hall; Mayor, William Mitcham and the Bernice Town
Alderman [sic]; Bernice Police Department, and Chief of
Police, Ricky W. Albritton; David Hill; and XYZ Insurance
Companies. Defendants removed the case to this court on June
7, 2018. [see doc. # 1].
to the Petition, on May 13, 2017, Jackson was stopped by
Defendant Hill, a police officer employed by the Bernice
Police Department, for speeding, and given a citation.
(Id. ¶ III). Hill became angry over
Jackson's signature on the citation, launched into a
rage, and yanked Jackson out of his car. Jackson informed
Hill that he had a medical heart condition, and Hill
responded “You [sic] going to have more than a damn
heart condition.” (Id.) Hill then handcuffed
Jackson, shoved and aggressively handled him while walking
him to Hill's patrol car, and slammed or crushed his legs
in the door eight or nine times, which caused excruciating
pain. Hill also shouted expletives at Jackson, flagged down a
motorcyclist and asked him to hold Jackson so Hill could
Taser him, choked Jackson to the point that he was going
unconscious, and conducted a search of Jackson's car.
(Id.) Jackson was then transferred to the Union
Parish Detention Center in Farmersville, LA where he
requested and was denied medical attention. After being
released from custody the next day, he went to a medical
center and was treated for his injuries. (Id.)
claims that Defendants violated his “clearly
established rights” under the Louisiana Constitution
art. 1 § 20 and the Fourth and Fourteenth Amendments to
the United States Constitution, as well as his Fourth
Amendment right to be free from excessive force.
(Id. ¶ IX). Specifically, Jackson claims that
Defendants Hill's actions were “extreme and
outrageous” and “below all bounds of decency and
the standards of any reasonable officer.” (Id.
¶ VI). Further, Defendants Town of Bernice, Mayor
William Mitcham, the Bernice Town Aldermen, and their
insurance company, XYZ, are liable “for selecting,
retaining and assigning employees with demonstrable
propensities for excessive force, violence, negligence and
other misconduct” and for depriving Jackson of
“rights, privilege, and immunities” under the
Louisiana and U.S. Constitutions while “acting under
the color of state law.” (Id. ¶ VIII).
addition to his § 1983 claim, Jackson asserts causes of
actions under La. Civ. Code art. 2315 for injuries, including
loss of consortium, service, and society, caused by
Defendants' negligence and/or fault. (Id.
¶¶ X, XIII). Jackson also requests attorney's
fees pursuant to 42 U.S.C. § 1988. (Id. ¶
3, 2018, the Town of Bernice Police Department filed a motion
to dismiss, arguing it is not a legal entity capable of suing
or being sued. [doc #9]. This motion is unopposed. On July 3,
2018, Mayor William Mitcham, Police Chief Ricky Albritton,
the Bernice Town Aldermen, and the Town of Bernice filed a
motion to dismiss asserting that (1) attempted service on the
Bernice Town Aldermen is improper; and (2) plaintiff failed
to state a cause of action against the remaining defendants.
[doc #10]. Jackson filed a response on August 3, 2018. [doc #
16]. These matters are now before the court.
of Bernice Police Department
Town of Bernice Police Department argues it is not a legal
entity capable of suing or being sued. [see doc. #
9-1]. Capacity to sue or be sued is determined “by the
law of the state where the court is located.”
Fed.R.Civ.P. 17(b)(3). Under Louisiana law, an entity must
qualify as a “juridical person” to have the
capacity to be sued. Dejoie v. Medley, 945 So.2d
968, 972 (La.App. 2d Cir. 2006). “A juridical person is
an entity to which the law attributes personality, such as a
corporation or a partnership.” La. Civ. Code art. 24.
hold uniformly that police departments are not juridical
entities capable of being sued. Sipes v. City of
Monroe, No. CIV.A. 11-1668, 2013 WL 1282457, at *3 (W.D.
La. Mar. 28, 2013); see Roth v. City of Pineville,
No. 1:11-CV-02061, 2012 WL 1596689, at *2 (W.D. La. Apr. 3,
2012) (“[T]here is legal precedent which finds police
departments of Lawrason Act municipalities are not juridical
persons subject to suit as they are dependent upon their
municipalities in light of the governing structure set forth
in the Lawrason Act.”); Parnell v. Jefferson Par.
Sheriff's Office, No. CIV. A. 10-0074, 2010 WL
1817814, at *2 n.1 (E.D. La. Mar. 31, 2010) (collecting
IT IS RECOMMENDED that the motion to dismiss
filed by the Town of Bernice Police Department be
GRANTED and Plaintiff's claims against
it be DISMISSED WITH PREJUDICE. See
Darby v. Pasadena Police Dep't, 939 F.2d 311, 314
(5th Cir. 1991) (affirming dismissal with prejudice of police
department because it did not qualify as a juridical
Failure To State A Claim Upon Which Relief Can Be
action is removed from state court to federal court, federal
pleading standards control. Peña v. City of Rio
Grande City, 879 F.3d 613, 617 (5th Cir. 2018). Federal
Rule of Civil 12(b)(6) sanctions dismissal when plaintiff
fails “to state a claim upon which relief can be
granted.” A pleading states a claim for relief when,
inter alia, it contains “a short and plain
statement . . . showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2).
survive a motion to dismiss, 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)). A claim is facially plausible when it contains
sufficient “factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Plausibility
requires more than just the “sheer possibility”
that a defendant acted unlawfully, id.; it calls for
enough facts “to raise a reasonable expectation that
discovery will reveal evidence” to support the elements
of the claim. Twombly, 550 U.S. at 556. Mere
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” do not
suffice. Id. at 555.
evaluating the sufficiency of a complaint, a court must
accept as true all factual allegations in the complaint,
although the same presumption does not extend to legal
conclusions. See Iqbal, 556 U.S. at 678. A court may
permit a well-pleaded complaint to proceed even when
“actual proof of those facts is improbable” or
recovery is unlikely. Twombly, 550 U.S. at 556. But
a court will dismiss a complaint “where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct.” Iqbal,
556 U.S. at 679.
§ 1983 creates a private cause of action against every
person who, under color of law, deprives a “citizen of
the United States . . . of any rights, privileges, or
immunities secured by the Constitution and laws.” 42
U.S.C. § 1983. A § 1983 suit may be brought against
a party in its official or individual capacity, as well as
against a government entity. Goodman v. Harris Cty.,
571 F.3d 388, 395 (5th Cir. 2009).
establish municipal liability under § 1983, a plaintiff
must prove that “(1) an official policy (2) promulgated
by the municipal policymaker (3) was the moving force behind
the violation of a constitutional right.” Peterson
v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir.
2009); see Monell v. Dep't of Soc. Servs. of City of
New York, 436 U.S. 658, 691-94 (1978). “A
municipality is almost never liable for an isolated
unconstitutional act on the part of an employee; it is liable
only for acts directly attributable to it through some
official action or imprimatur.” Peterson, 588
F.3d 838 at 847 (internal quotations omitted). Further,
municipalities are not liable under § 1983 on the theory
of respondeat superior. Id.
official policy can exist in various forms, including written
policy statements, regulations, ordinances, or
“widespread practice that is so common and well-settled
as to constitute a custom that fairly represents municipal
policy.” Id. (internal quotations omitted).
Plaintiff may establish a custom or policy exists by
demonstrating (1) a pattern of unconstitutional conduct by
municipal actors or employees; or (2) a single
unconstitutional act by a final policymaker. Zarnow v.
City of Wichita Falls, Tex., 614 F.3d 161, 169 (5th Cir.
2010). Not every decision by a policymaker will subject a
municipality to liability under § 1983. Rather,
“[m]unicipal liability attaches only where the
decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered.”
Valle v. City of Houston, 613 F.3d 536, 542 (5th
Cir. 2010) (quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 481 (1986)). For liability to attach, there
must also be “a direct causal link between the
municipal policy and the constitutional deprivation.”
Piotrowski v. City of Houston, 237 F.3d 567, 580
(5th Cir. 2001).
against a party in its official capacity is generally
“another way of pleading an action against an entity of
which an officer is an agent.” Goodman, 571
F.3d at 395 (quoting Monell, 436 U.S. at 690 n.55).
Therefore, an official-capacity suit is treated as a suit
against the real party in interest-the government entity-and
not against the official personally. Id. “When
. . . the government entity itself is a defendant in the
litigation, claims against specific individuals in their
official capacities are redundant, and for that reason,
courts in this circuit have found it is appropriate to
dismiss them.” C ...