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Mocsary v. Ard

United States District Court, M.D. Louisiana

September 25, 2018

JOSEPH MOCSARY
v.
JASON ARD, SHERIFF OF LIVINGSTON PARISH, ET AL

          RULING

          SHELLY D. DICK CHIEF JUDGE.

         This matter is before the Court on the Motion to Dismiss[1] by Defendant, Sheriff Jason Ard, Sheriff of Livingston Parish (“Sheriff Ard”) and the Motion to Dismiss[2] by Defendants, Warden Perry Rushing (“Warden Rushing”), Warden of Livingston Parish Detention Center, Deputy Eric Lockhart (“Lockhart”), Deputy Jacob McKnight (“McKnight”), and Deputy Trey Roberts (“Roberts”)(or collectively “Defendants”), of the Livingston Parish Sheriff's Office (“LPSO”). Plaintiff, Joseph Mocsary (“Plaintiff”), has filed Oppositions[3] to these motions, to which Defendants filed Replies.[4]

         I. FACTUAL BACKGROUND[5]

         Plaintiff filed this lawsuit on November 30, 2017 asserting claims under 42 U.S.C. § 1983 and Louisiana law.[6] Specifically, Plaintiff alleges that, on December 1, 2016, Plaintiff was in the custody of the Livingston Parish Detention Center (“LPDC”) and was being transported from McKnight's vehicle to the booking area of the prison.[7] Due to his admitted intoxication, Plaintiff was having a difficult time getting out of the vehicle.[8] As a result, Plaintiff alleges McKnight and Lockhart “forcibly and aggressively removed Plaintiff from the vehicle, dragging him out face down with his arms handcuffed behind his back into the building's booking area.”[9] Plaintiff alleges that he cried out in pain numerous times to alert the deputies to his distress as he was experiencing unbearable agony in both shoulders, but he was ignored.[10] Plaintiff contends his cries were interpreted as hostility, and he was thrown to the floor.[11] At that point, Plaintiff stood up and angrily cried out, “They will pay for what they did to me.”[12]

         Later that same day, Plaintiff alleges that, while still intoxicated, he began to “jokingly” splash water from the sink in the decontamination room at a deputy.[13] In response, the unidentified deputy tazed Plaintiff causing him to fall and hit his head on a sink which caused injury to his right eye.[14] Plaintiff alleges the deputy said, “Look what you made me do.”[15]

         Following these events, Plaintiff alleges he suffered extreme pain to his head, shoulders, and lower abdomen.[16] He was transported to Lallie Kemp Medical Center (“LKMC”) where he received four stiches in his right eye but complains that his shoulder injury was not addressed.[17] Following discharge, Plaintiff claims he was returned to LPDC and placed in isolation.[18]

         Plaintiff claims that, on December 5, 2016, numerous deputies observed his severely bruised neck, arms, and shoulders following a shower.[19] Thus, Plaintiff alleges he was seen by Dr. Wyler at LPDC on December 12, 2016 and was “finally granted additional medical treatment” at LKMC; however, during the treatment, Plaintiff alleges that the LPSO “interfered in the evaluation process” by not allowing Plaintiff to discuss the outcome of initial x-rays with the technician.[20]

         On February 21, 2017, Plaintiff alleges he was transported to University Hospital where an orthopedic surgeon diagnosed him with a broken shoulder and ordered an MRI.[21] Plaintiff alleges that he underwent the MRI approximately six weeks later, and the MRI offered a limited diagnosis of four major tears and a rupture.[22]

         Subsequent to his treatment at University Hospital, Plaintiff alleges he continued to suffer with pain and discomfort but was never given any pain medication except an excess of ibuprofen, which he claims caused him additional health problems.[23] Plaintiff alleges he was never offered a sling or any other support for his shoulder.[24]

         II. CLAIMS

         Although the Complaint is not a model of clarity, Plaintiff appears to bring federal claims pursuant to 42 U.S.C. § 1983 against all Defendants in both their individual and official capacities. Plaintiff contends each of the Defendants violated his due process rights under the Fourteenth Amendment and subjected him to “unconstitutional punishment” and cruel and unusual punishment purportedly in violation of the Eighth Amendment. In his “Preliminary Statement, ” Plaintiff contends the Defendants demonstrated “deliberate indifference” to his safety and security in violation of his Eighth and Fourteenth Amendment rights.[25] Plaintiff's only reference to the Fourth Amendment is in his statement of Jurisdiction wherein he states that “this action is brought pursuant to 42 U.S.C. § 1983 and 1988 and the fourth … amendments to the Constitution of the United States.”[26] Although Plaintiff does plead facts consistent with a claim of Fourth Amendment excessive force, the phrase “excessive force” appears nowhere in the Complaint.

         It is also unclear whether Plaintiff has asserted a claim of deliberate medical indifference under the Eighth Amendment. As will be set forth below, Plaintiff pleads facts that are consistent with such a claim, but this claim is never set forth with specificity or clarity. Because the Court must consider this motion in the light most favorable to Plaintiff, and the Court must accept Plaintiffs' factual allegations as true at the Rule 12(b)(6) stage, the Court will assume for purposes of these motions that Plaintiff has stated a claim for Fourth Amendment excessive force and Eighth Amendment cruel and unusual punishment in the form of deliberate medical indifference.

         Plaintiff brings Section 1983 claims against Sheriff Ard alleging that he tolerated institutionalized practices and ratified the misconduct of his officers by failing to properly supervise, train, discipline, and control his employees; by failing to take adequate precautions in hiring, promoting, and retaining personnel; by failing to establish a system to address police misconduct and deliberate indifference; by ratifying a policy of improperly investigating complaints of misconduct; and by failing to train and supervise his employees.[27] Plaintiff further alleges that Sheriff Ard violated his Fifth Amendment rights.[28]

         Plaintiff alleges that all Defendants violated his rights under the constitution and laws of the State of Louisiana.[29] Specifically, Plaintiff alleges that all Defendants are liable for the state law claims of intentional infliction of emotional distress (“IIED”), failure to protect, and negligent supervision.[30]

         All Defendants have moved to dismiss Plaintiff's claims for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         III. LAW AND ANALYSIS

         A. Motion to Dismiss Under Rule 12(b)(6)

         When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'”[31] The Court may consider “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”[32] “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.'”[33] In Twombly, the United States Supreme Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[34] A complaint is also insufficient if it merely “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”[35] However, “[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[36] In order to satisfy the plausibility standard, the plaintiff must show “more than a sheer possibility that the defendant has acted unlawfully.”[37] “Furthermore, while the court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.'”[38] On a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”[39]

         B. Federal Claims under 42 U.S.C. § 1983

         The Civil Rights Act of 1964, 42 U.S.C. § 1983, creates a private right of action for redressing the violation of federal law by those acting under color of state law.[40] It provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....[41]

         “Section 1983 ‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights conferred elsewhere.'”[42]

         To prevail on a Section 1983 claim, a plaintiff must prove that a person acting under the color of state law deprived him of a right secured by the Constitution or laws of the United States.[43] A Section 1983 complainant must support his claim with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations.[44]

         C. Sheriff Ard's Motion to Dismiss - Federal Claims

         Allegations Against Sheriff Ard

         Plaintiff's Complaint alleges as follows against Sheriff Ard:

On information and belief, the abuse to which complainant was subjected was consistent with an institutionalized practice of the Livingston Parish Detention Center, which was known to and ratified by defendant Sheriff Ard and Warden Doe, [45] the defendants having at no time taken any effective action to prevent persons in their custody and police personnel form continuing to engage in such misconduct.[46]
On information and belief, defendant Sheriff Ard and the Livingston Parish Detention Center authorized, tolerated as institutionalized practices, and ratified the misconduct hereinbefore detailed by:
(a) Failing to properly discipline, restrict, and control employees, including defendant deputies, known to be irresponsible in their dealings with protection of inmates;
(b) Failing to take adequate precautions in the hiring, promotion, and retention of deputy personnel, including the defendants herein;
(c) Failing to establish and/or assure the functioning of a bona fide and meaningful department system for dealing with complaints of police misconduct, but instead responding to such complaints with bureaucratic power and official denials calculated to mislead the public.[47]
***
The hereinabove described actions and omissions, engaged in under color of state authority by defendants Sheriff Ard and the Livingston Parish Sheriff's Office, sued as a person, responsible because of its authorization, condonation, and ratification thereof for the acts of its agents, deprived the complainant of rights secured by him by the Constitution of the United States, including, but not limited to, intentional infliction of emotional distress, failure to protect, and negligent supervision, in addition to his Fifth and Fourteenth amendment rights to due process of law and his Eighth amendment rights to be free from cruel and unusual punishment.[48]
***
It was the policy and/or custom of Sheriff Ard and the Livingston Parish Sheriff's Office to inadequately and improperly investigate complaints of misconduct and Sheriff Ard and the Livingston Parish Sheriff's Office instead tolerated acts of misconduct.[49]

         Sheriff Ard - Official Capacity Claims

         Sheriff Ard moves to dismiss the Section 1983 claims brought against him in his official capacity. A suit against a government official in his official capacity is the equivalent of filing suit against the government agency of which the official is an agent.[50]Accordingly, the claims against the Sheriff in his official capacity are, in effect, claims against the municipal entity he represents, which is Livingston Parish.[51] A plaintiff asserting a Section 1983 claim against a municipal official in his official capacity or a Section 1983 claim against a municipality “must show that the municipality has a policy or custom that caused his injury.”[52] To establish an “official policy, ” a plaintiff must allege either of the following:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated the policymaking authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.[53]

         Although “a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity, ”[54] absent an official policy, actions of officers or employees of a municipality do not render the municipality liable under Section 1983.[55] A municipality cannot be held liable under Section 1983 for the tortious behavior of its employees under a theory of respondeat superior.[56] “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.”[57]

         The Supreme Court has held that municipal policies and practices amounting to deliberate indifference with respect to training, supervision, and/or hiring may give rise to Section 1983 liability.[58] The Fifth Circuit has held that an official is liable under Section 1983 for a failure to train or supervise only where a plaintiff establishes that: “(1) the official failed to train or supervise the officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's rights; and (3) the failure to train or supervise constituted deliberate indifference to the plaintiff's constitutional rights.”[59] A complaint must show that, “through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged.”[60] To state a claim, plaintiffs “must plead facts showing that a policy or custom existed, and that such custom or policy was the cause in fact or moving force behind a constitutional violation.”[61]

         In this case, Plaintiff has failed to plead any facts sufficient to state an official capacity claim against Sheriff Ard. Primarily, Plaintiff pleads only conclusions of law rather than facts. Further, Plaintiff fails to plead the existence of any specific policy or custom, fails to plead that Sheriff Ard adopted or promulgated such a policy or custom, or that such policy or custom was widespread. The Complaint simply asserts, in conclusory fashion, that “the abuse to which complainant was subjected was consistent with an institutionalized practice of LPSO and the LPDC, which was known to and ratified by Sheriff Ard[.]”[62] There are likewise no specific factual allegations to support a claim that the alleged failures on the part of Sheriff Ard were causally connected to the alleged constitutional violations suffered or were deliberately indifferent to the plaintiff's constitutional rights. It is not enough to recite these words in a complaint; rather, Plaintiff is required to provide specific factual support for these allegations and a basis of proof for which Plaintiff claims to have such knowledge.

         Similar claims were brought against Sheriff Ard in this Court in Norton v. Livingston Parish Detention Center, and the Court addressed those boiler-plate, conclusory, formulaic recitations the same way: “There are no factual allegations as to what this alleged policy was or what it involved. … Again, there is no factual allegation as to what these policies and procedures were, and whether or not they constituted an ‘official policy' so as to hold Defendant Ard liable in his official capacity.”[63]

         Here, Plaintiff has not asserted any factual allegation of a pattern or widespread, repeated history involving Sheriff Ard and the type of “abuse” Plaintiff claims he suffered, both with respect to the alleged aggressive “punishment” at the hands of the deputies and the alleged lack of medical care he received. Plaintiff cites jurisprudence that isolated incidents can, in certain circumstances, constitute a policy for which a municipality may be liable. Plaintiff's reliance on this exception is misplaced.[64]

         The Fifth Circuit has “consistently held ... that ‘[a]llegations of an isolated incident are not sufficient to show the existence of a custom or policy.'”[65] This is because “[i]solated violations are not the persistent, often repeated constant violations that constitute custom and policy.”[66] However, “a single decision by a policy maker may, under certain circumstances, constitute a policy for which [a municipality] may be liable.”[67]Even so, “[t]he single incident exception is a narrow one, and one that [the Fifth Circuit has] been reluctant to expand.”[68]

         This Court has previously addressed the narrow single incident exception from Brown as follows:

In Brown, the Fifth Circuit found the single incident exception to apply when there was an utter failure to train and supervise. Brown v. Bryan County, Okla., 219 F.3d 450, 462 (5th Cir. 2000). The Fifth Circuit later stated in Cozzo v. Tangipahoa Parish Council, 279 F.3d 273 (5th Cir. 2002), that the single incident exception applied in Brown because the county in that case “failed to provide any training or supervision for a young, inexperienced officer with a record of recklessness.” Cozzo, 279 F.3d at 288 (internal quotation marks and citations omitted). The court also noted that “there is a difference between a complete failure to train as in [Brown] and a failure to train in one limited area.”[69]

         In the present case, Plaintiff referenced the single incident exception; however, there is no allegation in the Complaint that would suggest this very narrow exception applies. Plaintiff alleged no facts with respect to any deputies involved that would suggest youth, inexperience, a known record of recklessness or a criminal or violent background, or a complete failure to train rather than a limited, specific failure to train. In Plaintiff's Opposition, Plaintiff did not argue why this exception should apply to his case.

         Further, the Court finds that Plaintiff's conclusory allegations of a policy or “institutionalized” practice “effectively amount[s] to a formulaic recitation of the elements of [his] 42 U.S.C. § 1983 cause of action.”[70] As explained by the Fifth Circuit, “[t]he description of a policy or custom and its relationship to the underlying constitutional violation ... cannot be conclusory; it must contain specific facts.”[71]

         Accordingly, because Plaintiff has made no factual allegations to support a claim as to the existence of any actual policy or custom that Sheriff Ard fails to train and supervise his employees in deliberate indifference to the constitutional rights of others, and he has made no factual allegations sufficient to show a widespread pattern or practice of same, Plaintiff's claims against Sheriff Ard in his official capacity must be dismissed.

         Sheriff Ard - Individual Capacity Claims

         Plaintiff has claimed generally that Sheriff Ard failed to properly supervise and discipline his employees and authorized, condoned, and ratified the misconduct of his employees. Sheriff Ard moves to dismiss the individual capacity claims brought against him, arguing Plaintiff has failed to allege any specific conduct or personal involvement by him that gives rise to a constitutional violation. Sheriff Ard argues Plaintiff has made no allegations that he was personally involved in any of the specific incidents complained of during the booking process or his medical treatment; thus, Plaintiff has failed to state a claim against him in his individual capacity. Further, Sheriff Ard argues that Plaintiff's Complaint consists of nothing more than conclusory allegations that he is liable for his “authorization, condonation, and ratification of the conduct of his deputies, as well as the failure to supervise his deputies.”[72] Sheriff Ard also asserts the defense of qualified immunity.

         In opposition to Sheriff's Ard's assertion of the qualified immunity defense, Plaintiff claims that Sheriff Ard “bears the burden of showing no genuine issue of material fact exist [sic] for trial.”[73] Plaintiff incorrectly applies the summary judgment standard rather than the Rule 12(b)(6) standard applicable to this motion. While Plaintiff does acknowledge that, once a defendant asserts the defense of qualified immunity, the burden shifts to a plaintiff to rebut it, Plaintiff simply quotes boiler plate law on the standard for supervisory liability and then again argues that the Court should deny Sheriff Ard's motion to dismiss on a summary judgment standard: “The court should not dismiss the case based on qualified immunity because a jury should decided [sic] whether after looking at the facts whether [sic] Sheriff Ard is liable under supervisory liability because, strong facts suggest that they [sic] are.”[74] The problem with Plaintiff's argument is that no facts have been pled that suggest personal involvement by Sheriff Ard or that address or overcome Sheriff Ard's assertion of qualified immunity.

         The Fifth Circuit has held that, in a claim asserted under Section 1983, “[a] plaintiff must establish that the defendant was either personally involved in the deprivation or that his wrongful actions were causally connected to the deprivation.”[75] Plaintiff has not alleged that Sheriff Ard was personally involved in any of the incidents that allegedly caused Plaintiff's injuries, and he has not alleged that Sheriff Ard was personally involved in any of Plaintiff's medical treatment decisions. As to qualified immunity, the Fifth Circuit has also held that it is appropriate to decide the issue on a motion to dismiss, and it is not necessary to wait to submit the issue to a jury.[76]

         Qualified Immunity

         In Harlow v. Fitzgerald, the United States Supreme Court established the principle that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[77]“When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the inapplicability of the defense.”[78]

         A claim of qualified immunity requires the Court to engage in the well-established two-step analysis developed by the Supreme Court in Saucier v. Katz.[79] As stated by the Fifth Circuit in the context of a motion for summary judgment:

First, we determine whether, viewing the summary judgment evidence in the light most favorable to the plaintiff, the defendant violated the plaintiff's constitutional rights. See, e.g., Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005); McClendon v. City of Columbia, 305 F.3d 314, 322-23 (5th Cir.2002) (en banc); Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). If not, our analysis ends. If so, we next consider whether the defendant's actions were objectively unreasonable in light of clearly established law at the time of the conduct in question. See, e.g., Tarver, 410 F.3d at 750; Glenn, 242 F.3d at 312. To make this determination, the court applies an objective standard based on the viewpoint of a reasonable official in light of the information then available to the defendant and the law that was clearly established at the time of the defendant's actions. See Glenn, 242 F.3d at 312; Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000); see also Tarver, 410 F.3d at 750 (“If officers of reasonable competence could disagree as to whether the plaintiff's rights were violated, the officer's qualified immunity remains intact.”).[80]

         When the defense of qualified immunity is raised in a Rule 12(b)(6) motion, “it is the defendant's conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness'.”[81] The plaintiff must support his claim with “sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts.”[82] When greater detail is required to address the defense of qualified immunity, the Court may insist that a plaintiff file a reply pursuant to Federal Rule of Civil Procedure 7(a) tailored to an answer pleading the defense of qualified immunity.[83] “The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts.”[84]

         Plaintiff has alleged that Sheriff Ard failed to properly supervise and train his employees and that he tolerated, condoned, authorized, and ratified both the misconduct of his employees and ostensibly substandard medical treatment to those in his custody. The law requires that the constitutional violations alleged under Section 1983 must be specified by the plaintiff and must rest on “more than conclusions alone.”[85] A plaintiff “must also prove that the alleged constitutional or statutory deprivation was intentional or due to deliberate indifference - not the result of mere negligence.”[86]

         Plaintiff has failed to plead facts to support any personal involvement on the part of Sheriff Ard, any causal connection to the alleged incidents, or any factual basis for the claim that Sheriff Ard failed to supervise or train his employees. As such, Plaintiff has not alleged that Sheriff Ard committed a constitutional violation under current law; thus, Plaintiff's claims fail the first prong of the two-part qualified immunity test. Accordingly, the Court need not determine whether Sheriff Ard's actions were objectively unreasonable. Therefore, Plaintiff's individual capacity claims against Sheriff Ard must be dismissed.

         However, as set forth above in Schultea v. Wood, “this two-step process-requiring the plaintiff to file a short and plain statement of his claim pursuant to Rule 8(a)(2) followed by a more particularized reply pursuant to Rule 7(a) is the preferred procedure preceding consideration of a motion to dismiss on grounds of qualified immunity.”[87] Indeed,

[t]here has to be more underlying a complaint than a hope that events happened in a certain way. Instead, in the “short and plain” claim against a public official, “a plaintiff must at least chart a factual path to the defeat of the defendant's immunity, free of conclusion.” Schultea, 47 F.3d at 1430. Once that path has been charted with something more than conclusory statements, limited discovery might be allowed to fill in the remaining detail necessary to comply with Schultea.[88]

         Therefore, in accordance with Schultea, and because the Court has not previously granted Plaintiff leave to amend, the Court will allow Plaintiff leave to amend within twenty-one (21) days from the date of this ruling and to file a response that complies with Rule 7(a).

         D. Warden Rushing's Motion to Dismiss - Federal Claims

         Allegations ...


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