United States District Court, W.D. Louisiana, Lafayette Division
JASPER ROBINSON, ET AL.
GENE LIPPS, ET AL.
R. SUMMERHAYS, JUDGE
the Court in this civil rights suit is a Motion to Dismiss
pursuant to Fed. R, Civ. P. 12(b)(6), filed by Defendants
Lafayette City-Parish Consolidated Government
("LCG") and Officer Gene Lipps ("Lipps"),
individually and in his official capacity as a police officer
for LCG. [Doc. No. 15]. Pursuant to their motion, Defendants
seek dismissal of all claims brought against them by
Plaintiff Jasper Robinson ("Robinson") and his two
minor children. For the reasons set forth below, the motion
is GRANTED IN PART and DENIED IN PART.
I. Factual Background
Jasper Robinson brings this suit for violations of his
constitutional rights pursuant to 42 U.S.C. § 1983, as
well as related state law tort claims pursuant to this
Court's supplemental jurisdiction, 28 U.S.C. § 1367.
Robinson's Complaint alleges that:
. . .
On July 15, 2017, JASPER ROBINSON ("Mr.
Robinson") along with several family members and
friends attended his Mother's wedding which was located
on the corner of Cameron and St. Antoine Street in
Lafayette, Louisiana. Mr. Robinson briefly left the wedding
venue by foot to go to his mother's home which was
located on the 200th block of Bienville when a
fight broke out down the street involving 30 to 40 people.
Simultaneously Officer Gene Lipps was dispatched to the
corner of Bienville and Cameron where the disturbance was
taking place which was also located down the street from
where Mr. Robinson and his family were situated.
Officer Lipps made several verbal commands to the crowd
which had gathered around the altercation to move across
the street where Mr. Robinson and his family were located.
At such time, Mr. Robinson and his family proceeded to walk
in the street to observe what was going on.
Officer Lipps then moved across the street where Mr.
Robinson and about 10 to 15 of Mr. Robinson's family
and friends were standing and commanded them to get out of
the street. As Mr. Robinson complied, he asked Officer
Lipps not to touch him and moved off of the street. As a
result the following verbal exchange ensued:
Officer Lipps: I said get out of the street,
Mr. Robinson: Don't touch me, you can't touch me.
Officer Lipps: I can't really? You're blocking
Mr. Robinson: I ain't blocking no traffic.
Officer Lipps: You're blocking traffic would you like to
tell me what the law is.
Mr. Robinson: Man I ain't bothering you, handle ya
Officer Lipps: I'M ABOUT TO HANDLE MY BUSINESS
YOU DON'T QUIT TALKING AND JUST STAY OUT
Mr. Robinson; Quit talking for what? You ain't f***ing
with me baw.
Immediately following Mr. Robinson's last statement,
Officer Lipps charged Mr. Robinson who was in the middle of
a crowd of his family. Mr. Robinson and the rest of the
crowd backed up which resulted in Officer. Lipps [sic]
"suplex" slamming Mr. Robinson head first on the
concrete, In [sic] front of Mr. Robinsons Family member
[sic] including his two minor children ....
At the time of this violent attack Mr. Robinson did not
pose a threat to Officer Lipps. Mr. Robinson sustained
serious physical injuries to his lower back and knee, cuts
and bruises around his eye, knee, and elbows. Along with
mental and psychological injuries as a result of the attack
at the hands of Officer Lipps. [sic]
Mr. Robinson was subsequently arrested and charged with
Disturbing the Peace, Remaining after Forbidden, and
Resisting an Officer.
Mr. Robinson was brought to the Lafayette City-Parish
Consolidated Government Police Department, where he
received no medical attention for his injuries even after
specifically requesting medical services.
Officer Lipps acted with criminal intent and malice in the
attack of Mr. Robinson. Additionally, he filed false
charges to cover his criminal behavior and attack of Mr.
[Doc. 11 at 3-5 (emphasis in original)]
upon these allegations, Robinson asserts claims for: (1)
unlawful arrest by Lipps in violation of the Fourth Amendment
to the United States Constitution; (2) excessive force by
Lipps in violation of the Fourth Amendment to the U.S.
Constitution; (3) violation of his right to due process under
the Fourteenth Amendment of the U.S.
Constitution; (4) state law tort claims for false
arrest and imprisonment, assault and battery, failure to
provide medical attention, and negligent and intentional
infliction of emotional distress. Robinson additionally
asserts a claim of vicarious liability against
for the tortious acts of its employee, Officer Lipps.
Finally, Robinson and Andrea Williams assert state law claims
on behalf of their two minor children for loss of consortium
and bystander damages. [Doc. No. 11 at 6-7]
Standard of Review
to dismiss for failure to state a claim are appropriate when
a defendant attacks the complaint because it fails to state a
legally cognizable clam. Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001). A motion to
dismiss an action for failure to state a claim "admits
the facts alleged in the complaint, but challenges plaintiffs
rights to relief based upon those facts." Id.
at 161-62. When deciding a Rule 12(b)(6) motion, "[t]he
court accepts all well-pleaded facts as true, viewing them in
the light most favorable to the plaintiff." In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007) (internal quotation marks
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." Harold H.
Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796
(5th Cir. 2011) (internal quotation marks
omitted). The plausibility standard is met "when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). "When there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief." Id. at 679. However,
conclusory allegations and unwarranted deductions are not
accepted as true, and courts "are not bound to accept as
true a legal conclusion couched as a factual
allegation." Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)). A complaint which merely
"tenders naked assertions devoid of further factual
enhancement" will not survive a motion to dismiss.
Iqbal at 678 (internal quotation marks and
alterations omitted). Rather, "[f]actual allegations
must be enough to raise a right to relief above the
speculative level," and the pleading must contain
something more than a statement of facts which merely creates
a suspicion of a legally cognizable right of action.
Twombly at 555.
considering a Rule 12(b)(6) motion, a district court
generally "must limit itself to the contents of the
pleadings, including attachments thereto." Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498
(5th Cir.2000). However, "[t]he court may
also consider documents attached to either a motion to
dismiss or an opposition to that motion when the documents
are referred to in the pleadings and are central to a
plaintiffs claims." Brand Coupon Network, L.L.C. v.
Catalina Marketing Corp., 748 F.3d 631, 635
(5th Cir.2014). Further, "the court may
permissibly refer to matters of public record."
Cinel v. Connick, 15 F.3d 1338, 1343, n. 6
(5th Cir.1994); see also Test Masters
Educational Services, Inc. v. Singh, 428 F.3d 559, 570,
n. 2 (5th Cir.2005). This includes "the
record of the underlying litigation." Cal Dive
at 216, n. 1 (citing Norris v. Hearst Trust, 500
F.3d 454, 461, n. 9 (5th Cir. 2007)). Finally, a
complaint is also subject to dismissal under Rule 12(b)(6)
"when its allegations indicate the existence of an
affirmative defense that will bar the award of any remedy. .
. ." 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure Civil § 1357 (3d ed.
2004); Miller v. BAC Home Loans Servicing, L.P., 726
F.3d 717, 726 (5th Cir. 2013).