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Cloud v. Stone

United States District Court, W.D. Louisiana, Monroe Division

January 16, 2019

MARK DAVID CLOUD AND PATTI BRANDT CLOUD
v.
MIKE STONE, LINCOLN PARISH SHERIFF IN HIS OFFICIAL CAPACITY, ET AL.

          KAREN L. HAYES MAG. JUDGE.

          RULING

          TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE.

         Pending before the Court are motions to dismiss for failure to state a claim upon which relief can be granted [Doc. Nos. 11 & 20], and an associated request for fees [Doc. No. 11], filed by Defendant, John Belton, Lincoln Parish District Attorney, in his official capacity (“Belton”).

         On December 19, 2018, Magistrate Judge Karen L. Hayes issued a Report and Recommendation [Doc. No. 35] in which she recommended that the Court deny the motions and request for fees.

         On December 27, 2018, Belton filed objections to the Report and Recommendation [Doc. No. 36]. The deadline for responding to the objections has passed.

         Having conducted a de novo review of the record in this matter, the Court finds that Magistrate Judge Hayes correctly stated and applied the law, and the Court, thus, ADOPTS her Report and Recommendation. The Court issues this Ruling solely to address one of Belton's objections.

         Plaintiffs Mark Cloud and Patti Cloud brought this wrongful death and survival action under 42 U.S.C. § 1983 and Louisiana Civil Code Articles 2315.1 and 2315.2. They seek damages for the August 29, 2017 death of their son, Joshua Cloud, whom they contend was the victim of excessive force by Lincoln Parish Sheriff's Deputy Kyle E. Luker (“Luker”). Plaintiffs brought suit against Lincoln Parish Sheriff Mike Stone in his official capacity, Belton, and Luker.

         On October 16, 2018, Belton filed the instant Motion to Dismiss, arguing that Plaintiffs' Complaint failed to assert facts to support an excessive force claim, that he is entitled to prosecutorial immunity, and that there is no vicarious liability in § 1983 claims.

         Plaintiffs responded that they named Belton as a “defendant only in connection with [P]laintiffs' state law claims for assault, battery, and homicide.” [Doc. No. 16]. The following day, Plaintiffs also filed an Amended Complaint, expanding and clarifying their causes of action. Specifically, Plaintiffs now contend that the Luker was acting “in the course and scope of his work for [Belton] who is liable for [P]laintiffs' state law claims involving the assault, battery, and homicide of their son.” [Doc. No. 18].

         In light of the amendment, Magistrate Judge Hayes ordered Belton[1] to withdraw or supplement his motion. [Doc. No. 19]. Belton re-urged his motion to dismiss for failure to state a claim. Plaintiffs opposed the motion, arguing that Luker was an employee of Belton because he was working an “off-duty ‘LACE Detail, '” and was compensated by Belton. Plaintiffs further argued that Belton could obtain attorneys' fees under 42 U.S.C. § 1988 because they are not asserting a civil rights claim against him.

         In his reply, Belton conceded that he cannot recover attorneys' fees and voluntarily withdrew that request. However, he re-urged his argument that he is immune from suit, that he was not Luker's employer, and that, even if he were Luker's employer, he could not be vicariously liable for an intentional tort.

         On December 19, 2018, Magistrate Judge Hayes issued a Report and Recommendation [Doc. No. 35] in which she found that Plaintiffs' factual allegations “sets forth plausible vicarious liability claims under state law against . . . Belton, sufficient to afford defendant fair notice of the claims against him, along with the reasonable expectation that discovery will reveal relevant evidence for each of the elements of the claim(s).” Id. at p. 10.

         To the extent that Belton raises objections to the Report and Recommendation argued to Magistrate Judge Hayes, the Court has adopted the Report and Recommendation. However, in his objections, Belton also argues for the first time that he is immune from suit pursuant to La. Rev. Stat. 9:2798.1, which provides:

Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise their ...

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