United States District Court, W.D. Louisiana, Monroe Division
L. HAYES MAG. JUDGE.
A. DOUGHTY UNITED STATES DISTRICT JUDGE.
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”).
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
December 27, 2018, Belton filed objections to the Report and
Recommendation [Doc. No. 36]. The deadline for responding to
the objections has passed.
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.
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.
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.
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].
light of the amendment, Magistrate Judge Hayes ordered
Belton 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.
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.
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.
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
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 ...