United States District Court, W.D. Louisiana, Lafayette Division
Michael J. Juneau Judge
REPORT AND RECOMMENDATION
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE
the Court on assignment by the district judge is a Motion To
Dismiss For Failure to State a Claim Upon Which Relief Can Be
Granted Regarding Plaintiffs' Second Amended Complaint
filed by Defendants, Town of Duson (“Duson”);
Chief Kip Anthony Judice (“Chief Judice”),
Individually; Officer Timothy Clyde Cannon, Individually;
Officer Calvin Joseph Francis, Jr., Individually; and Officer
Brian Thomas Poirot, Individually (collectively known as the
“Duson Defendants”) [Rec. Doc. 56], Plaintiffs,
Lionello Paul Angelle and Carla Anne Siner's, Memorandum
in Opposition [Rec. Doc. 60] and the Duson Defendants'
Reply [Rec. Doc. 63]. For the reasons that follow, the Court
recommends that the Motion filed by the Duson Defendants be
before the Court is a Motion To Dismiss For Failure to State
a Claim Upon Which Relief Can Be Granted Regarding
Plaintiffs' Second Amended Complaint filed by Defendant,
Thomas Blake Soileau a Deputy with the Lafayette Parish
Sheriffs Office, Individually (“Deputy Soileau”)
[Rec. Doc. 64], and Plaintiffs' Memorandum in Opposition
[Rec. Doc. 70]. For the reasons that follow, the Court
recommends that the Motion filed by Defendant Soileau be
granted in part and denied in part.
case arises out of the May 9, 2017 arrest of Plaintiffs and
the subsequent search of their property by the Duson Police
Department and the Lafayette Parish Sheriffs Office.
Plaintiffs were originally arrested by officers of the Duson
Police Department on a charge of armed robbery of Roady's
Lucky Deuces Casino (“the Casino”) in Duson,
Louisiana. After viewing the Casino's security camera
video of the armed robbery, Officer Cannon prepared
affidavits and search warrants for the search of
Angelle's automobile and Siner's residence which were
signed by Commissioner Frederick to allow for a search of
items believed to be owned, used and/or obtained in the armed
robbery. Plaintiffs alleged that both search warrants were
executed by officers of the Duson Police Department and
“deputies of the Lafayette Parish Sheriffs
Office” including Detective Soileau. R. 54, ¶
8. Plaintiffs further alleged that the search warrant
and affidavit “were shown to Detective Soileau before
the search of the residence.” Id. at
¶ 9. Upon conducting the search, instead of
finding items related to the armed robbery the officers
located illegal drugs, a handgun, and a counterfeit $100
bill. In light of the items found during the search of the
vehicle and residence pursuant to the search warrants, on May
9, 2017, Plaintiffs were arrested a second time on drug and
after Plaintiffs' second arrest, another casino in St.
Landry Parish was robbed on May 10, 2017 under very similar
circumstances. Leads developed quickly and the robbers for
the St. Landry Parish robbery were identified. The armed
robbery charges against Plaintiffs were dismissed on May 11,
2017. R. 1-5.
October 2017, a hearing and probable cause determination was
conducted on Plaintiffs' motion to suppress related to
the search of their vehicle and residence. The probable cause
determination was held first, and Louisiana State District
Judge Jules Edwards determined that there was probable cause
for plaintiffs' arrests. In the hearing on the motion to
suppress, upon viewing the video used by the defendant
officers in applying for the warrants, Judge Edwards reached
a different conclusion than the officers, ruling that he did
not perceive similarities in the gait of the female suspect
walking on the date of the robbery, and that the male suspect
did not have the distinct potbelly as that of Mr. Angelle. R.
31-3, October 18, 2017 hearing transcript. Because
Judge Edwards did not view the various characteristics
described in the search warrants as described by Officer
Cannon, he ruled to suppress the evidence, finding that the
search warrants were flawed. Since the drugs, gun and
counterfeit $100 bill were the only physical evidence against
Plaintiffs, the District Attorney's office dismissed the
charges against them.
filed this lawsuit on March 5, 2018, asserting claims under
42 U.S.C. § 1983 and Louisiana state law against the
Defendants for their arrest and subsequent prosecution. R. 1.
Plaintiffs asserted a claim for Plaintiffs'
“racially motivated” arrests under the Fifth and
Fourteenth Amendments, Id., a claim for
“unreasonable search and seizure” under the
Fourth and Fourteenth Amendments and various state law
claims. On May 9, 2018, Plaintiffs amended their complaint in
response to Defendants' first Motion to Dismiss, R.
18, adding a claim for excessive force as to Plaintiff
Siner, a malicious prosecution claim in violation of the
Fourth and Fourteenth Amendments and a Monell claim
against Duson and Chief Judice. R. 26.
August 7, 2018, this Court issued a Report and
Recommendation, R.40, regarding the Duson
Defendants' first motion to dismiss for failure to state
a claim. R. 31. In the Report and Recommendation the Court
recommended that Plaintiffs' Monell claim for
failure to train, Fourteenth Amendment claims for excessive
force, malicious prosecution, and right to investigation, and
§ 1983 “freestanding” malicious prosecution
claim be dismissed. The Court also recommended that
Plaintiffs' be required to amend their Complaint as to
the constitutional violations under § 1983 and state
law. Plaintiffs filed a motion for leave to file a second
amended petition which this Court dismissed without prejudice
until the district judge issued a ruling on the pending
Report and Recommendation. On September 26, 2018, a Judgment
was issued adopting the Report and Recommendation. R. 51. On
October 10, 2018, Plaintiffs filed a motion for leave to file
their second amended complaint. R. 52. Thereafter, Plaintiffs
filed the instant motion to dismiss.
their motion, the Duson Defendants initially complain that,
despite Plaintiffs' representations that they had removed
their claims of excessive force for physical injuries
stemming from their arrest, those claims remain in their
Second Amended Complaint. R. 56. They further complain that
Plaintiffs' amended complaint fails to state a claim for
malicious prosecution, for “failure to investigate, an
Eighth Amendment claim, and fails to provide specific facts
regarding qualified immunity for each named defendant.
Id. Soileau's motion contains similar assertions
as to Plaintiffs' Second Amended Complaint. R. 64.
their opposition to the Duson Defendants' motion,
Plaintiffs represent that they no longer assert any of the
claims listed by Defendants with the exception of
their claim that the second arrests violated their Fourth
Amendment rights and their malicious prosecution claim
founded on Fourth Amendment grounds. R. 60. The
Court will address these remaining claims in both motions
under consideration as well as the defense of qualified
immunity as to Officer Cannon asserted by the Duson
Defendants and as to Deputy Soileau.
LEGAL STANDARD RULE 12(b)(6) MOTION TO DISMISS
motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure is properly
granted when a defendant attacks the complaint because it
fails to state a legally cognizable claim. Ramming v.
U.S., 281 F.3d 158, 161 (5th Cir. 2001). When
considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a district court must limit itself to
the contents of the pleadings, including any attachments
thereto. Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498 (5th Cir. 2000). The court must accept all
well-pleaded facts as true, and it must view them in the
light most favorable to the plaintiff. In re Katrina
Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.
2007). However, conclusory allegations and unwarranted
deductions of fact are not accepted as true, Collins
at 498, 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
survive a Rule 12(b)(6) motion, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. The
allegations must be sufficient “to raise a right to
relief above the speculative level, ” Id. at
555. and “the pleading must contain something more ...
than ... a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action.”
Id. (quoting 5 C. Wright & A. Miller,
Federal Practice and Procedure § 1216, pp.
235-36 (3d ed. 2004)). “While a complaint ... 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 ...