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Sherman v. Irwin

United States District Court, E.D. Louisiana

January 18, 2019

LISA SHERMAN, ET AL.
v.
LUKE IRWIN, ET AL.

         SECTION: “J” (2)

          ORDER AND REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE

         Before the Court is a Partial Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 32) filed jointly by the former chief of the Slidell Police Department, Randy Smith, and the City of Slidell (collectively, the “Defendants”). This Court ruled on the Defendants' prior motion to dismiss (Rec. Doc. 12) in July of 2018. (Rec. Doc. 27). After Plaintiffs filed an amended complaint (Rec. Doc. 31), former Chief Smith and the City filed the instant Motion. Ms. Sherman filed an opposition (Rec. Doc. 35), to which the Defendants replied (Rec. Doc. 39). Having considered the Motion and legal memoranda, the record, and the applicable law, the Court finds that the Motion should be GRANTED IN PART and DENIED IN PART.

         FACTS AND PROCEDURAL BACKGROUND

         In addition to dismissing most of the Plaintiffs' claims without prejudice, this Court's July order and reasons also granted the motion for a more definite statement filed by another defendant in the case, Officer Luke Irwin of the Slidell Police Department.[1] In accordance with the Court's order, Plaintiffs filed a supplemental and amending complaint.[2] Whereas the Plaintiffs' original complaint sketched out only the most basic picture of the abusive relationship Ms. Sherman alleges Officer Irwin maintained with her, the supplemental complaint adds several pages describing Officer Irwin's sexual assaults in great detail. Ms. Sherman alleges that, beginning in February of 2015, Officer Irwin used various threats-both express and implied-to coerce her into having sex with him on multiple occasions. On other occasions Officer Irwin allegedly relied on physical force.

         For example, Plaintiff alleges that in February of 2015, after she told Officer Irwin that she did not want to carry on a sexual relationship with him, he replied that she “had no choice in the matter.”[3] He later threatened that it would be easy to place cocaine in someone's gas tank and have them pulled over and that people can be made to disappear.[4] Ms. Sherman alleges that in April of 2015, Officer Irwin threatened to use his power as an officer of the Slidell Police Department to have Ms. Sherman and another woman arrested if they did not engage in sexual acts with him.[5]Ms. Sherman claims that Officer Irwin arrived at her home and arranged for another victim, R.W., to come to her house. Officer Irwin had her undress and he “ultimately penetrated Ms. Sherman and had R.W. fondle [Ms. Sherman].”[6] He then reminded the women that he had the power to send them to jail with a single phone call.[7]

         Ms. Sherman also gives some specificity to her allegation that “Chief Smith . . . knew or should have known of Officer Irwin's coercion and intimidation of Ms. Sherman under color of state law.”[8] Ms. Sherman claims that she met with Chief Smith in April of 2015 at a Starbucks to talk to him about Officer Irwin. She says that Chief Smith brushed off her concerns as being a private matter that did not involve him.[9]

         Ms. Sherman avers Officer Irwin's sexual assaults continued after this conversation with former Chief Smith. On May 5, 2015, Officer Irwin allegedly forced Ms. Sherman to perform oral sex on him as “punishment” for not going along with an attempt to cover-up his conduct.[10] He did so while in uniform and in his department vehicle. Ms. Sherman also alleges that Officer Irwin raped her inside of his department vehicle in June of 2015. On that occasion, Officer Irwin allegedly coerced Ms. Sherman into his car by threatening her probation and her custody of her children.[11] Ms. Sherman alleges that upon reaching a dark parking lot, Officer Irwin drew his service weapon and placed it close to her head. When she protested she did not want to have sex with him, Officer Irwin forced her to do so by making her afraid for her life.[12]

         Ms. Sherman claims that in December of 2015, she spoke with former Chief Smith and questioned whether he had told Officer Irwin to leave her alone.[13] Former Chief Smith allegedly replied that the matter did not involve him and told Ms. Sherman to leave him alone. Ms. Sherman avers that Chief Smith approached her in January of 2016 at a parade to ask if the situation between her and Officer Irwin was ongoing.[14] Ms. Sherman alleges that she told Chief Smith she would be filing a formal complaint with the department and that Chief Smith responded aggressively that he would not consider the matter, noting it might interfere with the St. Tammany Parish Sheriff election. Again, Ms. Sherman is not explicit in what she alleges she told Chief Smith, but elsewhere in the complaint she does claim that Chief Smith had “actual knowledge of Officer Irwin's actions.”[15]

         Ms. Sherman alleges that the last sexual assault occurred on May 5, 2016.[16]On that date, Officer Irwin allegedly called Ms. Sherman and told her that he had informed his wife and his superiors about their relationship.[17] Officer Irwin said that Ms. Sherman needed to take a ride with him so that he could tell her what to say if she was approached by his superior. Ms. Sherman said she did not want to go-she had no one to watch her children-but she relented when “Officer Irwin's voice changed and he said Lisa this is my career get in the truck.”[18]

         Ms. Sherman agreed to go for a ride with Officer Irwin. She put her youngest child to bed and then walked outside to get in Officer Irwin's SUV. She alleges that Officer Irwin then drove them through her neighborhood and down a service road.[19] Officer Irwin told Ms. Sherman that if anyone approached her she should not mention anything. Ms. Sherman agreed. Ms. Sherman claims that “Officer Irwin said that she had betrayed him once and not to let it happen again.”[20] Ms. Sherman alleges that Officer Irwin then drove to a secluded area and sexually assaulted her yet again:

Officer Irwin drove all the way to the back of a road where he said he needed stress relief. He wanted Ms. Sherman to perform oral sex on him. Ms. Sherman told him no[, ] but Officer Irwin grabbed her, pulled her closer to him and said hurry up I have no time for your (expletive deleted). Oral sex was performed[, ] and Officer Irwin had his hand in Ms. Sherman's shorts which he then moved up to her breasts rubbing them[.] Officer Irwin had on his SPD shield with his necklace attached to it. His gun was on the center of [the] floor board of the black SUV.[21]

         In sum, Ms. Sherman claims that Officer Irwin used his position as an officer of the Slidell Police Department to keep Ms. Sherman in a non-consensual sexual relationship with him. “Chief Smith could have ended Officer Irwin's predation but declined to do so or to properly investigate the situation.”[22]

         LEGAL STANDARD

         Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (internal citations omitted). The allegations “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1).

         “Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of his claim which would entitle him to relief.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. “[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor, 296 F.3d at 378.

         DISCUSSION

         I. Plaintiff's Official Capacity Suit against Chief Smith Is Duplicative

         The Court understands Plaintiffs' complaint to assert claims against Chief Smith in his official and individual capacities. “Because official capacity suits are really suits against the governmental entity, [Plaintiff's] attempt to hold [former Chief Smith] liable for failing to train and supervise, if in his official capacity, is subsumed within her identical claim against [the City].” Goodman v. Harris Cty., 571 F.3d 388, 396 (5th Cir. 2009); see also Brandon v. Holt, 469 U.S. 464, 471-72 (1985). Therefore, Plaintiff's official capacity suit against Chief Smith shall be dismissed as duplicative.

         II.

         Prescription of Plaintiff's § 1983 Claims

         Ms. Sherman brings claims against former Chief Smith and the City pursuant to § 1983 for their failure to adequately train and supervise Officer Irwin. The Court granted the Defendants' prior motion to dismiss in part on the ground that the majority of the alleged conduct occurred prior outside of the applicable limitations period.[23] Defendants renew their request for dismissal on Plaintiff's claims for conduct occurring before April 26, 2016. The Court grants this request for the reasons stated in the Court's previous order.[24] Applying Louisiana's 1-year general limitations period, [25] Defendants cannot be held liable under § 1983 for conduct occurring before April 26, 2016. See King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 761 (5th Cir. 2015) (finding a state's general personal injury limitations period is borrowed, rather than the specific limitations period for sexual assault). Notably however, one sexual assault-the one occurring on May 5, 2016-supports a §1983 claim that is not time-barred.

         Nevertheless, Defendants now argue that because Plaintiff's alleged confrontations with former Chief Smith occurred before April 26, 2016, the alleged acts of failing to train or supervise also occurred outside the limitations period.[26] This argument fails for the reasons discussed in the Court's previous order. First, every sexual assault Ms. Sherman suffered was a discrete, identifiable injury, giving rise to its own cause of action. See Nat' R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). That is why the Court rejected Plaintiff's suggestion that she enjoys the benefit of tolling by function of the continuing violations doctrine.[27] Second, “the limitations period begins to run the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.” King-White, 803 F.3d at 762 (quoting Spotts v. United States, 613 F.3d 559, 574 (5th Cir. 2010)). Ms. Sherman was injured when she was sexually assaulted on May 5, 2016. Although she could have sued the City or Chief Smith pursuant to ยง 1983 for her other injuries before that date, she could not sue for that last sexual assault ...


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