United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
(Doc. 39). For the reasons detailed below, Defendants'
Motion to Dismiss (Doc. 39) is GRANTED IN PART AND DENIED IN
Ian Fridge (“Fridge”) filed a complaint pursuant
to 42 U.S.C. § 1983 and Louisiana law against
Defendants: City of Marksville (“the City”);
Marksville Police Chief Elster Smith, Jr. (“Chief
Smith”) (in his individual and official capacities);
Avoyelles Parish District Attorney Charles A. Riddell III
(“D.A. Riddle”) (in his individual and official
capacities); Marksville Police Officer Derrick Stafford
(“Stafford”) (in his individual capacity only);
Marksville Police Officer Norris Greenhouse
(“Greenhouse”) (in his individual capacity only);
Marksville Police Officer Joseph Montgomery
(“Montgomery”) (in his individual capacity only);
Marksville Police Officer Damion Jacobs (“Damion
Jacobs”) (in his individual capacity only); Marksville
Police Officer Kevin Hill (“Hill”) (in his
individual capacity only); and Marksville Police Officer Eric
Jacobs (“Eric Jacobs”) (in his individual
alleges that, on July 4, 2014, he was unconstitutionally
arrested and prosecuted by the City for engaging in lawful
and constitutionally protected activities-he (with other
members of the Libertarian Party) wore a holster containing a
non-concealed firearm to demonstrate his support for the
Second Amendment right to bear arms at the Avoyelles Arts and
Music Festival in Marksville. (Doc. 1). Fridge remained
outdoors at all times and did not drink any alcohol. (Doc.
contends that, while he conversed with an officer about the
Second Amendment, two other officers approached Fridge from
behind and attempted unsuccessfully to grab his firearm.
(Doc. 1). Fridge asked them not to touch his firearm and
began making a video recording of the interaction with his
cell phone. (Doc. 1). The officer again reached for
Fridge's firearm. (Doc. 1). Fridge claims the officer was
attempting to entice Fridge to reach for his weapon, but
Fridge kept his hands away from the firearm. (Doc. 1). The
two officers who had approached Fridge from behind told him
he should not be there. (Doc. 1). Fridge asked if there was a
law prohibiting him from carrying the firearm on the festival
grounds, in which case he would leave. (Doc. 1). In response,
the two officers grabbed Fridge's arms and attempted to
pin them behind his back. (Doc. 1).
initially attempted to pull away, then stopped resisting.
(Doc. 1). Several officers then wrestled Fridge to the
ground, shouting “stop resisting” and
“don't reach for you weapon” in order to
create the false impression that Fridge was being combative.
(Doc. 1). Fridge informed the officers they were causing him
severe pain in the shoulder and wrist where he had recently
undergone surgeries. (Doc. 1). Fridge complained again that
his handcuffs were too tight, in response to which they
officers tightened the cuffs further. (Doc. 1). While Fridge
was lying face-down on the ground in handcuffs, an officer
tasered him repeatedly. (Doc. 1). Fridge was searched and
then placed in a closed and unventilated police vehicle.
(Doc. 1). Fridge's phone was confiscated and his video of
the incident was deleted. (Doc. 1).
was booked into the Avoyelles Parish Prison and charged with:
(1) resisting arrest, La. R.S. 14:108; (2) battery on a
police officer, La. R.S. 14:34.2; (3) remaining after being
forbidden, La. R.S. 14:63.3; and (4) possessing a firearm on
the premises of an establishment that serves alcohol, La.
R.S. 14:95.5. (Doc. 1). Fridge further alleges he was never
advised of his Miranda rights, he remained in jail
for three days and was not given food or water for the first
24 hours, and he was not given medical care. (Doc. 1).
to the arrest record attached to Fridge's complaint (Doc.
1, Ex. A), Officer Stafford stated in his report that: (1) he
was in charge of all officers at the festival; (2) Stafford
and Greenhouse approached Fridge from behind while Hill spoke
with Fridge; (3) Hill advised Fridge he could not possess a
firearm because alcoholic beverages were being sold “on
the grounds”; (4) Stafford and Greenhouse
“grabbed” Fridge and, with Damion Jacobs, took
Fridge to the ground; (5) Jacobs grabbed Fridge's arm and
gave Fridge's weapon to Montgomery; (6) Fridge's
firearm was seized; (7) Stafford tasered Fridge while he was
on the ground and surrounded by four officers; (8) Fridge was
then handcuffed; and (9) Sgt. Parnell transported Fridge to
the Avoyelles Parish Jail.
contends he has never been convicted of a felony, he was in
lawful possession of the firearm, he had not entered any
business selling alcohol, he had not imbibed any alcohol, and
he did not strike any officer. Fridge alleges the officers
lacked probable cause to search him, seize his property, and
arrest him, and lacked reasonable suspicion that Fridge was a
danger. (Doc. 1). Fridge alleges his firearm was never
returned to him.
also contends Defendants violated his constitutional rights
and committed the criminal acts. Fridge further contends
Defendants instituted and/or maintained a policy or custom
of: (1) targeting and harassing individuals exercising their
rights to assemble and engage in political speech and
condoning violations of civil rights; (2) violating the
Second Amendment right to bear arms; (3) condoning unlawful
searches and seizures; (4) use of excessive force; and (5)
interrogating individuals without advising them of their
rights under the Fifth Amendment. (Doc. 1).
seeks monetary damages, injunctive relief, costs,
attorney's fees, and a jury trial. (Doc. 1).
Riddle filed a Motion to Dismiss (Doc. 8). On a joint motion
by Riddle and Fridge, a consent judgment was entered and
Riddle was dismissed (Doc. 15).
remaining Defendants filed a Rule 12(b)(6) Motion to Dismiss
as to some of Fridge's claims and, alternatively, a
motion to stay proceedings (Doc. 27). The Motion to Stay was
granted pending the outcome of the charges against Fridge, in
the event this suit was rendered moot pursuant to Heck v.
Humphrey 512 U.S. 477 (1994). (Doc. 29).
Riddle dismissed the criminal charges against Fridge and the
stay was lifted (Doc. 37). Defendants re-filed their Rule
12(b)(6) Motion to Dismiss and included a
“request” for stay of discovery. (Doc. 39).
brief in response includes two “requests” to
voluntarily dismiss some of his claims and a
“request” for leave to amend the Complaint
pursuant to Fed.R.Civ.P. 15. (Doc. 45).
Law and Analysis
Standards Governing a Motion to Dismiss pursuant to
may grant a motion to dismiss for “failure to state a
claim upon which relief can be granted” under
Fed.R.Civ.P. 12(b)(6). “[A] complaint will survive
dismissal for failure to state a claim if it contains
‘sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'”
Legate v. Livingston, 822 F.3d 207, 210 (5th Cir.
2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (internal citation and quotation omitted). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The court
must view all well-pleaded facts in the light most favorable
to the plaintiff. Yumilicious Franchise, L.L.C. v.
Barrie, 819 F.3d 170, 174 (5th Cir. 2016).
Defendants' unopposed Motion to Dismiss the
§1983 claims against Chief Smith in his official
capacity should be granted.
brief, Fridge asks the Court to dismiss his official capacity
federal claims against Chief Smith. (Doc. 45, p. 13).
Accordingly, Defendants' unopposed Motion to Dismiss
Fridge's official capacity federal claims against Chief
Smith should be granted. (Doc. 39).
Defendants' unopposed Motion to Dismiss the §
1983 claims against the City should be granted.
brief, Fridge asks the Court to dismiss the City “in
its official capacity as the employer of these defendants for
his Federal claims only” because there is no
respondeat superior liability under § 1983.
(Doc. 45, p. 13).
municipality does not have separate individual and official
capacities. However, Fridge explains that he wants his §
1983 claims against the City dismissed because it cannot be
liable under § 1983 for the acts of its
employees. Fridge further explains that he intends to
pursue his state law claims for vicarious liability against
the City, because it can be held liable under state law for
the individual officers' delicts committed within the
course and scope of their employment.
it is unopposed by Fridge, Defendants' motion to dismiss
the § 1983 claims against the City should be granted.
Defendants' Motion to Dismiss Fridge's §
1983 claim against Chief Smith for violation of his
constitutional rights pursuant to a ...