United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court are: (1) a Rule 12(b)(6) Motion to Dismiss (Doc.
34) filed by Defendants City of Natchitoches (the
“City”), Mayor Lee Posey (“Mayor
Posey”), Chief Mickey Dove (“Dove”), and
Steven Lester Rachel, Jr. (“Rachel”)
(collectively referred to as “Defendants”); (2) a
Motion for Entry of a Revised Scheduling Order (“Motion
to Revise”) (Doc. 45), filed by pro se Plaintiff
Rogelio David Campos (“Campos”); and (3) a
“Motion for Leave to Amend Complaint Second Time and
Leave to Supplement Complaint Pursuant to FRCP Rule 15”
(“Motion to Amend”) (Doc. 51), also filed by
Campos. Campos opposes Defendants' Motion to Dismiss.
(Doc. 40). Defendants oppose Campos's Motion to Amend.
Campos failed to attach a proposed amended complaint as
required by Local Rule 7.6, and because Campos's proposed
allegations are futile, Campos's Motion to Amend (Doc.
51) should be DENIED. Because Campos has failed to show good
cause to amend the scheduling order, Campos's Motion to
Revise (Doc. 45) should be DENIED. Because Campos's
§ 1983 claims are untimely, Defendants' Motion to
Dismiss (Doc. 34) should be GRANTED.
filed a civil rights complaint (42 U.S.C. § 1983) on
April 17, 2018. (Doc. 1). Campos originally named Defendants
the City, Mayor Posey (individually and in his official
capacity), Dove (individually and in his official capacity),
Rachal (individually and in his official capacity), and the
Natchitoches Police Department (“NPD”). (Doc. 1).
Campos alleges Defendants willfully violated his First
Amendment right to perform lawful photography by harassing,
menacing, and arresting him. (Doc. 1). Campos claims
Defendants willfully arrested him a second time, without
probable cause, using excessive police force and violating
his Fourth, Fifth, Eighth, and Fourteenth Amendment rights.
(Doc. 1). Campos also asserts Defendants conspired and acted
to violate his constitutional rights using a
“fake” ordinance designed to violate Due Process
protected by the Fourteenth Amendment. (Doc. 1). Campos seeks
compensatory damages and equitable relief. (Doc. 1). Campos
also seeks punitive damages against Posey, Dove, and Rachal,
in their individual capacities. (Doc. 1).
Campos alleges that, on April 14, 2017, at around 3:00 p.m.,
he photographed a vehicle that had an illegible paper license
plate and blackened windows. (Doc. 1). Campos claims he also
photographed the driver of that car when she harassed him.
(Doc. 1). Campos asserts he then parked his vehicle on Front
Street, when that same vehicle pulled beside him and shouted
at him. (Doc. 1).
again photographed the driver. (Doc. 1). Campos claims
another driver then “blocked” him and shouted at
him, so he photographed her and her vehicle. (Doc. 1).
4:00 p.m., Campos was allegedly walking on 2nd Street towards
the municipal library and was abruptly stopped by Corporal
Johnson (“Johnson”) of the NPD, without reason.
(Doc. 1). Campos claims Private Guin (“Guin”) and
Rachal arrived, presumably for “backup.” (Doc.
asserts both Rachal and Johnson menaced and taunted him with
disparaging remarks and threats. (Doc. 1). Campos further
contends he offered his identification, but Rachal placed him
under arrest. (Doc. 1). Campos claims that it was at that
time a woman - the mother of the first driver with whom he
had an encounter - walked up and met with Guin and Rachal.
(Doc. 1). Campos asserts Rachal made disparaging, derogatory,
and defamatory comments to the woman about Campos's
mental condition. (Doc. 1). Campos claims the driver then
joined her mother. (Doc. 1). According to Campos, Rachal
encouraged both to file a complaint. (Doc. 1).
claims he was told his photography was “unlawful”
and that a complaint was made against him. (Doc. 1). Campos
allegedly had to ask several times what he was being charged
with, and Rachal replied “disturbing the peace.”
(Doc. 1). Rachal drove Campos to the Natchitoches Parish
Detention Center. (Doc. 1). Campos waived his Miranda rights.
(Doc. 1). Campos further asserts he was booked for
“disturbing the peace 10-58(a)(7)
NPDC2017040121.” (Doc. 1). On September 27, 2017, he
was found not guilty of that offense. (Doc. 1).
asserts the police have continued to harass him at home
because of his photography, and have colluded and conspired
to “defraud” him of his constitutional rights
using an unconstitutional municipal ordinance. (Doc. 1).
Campos contends Natchitoches Municipal Ordinance 10-58(a)(7)
(“Ordinance 10-58(a)(7)”) is vague and overbroad.
(Doc. 1). Campos claims false arrest, excessive force, and
other malfeasance. (Doc. 1). Campos asserts Rachal used
excessive force against him in the NPD lobby on November 15,
2017, and forced him to sign a document. (Doc. 1). Campos
claims Posey, Dove, and Rachal conspired to prevent his
photography in public places, using a “fake” and
“unlawful” ordinance. (Doc. 1). Campos asserts
Monell liability against the City for the
“unlawful” municipal ordinance. (Doc. 1).
answered, asserting various affirmative defenses. (Docs. 7,
8). NPD filed a Motion to Dismiss under Fed.R.Civ.P.
12(b)(6). (Doc. 6). Campos filed a “Motion to
Amend/Correct Complaint” (Doc. 12) to remove NPD as a
Defendant in the action. Campos's amendment was granted
(Doc. 23), and counsel for NPD withdrew their Motion to
Dismiss. (Doc. 23).
now seek a dismissal with prejudice of all of Campos's
claims and causes of action under Rule 12(b)(6). (Doc. 34).
Defendants argue Campos's claims of false arrest and
excessive force are prescribed. (Doc. 34). Campos responds
that he timely mailed his Complaint, post-marked on April 16,
2018, as the one-year statute of limitations fell on a
weekend. (Doc. 40).
also filed an untimely motion for leave to amend. (Doc.
Campos seeks to amend his complaint a second time to include
new claims of malicious prosecution under 42 U.S.C. §
1983, and “denial of equal protection under the
law” resulting from his trial on September 27,
2017. (Docs. 51, 53). Campos also seeks to amend
his allegations of conspiracy and “supplement new facts
regarding additional police intrusions, invasion of privacy,
tampering of evidence, physical surveillance, and as need to
support his allegations. . .” of conspiracy under 42
U.S.C. § 1985. (Docs. 51, 53). Campos asserts
Defendants' malicious prosecution occurred on or before
September 27, 2017, “within the statute of
limitations.” (Doc. 53). Campos also claims
Defendants' conspiracy includes an unlawful arrest,
police brutality, and malicious prosecution. (Doc. 53).
Defendants oppose. (Doc. 55).
contest that Campos's proposed amendment to include
malicious prosecution constitutes a separate cause of action.
(Doc. 55). Defendants argue that Campos's proposed
amendment to supplement his original claims with new facts
regarding separate incidents of police intrusions, and
invasion of privacy should be asserted in a new Complaint as
new and separate causes of action. (Doc. 55).
Law and Analysis
A. Standards governing the 12(b)(6) Motion 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 pleading states a claim for relief
when, inter alia, it contains a “short and
plain statement . . . ...