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Campos v. City of Natchitoches

United States District Court, W.D. Louisiana, Alexandria Division

April 8, 2019

ROGELIO DAVID CAMPOS, Plaintiff
v.
CITY OF NATCHITOCHES, ET AL., Defendants

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before 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”);[1] 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. (Doc. 55).

         Because 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.

         I. Background

         Campos 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).

         Specifically, 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).

         Campos 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).

         Around 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. 1).

         Campos 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).

         Campos 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).

         Campos 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.[2] (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).

         Defendants 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).

         Defendants 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).

         Campos also filed an untimely motion for leave to amend. (Doc. 51).[3] 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.[4] (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).

         Defendants 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).

         II. Law and Analysis

          A. Standards governing the 12(b)(6) Motion to Dismiss.

         A court 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 . . . ...


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