United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE.
before the Court is the Motion to Dismiss Pursuant to
F.R.C.P. Rule 12(b) filed on behalf of Defendants, Officer
Dwight Huval (individually and in his official capacity as a
police officer) and Lafayette City-Parish Consolidated
Government. (Rec. Doc. 6). Shortly after Defendants filed the
motion to dismiss, in February 2017, the case was stayed
pending outcome of the underlying criminal charges, pursuant
to Heck v. Humphrey, 512 U.S. 477 (1994). Those
criminal charges having been resolved, Defendants moved to
re-open the case, and, accordingly, the Court re-opened the
case on May 1, 2019. (Rec. Doc. 14).
has not yet opposed the Motion, which was referred to this
Court for report and recommendation in accordance with the
provisions of 28 U.S.C. §636 and the standing orders of
this Court. For the following reasons, it is recommended that
the motion be DENIED WITHOUT PREJUDICE, that Plaintiff be
allowed to amend his complaint, and that Defendants be
allowed to file another Rule 12(b) motion to dismiss after
reviewing the amended complaint.
motion to dismiss under rule 12(b)(6) ‘is viewed with
disfavor and is rarely granted.'” Under
Fed.R.Civ.P. 15, a court should freely give leave to amend a
complaint when justice so requires. Therefore, a court
“[g]enerally. . . should not dismiss an action for
failure to state a claim under Rule 12(b)(6) without giving
plaintiff ‘at least one chance to
amend.'” Indeed, “district courts often
afford plaintiffs at least one opportunity to cure pleading
deficiencies before dismissing a case, unless it is clear
that the defects are incurable or the plaintiffs advise the
court that they are unwilling or unable to amend in a manner
which will avoid dismissal.”The decision to allow
amendment of a party's pleadings is within the sound
discretion of the district court.
Court finds that it would be inequitable to dismiss
Plaintiff's complaint without allowing him an opportunity
to amend the complaint in response to the arguments raised in
Defendants' motion. This Court recommends that
Defendants' Motion to Dismiss (Rec. Doc. 6) be DENIED
WITHOUT PREJUDICE and that Plaintiff be given fifteen days
from the date of the order, should this recommendation be
accepted, to file an amended complaint. It is also
recommended that Defendants be afforded an opportunity to
file another Rule 12(b)(6) motion to dismiss if necessary or
appropriate following the filing of the amended complaint.
the provisions of 28 U.S.C. §636(b)(1)(C) and
Fed.R.Civ.P. 72(b), parties aggrieved by this recommendation
have fourteen days from service of this report and
recommendation to file specific, written objections with the
Clerk of Court. A party may respond to another party's
objections within fourteen days after being served with of a
copy of any objections or responses to the district judge at
the time of filing.
to file written objections to the proposed factual findings
and/or the proposed legal conclusions reflected in the report
and recommendation within fourteen days following the date of
its service, or within the time frame authorized by
Fed.R.Civ.P. 6(b), shall bar an aggrieved party from
attacking either the factual findings or the legal
conclusions accepted by the district court, except upon
grounds of plain error.
 Lowrey v. Texas A & M
University System, 117 F.3d 242, 247 (5th
Cir. 1997) (quoting Kaiser Aluminum & Chem. Sales v.
Avondale Shipyards, 677 F.2d 1045, 1050 (5th
 Hernandez v. Ikon Office
Solutions, Inc., 306 Fed.Appx. 180, 182 (5th
Cir. 2009); Great Plains Trust Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 329 (5th Cir.
2002). See also Jackson v. Procunier, 789 F.2d 307,
310 (5th Cir. 1986) (noting that “[a]
complaint sought to be dismissed under Rule 12(b)(6) may
generally be amended to cure its
 Great Plains Trust Co. v. Morgan
Stanley Dean Witter & Co., 313 F.3d at 329.
Norman v. Apache Corp., 19
F.3d 1017, 1021 (5th Cir. 1994); Avatar
Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d