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Frank v. Parnell

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

May 14, 2019

DON FRANK, ET AL., Plaintiffs
v.
KENNETH PARNELL, ET AL., Defendants

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge

         Before the Court is a Rule 12(b)(6) Motion to Dismiss and Request for Stay of Discovery (Doc. 7), filed by Defendant City of Marksville (“the City”) and Officer Kenneth Parnell (“Parnell”). Plaintiffs Don Frank and Antonio Frank, individually and as the representatives of the estate of Armando Frank (“Armando”) (collectively referred to as “Plaintiffs”) oppose the motion (Doc. 12).

         Because Plaintiffs fail to state plausible claims for relief against the City and Parnell, and because Plaintiffs seek to voluntarily dismiss their federal claims against the City and official capacity claims under 42 U.S. § 1983 against Parnell, the City's and Parnell's motion (Doc. 7) should be GRANTED IN PART. Because the City and Parnell are not entitled to discretionary immunity for negligent conduct at the operational level, and because the City can be vicariously liable under state law for the actions of its employees, the City's and Parnell's motion (Doc. 7) should be DENIED IN PART.

         I. Background

         Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, and supplemental wrongful death and survival action under Louisiana law. (Doc. 1). Plaintiffs allege they are the rightful representatives of their brother, Armando, who died without descendants, a wife, or living parents. (Doc. 1). Plaintiffs name as Defendants Deputy Spillman (“Spillman”), Deputy Alexander (“Alexander”), Avoyelles Parish Sheriff Doug Anderson (“Sheriff Anderson”), Parnell, and the City (collectively referred to as “Defendants”).[1] (Doc. 1).

         Plaintiffs allege that on October 20, 2017, Armando drove his tractor to the Walmart parking lot in Marksville, Louisiana on a personal errand. (Doc. 1). Plaintiffs claim Armando was sitting on his tractor when he was approached by Parnell and Spillman about an outstanding arrest warrant they had been made aware of that day by a confidential informant. (Doc. 1). Plaintiffs allege Alexander joined in the “detention.” (Doc. 1).

         Plaintiffs claim Armando asked to see the warrant and he was told he could see it at the station. (Doc. 1). Armando was ordered to surrender, and a verbal argument ensued over whether than was an arrest warrant. (Doc. 1). Plaintiffs assert the argument escalated into one of the officers climbing on the tractor, placing Armando in a “rear naked chokehold, ” and the other officers repeatedly tasering him. (Doc. 1). Plaintiffs claim the officers then took Armando off the tractor and compressed his chest into “positional asphyxia” by pinning him against the tractor, and subsequently against the ground and a police vehicle. (Doc. 1). Plaintiffs attach an autopsy report and assert the pathologist ruled the manner of death as a homicide. (Doc. 1). Plaintiffs claim no attempts were made to improve Armando's airway or given CPR until emergency medical services arrived. (Doc. 1).

         Plaintiffs assert Alexander, Spillman, and Parnell used excessive force in the seizure of Armando by maliciously killing him in violation of the Fourth and Fourteenth Amendments to the Constitution. (Doc. 1). Plaintiffs claim Spillman and Alexander were acting under color of state law as Avoyelles Parish Sheriff's deputies. Plaintiffs contend Sheriff Anderson is liable for “all state law delicts and torts of his employees” committed in the course and scope of their employment. (Doc. 1). Plaintiff claim Sheriff Anderson is vicariously liable for the wrongful death and survival of Armando. (Doc. 1). Plaintiffs further claim Parnell, an employee of the City, is liable for the wrongful death and survival of Armando, as well as the lost chance of survival for failure to render CPR. (Doc. 1). Plaintiffs assert the City is vicariously liable for Parnell's “torts while in the course and scope of his duty during this wrongful death.”

         Plaintiffs Don and Antonio Frank seek damages for loss of love, affection, support, and enjoyment of life. (Doc. 1). Plaintiffs seek compensatory and punitive damages, costs, attorney's fees, and judicial interest. (Doc. 1).

         Sheriff Anderson, Spillman, and Alexander answered the Complaint, asserting various affirmative defenses, including failure to state a claim for relief and failure to set forth federal subject matter jurisdiction. (Doc. 9). The City and Parnell filed a Rule 12(b)(6) Motion to Dismiss (Doc. 7). The City and Parnell argue that Plaintiffs fail to state a claim against the City and Parnell, that the allegations of failure to render care are insufficient, and that the City and Parnell are entitled to qualified immunity. (Doc. 7-1). The City and Parnell also seek a stay of discovery during the pendency of this motion. (Doc. 7-1).

         Plaintiffs oppose. (Doc. 12). However, as it pertains to the federal civil rights claims, Plaintiffs seek to voluntarily dismiss Sheriff Anderson in his official capacity as the employer of Spillman and Alexander, and to dismiss the City “in its official capacity as the employer of Officer Parnell for his [f]ederal claims.” (Doc. 12). Plaintiffs also ask the Court to dismiss Parnell, Spillman, and Alexander, in their official capacities, but retain them in their individual capacities. (Doc. 12).

         Additionally, as to Plaintiffs' state law claims of wrongful death and survival due to excessive force, Plaintiffs request the Court retain Sheriff Anderson in his official capacity, as the employer of Spillman and Alexander Daniels. (Doc. 12). Plaintiffs argue the City, as the employer of Parnell, is vicariously liable for Parnell's “state law delicts committed within the course and scope of his employment.” (Doc. 12). Plaintiffs request Parnell, Spillman, and Alexander remain as defendants, in their individual capacities, as to Plaintiffs' state law claims. (Doc. 12). Alternatively, Plaintiffs request the Court grant leave to amend under Fed.R.Civ.P. 15(a) if it finds Plaintiffs fail to state a plausible claim for relief. (Doc. 12).

         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 . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         To withstand a motion to dismiss, “a complaint must contain sufficient factual matter accepted as true, ” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is facially plausible when it contains sufficient factual content for the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility does not equate to possibility or probability; it lies somewhere in between. Id. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. See Twombly, 550 U.S. at 556. The court must view all well-pleaded facts in the light most favorable to the plaintiff. Yumilicious Francise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016).

         Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to legal conclusions. Iqbal, 556 U.S. at 678. A pleading comprised of labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement, will not stand. Id. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged - but not “shown” - that the pleader is entitled to relief. Id. at 679.

         In determining whether a complaint states a plausible claim for relief, a court draws on its judicial experience and common sense. Id. In considering a motion to dismiss, a court can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Id.

         Generally, a court 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.” Hernandez v. Ikon Ofc. Solutions, Inc., 306 Fed.Appx. 180, 182 (5th Cir. 2009); accord Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). However, that general rule does not apply if an amendment would be futile. Townsend v. BAC Home Loans Serv'g, L.P., 461 Fed.App'x. 367, 372 (5th Cir. 2011); Jaso v. The Coca Cola Co., 435 Fed.App'x. 346, 351-52 (5th Cir. 2011). Futility in this context means “that the amended complaint would fail to state a claim upon which relief could be granted . . . [Thus, ] to determine futility, we will apply the same standard of legal sufficiency as applies under Rule 12(b)(6).” Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (quotations and citations omitted); accord Fenghui Fan v. Brewer, 377 Fed.App'x. 366, 367 (5th Cir. 2010). With respect to a statute of limitations defense, dismissal for failure to state a claim is proper when "it is evident from the pleadings that the action is barred, and the pleadings fail to raise some basis for tolling." Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003); accord Jaso, 435 Fed.Appx. at 351-52.

         B. 42 ...


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