United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
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
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.
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”). (Doc. 1).
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).
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).
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
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).
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).
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).
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.
Law and Analysis
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 . . . showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2).
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).
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.
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.
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.