United States District Court, E.D. Louisiana
J. BARBIER UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss (Rec. Doc.
16) filed by Defendant, Sheriff Randy Smith, in his
official capacity (“the Sheriff”). Plaintiff,
Tammy Pudas, opposes the motion (Rec. Doc. 19). The Sheriff
filed a reply (Rec. Doc. 22). Having considered the motion
and legal memoranda, the record, and the applicable law, the
Court finds that the motion should be
AND PROCEDURAL HISTORY
litigation arises from an incident in which Plaintiff alleges
that she was arrested for asking for money under an overpass
near the intersection of Highway 190 and Highway 22 in
Covington, Louisiana. Plaintiff alleges that St. Tammany
Parish Sheriff's deputies issued her a citation for
violating the St. Tammany Parish Ordinance prohibiting
solicitation on a public highway. However, Plaintiff asserts
that she was instead charged with violating the Ordinance
prohibiting peddling without a permit. The latter charge is
currently pending in misdemeanor court in St. Tammany Parish.
Plaintiff filed the instant suit in federal court on October
26, 2018, alleging that both Ordinances violate her
constitutional rights under the First Amendment.
the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The complaint must “give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005) (internal citations
omitted). The allegations “must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1).
Rule 12(b)(6), a claim may be dismissed when a plaintiff
fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books
A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(citing McConathy v. Dr. Pepper/Seven Up Corp., 131
F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must plead enough facts to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is facially plausible when the
plaintiff pleads facts that allow the court to “draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A court must accept
all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
The court is not, however, bound to accept as true legal
conclusions couched as factual allegations. Iqbal,
556 U.S. at 678. “[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.”
Taylor, 296 F.3d at 378.
The Sheriff's Motion
Sheriff first notes that a suit against him in his official
capacity is truly a suit against the St. Tammany Parish
Sheriff, a political subdivision. (Rec. Doc. 16-2 at 4).
Thus, the Sheriff contends that Plaintiff's § 1983
claims must satisfy the requirements outlined in Monell
v. New York City Department of Social Services. (Rec.
Doc. 16-2 at 4). The Sheriff emphasizes that the United
States Supreme Court has held that establishing the liability
of a government body under § 1983 requires a finding
that official policy is the moving force behind the
constitutional violation. (Rec. Doc. 16-2 at 4).
Sheriff argues that in this case, Plaintiff's allegations
that (1) the Sheriff enforces the St. Tammany Parish Code of
Ordinances in the parish and (2) by enforcing the Ordinance
at Section 32-71, the Sheriff violated Plaintiff's First
Amendment right to solicit something of value are
insufficient to support Monell liability. (Rec. Doc.
16-2 at 5, 6). Specifically, the Sheriff argues that no
policy or custom is mentioned, and the facts alleged are
insufficient “to show a pattern or practice of
violating the constitutional right to freedom of speech that
is so persistent and widespread as to constitute an official
custom attributable to [the Sheriff].” (Rec. Doc. 16-2
Sheriff contends that Plaintiff's position that the
Sheriff may be held liable under § 1983 for enforcing a
parish ordinance is “inconsistent with
Monell's requirement that a municipal policy be
the ‘moving force' behind the constitutional
violation.” (Rec. Doc. 16-2 at 7). The Sheriff asks the
Court to find that given that Louisiana law requires the
Sheriff to enforce the St. Tammany Parish Code of Ordinances,
the Sheriff's enforcement of the ordinances at issue
cannot form the basis of a section 1983 claim against the St.
Tammany Parish Sheriff's Office. (Rec. Doc. 16-2 at 8,
9). The Sheriff also argues that he cannot be held liable for
the alleged unconstitutionality of an Ordinance that
Plaintiff is charged with violating because the District
Attorney of St. Tammany Parish has the sole discretion to
determine the charge against an offender; the Sheriff may
only issue a citation for a particular offense. (Rec. Doc.
16-2 at 9).
the Sheriff emphasizes that the Sheriff cannot be held liable
under § 1983 because he is not a policymaker as to
parish ordinances. (Rec. Doc. 16-2 at 9). Rather, “the
power and authority to pass parish ordinances rests solely
with the St. Tammany Parish Government.” (Rec. Doc.
16-2 at 10). Because the Sheriff cannot modify, nor did he
create or pass the Ordinances alleged to be unconstitutional,
he asserts that ...