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Lefebure v. Boeker

United States District Court, M.D. Louisiana

June 26, 2019

PRISCILLA LEFEBURE
v.
BARRETT BOEKER, Assistant Warden Louisiana State Penitentiary, individually and in his official capacity, WEST FELICIANA PARISH, SAMUEL D. D'AQUILLA, 20th Judicial District, individually and in his official capacity, District Attorney, J. AUSTIN DANIEL, Sheriff, West Feliciana Parish, INSURANCE CO. DOES 1-5, DOES 6-20

          RULING AND ORDER

          SHELLY D. DICK CHIEF JUDGE.

         This matter is before the Court on the Motion to Dismiss[1] filed by Defendant, Barrett Boeker, individually and in his official capacity as Assistant Warden for the Louisiana State Penitentiary (“Defendant” or “Boeker”), pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, Motion for More Definite Statement pursuant to Rule 12(e). Plaintiff, Priscilla Lefebure (“Plaintiff” or “Lefebure”), filed an Opposition[2] to this motion. The Court heard Oral Argument on this motion on March 25, 2019, and the Court granted in part and denied in part Boeker's motion, with detailed written reasons to be assigned.[3] These reasons are assigned below.[4]

         I. BACKGROUND

         Plaintiff filed a Complaint[5] and First Amended Complaint[6] seeking relief under 42 U.S.C. § 1983 and § 1985 and under the laws of Louisiana against Barrett Boeker, Assistant Warden Louisiana State Penitentiary, individually and in his official capacity; Samuel C. D'Aquilla, District Attorney for the 20th Judicial District, individually and in his official capacity (“the DA”); J. Austin Daniel, Sheriff, West Feliciana Parish (“Sheriff Daniel”); and various unknown insurance companies and unknown defendants.

         Plaintiff claims that Boeker raped her on December 1, 2016 at his home on the grounds of the Louisiana State Penitentiary.[7] Plaintiff further claims that Boeker sexually assaulted her a second time at his home on December 3, 2016.[8] Subsequent to these alleged attacks, Plaintiff had a rape kit administered and completed on December 8, 2016 at Woman's Hospital in Baton Rouge.[9] Plaintiff alleges that the report on the rape kit noted bruising in the pattern of fingers and hand prints and a red and irritated cervix. Photographs were also taken.[10] Plaintiff pleads the facts and circumstances of the alleged rape and sexual assault, the rape kit findings, and her alleged damages in great detail in her Complaint and First Amended Complaint.[11]

         Boeker was arrested for second degree rape on December 20, 2016; however, he was never indicted or convicted.[12] Plaintiff alleges she was denied equal protection and due process under the law by the Defendants' collective conduct, specifically, the failure of the DA and Sheriff Daniel to investigate the alleged crimes and obtain the rape kit, their disproportionate treatment of women and sexual assault victims, and their conspiracy to protect Boeker.

         Plaintiff asserts the following claims against Boeker: civil conspiracy to violate her civil rights pursuant to 42 U.S.C. §§ 1983 and 1985;[13] abuse of process under 42 U.S.C. § 1983;[14] and state law claims of intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), assault, battery, false imprisonment, rape, and sexual battery.[15]

         In the motion before this Court, Boeker seeks dismissal of Plaintiff's claims under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Alternatively, Boeker seeks a more definite statement under Rule 12(e). In response, Plaintiff opposes Defendant's motion, arguing that she has sufficiently and specifically pled plausible causes of action adverse to Boeker.

         II. LAW AND ANALYSIS

         A. Rule 12(b)(6) Motion to Dismiss

         When deciding a Rule 12(b)(6) motion to dismiss, the “court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”[16] The Court may consider “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”[17] “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.'”[18] In Bell Atlantic Corp. v. Twombly, the United States Supreme Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss.[19] “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[20] A complaint is also insufficient if it merely “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”[21] However, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[22] In order to satisfy the plausibility standard, the plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully.”[23] “Furthermore, while the court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.'”[24] On a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”[25]

         B. 42 U.S.C. §§1983 & 1985 (2) and (3) Civil Conspiracy Claims

         “In order to prevail on a section 1983 conspiracy claim, a plaintiff must establish (1) the existence of a conspiracy involving state action and (2) a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.”[26] Regarding the first element: “To establish a cause of action based on conspiracy a plaintiff must show that the defendants agreed to commit an illegal act.”[27] “Mere conclusory allegations of conspiracy cannot, absent reference to material facts, survive a motion to dismiss.”[28]“[M]ore than a blanket of accusation is necessary to support a § 1983 claim.”[29] Plaintiff must make “specific allegation[s] of fact tending to show a prior agreement has been made.”[30]

         Nevertheless, a Section 1983 conspiracy “claim need not [meet] a ‘probability requirement at the pleading stage; [plausibility] simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.'”[31]Plaintiff's “facts, when ‘placed in a context . . . [must raise] a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.'”[32]

         As to the second element, “[r]egardless of whether or not [a defendant's] actions alone actually caused a constitutional violation, liability can still be imposed on him through his alleged membership in the conspiracy.”[33] That is, “[a] conspiracy allegation under § 1983 allows a plaintiff to ‘impose liability on all of the defendants without regard to who committed the particular act.'”[34]

         “A conspiracy may be charged under section 1983 as the legal mechanism through which to impose liability on all of the defendants without regard to who committed the particular act, but ‘a conspiracy claim is not actionable without an actual violation of section 1983.'”[35] For example, “in a case alleging both Fourth Amendment violations and a § 1983 conspiracy, the proper order of review is first whether Plaintiffs have alleged a constitutional violation that is objectively unreasonable in light of clearly established Fourth Amendment law, and only if that is the case should the court then consider whether Plaintiffs have alleged a conspiracy.”[36] Thus, in Hale, the Fifth Circuit found that, because all of the alleged conspirators were entitled to qualified immunity on plaintiff's First Amendment claim, the conspiracy claim was not actionable.[37]

         The Court has previously held that Plaintiff has alleged a viable constitutional violation of the Equal Protection Clause;[38] thus, the Court must consider whether Plaintiff has sufficiently pled facts to state a claim for a Section 1983 civil conspiracy claim.

         Plaintiff has also asserted a civil conspiracy claim under 42 U.S.C. § 1985 (2) and (3). “Section 1985 prohibits a conspiracy to interfere with civil rights.”[39] In order to state a 42 U.S.C. § 1985 claim, a plaintiff must allege the following: “(1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the laws or equal privileges and immunities under the law, (3) a purposeful intent to discriminate, (4) action by the defendants under color of state law or authority, and (5) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in furtherance of the conspiracy.”[40] Additionally, the plaintiff must assert “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.”[41]

         The district court for the Northern District of Texas explained how the Fifth Circuit and the Supreme Court have interpreted 42 U.S.C. § 1985(2) and (3):

The first clause of § 1985(2) “prohibits conspiracies to deter witnesses from attending court or testifying, punishing witnesses who have so attended or testified, or injure jurors.” Bryant v. Military Dep't of Miss., 597 F.3d 678, 687 n. 6 (5th Cir. 2010). The clause has been read as protecting any party, witness, or juror from intimidation regardless of any racial animus on the part of the defendant. Montoya, 614 F.3d at 149 (citing Kush v. Rutledge, 460 U.S. 719, 723-27, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). The second clause of § 1985(2) “prohibits conspiracies to deny any citizen equal protection of the laws or injure a citizen for his efforts to ensure the rights of others to equal protection.” Bryant, 597 F.3d at 687. Since the equal protection language in the second clause of § 1985(2) parallels the equal protection language in § 1985(3), the race or class-based animus requirement of § 1985(3) also applies to claims under the second part of § 1985(2). See Daigle v. Gulf State Utils. Co., Local Union No. 2286, 794 F.2d 974, 979 (5th Cir. 1986) (citing KIimble v. D.J. McDuffy, Inc., 648 F.2d 340, 346 (5th Cir. 1981) (en banc), cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981)).[42]

         In this case, Plaintiff relies on the second clause of § 1985 (2) and (3).

         Boeker brings the following challenges to Plaintiff's conspiracy claims in support of his motion to dismiss.[43]

         1. Intracorporate Conspiracy Doctrine

         Boeker first invokes the intracorporate conspiracy doctrine, arguing that Plaintiff fails to state a claim for conspiracy because all Defendants are members or actors of the same entity, the State of Louisiana.[44] Plaintiff opposes Defendant's motion and addresses her claims under Section 1985; however, she does not specifically address the intracorporate conspiracy doctrine.[45]

         Pursuant to the intracorporate conspiracy doctrine, “a corporation cannot conspire with itself through its agents or employees when the acts of the agents or employees are within the scope of their employment.”[46] “The intracorporate conspiracy doctrine is equally applicable to governmental entities.”[47] Here, Plaintiff has alleged that Boeker's actions, as well as those of the DA and Sheriff Daniel, occurred while they were using “their official positions and power.”[48] Boeker is an Assistant Warden of the Louisiana State Penitentiary.[49] It is disputed whether he was acting in this capacity at the time of the alleged criminal acts. Notably, in invoking the intracorporate conspiracy doctrine, Boeker represented that he is a member of the State of Louisiana as an entity.[50] The DA and Sheriff Daniel are both actors of West Feliciana Parish, although from different departments within the Parish and District.[51] It appears that, at most, two of the three actors are from the same entity, while Boeker is not. Boeker argues that all three Defendants are actors of the State of Louisiana.[52] While the Court agrees that all Defendants are state government employees, the Court notes that the intracorporate conspiracy doctrine is customarily applied to municipalities, departments, and sections within the government, i.e., police departments, [53] parish/county, [54] city.[55] The present case involves two actors of West Feliciana Parish and one actor of the State of Louisiana.

         Further, Plaintiff alleges that an unnamed warden from the Louisiana State Penitentiary participated in the “meeting” where the alleged conspiracy was borne.[56]Plaintiff also alleges that each Defendant was “acting in concert with one another and other yet-unknown co-conspirators, ” suggesting that other co-conspirators could be identified after discovery.[57] Indeed, Boeker acknowledges this unknown alleged co-conspirator in his motion.[58] Accepting the allegations of the Complaint and First Amended Complaint as true for the purposes of this motion, the Court finds that the intracorporate conspiracy doctrine does not apply to bar Plaintiff's civil conspiracy claims.

         Alternatively, assuming arguendo that the intracorporate conspiracy doctrine was applicable, there remain exceptions to the application of this doctrine. For example, “when the alleged conspirators have an independent stake in achieving the object of the conspiracy, ” and “whe[n] the alleged conspirators are acting for their own personal purposes, ”[59] the intracorporate conspiracy doctrine will not shield defendants from this claim. Plaintiff has alleged that Boeker raped her and sexually assaulted her on two separate occasions.[60] He is further alleged to be an Assistant Warden for the Louisiana State Penitentiary, [61] and he is represented by counsel who is related to the DA.[62] As the alleged perpetrator, Boeker clearly has a personal interest and independent stake in the purported purpose of the alleged conspiracy. Accordingly, the Court would find in the alternative that the “personal interest” exception to the intracorporate conspiracy doctrine applies to Boeker in this instance.

         2. Qualified Immunity

         In an effort to gain dismissal of the conspiracy claims, Boeker attempts to assert a qualified immunity defense on behalf of the other Defendants. Boeker argues that, for Plaintiff to have a viable civil conspiracy claim, the DA and Sheriff Daniel must not be shielded by qualified immunity. Boeker claims that the DA and Sheriff Daniel are shielded by qualified immunity; thus, he maintains there are not two or more actors to satisfy a conspiracy claim. Boeker provides no legal support that he has standing to assert a qualified immunity defenses on behalf of others.

         Moreover, whether the DA and/or Sheriff Daniel are shielded by qualified immunity, such immunity, if any, does not shield Boeker's alleged conduct. Immunity from liability means that the state actors are not liable for the claims brought against them, but it does not mean that they could not have engaged in the alleged conspiracy with Boeker for which Boeker may still be liable.[63]

         3. No. Constitutional Violations

         Boeker next claims that Plaintiff's civil conspiracy claim against him fails because she has not asserted the underlying necessary constitutional violation. While Boeker is correct that a conspiracy claim is not actionable without an actual violation of section 1983, [64] the Court has already held that Plaintiff has stated a viable claim under the Equal Protection Clause but not under the Due Process Clause. Therefore, this challenge is without merit.

         4. Facts Alleged Rise Above a Mere Suspicion

         This Court is charged with reviewing the allegations on the face of the Complaint and First Amended Complaint, accepting them as true, and viewing them in the light most favorable to the Plaintiff. Under the applicable heightened pleading requirement, Plaintiff is required to make claims of specific conduct and actions giving rise to a constitutional violation.[65]

         Contrary to Plaintiff's assertion, a heightened pleading standard is required to plead a conspiracy. Defendant relies upon Lynch v. Cannatella in arguing that a “heightened standard” applies to conspiracy claims. The Fifth Circuit Court of Appeals, in Lynch v. Cannatella, stated:

Plaintiffs who assert conspiracy claims under civil rights statutes must plead the operative facts upon which their claim is based. Bald allegations that a conspiracy existed are insufficient. In the absence of factual allegations from which a conspiracy to violate … rights can reasonably be inferred, the charges against Lambert amount to no more than an assertion that he was negligent in supervising the conditions under which the [plaintiffs] were detained. Such negligence cannot amount to a violation of whatever due process rights these [plaintiffs] possessed, for, as the Supreme Court observed in Daniels v. Williams, [66] ‘the Due Process clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.'[67]

         Boeker also directs the Court to Vincent v. City of Sulphur, which, relying upon Lynch, applied the “heightened standard” to a claim of conspiracy:

[A] heightened standard exists for pleading conspiracy under civil rights statutes and plaintiffs ‘must plead the operative facts upon which their claim is based. Bald allegations that a conspiracy existed are insufficient.'[68]

         Considering this heightened pleading standard, Boeker argues that Plaintiff has not pled the “operative facts that show any conspiracy.”[69] The entirety of Boeker's argument on this issue is set forth below:

There was no meeting. Defendant Boeker was interrogated after his arrest. Defendant Boeker provided an adequate defense for his actions, a witnesses [sic], other evidence of consent between the parties, and the Plaintiff's arrest record. After further investigation, D'Aquila [sic] used his prosecutorial discretion, for which he has full prosecutorial immunity for [sic], to leave out the rape kit that could provide extreme prejudice to Boeker (against his Constitutional rights of a fair trial and due process) in the grand jury proceedings. Just because the Plaintiff labels an interrogation as a ‘meeting to conspire' does not mean that the defendants did so. There was no allegations [sic] of force, intimidation, or threats by Boeker as an act in furtherance of the conspiracy.[70]

         In summary, the Court's reading of Boeker's argument that Plaintiff did not sufficiently plead a conspiracy claim under the applicable standard is because: (1) the alleged “meeting” where the Defendants allegedly conspired was actually an interrogation of Boeker; (2) Boeker was entitled to put on a defense of himself before the grand jury, which he did; (3) the DA “left out the rape kit” because it would “provide extreme prejudice” to Boeker, but Boeker posits that this is acceptable as the DA “has full prosecutorial immunity, ” and leaving “out the rape kit” was necessary to protect Boeker's constitutional rights; and (4) Boeker did not further the conspiracy with “force, intimidation, or threats.”

         Plaintiff opposes Boeker's arguments and states only as follows:

Plaintiff makes clear that Defendants Boeker, D'Aquila [sic], and Daniel conspired and met, each taking acts in furtherance of the conspiracy (such as representations about the investigation and/or agreeing to not investigate, … in an effort to deprive her of the equal protection and due process protections of the law. She has stated the elements.[71]

         Turning to the allegations in the First Amended Complaint, the following allegations comprise Plaintiff's civil conspiracy claims against Boeker:

From the moment of his arrest, Defendant Boeker was not treated as a suspect in a crime, but instead given preferential treatment by Defendant West Feliciana Parish District Attorney Samuel D. D'Aquilla and his office and West Feliciana Parish Sheriff J. Austin Daniel and his office.[72]
Within 24 hours of his arrest, Mr. Boeker's attorney Jerome Cy D'Aquilla - relative of Defendant District Attorney Sam D'Aquilla - secured two bond reductions totaling $77, 000.00. Mr. Boeker did not spend a single night in custody and his remaining, reduced bond was paid largely by an unknown source from Ascension Parish.[73]
After his release, Defendant Boeker faced no investigation or scrutiny from the District Attorney or the Sheriff.[74]
Both the District Attorney and the Sheriff refused to examine or pick up Ms. Lefebure's rape kit and sexual assault examination, which showed bruising consistent with trauma.[75]
Defendant D'Aquilla's markup of the police report highlighted only possible discrepancies in Ms. Lefebure's description of the events. His handwritten notes cast only doubt on Ms. Lefebure, with ‘drinking' written out and heavily underlined, and the words ‘go get the stuff,' ‘where are the texts,' and ‘NO [illegible] plead 5' and ‘plead 5th.' None of these phrases were included in the police report itself or Ms. Lefebure's description of the events and Mr. and Mrs. Boeker are the only parties alleged to have been drinking at the time of either assault.[76]
Prior to the grand jury hearing Defendant D'Aquilla did not meet with Ms. Lefebure in person or speak with her about the assaults. He told reporters he was ‘uncomfortable' with speaking with her. No. one from Defendant D'Aquilla's office or staff met with Ms. Lefebure either.[77]
Defendant D'Aquilla also noted that ‘[e]very time we have a grand jury, we present everything we have in our file.' If Defendant D'Aquilla's office had retrieved the rape kit as any other prosecutor would have, the photos of the bruising and the exam would have been presented to the grand jury.[78]
Defendant Sheriff Austin admitted to reporters at WBRZ that his office made an error by not picking up Ms. Lefebure's rape kit and exam and that it should have been processed sooner. He told the news station on June 26, 2017, that he had recently issued a verbal protocol to everyone in his office that rape kits need to be sent to the crime lab when they are collected.[79]
Defendant Sheriff Austin and Defendant District Attorney D'Aquilla did not pick up the rape kit and examination until, at the earliest, March 10, 2017. See Exhibit B. This was only days after WBRZ reported that the kit had not been retrieved or tested.[80]
Ms. Lefebure's rape kit did not make it to the state crime lab until six months after her assault and two months after Mr. D'Aquilla refused to his job as a district attorney and investigate and seek the indictment of Defendant Boeker.[81]
Instead of protecting her rights as the victim of a violent crime, the Defendants derided Ms. Lefebure throughout the process, denied her information about and access to victim resources, and violated her rights to equal protection and due process of the law by willfully refusing to do their jobs and instead colluding protect [sic] an alleged rapist from prosecution.[82]
Plaintiff is informed and believes and thereon alleges that each Defendant was at all material times an agent, servant, employee, partner, joint venture, co-conspirator, and/or alter ego of the remaining Defendants, and in doing the things herein alleged, was acting within the course and scope of that relationship. Plaintiff is further informed and believes and thereon alleges that each of the Defendants herein gave consent, aid, and assistance to each of the remaining Defendants, and ratified and/or authorized the acts or omissions of each Defendant as alleged herein, except as may be hereinafter specifically alleged. At all material times, each Defendant was jointly engaged in tortious activity and integral participant in the conduct described herein, resulting in the deprivation of Plaintiff's constitutional rights and other harm.[83]
Mr. Boeker's defense counsel was Attorney Jerome Cy D'Aquilla, a relative of the elected District Attorney and Defendant Sam D'Aquilla.[84]
On information and belief, after he was arrested Mr. Boeker met with Defendant D'Aquilla and/or Defendant Austin, and his lawyer and an unknown Warden from the prison to ensure that he was given preferential treatment and not required to stay in jail for any length of time.[85]
During this meeting Defendant Boeker claimed that he and Ms. Lefebure had been having consensual sex and that she was lying. On information and belief, the unknown DOE Warden colluded with Defendant Boeker to corroborate his false claim of a consensual relationship.[86]
During this meeting, and at other times since, but before the convening of the grand jury, Defendants Boeker, D'Aquilla, and Austin conspired to ensure that Mr. Boeker was not investigated for the alleged rapes.[87]
During this meeting, and at other times since, but before the convening of the grand jury, Defendants Boeker, D'Aquilla, and Austin conspired to ensure that Mr. Boeker would not be convicted of the alleged rapes.[88]
During this meeting, and at other times since, but before the convening of the grand jury, Defendants Boeker, D'Aquilla, and Austin conspired to ensure that Ms. Lefebure's constitutional rights to equal protection, due process, and a property right in her rape kit.[89]
Defendants D'Aquilla and Austin are the elected and effective policy makers for the District Attorney's Office and the Sheriff's Department, respectively.[90]

         Considering the specificity and details set forth in the above allegations, the Court finds that Plaintiff has satisfied the heightened pleading standard and has pled sufficient factual allegations to state a claim of civil conspiracy. Therefore, Boeker's Motion to Dismiss Plaintiff's civil conspiracy claim is DENIED.

         C. Qualified Immunity

         Boeker asserts the defense of Qualified Immunity as to his own liability for alleged constitutional violations. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[91] Qualified Immunity applied only to individual capacity claims. “Once a defendant raises the defense of qualified immunity it becomes the plaintiff's burden to show that it does not apply.”[92]To satisfy that burden on a motion to dismiss, a plaintiff must allege facts which show that a defendant violated the plaintiff's constitutional rights and that the violation was “objectively unreasonable in light of clearly established law at the time of the violation.”[93]“Objective reasonableness is gauged by assessing whether at the time and under the circumstances of the challenged conduct ‘all reasonable officials' in the same circumstances would have come to the realization that the conduct complained of violated a constitutional provision.”[94] “A plaintiff suing a state official claiming qualified immunity is subject to a heightened pleading standard, and to survive a motion to dismiss, he or she must plead facts in detail, which if proven, would defeat the defense.”[95]

         Erroneously, Boeker asserts that “any action by Boeker in his official capacity is subject to qualified immunity, and therefore he is not personally liable.”[96] This is an incorrect statement of the law as qualified immunity is available as a defense only to claims brought against a defendant in his individual, not his official capacity. Plaintiff responds: “Immunity from personal liability for acts taken in one's official [capacity] does not render Boeker completely devoid of liability. … There is no allegation that those acts were taken in his official capacity and he does not enjoy immunity from them under doctrines affording such immunity under section 1983.”[97] Plaintiff is equally confused as to the contours of the qualified immunity defense.

         Because both Parties have failed to adequately brief the issue of qualified immunity for the individual capacity claims against Boeker, the Motion to Dismiss on the grounds of qualified immunity is DENIED.

         D. Abuse of Process Claim

         Plaintiff's Fourth Cause of Action is titled, “42 U.S.C. § 1983 - Abuse of Process (All Defendants).”[98] Plaintiff avers: “Defendants are jointly, severally, and in solido liable to Plaintiff for the state tort of abuse of process, as more fully set forth above.”[99]Notwithstanding the nature of Plaintiff's abuse of process claim, Plaintiff failed to address the abuse of process claim in her Opposition. Accordingly, Plaintiff's abuse of process claim against Boeker is deemed abandoned, [100] and Boeker's motion is granted as to this claim.

         E. State Law Claims

         Plaintiff asserts Louisiana state tort claims against Boeker, including intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, false imprisonment, rape, and sexual battery.[101] The Court notes that Louisiana courts have made clear that the proper names of the relevant causes of action in tort are simple “assault” and “battery, ” even when such torts are sexual in nature.[102] Thus, the Court finds that Plaintiff's claim of battery and sexual battery is redundant, as this is one claim. Likewise, the Court will address Plaintiff's assault claim as sexual in nature.

         Boeker contends that these claims should be dismissed as they are prescribed on the face of the Complaint and substantively for failure to state a claim upon which relief may be ...


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