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Whitmore v. State

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

August 7, 2019

JOEL R. WHITMORE, Plaintiff
v.
STATE OF LOUISIANA, Defendant

          DEE D. DRELL JUDGE.

          REPORT AND RECOMMENDATION

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

         Before the Court is a Motion to Dismiss (Doc. 8) the claims alleged by pro se Plaintiff Joel R. Whitmore (“Whitmore”) against Defendant, the State of Louisiana (“State”), for failure to state a claim upon which relief can be granted. The State argues that Whitmore cannot satisfy the elements of a claim under 42 U.S.C § 1983 due to his unchallenged convictions. See Heck v. Humphrey, 512 U.S. 477, 486 (1994). Because Whitmore's claims are barred by the Eleventh Amendment and Heck v. Humphrey, the State's Motion to Dismiss (Doc. 8) should be GRANTED.

         I. Background

         In August 2007, Whitmore engaged online with Bossier City Marshals conducting a sting operation. (Doc. 1). In December 2009, Whitmore was convicted of indecent behavior with and computer aided solicitation of a juvenile under La. R.S. 14:81 (A)(2) and La. R.S. 14:81.3. (Doc. 1). Whitmore admits to multiple discussions by phone and online with the officers, but emphasizes that at no time were actual minors involved. (Doc. 1).

         Whitmore filed a complaint pursuant to 42 U.S.C. § 1983 against the State. Whitmore alleges that, in applying La. R.S. 14:81 (A)(2) and La. R.S. 14:81.3, the State extended protections and rights to virtual (non-human) minors equivalent to those of real minors. (Doc. 1). Whitmore further alleges that the creation of virtual minors and the extension of rights to them allows for the suppression and criminalization of speech ordinarily protected under the First Amendment. (Doc. 1).

         Whitmore asserts the State's violation of his First Amendment rights caused irreparable harm. Whitmore seeks, inter alia, that this Court: declare La. R.S. 14:81 (A)(2) and La. R.S. 14:81.3 are restrictions of free speech under the First Amendment; recognize the harm which has befallen him due to their application; and award him both actual and punitive damages. (Doc. 1).

         The State filed a Motion to Dismiss for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). (Doc. 8). Whitmore opposed the State's Motion (Doc. 10), contending he does not seek to have his convictions overturned, and he does not facially challenge the statutes in question. (Doc. 10). Rather, he challenges the statutes as applied to his circumstances. (Doc. 10). The State replied further, asserting Whitmore has not met the necessary elements for a valid cause of action under 42 U.S.C. § 1983. (Doc. 11).

         II. Law and Analysis

         A. Standards governing the Rule 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 it contains a “short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         To defeat a motion to dismiss, “a complaint must contain sufficient factual information 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 Atlantic 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 directly equate to either possibility or probability; it exists in between, and may be determined according to the court's judicial experience and common sense. See Iqbal, 556 U.S. at 678. 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. See Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016).

         This presumption of truth does not extend to mere legal conclusions, regardless of whether these conclusions alone comprise the pleading. Iqbal, 556 U.S. at 678. Furthermore, a court should not under ordinary circumstances make inferential leaps in analysis of legal conclusions based on the stated facts. See id. at 679. However, a document filed pro se is “to be liberally construed, ” and “however in-artfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id.; Fed. R. Civ. Pro. 8(f); Estelle v. Gamble, 429 U.S. 97, 106 (1976).

         Generally, a court should not dismiss an action under Rule 12(b)(6) without giving the plaintiff at least one chance to amend. See Hernandez v. Ikon Office 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 does not apply if the opportunity to amend would be futile. See Townsend v. BAC Home Loans Servicing, L.P., 461 Fed.Appx. 367, 372 (5th Cir. 2011); Jaso v. The Coca Cola Co., 435 Fed.Appx. 346, 351-52 (5th Cir. 2011), cert. den., 572 U.S. 1101 (2014). Futility in this context means ‚Äúthat the amended complaint would fail to state a claim upon which relief could be granted . . . [Thus, ] to determine futility, we will apply the same ...


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