United States District Court, W.D. Louisiana, Alexandria Division
JOEL R. WHITMORE, Plaintiff
STATE OF LOUISIANA, Defendant
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge.
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.
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).
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).
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).
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).
Law and Analysis
Standards governing the Rule 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 it contains a
“short and plain statement . . . showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
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).
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
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 “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 ...