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Bookenberger v. Parish

United States District Court, E.D. Louisiana

August 16, 2019


         SECTION: "B"(3)

          ORDER & REASONS

         Before the Court are defendants Terrebonne Parish (“TP”), Houma Police Department (“HPD”), Dana Coleman, Cory Johnson, and Terry Boquet's (collectively “defendants”) motion to dismiss (Rec. Doc. 15) with supplemental exhibits (Rec. Doc. 18) and plaintiff Dallas Bookenberger's opposition memorandum (Rec. Doc. 16). For the reasons discussed below, IT IS ORDERED that the motion to dismiss is GRANTED IN PART, and we decline to exercise supplemental jurisdiction over plaintiff's state law claims.


         This is a civil rights case. Plaintiff was a commissioned officer of the HPD. See Rec. Doc. 1 at 1. He began his employment with the HPD in 2016 after working several years as an officer with Terrebonne Sheriff's Office. See id. at 3. Defendants are TP, a governmental entity; the HPD, where plaintiff was employed; Dana Coleman, the Chief Police of the HPD, in her official and individual capacities; Cory Johnson, a sergeant of the HPD, in his official and individual capacities; and Terry Boquet, a sergeant of the HPD, in his official capacity only. See id. at 1-2.

         Plaintiff alleges First Amendment retaliation; whistleblower protection; Fourteenth Amendment substantive and procedural due process; intentional infliction of emotional distress (“IIED”); civil conspiracy; deprivation of rights and privileges under § 1983; entitlement to reasonable attorneys' fees under § 1988; and negligent hiring, commissioning, training, supervision, and retention. See id. at 13-22.

         On May 26, 2018, at or around 10:32 p.m., defendant Johnson ordered dispatch to request that plaintiff respond to a call in Terrebonne Parish. See id. at 4. Specifically, plaintiff was dispatched to respond to a white pickup truck driving in a reckless manner. See id. Plaintiff arrived to the area to “intercept the suspect vehicle.” Id. at 5. While parked in his department-issued vehicle, he observed traffic but did not encounter any vehicles matching the suspect vehicle. See id.

         At or around 10:38 p.m., plaintiff advised dispatch that he did not see any vehicles matching the suspect vehicle and was available for reassignment. See id. “Immediately after advising dispatch he was available for reassignment, [defendant] Johnson requested [p]laintiff's location via radio and advised him to remain in position.” Rec. Doc. 15-1 at 3. Once defendant Johnson arrived to the area, a verbal argument ensued between defendant Johnson and plaintiff. See id. Both were very angry. See id. Plaintiff surmises that the call was a set-up, unsanctioned investigation by defendant Johnson to poorly reflect on his service record. See Rec. Doc 1 at 6. Defendants claim that plaintiff was merely subjected to an “integrity check” for his alleged failure to respond to calls.[1] See Rec. Doc. 15-1 at 1.

         On May 29, 2019, plaintiff filed a fourteen-page formal grievance alleging that defendant Johnson attempted to entrap him and violated several criminal statutes and HPD policies in doing so. See id. at 3. Subsequently, plaintiff was suspended and placed on administrative leave pending an investigation. See id. at 4. Plaintiff believes that he was relieved of his officer privileges in a humiliating fashion. See Rec. Doc. 1 at 8-9. Plaintiff alleges that defendant Coleman advised him that he stopped reading his grievance after the second page. See id. at 9.

         On June 22, 2019, plaintiff returned to the HPD with counsel to meet with defendant Boquet for additional questioning. See id. Defendant Boquet asked about the handling of the reckless driving call, the incident with defendant Johnson, and plaintiff's work on federal block grants. See id. at 10-11. Plaintiff alleges that the interrogation was conducted contrary to state law because defendant Boquet refused to inform him and his counsel of the scope of the investigation. See id. at 10. Defendant Boquet mentioned alleged discrepancies in plaintiff's work on federal grants to intimidate him and his counsel. See id. at 12.

         At plaintiff's filing of his complaint, he was on suspended and on administrative. See id. Defendant Johnson was not. See id. at 10. Plaintiff alleges that defendant Johnson was assigned to his work. See id. at 13. Plaintiff states in his opposition that he was ordered to be reinstated following administrative hearings to be held on the incident and surrounding issues. See Rec. Doc. 16 at 1.

         On October 9, 2018, defendants filed a motion to dismiss. See Rec. Doc. 15. On October 16, 2018, plaintiff filed an opposition. See Rec. Doc. 16. On April 22, 2019, defendants added several exhibits to their motion to dismiss. See Rec. Doc. Nos. 18, 19.

         Based on the supplemental exhibits submitted by defendants, plaintiff was subsequently terminated. See Rec. Doc. 18. Plaintiff appealed his termination to the Houma Municipal Fire and Police Civil Service Board (“the Civil Board”). See id. The Civil Board ruled in plaintiff's favor, overturning his termination. See id. at 1. Defendants appealed the Civil Board's decision to the 32nd Judicial District Court, Parish of Terrebonne, State of Louisiana. See id. at 2. The 32nd Judicial District Court reversed the Civil Board's decision, reinstating the appointing authority's decision to terminate plaintiff. See Rec. Doc. 18-2.


         A. Motion to Dismiss Standard

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint “must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 556 U.S. at 556).

         When deciding whether a plaintiff has met his or her burden, a court “accept[s] all well-pleaded factual allegations as true and interpret[s] the complaint in the light most favorable to the plaintiff, but ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements' cannot establish facial plausibility.” Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir. 2016) (quoting Iqbal, 556 U.S. at 678) (some internal citations and quotation marks omitted). Plaintiff must “nudge[] [his or her] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         Rule 12(b)(6) is designed to test the pleadings. Defendants filed supplemental exhibits outside of the pleadings. Therefore, pursuant to Rule 12(d), the court will convert this motion to dismiss as one for summary judgment. See Jones v. St. Tammany Parish Jail, 4 F.Supp.2d 606, 610 (E.D. La. 1998)(“ When matters outside the pleadings are presented to and not excluded by the court, a Rule 12(b)(6) motion is converted into a motion for summary judgment.”).

         B. Section 1983

         Section 1983 allows for a cause of action against an individual who, acting under color of state law, has deprived a person of a federally protected statutory or constitutional right. See Whittington v. Maxwell, 455 Fed.Appx. 450, 456 (5th Cir. 2011). To establish liability through Section 1983, three elements must be established: (1) deprivation of a right secured by federal law, (2) that occurred under color of state law, and (3) was caused by a state actor. See Victoria W v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004). Section 1983 “contemplates recovery of compensatory damages, as well as equitable relief, against a local government official for the harm that he inflicts because of his constitutional violations, subject to any personal immunities of the officer.” Lee v. Morial, 2000 U.S. Dist. LEXIS ...

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