United States District Court, E.D. Louisiana
ORDER & REASONS
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
AND PROCEDURAL HISTORY
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.
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.
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
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. See Rec. Doc. 15-1 at 1.
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.
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.
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.
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.
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.
Motion to Dismiss Standard
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).
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.
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
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 ...