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Whiticar v. New Orleans City

United States District Court, E.D. Louisiana

October 7, 2019


         SECTION “A” (3)



         The following motion is before the Court: Motion to Dismiss (Rec. Doc. 8) pursuant to Rules 12(b)(1) and (6). This motion was filed by the Defendant City of New Orleans (“the City”) on behalf of itself and the Sixth, Seventh, and Eighth Districts of the New Orleans Police Department (“NOPD”). Plaintiff Mark Whiticar opposes the motion. (Rec. Doc. 12, Plaintiff's Opposition). The motion, submitted for consideration on September 4, 2019, is before the Court on the briefs without oral argument.

         I. BACKGROUND

         Whiticar filed this suit pro se on May 13, 2019. (Rec. Doc. 1, Plaintiff's Complaint). This complaint stems from an incident where Whiticar's daughter caused him $25, 000 worth of property damage by setting his home on fire. (Rec. Doc. 12, p. 3, Plaintiff's Opposition). Before this incident occurred, Whiticar tried to have his daughter arrested multiple times. Id. He first contacted the NOPD “to get them to arrest my daughter for abusing my granddaughter and making her attempt suicide 3 times, ” but the NOPD “didn't follow through or pursue her in any way.” Id. at 3. Whiticar then reported his daughter a second time to the NOPD after she “unlawfully entered [into] my Son's apartment while he wasn't home and took some of his money.” Id. Although Whiticar received a police report with an item number this time, “there was still no warrant for her arrest for destruction of my Son's property and theft of his money.” Id.

         Lastly, things came to a head on the night of July 29, 2018 when Whiticar's neighbors called the police to report that they saw, “[the] plaintiff's daughter and another male individual climbing the fence onto plaintiff's property[.]” Id. at 4. An officer eventually arrived on the scene and detained Whiticar's daughter, but she was quickly released. Id. Once the officer left the scene, Whiticar's property quickly turned into a “big blaze.” Id. Subsequently, Whiticar filled his Complaint “charg[ing] the City of New Orleans and [the NOPD] with Negligence in not doing their Duty of arresting my daughter and allowing her to come from New Orleans East, Uptown and Downtown to set my home on Fire.” Id.

         In response to Whiticar filing his Complaint, the City now moves this Court on behalf of himself and the NOPD to dismiss this case pursuant to Federal Rules of Civil Procedure (“FRCP”) 12(b)(1) and (6).


         A. Pro Se Litigant

         Because Whiticar is proceeding pro se, the Court must construe his pleadings liberally. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995). However, “[t]he right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law.” Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).

         B. Rule 12(b) of the Federal Rules of Civil Procedure

         “Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Id. In a 12(b)(1) motion, the party asserting jurisdiction bears the burden of proof that jurisdiction does in fact exist. Id.

         Additionally, FRCP 12(b)(6) permits a court to dismiss a complaint when a plaintiff has failed to state a claim for which relief can be granted. See Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'” Iqbal v. Ashcroft, 556 U.S. 662, 677 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual matter contained in the complaint must allege actual facts, not mere legal conclusions portrayed as facts. Id. at 667 (“Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation.'”) (quoting Twombly, 550 U.S. at 555). Additionally, the factual allegations of a complaint must state a plausible claim for relief. Id. A complaint states a “plausible claim for relief” when the factual allegations contained therein, taken as true, necessarily demonstrate actual misconduct on the part of the defendant, not a “mere possibility of misconduct.” Id.; see also Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir.1986).

         III. ...

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