United States District Court, E.D. Louisiana
GINA ORELLANA, INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILD A.L.
TERREBONNE PARISH CONSOLIDATED GOVERNMENT ET AL.
ORDER AND REASONS
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.
the Court are Defendants Terrebonne Parish Consolidated
Government, Derek Schlesinger, and Michael Scott's
Motions to Dismiss the First and Second Amended Complaints
(Docs. 46, 57). For the following reasons, the Motions are
GRANTED IN PART.
case arises out of the December 1, 2017 seizure of A.L.,
an-eight-year-old child with special needs, by Defendants
Derek Schlesinger and Michael Scott, police officers in
Terrebonne Parish. On that day, Plaintiff A.L. arrived at
school upset and with scratches on her arm and neck.
A.L.'s teacher noticed the scratches and sent A.L. to the
guidance counselor, Misty Robichaux. Robichaux sent A.L. to
the school nurse who noted that A.L. had an inch-long scratch
on the back of her neck that was not bleeding and a half-inch
scratch on the right side of her neck that was bleeding. The
nurse also noted a finger nail mark on A.L.'s right
forearm. When Robichaux asked how A.L. got these scratches,
A.L. said that her mother had gotten mad at her and grabbed
her. Robichaux then called the Houma Police Department.
department dispatched Schlesinger to the school. Schlesinger
spoke with A.L., and A.L. told him what had occurred at home
prior to arriving at school. She stated that her mother had
asked her to clean her room, that she had started to cry, and
that her mother had grabbed her arm while they were outside
waiting for the bus. Schlesinger sent A.L. back to class and
went to question her mother, Plaintiff Gina Orellana.
Schlesinger questioned Orellana and asked why A.L. had
scratches on her body. Orellana had the same explanation as
A.L. Orellana explained that she may have accidentally
scratched A.L. when she grabbed her as she tried to run back
to the house while waiting for the school bus. Schlesinger
told Orellana that her story matched A.L.'s and that she
may be visited by the Louisiana Department of Child and
Family Services. Schlesinger did not inform Orellana that he
intended to take A.L. into custody.
returned to the school to pick up A.L. and bring her to the
Houma Police Station. A.L. was scared and repeatedly
requested to speak with one of her family members.
Schlesinger refused the requests and took A.L. to the Houma
Police Station. Notably, Schlesinger did not get a court
order to remove A.L. from school. Schlesinger then turned
A.L. over to the custody of Defendant Scott.
questioned A.L. and then brought her to the Children's
Advocacy Center where she was interviewed for a third time.
At the end of the interview, Scott concluded that the
scratches were accidental. Scott and another officer then
brought A.L. home.
claim that as a result of the incident, A.L. suffers from
Post-Traumatic Stress Disorder. Plaintiffs brought a §
1983 action for violations of their Fourth and Fourteenth
Amendment rights against Schlesinger and Scott, as well as a
failure to train claim under § 1983 against Terrebonne
Parish Consolidated Government. Plaintiffs also brought state
law causes of action for false arrest and negligence against
Schlesinger and Scott.
motion, Defendants contend that Plaintiffs cannot succeed on
their claims under 42 U.S.C. § 1983 or state law and
that they are entitled to qualified immunity from
Plaintiffs' claims. Defendants filed their first motion
to dismiss on these grounds on April 16, 2019. Plaintiffs
subsequently amended their Complaint, and Defendants'
motion was denied as moot. On July 3, 2019, Defendants filed a
motion to dismiss Plaintiffs' First Amended Complaint on
qualified immunity grounds. Thereafter, Plaintiffs filed a
Second Amended Complaint for the sole purpose of properly
naming one of the Defendants.Defendants then moved to dismiss
Plaintiffs' Second Amended Complaint, adopting its
earlier arguments in full.
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead enough facts to “state a claim for relief that is
plausible on its face.” A claim is “plausible on
its face” when the pleaded facts allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.”A court must
accept the complaint's factual allegations as true and
must “draw all reasonable inferences in the
plaintiff's favor.” The Court need not, however,
accept as true legal conclusions couched as factual
allegations. To be legally sufficient, a complaint must
establish more than a “sheer possibility” that
the plaintiff's claims are true. If it is apparent from the
face of the complaint that an insurmountable bar to relief
exists and the plaintiff is not entitled to relief, the court
must dismiss the claim.
Consideration of Evidence
outset, the Court must determine what evidence it will
consider in resolution of these Motions. Defendants have
attached two police reports to their Motions to Dismiss.
Generally under rule 12(b)(6), when considering a motion to
dismiss, “a district court must limit itself to the
contents of the pleadings, including attachments
thereto.” However, the court may consider the
attachments to a motion to dismiss as part of the pleading
“if they are referred to in the plaintiff's
complaint and are central to her claim.”“Although the Fifth Circuit has not
articulated a test for determining when a document is central
to a plaintiff's claims, the case law suggests that
documents are central when they are necessary to establish an
element of one of the plaintiff's
claims.” If the document is merely evidence of an
element of a plaintiff's claim, the court may not
consider the document as part of the pleading.
the police reports are not central to the Plaintiffs'
claims because they are not necessary to establish an element
of any claim. The first police report is an account of what
transpired during Schlesinger's and Scott's
investigation of A.L.'s alleged child abuse incident. The
second police report is an account of a second alleged child
abuse incident months after the controversy in question. The
police reports are not necessary to prove that there was a
violation of Plaintiffs' Fourth or Fourteenth Amendment
rights. Although Plaintiffs may have referred to the contents
of the first police report in their pleading, it is merely
evidence of Plaintiffs' claims. The second police report
is not even referenced by Plaintiffs. Because the police
reports are not central to Plaintiffs' claims, this Court
will not consider them in resolution of Defendants'
Motions to Dismiss.
contend that Plaintiffs' § 1983 claims should be
dismissed because they are entitled to qualified immunity.
“Qualified immunity shields government officials from
civil damages liability unless the official violated a
statutory or constitutional right that was clearly
established at the time of the challenged
conduct.” “There are generally two steps in
a qualified immunity analysis.” “First,
a court must decide whether the facts that a plaintiff has
alleged or shown make out a violation of a [statutory or]
constitutional right. Second . . . the court must decide
whether the right at issue was clearly established at time of
[the] defendant's alleged
misconduct.” Courts need not address the first step
before the second step; the two issues may be analyzed in any
overcome the immunity defense, the complaint must allege
facts that, if proven, would demonstrate that [each
defendant] violated clearly established statutory or
constitutional rights.” “Heightened pleading
demands more than bald allegations and conclusionary
statements.” Instead, the plaintiff “must
allege facts specifically focusing on the conduct of [each
defendant] which caused [plaintiff's]
Defendant Derek Schlesinger
on behalf of her minor daughter A.L., claims that A.L.'s
Fourth Amendment rights were violated when Schlesinger seized
and removed her from school. Plaintiff also claims that
A.L's removal violated her Fourteenth Amendment Due
Process rights. In this particular case, the test for a
violation of a Fourth Amendment right is essentially the same
as the test for a violation of a Fourteenth Amendment
is a clearly established right to be free from unreasonable
seizures under the Fourth Amendment.” Nevertheless,
a “seizure” must in fact occur for a violation to
exist. “A person is ‘seized'
for Fourth Amendment purposes ‘when [an] officer, by
means of physical force or show of authority, has in some way
restrained the liberty of the
citizen.'” “A seizure occurs ‘only if,
in view of all of the circumstances surrounding the incident,
a reasonable person would have believed that they were not
free to leave.'” The facts of the Complaint
easily establish that A.L. was seized by Schlesinger when she
was removed involuntarily from school and taken to the police
department over her protestations.
argue that the seizure of A.L. was unreasonable based on the
standard set forth by the Fifth Circuit in Gates v. Tex.
Department of Protective & Regulatory
Services. In Gates, the Fifth
Circuit considered the constitutional standard for removing a
child from school for the purpose of conducting a child abuse
investigation. The court held that to remove a child
from school without a court order, “the social worker
must have a reasonable belief that the child has been abused
and probably will suffer further abuse upon his return home
at the end of the school day.” In developing this
standard, the court noted that “students have a lesser
expectation of ...