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Gomez v. City of New Orleans

United States District Court, E.D. Louisiana

December 30, 2019

JORGE GOMEZ
v.
THE CITY OF NEW ORLEANS, JOHN GALMAN, and SPENCE SUTTON

         SECTION M (1)

          ORDER & REASONS

          BARRY W. ASHE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a motion by the City of New Orleans (the “City) to dismiss plaintiff's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure.[1] Plaintiff Jorge Gomez responds in opposition.[2] Having considered the parties' memoranda, the record, and the applicable law the Court issues this Order & Reasons finding that Gomez's allegations are deficient, but giving him 14 days from the date of this Order & Reasons to seek leave to file an amended complaint curing the deficiencies.

         I. BACKGROUND

         This matter concerns an incident at a bar instigated by defendants John Galman and Spencer Sutton, who were both off-duty New Orleans Police Department (“NOPD”) officers. On July 23, 2018, Gomez, a United States military veteran of Honduran descent, went to the Mid-City Yacht Club in New Orleans dressed in military fatigues and a Honduran green beret.[3]Gomez was sitting at the bar when Galman and Sutton entered the establishment and began bullying Gomez about his ethnicity, heritage, and service.[4] Gomez alleges that Galman and Sutton called Gomez a “fake American” and a liar, and attempted to pull off his clothes.[5]Galman and Sutton stole Gomez's beret off his head and left the bar.[6] When Gomez attempted to retrieve his hat, Galman and Sutton continued to make “racist-nativist” comments, and “used excessive force against” Gomez.[7] A couple of bystanders intervened to aid Gomez.[8]

         When Gomez got into his vehicle and attempted to drive away, Galman and Sutton blocked Gomez's path and ordered him to exit the vehicle.[9] Gomez complied, and Galman and Sutton beat Gomez until he lost consciousness. Galman and Sutton contacted the NOPD dispatch and requested assistance.[10] Gomez alleges that Galman and Sutton attempted to cover up their conduct by initiating a criminal investigation against Gomez.[11] The responding NOPD officers allowed Galman and Sutton to go home while Gomez was taken to the hospital where he was questioned about the incident.[12] Later that day, Galman and Sutton were arrested, and the NOPD began termination proceedings the next day.[13]

         On July 23, 2019, Gomez filed this suit against the City, Galman, and Sutton seeking damages for the physical and mental injuries he sustained as a result of the July 23, 2018 incident.[14] Gomez alleges that Galman and Sutton are liable under 42 U.S.C. § 1983 for violating his rights guaranteed by the First, Fourth, Eighth, and Fourteenth Amendments by engaging in an unlawful stop, detention, arrest, and use of excessive force.[15] Gomez also alleges that Galman and Sutton are liable under Louisiana state law for assault, battery, false arrest, and intentional infliction of emotional distress.[16]

         Gomez alleges several claims against the City. First, Gomez alleges that the City is liable under § 1983 for the violation of his First, Fourth, Eighth, and Fourteenth Amendment rights “to be on a public street, to be left alone, to locomotion, to travel, to due process of law, to equal protection of law, to freedom from unreasonable search and seizures, to freedom from excessive force, and to freedom from cruel and unusual punishment.”[17] Gomez further alleges that the City's failure to train and supervise NOPD officers contributed to his unlawful stop, detention, and arrest, and the use of excessive force.[18] Gomez also alleges that the City is vicariously liable under Louisiana law for Galman and Sutton's actions, and liable in its own right under Louisiana law for intentional infliction of emotional distress, negligent hiring, retention, and supervision, and violating the public records law.[19]

         II. PENDING MOTION

         The City argues that Gomez's § 1983 and state-law claims against it fail for lack of supporting factual allegations.[20] The City contends that it cannot be held liable on any legal theory Gomez advances because Galman and Sutton were off-duty and acting out of purely personal motives, unconnected to their employment with the NOPD, when the incident occurred.[21] As to the § 1983 claims, the City argues that the complaint contains conclusory allegations regarding the failure to train and supervise without identifying a specific policy or custom, promulgated by or known to a specific policymaker, that was the moving force behind the alleged constitutional violations.[22] The City further argues that there is no causal link between any alleged insufficient hiring and training and Galman and Sutton's off-duty actions taken out of personal motives.[23]

         Similarly, with respect to the state-law claims, the City argues that it cannot be held vicariously liable for Galman and Sutton's actions because they were not acting within the course and scope of their employment, as they were off-duty and not performing actions incidental to their duties as NOPD officers.[24] Also, the City argues that Gomez did not state a claim for negligent hiring, retention, or supervision because he alleges no facts stating what the City should have known about Galman and Sutton's alleged “propensity for physical aggressive behavior” and “racist, nativist, or xenophobic conduct, ” what activities they engaged in that alerted the City to their allegedly being unfit for the job and dangerous to the public, or how any supervision would have prevented the actions they took while off duty.[25] Finally, the City argues that Gomez cannot maintain his intentional infliction of emotional distress claim because there is no evidence that the City knew about or desired the harm Gomez sustained as it did not know that Galman and Sutton intended to commit the alleged acts before they occurred.[26]

         In opposition, Gomez argues that he pleaded adequate facts to state § 1983 and state-law claims against the City.[27] As to the § 1983 claim, Gomez argues that the City had an official policy or custom of protecting its officers from their own wrongdoing known as the “blue code of silence, ” and of instituting insufficient hiring and training procedures to increase the number of officers.[28] Gomez claims that Galman and Sutton felt empowered by the “blue code of silence, ” which caused them to act with impunity in beating Gomez and then calling the NOPD for backup.[29] Gomez contends that the City is a policymaker that had actual or constructive knowledge of the alleged policy or custom because the City was aware of the problems within the NOPD identified in the federal consent decree, amended consent decree, and independent monitor's report.[30]

         Gomez argues that he alleged sufficient facts to support his failure to train or supervise claim because he incorporated into his complaint the independent monitor's report which outlined deficiencies in the NOPD's hiring procedures.[31] According to Gomez, the report found that the NOPD lowered its standards and accepted persons who should not have been officers, including Galman and Sutton, whose racist and violent tendencies would have been discovered with better hiring practices.[32] As support for this notion, Gomez points to two prior NOPD internal investigations concerning Galman.[33] Moreover, Gomez argues that he adequately pleaded a claim for intentional infliction of emotional distress because the City knew that severe emotional distress would result from its faulty hiring practices, lack of training and supervision, and the “blue code of silence” that allowed officers to act without fear of punishment.[34] Finally, Gomez contends that he adequately alleged that the City is vicariously liable for Galman and Sutton's actions because one of them came to the other's assistance, which is the response the City expects of its police officers.[35]

         III. LAW & ANALYSIS

         A. Rule 12(b)(6) Standard

         The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must “‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.'” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does not comply with Rule 8 if it offers “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57).

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss for “failure to state a claim upon which relief can be granted.” 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, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible on the face of the complaint “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id. (quoting Twombly, 550 U.S. at 557). Thus, if the facts pleaded in the complaint “do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court employs the two-pronged approach utilized in Twombly. The court “can choose to begin by identifying pleadings that, because they are no more than conclusions [unsupported by factual allegations], are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Motions to dismiss are disfavored and rarely granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

         A court's review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). A court may also take judicial notice of certain matters, including public records and government websites. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2007); see also Kitty Hawk Aircargo, Inc. v. Chao., 418 F.3d 453, 457 (5th Cir. 2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to the allegations found in the complaint, but courts may also consider “documents incorporated into the complaint by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 Fed.Appx. 408, 409 (5th Cir. 2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

         B. Section 1983

         Section 1983 provides a remedy against “every person, ” who under color of state law, deprives another of any rights secured by the Constitution and laws of the United States. 42 U.S.C. § 1983; Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). The statute is not itself a source of substantive rights; it merely provides a method for vindicating federal rights conferred elsewhere. Olabisiomotosho v. City of Hous., 185 F.3d 521, 525 (5th Cir. 1999). To pursue a claim under § 1983, a plaintiff must: (1) allege a violation of rights secured by the Constitution or laws of the United States; and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law. Sw. Bell Tel., LP v. City of Hous., 529 F.3d 257, 260 (5th Cir. 2008); see also West v. Atkins, 487 U.S. 42, 48 (1988).

         In Monell, the Supreme Court held that a municipality is liable under § 1983 only when the municipality itself caused the constitutional violation at issue. 436 U.S. at 694. To succeed on a Monell claim, the plaintiff must establish: (1) an official policy or custom, of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose “moving force” is that policy or custom. Valle v. City of Hous., 613 F.3d 536, 541-42 (5th Cir. 2010). “It is only when the execution of the government's policy or custom inflicts the injury that the municipality may be held liable under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (internal quotation marks, alterations, and citation omitted).

         1. Color of law

         The City argues that there are no allegations supporting a violation of Gomez's constitutional rights because Galman and Sutton were off duty and acting out of personal motivation. R. Doc. 17-1 at 8 n.1. The Supreme Court has held that “under ‘color' of law means under ‘pretense' of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded.” Screws v. United States, 325 U.S. 91, 111 (1945). The “color of law” analysis “does not depend on [an officer's] on- or off-duty status a the time of the alleged violation, ” but rather, a “court must consider: (1) whether the officer misused or abused his official power, and (2) if there is a nexus between the victim, the improper conduct, and the officer's performance of official duties.” Bustos v. Martini Club Inc., 599 F.3d 458, 464-65 (5th Cir. 2010) (internal quotations marks and alterations omitted) (upholding dismissal of § 1983 claim where plaintiff did not allege facts to suggest off-duty officers who assaulted him at a bar misused or abused their official power). “If an officer pursues personal objectives without using his official power as a means to achieve his private aim, he has not acted under color of state law.” Id. However, “color of law” in § 1983 actions is read broadly to cover situations in which the defendant has power “by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988).

         The complaint states that Galman and Sutton were acting under color of law at the time of the incident, but the facts alleged in the complaint do not support that assertion. Notably, Galman and Sutton were off-duty at a bar, and there is no indication that they were in their NOPD uniforms or that they identified themselves as police officers at any point before they called for backup after Gomez was unconscious. There are no allegations that they used their power as police officers to assault Gomez or that there was a nexus to their official duties. In opposition, Gomez claims that one officer came to the other's aid during the incident, but there is no indication that this was in pursuit of official duties rather than to help a friend in a bar fight. Tellingly, there are no allegations of specific actions by either Galman or Sutton that would lead to the conclusion that either was acting as a police officer. See Duffour v. Guillot, 2013 WL 5673605, at *1-6 (E.D. La. Oct. 17, 2013) (plaintiff did not allege any “facts to support the legal conclusion that a policy or custom was the moving force behind any constitutional harm” where the plaintiff was assaulted by an off-duty police officer at a bar); Cruz v. Fulton, 2016 WL 4543613, at *9-10 (E.D. La. Aug. 31, 2016) (off-duty officer, who was dressed in plain clothes and did not identify himself as a police officer, acted out of “purely personal considerations” when he assaulted and battered an individual with whom he was in a traffic accident). Compare Smith v. Carruth, 2017 WL 785345, at *3 (E.D. La. Mar. 1, 2017) (finding that an off-duty police officer acted under color of law when he flashed his police badge, handcuffed, Mirandized, and placed his victim under arrest for prostitution before raping her). Instead, Gomez's allegations indicate that Galman and Sutton took no step that would reveal to Gomez that they were acting as police officers as opposed to private citizens or off-duty police officers in their personal capacities.

         The Court concludes, then, that, even viewing the allegations in the light most favorable to Gomez, Galman and Sutton were not acting under color of law at the time of the incident.

         2. Official policy or custom

         The “official policy” prong requires that the deprivation of constitutional rights be inflicted pursuant to an official custom or policy. “Official policy is ordinarily contained in duly promulgated policy statements, ordinances or regulations.” Piotrowski v. City of Hous., 237 F.3d 567, 579 (5th Cir. 2001). A “custom” is a “persistent, widespread practice of city officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.” World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 753 (5th Cir. 2009) (quotation marks and citations omitted).

         A policy or custom of inadequate “police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Harris, 489 U.S. at 388. Thus, to prevail on this theory, “a plaintiff must demonstrate: (1) that the municipality's training procedures were inadequate, (2) that the municipality was deliberately indifferent in adopting its training policy, and (3) that the inadequate training policy directly caused the violations in question.” Westfall v. Luna, 903 F.3d 534, 552 (5th Cir. 2018) (quotation marks and ...


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