Opinion
Civil Action No: 00-1596, Section: "R" (3)
January 26, 2001
ORDER And REASONS
Before the Court is defendant's motion to dismiss pursuant to Rule 12(b)(6). For the following reasons, the Court grants the motion.
I. BACKGROUND
Plaintiff Eric Berger, a nine-year veteran of the New Orleans Police Department, sues the City of New Orleans and Superintendent of the New Orleans Police Department, Richard Pennington, in his official capacity for not allowing plaintiff to return to regular duty after being placed on administrative assignment. Under police department policy, plaintiff and two other officers were placed on administrative reassignment after they were involved in a shooting incident on March 8, 1997. Officers on reassignment are not allowed to wear uniforms, or carry their service weapons or badges, except during their regular tours of duty, and they are not allowed to work any outside details or overtime.
An investigation cleared all three officers of any wrongdoing. The other officers were returned to regular duty approximately two months after the incident, but plaintiff was not. Plaintiff asserts that he has remained on administrative reassignment without cause and in violation of the Fourteenth Amendment guarantee to equal protection. Defendants contend that plaintiff has not been returned to regular duty because of his continued infractions of departmental policy while on administrative assignment and for other misconduct prior to March of 1997.
Plaintiff's complaint simply alleges that Superintendent Pennington's decision not to release him from administrative assignment "violates plaintiff's equal protection rights . . . under the Fourteenth Amendment of the United States Constitution, and under Article I, Section 3 of the Louisiana State Constitution." (See Complaint para; 21.) In his complaint, plaintiff sues for injunctive relief to restore him to regular duty and for damages for the loss income incurred because of his administrative reassignment. Plaintiff does not allege any claim under Title 42, United States Code Section 1983. Defendants assert that plaintiff has failed to state a claim upon which relief can be granted.
II. DISCUSSION
A. Rule 12(b)(6)
In a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). Dismissal is warranted if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Piotrowski v. City off Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
B. Fourteenth Amendment Claims
Plaintiff brings suit as a direct action under the Fourteenth Amendment and Louisiana Constitution Article I, Section 3. The Fifth Circuit is reluctant to find causes of action that arise directly under the Constitution. See Hearth, Inc. v. Dep't off Public Welfare, 617 F.2d 381, 382 (5th Cir. 1980); see also Garrett v. Dallas Public Schools, 1999 WL 1212859, *2 (N.D. Tex. Dec. 16, 1999); Jeffrey v. Nutt, 1998 WL 204685, *1 ((N.D. Tex. April 17, 1998). Further, when Congress has provided an adequate alternative remedial scheme like Section 1983, which is intended to substitute for direct recovery under the Constitution, a direct action is not available. See Williams v. Bennett, 689 F.2d 1370, 1390 (11th Cir. 1982). Several circuits agree with this position and have held that plaintiffs can no longer bring a direct cause of action against a municipality under the Constitution. See Thomas v. Shipka, 818 F.2d 496, 501 (6th Cir. 1987), vacated on other grounds, 488 U.S. 1036, 109 S. Ct. 859 (1989), remanded to 872 F.2d 772 (6th Cir. 1989) (citing Turpin v. Mailet, 591 F.2d 426 (2d Cir. 1979); Owen v. City of Independence, 589 F.2d 335 (8th Cir. 1978), rev'd on other grounds, 445 U.S. 622, 100 S. Ct 1398 (1980), reh'g denied, 446 U.S. 993, 100 S. Ct. 2979 (1980); Cale v. Covington, 586 F.2d 311 (4th Cir. 1978); Molina v. Richardson, 578 F.2d 846 (9th Cir. 1978), cert. denied, 439 U.S. 1048, 99 S. Ct. 724 (1978)). Section 1983 is the proper vehicle for raising such constitutional claims. See Burns-Toole v. Byrne, 11 F.3d 1270, 1273 n. 3 (5th Cir. 1994); Bennett, 689 F.2d at 1390. As plaintiff has not brought his Fourteenth Amendment claim under Section 1983, the Court must dismiss his claim for failing to state a claim upon which relief can be granted. See Hunt v. Smith, 67 F. Supp.2d 675, 681 (E.D. Tex. Oct. 13, 1999) (dismissing plaintiff's direct action under the Fourteenth Amendment); Garrett, 1999 WL 1212859 at *2 (same); Jeffrey, 1998 WL 204685 at *1 (same). Although plaintiff relies on Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1071 (Feb. 23, 2000), that case did not address the issue of whether a direct action under the Constitution is proper when a Section 1983 remedy is available.
The Court also dismisses plaintiff's state constitutional claims for lack of jurisdiction under 28 U.S.C. § 1367 (c)(3). See 28 U.S.C. § 1367 (c)(3) (court may dismiss supplemental claims once court dismisses all claims over which it has original jurisdiction); Noble v. White, 996 F.2d 797 (5th Cir. 1993)
III. CONCLUSION
For the foregoing reasons, the Court grants defendants' motion to dismiss.