Opinion
CIVIL ACTION NO. 03-3040, SECTION "E"(1)
January 28, 2004
ORDER AND REASONS
Plaintiff, Christopher Broussard, a state prisoner, filed this lawsuit pursuant to 42 U.S.C. § 1983 against Deputy Boudoin, Jefferson Parish, the Jefferson Parish Sheriffs Office, and Sheriff Harry Lee. Plaintiff claims that he was the victim of excessive force at the hands of Deputy Boudoin. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge.
Rec. Doc. 1.
Rec. Doc. 31.
The Parish of Jefferson has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) . Because the Parish has already filed an answer in this proceeding, the motion is treated as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) based on a failure to state a claim on which relief may be granted.See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999); Oakville Community Action Group v. Industrial Pipe Inc., Civil Action No. 02-1258, 2003 WL 22990719, at *2 (E.D. La. Dec. 17, 2003). Plaintiff was ordered to file a memorandum in opposition to the Parish's motion no later than January 23, 2004, but he has failed to do so.
Rec. Doc. 29.
Rec. Doc. 21.
Rec. Doc. 30.
The United States Fifth Circuit Court of Appeals has noted:
The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. . . . In analyzing the complaint, [a court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim. Thus, the court should not dismiss the claim unless plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint.Jones, 188 F.3d at 324 (citations omitted).
The Parish of Jefferson argues that the claims against it must be dismissed because it exercises no authority or control over Jefferson Parish Sheriff Harry Lee or Deputy Boudoin, who is an employee of the Jefferson Parish Sheriff's Office. The Parish is correct.
In Louisiana, a parish sheriff occupies a constitutional office which exists and functions independently of the governing body of the parish. La. Const, art. 5, § 27; see also La. Const, art. 6, §§ 5(G) and 7(B). Accordingly, a parish government has no authority over a parish sheriff or, by extension, his deputies. See Foster v. Hampton, 352 So.2d 197, 203 (La. 1977). A parish cannot be held vicariously liable for the acts of a parish deputy. Id., see also Nall v. Parish of Iberville, 542 So.2d 145, 149 (La.App. 1st Cir. 1989); Vance v. Orleans Parish Criminal Sheriff's Department, 483 So.2d 1178, 1180 (La.App. 4th Cir. 1986).
Although other portions of the Foster decision have been superseded by statute, the portion of the opinion regarding the liability of the parish government has not. See Nall v. Parish of Iberville, 542 So.2d 145 (La.App. 1st Cir. 1989).
Because the Parish of Jefferson has no authority or control over Sheriff Lee or Deputy Boudoin, the Parish cannot be held liable under any theory of vicarious liability or pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There is neither a set of facts nor a possible legal theory that plaintiff could prove consistent with the allegations in his complaint so as to hold the Parish of Jefferson liable in this civil action.
Moreover, in any event, a § 1983 claim cannot be founded on vicarious or respondeat superior liability. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002): see also Henley v. Edlemon, 297 F.3d 427, 430 n. 6 (5th Cir. 2002).
Accordingly, defendant's motion is GRANTED, and plaintiff's claims against the Parish of Jefferson are DISMISSED WITH PREJUDICE.