Opinion
CIVIL ACTION NO. 03-0671, SECTION "K"(3)
January 28, 2004
MINUTE ENTRY
Before the Court is a Motion to Dismiss Under Rule 12(b)(5) for Insufficiency of Process filed by Marc Morial in his former capacity as Mayor of the City of New Orleans and the City of New Orleans (Doc. 13) and Marc H. Mortal's Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. 14). The Court has reviewed the pleadings, memoranda and the relevant law and finds as follows.
Factual Allegations
Tommy Lee Craft, III ("Craft") filed this civil rights and personal injury action arising out of an alleged unprovoked attack by a police officer with the New Orleans Police Department on March 16, 2002. Craft is an Alabama citizen who claims that as a result of an unidentified as yet police officer hitting him, he suffered a fractured skull, complete deafness in one ear, partial deafness in his other ear, complete loss of his sense of smell, and other painful and debilitating physical and mental injuries, including without limitation, brain damage.
He has brought this action both under 42 U.S.C. § 1983 and 1988 as well as under Louisiana state law, that being La. Civ. Code arts. 23 15, 2310. 2317, and 2320. thus jurisdiction over this matter is both based on federal claims pursuant to 28 U.S.C. § 1331 and 1 343 as well as diversity of citizenship pursuant to 28 U.S.C. § 1332.
Craft has sued the City of New Orleans, the New Orleans Police Department, Officer John Doe, Marc Morial, both individually and in his official capacity as the Mayor of the City of New Orleans, Richard Pennington, both individually and in his official capacity as the Superintendent of the New Orleans Police Department, Duane Johnson, both individually and in his official capacity as the Acting Superintendent of the New Orleans Police Department, ABC Insurance Company and other unnamed police officers involved in the altercation. With this as background, the Court will now turn to the merits of each motion.
The Motion to Dismiss Under Rule 12(b)(5)
Marc Morial in his former capacity as Mayor of the City of New Orleans ("the Mayor" and the City of New Orleans ("the City") move to dismiss this suit pursuant to Fed.R.Civ.P. 12(b)(5) for insufficiency of service of process as to them based on the alleged failure of Craft to have named and served the "John Doe" police defendant who is allegedly the New Orleans Police Department officer with whom plaintiff had an altercation and who allegedly injured plaintiff that is the basis for this suit.
There is no basis in the law to dismiss properly served defendants, such as the Mayor and the City for the failure of plaintiff to serve another defendant. While it is true that this Court will have to address the issue of whether leave should be granted to amend the Complaint upon plaintiff's identifying the proper police officer or officers, that issue cannot be addressed in this context. The Court will only be able to make a determination based on Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998) after the police officer(s) is(are) actually identified. Indeed, the Court notes that the City has been less than forthcoming with that information. To dismiss John Doe, who is obviously a fictitious party to this suit pursuant to Fed.R.Civ.P. 4(m) is nonsensical. It is impossible to serve an nonexistent party, particularly in light of plaintiff's have not even been able to identity the John Doe. Accordingly,
IT IS ORDERED the Motion to Dismiss Under Rule 12(b)(5) (Doc. 13) is DENIED.
Marc H. Mortal's Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
The Mayor has also filed a Motion to Dismiss all claims brought against him in both his individual and official capacities pursuant to Fed.R.Civ.P. 12(b)(6). The Court has reviewed the pleadings, memoranda, the Complaint and the relevant law, and finds as follows.
Standard of Review
When a defendant attacks the complaint because it fails to state a legally cognizable claim, Rule 12(b)(6) provides the appropriate challenge. The test for determining the sufficiency of a complaint under Rule 12(b)(6) is that "'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Fifth Circuit explained:
Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). Further, "the plaintiff's complaint is to be construed in a light most favorable to plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Securities. Inc. 94 F.3d 189. 194 (5th Cir. 1996). This is consistent with the well-established policy that the plaintiff be given every opportunity to state a claim. Hitt, 561 F.2d at 608. In other words. a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts." Tel.-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th cir. 1992). Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim the district court must examine the complaint to determine whether the allegations provide relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).Id. at 161-62. That said, in evaluating the merit of defendants' immunity defense, the Court "accept[s] the allegations of [plaintiff's] complaint as true." Kalina v. Fletcher, 522 U.S. 118, 122, 118 S.Ct. 502, 505 (1997) (citation omitted).
Official Capacity Claims Against the Mayor
Section 1983 provides for the imposition of liability on any person who, acting under color of state law, deprives another of rights or privileges secured by the Constitution or laws of the United States. 42 U.S.C. § 1983. "Although municipalities are considered "persons" within the meaning of section 1983, the constitutional deprivation must have its origin in what can fairly be said to be a policy of a municipality." Lee v. Mortal, 2000 WL 726SS2 (E.D. La. June 2, 2000) citing Monell v. City of New York Dept. of Social Services 436 U.S. 658 (1978).
In Turner v. Houma Municipal Fire and Police Civil Service Bd., 229 F.3d 478 (5th Cir. 2000), the Court of Appeals criticized omnibus assertions of liability and immunity, stating that "[t]he performance of official duties creates two potential liabilities, individual-capacity liability for the person and official capacity liability for the municipality." Id. at 484. Recognizing the distinction is fundamental because "defenses such as absolute quasi-judicial immunity, that only protect defendants in their individual capacities, are unavailable in official capacity suits." Id. at 483 (citing Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358 (1991)).
Thus, respect to an official capacity claim, there is no heightened pleading standard. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). Since municipalities do not enjoy absolute or qualified immunity from suit, a plaintiff does not need to satisfy a heightened pleading standard when suing such entities. "Applying the Supreme Court's reasoning with respect to Leatherman, the Fifth Circuit Court of Appeals has stated that since official capacity suits are in essence suits against the municipality, defendants sued in their official capacities do not get the added protection of heightened pleading standards." Causey v. Parish of Tangipahoa, 167 F. Supp.2d 898, 90r (E.D. La. 2001) citing Anderson v. Pasadena Independent School Dist., 184 F.3d 439 (5th Cir. 1999) and others. Thus, the proper analysis for the claim against the Mayor in his official capacity is under the liberal pleading standards of Fed.R.Civ.P. 8(a).
To show an unconstitutional policy or custom, the plaintiff must identify the policy or custom, connect the policy or custom with the government entity itself, and show that the particular injury was incurred because of the execution of that policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc); Lee v. Mortal, 2000 WL 726882 (E.D. La. 6/2/00). If plaintiff fails to allege an official policy or custom, then his claim is subject to dismissal. See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996). Reviewing the complaint, the Court finds that plaintiff has done so stating eight different alleged defalcations. As such, the Court will deny the Mayor's motion in this regard.
Individual Capacity Claims Against the Mayor
Personal-capacity suits which seek to impose individual liability upon a government officer for actions taken under color of state law are recognized under § 1983. Hafer v. Melo, 502 U.S. 21, 25 (1991). A state official can be sued in his individual capacity and be held personally liable under § 19S3 if it can be shown that the official, acting under color of state law, cased the derivation of a federal right. Hafer, 502 U.S. at 25-31. However, such persons are entitled to assert personal immunity defenses such as objectively reasonable reliance on existing law or, qualified immunity. Id.
"One of the principal purposes of the qualified immunity doctrine is to shield officers not only from liability, but also from defending against a lawsuit." Jackson v. City of Beaumont Police Department. 958 F.2d 616 (5th Cir. 1992); Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992).
It is well settled that the qualified immunity analysis entails a two step process.
First, a court must determine whether plaintiff has alleged the violation of a constitutional right. Second, if the plaintiff has alleged a constitutional violation, the court must decide if the conduct was objectively reasonable in light of clearly established law at the time the challenged conduct occurred.Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001) (citations omitted); Baker v. Putnal, 75 F.3d 190, 198 (5th Cir. 1996); Morin v. Cane, 77 F.3d 116 (5th Cir. 1996).
As a result, and in response to the Supreme Court's ruling inLeatherman, the Fifth Circuit mandates that where defendant bases a motion to dismiss on the defense of qualified immunity, the Court must allow the plaintiff an opportunity to file a Rule 7(a) reply to those assertions. Schultea v. Wood, 47 F.3d 1427.1434 (5th Cir. 1995). As stated by Judge Vance in Mahrous v. O'Brein, 1998 WL 166189, *1-2 (E.D. La. April 8, 1998):
Public officials performing discretionary functions are generally shielded from suit unless it is shown by specific allegations that the officials violated clearly established statutory or constitutional rights of which reasonable individuals would be aware. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.3d 396 (1982); Schultea, 47 F.3d at 1431. Since qualified immunity does not merely offer immunity from liability, but provides immunity from suit, see Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994), a plaintiff must allege more than conclusory allegations to support his claim. Schultea, 47 F.3d at 1430. In order to survive a qualified immunity defense, a plaintiff must allege particularized facts that support his allegations. See Elliott v. Perez, 751 F.3d 1472, 1476 (5th Cir. 1985). The Fifth Circuit has held that when a defendant asserts the qualified immunity defense, a plaintiff must respond by articulating "specific conduct and action giving rise to a constitutional violation." Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996); Schultea, 47 F.3d at 1432; Elliott, 751 F.3d at 1476. Accordingly, the Court may insist that a plaintiff engage the defendants' affirmative defense at the pleading stage.
While a plaintiff may be held to this heightened pleading standard, the Fifth Circuit has stated that it would be unfair to require a plaintiff to anticipate the qualified immunity defense when drafting a complaint. Schultea, 47 F.3d at 1430. Accordingly, the court designed a unique pleading procedure to manage such cases. Id. at 1433-34. First, a plaintiff is required to file a short and plain statement of his complaint relying on more than mere conclusions. A district court may then, in its discretion, insist that a plaintiff file a reply specifically responding to the defendants' qualified immunity defense. Id.; Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995). The Fifth Circuit has explained that a district court's "discretion not to order such a reply is very narrow." Morin, 77 F.3d at 121. Although plaintiff has articulated his factual allegations in his complaint, memorandum in opposition, and supplemental memorandum in opposition. Fifth Circuit precedent requires the Court to allow plaintiff an opportunity to specify his allegations in a Rule 7(a) reply. See Fed.R.Civ.Pro. 7(a). The Court notes that this minute entry allowing plaintiff to file a Rule 7(a) reply does not reflect on the sufficiency of the allegations currently contained in plaintiff's amended complaint.Id. For the reasons stated the Court likewise will not grant the motion to dismiss the state law claims by reasons of qualified immunity at this stage. Accordingly,
IT IS ORDERED that plaintiff shall file a reply addressing the Mayor's qualified immunity defense by February 9, 2004 IT IS ORDERED that the Mayor's Motion to Dismiss is DENIED with respect to the claims against the Mayor in his official capacity and a ruling is DEFERRED as to the Mayor in his individual capacity and will be taken under submission on February 9, 2004.