Opinion
Civil Action NO. 99-3494, Section "K"(5)
August 23, 2000
ORDER
Before the court is plaintiffs' Motion for Reconsideration of the court's June 8, 2000 Minute Entry, dismissing plaintiffs' claims against the New Orleans Police Department and Officer John Doe. In their motion, plaintiffs contend that they received a faxed copy of the Motion to Dismiss but did not receive notice of the June 7, 2000 hearing date. Plaintiffs have not explained what prevented them from calling defendants to ascertain the hearing date. Nonetheless, the court will grant reconsideration of its prior ruling with respect to the New Orleans Police Department. The court will not, however, reconsider its dismissal of Officer John Doe.
I. New Orleans Police Department
In its June 8, 2000 Minute Entry, the court dismissed the New Orleans Police Department because it is not an entity capable of being sued. In their Motion for Reconsideration, plaintiffs argue that their Supplemental and Amending Complaint, with additional allegations lodged against the City of New Orleans and Detective Michael Harrison mooted the Motion to Dismiss. The court sees no reason why additional allegations against the City of New Orleans would moot the Motion to Dismiss by the New Orleans Police Department. In any event, the court stands by its dismissal of the New Orleans Police Department, as it is not an entity capable of being sued.
Federal Rule of Civil Procedure 17(b) provides in relevant part:
The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile . . . In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held. . . .
Fed.R.Civ.Pro. 17(b). The court looks to Louisiana law in order to determine the suability of the New Orleans Police Department. Article 24 of the Louisiana Civil Code provides in relevant part: "A juridical person is an entity to which the law attributes personality, such as a corporation or partnership." La. Civ. Code Ann. art. 24. Although Louisiana courts have not yet ruled on whether a police department is a juridical person that can sue or be sued, the Louisiana Supreme Court has set forth a framework within which to determine the suability of an entity. See Roberts v. Sewerage and Water Board, 634 So.2d 341 (La. 1994) (Sewerage and Water Board Commission was third party capable of being sued under state workers compensation law). The court in Roberts stated:
In the absence of positive law to the contrary, a local government unit may be deemed to be a juridical person separate and distinct from other government entities, when the organic law grants it the legal capacity to function independently and not just as the agency or division of another governmental entity.Id. at 346-47. In concluding that the Sewerage and Water Board was a "third person" capable of being sued, the Roberts court focused its analysis on the independent management, financing and operations of the board. See id. at 352.
On the other hand, in City Council of Lafayette v. Bowen, 649 So.2d 611, 616 (La.App. 3rd Cir. 1994), the Louisiana Third Circuit Court of Appeal held that under the Roberts analysis, the City Council of Lafayette, organized pursuant to a home rule charter, had no capacity to sue or be sued. The court of appeal affirmed the trial court, which found "no authority, Constitutional, Statutory, or via Home Rule Charter that authorizes the Lafayette City Council to institute, of its own motion, a lawsuit [.]" Bowen, 649 So.2d at 613, internal quotations omitted.
Here, as in Bowen, the City of New Orleans is organized pursuant to a home rule charter, as authorized by Article VI, Section 4 of the Louisiana Constitution. See La. Const. art. VI, § 4. The Preamble of the Home Rule Charter of the City of New Orleans states that the City of New Orleans "intends to possess and exercise the broadest rights, powers, and privileges, and authority of self-government permitted under the Constitution and laws of the State. . . ."
In addition, Section 2-101, entitled "Powers," provides:
In addition to the foregoing, the City shall have all rights, powers, privileges and authority herein conferred or herein enlarged and all rights, powers, privileges and authority whether expressed or implied that may hereafter be granted to a similar corporation by any general law of the State or that may be necessary or useful to enjoy a home rule charter.Id. at § 2-101.
In this case, as in Bowen, the relevant inquiry is whether there exists any law, constitutional, statutory, or via charter, that confers juridical personality on the New Orleans Police Department. Although the New Orleans Home Rule Charter is silent on whether the New Orleans Police Department can sue or be sued, the charter itself creates and vests powers in the Department of Police § 4-102(1).
In Bowen, the court rejected the City Council's argument that the capacity to sue and be sued was inherent within its powers and that it should be allowed to sue in the absence of express constitutional, statutory or charter provisions to the contrary. See Bowen, 649 So.2d at 615. Rather, it held that the City Council was not "an additional and separate government unit with the power to [sue or be sued]. . . . [but was merely] a branch or part of the greater corporate body politic or juridical entity, the City. . . ." Id. at 616. The plaintiffs have cited and this court finds no law, Constitutional, statutory, or otherwise, that confers upon the New Orleans Police Department the authority to sue or be sued or that entitles it to function independently of the city.
Thus, the New Orleans Police Department "is not an entity to which the law attributes personality." Id. In so concluding, the court observes that it is well established in a number of other jurisdictions that police departments do not have a separate existence from the city and are not suable entities. See Darby v. Pasadena Police Department, 939 F.2d 311, 313 (5th Cir. 1991) (under Texas law, police department in city organized under home rule charter may not be sued); Boudreaux v. Bourgeois, 1999 WL 804080 (E.D.La.); Dunmars v. City of Chicago, 22 F. Supp.2d 777, 780-81 (N.D.Ill. 1998); Cooper v. Parrish, 20 F. Supp.2d 1204, 1211 (W.D.Tenn. 1998); London v. Hamilton, 1996 WL 942865 (W.D.N.C. Nov. 27, 1996). In addition, federal courts have consistently dismissed § 1983 claims against nonsuable entities, such as police departments. See, e.g., Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (plaintiffs § 1983 claim against sheriff's department must be dismissed because sheriff's department was not suable entity); Pierre v. Schlemmer, 932 F. Supp. 278, 280 (M.D.Fla. 1996) (dismissing § 1983 claim against police department); Maxwell v. Henry, 815 F. Supp. 213, 215 (S.D.Tex. 1993) (same). Consequently, plaintiffs claims against the New Orleans Police Department were properly dismissed.
II. Officer John Doe
Plaintiffs also ask that the court reconsider its dismissal of Officer John Doe on grounds that their failure to effect service was mooted when they named an additional officer in the Supplemental and Amending Complaint. The court agrees that if Detective Michael Harrison was properly added, then the Motion for Dismissal of John Doe was moot. However, at this juncture, the validity of the Supplemental and Amending Complaint is not before the court. Therefore, the Motion for Reconsideration of the dismissal of Officer John Doe is denied.
III. Conclusion
In light of the foregoing,
IT IS ORDERED that plaintiffs' Motion for Reconsideration of the court's dismissal of the New Orleans Police Department is GRANTED, and the court's prior ruling (docket #15) is hereby AFFIRMED.
IT IS FURTHER ORDERED that plaintiffs' Motion for Reconsideration of the court's dismissal of Officer John Doe is hereby DENIED.