Opinion
CIVIL ACTION NO. 04-1052, SECTION "N" (3).
December 30, 2004
ORDER AND REASONS
Before the Court is the Motion to Dismiss Pursuant to FRCP 12(b)(6) filed by Defendants The City of New Orleans (the "City") and Superintendent of Police Edward P. Compass, III ("Compass") (Rec. Doc. No. 3). For the reasons explained herein, the motion is DENIED. Although none of Plaintiff's claims has been dismissed, the Court has ordered Plaintiff to make certain amendments to his complaint, if he wishes to pursue the affected claims further. Those amendments must be submitted within twenty (20) days from the date this Order is entered. Additionally, the amendments are to be set forth in a superseding complaint that includes both the amendments and the allegations in his original complaint on which Plaintiff continues to rely.
This ruling is, of course, without prejudice to the movants' right to submit a properly supported motion for summary judgment for consideration by the Court.
Background
Plaintiff's suit alleges constitutional and state law violations arising out of an encounter on December 18, 2003, with Defendants Sydney Webb and Michael Whetstone, who are former New Orleans Police Department officers. Specifically, Plaintiff alleges that Webb and Whetstone forced him to give them cash in exchange for his freedom from an unlawful arrest. Plaintiff seeks damages from the defendants — the City, the New Orleans Police Department, Compass, Webb, and Whetstone — pursuant to 42 U.S.C. § 1983 and Louisiana state law. The claims against Compass, Webb, and Whetstone are asserted against them in their individual and official capacities.The City and Compass contend that they cannot be held liable under any theory of recovery for the intentional criminal acts allegedly perpetrated by Webb and Whetstone solely for their own personal gain. Accordingly, they ask that Plaintiff's claims against them be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Law and Analysis
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." To satisfy this requirement, the statement must provide the defendant with "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S. Ct. 992, 998 (2002) (internal citations omitted); see also Christopher v. Harbury, 536 U.S. 403, 416, 122 S.Ct. 2179, 2187 (2002) (the elements of the plaintiff's claim(s) "must be addressed by allegations in the complaint sufficient to give fair notice to a defendant").
Given this simplified notice pleading standard, Rule 12(b)(6) motions to dismiss are "viewed with disfavor and [are] rarely granted." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (internal citations omitted). Indeed, a Rule 12(b)(6) motion to dismiss should be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" in the complaint. Swierkiewicz, 534 U.S. at 514, 122 S.Ct. at 998 (internal citations omitted); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999 ("dismissal will not be affirmed if the allegations support relief on any possible theory") (internal citations omitted). In making this determination, the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279 (1986). Further, "[a]ll questions of fact and any ambiguities in the controlling substantive law must be resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
If the complaint "fails to specify the allegations in a manner that provides sufficient notice," a motion for more definite statement, pursuant to Rule 12(e), is appropriate. Swierkiewicz, 534 U.S. at 514, 122 S.Ct. at 998. "[L]iberal discovery rules and summary judgment motions [also are available] to define dispute facts and issues and to dispose of unmeritorious claims." Id. at 998.
A. Section 1983 Claims
Liability under § 1983 may not be imposed based on a theory of respondent superior or vicarious liability. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978). A municipality may be held liable under that statute, however, when a constitutional deprivation is caused by the execution of a policy or custom of the municipality. Id. "An official policy is: (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [government entity] . . . or by an official to whom the [entity] ha[s] delegated policy-making authority; or (2) a persistent, widespread practice of . . . 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 [the entity's] policy." Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 289 (5th Cir. 2002) (quoting Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)). "[T]he failure to train or the inadequate training of municipal officers can establish an official municipal policy or custom and subject a local government to liability under § 1983." Hayward v. City of New Orleans, 2004 WL 258116 (E.D.La.) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197 (1989); Bd. of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382 (1997).
With regard to the claims asserted against Compass, a supervisory official is individually liable under § 1983 only if (1) his conduct directly causes a constitutional violation; or (2) a causal connection exists between the official's conduct and the violation of the plaintiff's constitutional rights and the official's conduct constituted deliberate indifference to those rights. See, e.g, Breaux v. City of Garland, 205 F.3d 150, 161 (5th Cir.), cert. denied, 531 U.S. 816, 121 S. Ct. 52 (2000); Doe v. Taylor Inde. School Dist., 15 F.3d 443, 456-58 (5th Cir. 1994) (describing evidence satisfying indifference standard); Whiting v. Tunica County, 222 F.Supp.2d 809, 816-17 (N.D. Miss. 2002) (discussing deliberate indifference standard).
The § 1983 claims asserted against Compass in his official capacity are deemed to be the equivalent of claims against the governmental entity he serves. Bramlett v. Bruell, 2004 WL 1243684 (E.D. La. 6/3/04) (citing Ashe v. Corley, 992 F.2d 540, 541 n. 1 (5th Cir. 1993)) (internal citations omitted)).
In reviewing the instant motion, the Court is cognizant of the very early stage of this proceeding, the liberal pleading standard imposed by Rule 8, and that the motion under consideration is a Rule 12 motion rather than a motion for summary judgment. The Court also is well aware of its obligation to construe Plaintiff's complaint in his favor. Given these considerations, the Court is unable to find that Plaintiff cannot prove any set of facts in support of his § 1983 claims that would entitle him to relief. Accordingly, the Court declines to grant the motion to dismiss with respect to those claims. Although not particularly detailed, Plaintiff's complaint arguably can be construed to allege, at a minimum, that the City and Compass had prior knowledge of other, similar civil rights abuses by Webb and Whetstone and/or other members of the New Orleans Police Department, but deliberately failed to take adequate remedial and precautionary measures that would have prevented the constitutional violations allegedly suffered by Plaintiff. Cf. Bramlett v. Buell, 2004 WL 1243684, *3 (E.D.La.) (concluding that it would be wholly unreasonable to require a plaintiff at the pleading stage to allege with specificity all of the other acts that he will rely upon to establish a policy).
The Court does recognize that Plaintiff's complaint is somewhat vague in terms of setting forth his present understanding of the extent and timing of the City's and Compass's alleged awareness of prior, similar conduct by Webb, Whetstone, and/or others in the department, as well as specific actions or inactions on the part of Compass and other supervisory officials in responding to and/or attempting to prevent such conduct. The movants may wish to request that information by means of a properly supported Rule 12(e) motion for more definite statement and/or discovery requests.
The Court, however, does find Plaintiff's complaint to be particularly deficient in providing adequate notice of his conspiracy claims, and the grounds upon which they rest, insofar as the City and Compass are alleged to have been included in a conspiracy with Webb and Whetstone regarding the events of December 18, 2003, that are alleged in Plaintiff's complaint. Accordingly, if Plaintiff wishes to pursue further his conspiracy claims against the City and Compass, he must amend his complaint to clarify the factual bases of these claims.
B. State Law Claims
Relying heavily on the Louisiana Supreme Court's decision in Baumeister v. Plunkett, 673 So. 2d 994 (La. 1996), the City argues that it cannot be held vicariously liable for the alleged intentional tortious and criminal actions of Webb and Whetstone. On the showing made, however, the Court, at this juncture, disagrees and finds Baumeister to be distinguishable from the instant action. In Baumeister, the Louisiana Supreme Court specifically noted that the defendant did not order the plaintiff into the room where the alleged sexual assault occurred or threaten her with the loss of her job if she did not respond to his sexual advances. Baumeister, 673 So.2d at 1000. Here, the same is not true. Although the Court agrees that the actions of Webb and Whetstone were for their own personal, financial gain, those actions were made possible by the legal authority and power stemming from their positions as police officers. Given that patrolling and making arrests are among police officers' usual duties, and considering the corresponding public trust necessarily associated with those duties, as well as the unfortunate, but ever present possibility for abuse of the significant power held by those public servants, the movants have not convinced the Court that Webb's and Whetstone's alleged conduct is not, as a matter of law, to be regarded as a risk of harm fairly attributable to the City as their employer. Cf. Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1 Cir. 1979) (city was vicariously liable for police officer who arrested plaintiff for vagrancy and then raped her before releasing her from police custody); see also, e.g., Bates v. Caruso, 881 So.2d 758 (La.App. 4 Cir. 2004) (discussing rationale of Applewhite and Turner v. State, 494 So.2d 1292 (La.App. 2 Cir. 1986)); Latullas v. State of Louisiana, 658 So.2d 800 (La.App. 1 Cir. 1995) (state vicariously liable when guard raped prison inmate).
Although not specifically set forth in the complaint, the Court construes it in Plaintiff's favor and assumes from its references to the patrol car and handcuffs, as well as the absence of any suggestion to the contrary in the parties' briefs, that Webb and Whetstone were on-duty and in uniform during the relevant time period on December 18, 2003.
With regard to the City's and Compass's possible primary liability under state law, Plaintiff does not indicate the particular claims, if any, that he intends to pursue. To the extent that Plaintiff intends to pursue claims corresponding to those referenced in connection with § 1983, e.g., conspiracy, failure to supervise, failure to train, failure to discipline, failure to investigate, etc., his complaint is not sufficiently clear in this respect. Accordingly, to ensure that the City and Compass, as well as the Court, have adequate notice of these claims, as well as the grounds on which they rest, the Court, pursuant to Rule 12(e), will require Plaintiff to amend his complaint to clarify the nature and factual bases of his state law claims.
Any state law conspiracy claim will require the same additional factual detail ordered with regard to Plaintiff's § 1983 conspiracy claim.
Conclusion
For the foregoing reasons, IT IS ORDERED that the Rule 12(b)(6) motion to dismiss filed by the City of New Orleans and Superintendent Edward P. Compass, III, is DENIED. Notwithstanding this ruling, the Court will require Plaintiff to make certain amendments to his complaint, as stated herein, if he wishes to proceed further with the affected claims. All amendments required by the Court must be submitted within twenty (20) days from the date this Order is entered. Additionally, the allegations in its original complaint on which Plaintiff continues to rely and Plaintiff's amendments are to be submitted in the form of a single superseding complaint.