Cross v. Bates-Anderson et al

MOTION to Dismiss for Failure to State a Claim 12

E.D. La.August 22, 2016

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DAPHNE CROSS VERSUS CANDICE BATES-ANDERSON, in her official capacity as Chief Judge for Juvenile Court; LEMOYNE REINE, in his official capacity of Probation Officer; DAPHNE JOHNSON, in her official capacity of supervisor of LEMOYNE REINE; et al * * * * * * * * * * * * * * * * * * * * * * * CIVIL ACTION NUMBER: 2:16-cv-11626 SECTION: A (4) JUDGE JAY C. ZAINEY MAG. JUDGE KAREN WELLS ROBY * * * * * * * * * * * * * * * * * * * * * * * * * * MOTION TO DISMISS DEFENDANTS DAPHNE JOHNSON, LEMOYNE REINE, AND CODY SMITH NOW INTO COURT, through undersigned counsel, come defendants Daphne Johnson, Lemoyne Reine, and Cody Smith, who move for dismissal of all federal claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for the reasons contained herein which are more fully explained in the accompanying memorandum in support thereof. 1. The plaintiff filed the instant action under 42 U.S.C. §1983 against these defendants in their official capacity. 2. Daphne Johnson, Lemoyne Reine, and Cody Smith, in their official capacity, are not “persons” capable of being sued under 42 U.S.C. §1983. Therefore, all federal claims against them should be dismissed with prejudice for failure to state a claim upon which relief may be Case 2:16-cv-11626-JCZ-KWR Document 8 Filed 08/22/16 Page 1 of 2 2 granted. WHEREFORE, defendants Daphne Johnson, Lemoyne Reine, and Cody Smith pray the instant motion be granted and that all federal claims against them be dismissed at plaintiff’s cost. Respectfully submitted, JEFF LANDRY ATTORNEY GENERAL BY: s/Michael C. Keller MICHAEL C. KELLER (#20895) SCOTT G. CENTORINO (#36826) ASSISTANT ATTORNEYS GENERAL LOUISIANA DEPARTMENT OF JUSTICE LITIGATION DIVISION 400 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 Telephone No.: (504) 599-1200 Facsimile No.: (504) 599-1212 E-Mail: kellerm@ag.louisiana.gov centorinos@ag.louisiana.gov CERTIFICATE OF SERVICE I hereby certify that on August 22, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. I further certify that a copy of the foregoing was mailed to the pro se plaintiff at her most current address of record via First Class U.S. Mail. s/Michael C. Keller____________ MICHAEL C. KELLER Case 2:16-cv-11626-JCZ-KWR Document 8 Filed 08/22/16 Page 2 of 2 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DAPHNE CROSS VERSUS CANDICE BATES-ANDERSON, in her official capacity as Chief Judge for Juvenile Court; LEMOYNE REINE, in his official capacity of Probation Officer; DAPHNE JOHNSON, in her official capacity of supervisor of LEMOYNE REINE; et al * * * * * * * * * * * * * * * * * * * * * * * CIVIL ACTION NUMBER: 2:16-cv-11626 SECTION: A (4) JUDGE JAY C. ZAINEY MAG. JUDGE KAREN WELLS ROBY * * * * * * * * * * * * * * * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF MOTION TO DISMISS DEFENDAN TS DAPHNE JOHNSON, LEMOYNE REINE, AND CODY SMITH MAY IT PLEASE THE COURT: Defendants Daphne Johnson, Lemoyne Reine, and CodySmith herein explain why they are entitled to dismissal of the federal claims against them with prejudice. The plaintiff brings a civil suit for monetary relief under 42 U.S.C. §1983. The plaintiff sues these state officials in their official capacity. State officials acting intheir official capacity are not “persons” for purposes of 42 U.S.C. §1983. I. Standard of Review. Rule 8 of the Federal Rules of Civil Procedure requires a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(A)(2). To satisfy Rule 8, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007). Case 2:16-cv-11626-JCZ-KWR Document 8-1 Filed 08/22/16 Page 1 of 3 2 As the Court held in Twombly, the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawf lly- harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elemnts of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enha cement.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly 550 U.S. 544) (additional internal citations omitted). II. State officials in their official capacity are not “persons” capable of being sued under 42 U.S.C. §1983. 42 U.S.C. §1983 claims may be asserted only against “persons” as the statute and case law define that term. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). It is well-established that theState, its agencies, and its officers in their official capacity are not considered “persons” for purposes of 42 U.S.C. §1983. Id. See also Fairley v. Stalder, 294 Fed.Appx. 805, 808-809, 2008 WL 3244022, 3 (5th Cir. 2008) (“We begin an analysis of [plaintiff’s claim for] damages under §1983 by quoting long and clearly established Supreme Court precedent on the matter: ‘[N]either a State nor its officials acting in their official capacities are ‘persons’ under §1983.’ As §1983 only provides a remedy against a ‘person,’ the dismissal of Fairley’s §1983 claims was indisputably proper.”) (quoting Will v. Michigan, 491 U.S. at 71, 109 S.Ct. 2304). Therefore, all federal claims against Daphne Johnson, Lemoyne Reine, and Cody Smith should be dismissed with prejudice. III. Conclusion. Considering the foregoing, Daphne Johnson, Lemoyne Reine, and Cody Smith in their official capacity are not considered “persons” capable of being sued under any of the federal statutes purporting to create a cause of action in this case. All federal claims against them should Case 2:16-cv-11626-JCZ-KWR Document 8-1 Filed 08/22/16 Page 2 of 3 3 be dismissed with prejudice. Respectfully submitted, JEFF LANDRY ATTORNEY GENERAL BY: s/Michael C. Keller MICHAEL C. KELLER (#20895) SCOTT G. CENTORINO (#36826) ASSISTANT ATTORNEYS GENERAL LOUISIANA DEPARTMENT OF JUSTICE LITIGATION DIVISION 400 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 Telephone No.: (504) 599-1200 Facsimile No.: (504) 599-1212 E-Mail: kellerm@ag.louisiana.gov centorinos@ag.louisiana.gov CERTIFICATE OF SERVICE I hereby certify that on August 22, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. I further certify that a copy of the foregoing was mailed to the pro se plaintiff at her most current address of record via First Class U.S. Mail. s/Michael C. Keller____________ MICHAEL C. KELLER Case 2:16-cv-11626-JCZ-KWR Document 8-1 Filed 08/22/16 Page 3 of 3 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DAPHNE CROSS VERSUS CANDICE BATES-ANDERSON, in her official capacity as Chief Judge for Juvenile Court; LEMOYNE REINE, in his official capacity of Probation Officer; DAPHNE JOHNSON, in her official capacity of supervisor of LEMOYNE REINE; et al * * * * * * * * * * * * * * * * * * * * * * * CIVIL ACTION NUMBER: 2:16-cv-11626 SECTION: A (4) JUDGE JAY C. ZAINEY MAG. JUDGE KAREN WELLS ROBY * * * * * * * * * * * * * * * * * * * * * * * * * * NOTICE OF SUBMISSION TO: DAPHNE CROSS P.O. Box 3960 New Orleans, Louisiana 70177 lotsacademy@gmail.com PLEASE TAKE NOTICE, that the undersigned counsel hereby submit the foregoing Motion to Dismiss for decision by the Honorable Jay C. Zainey, at the United States District Courthouse for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana, on the 7th day of September, 2016, at nine o’clock in the morning (9:00 a.m.). Case 2:16-cv-11626-JCZ-KWR Document 8-2 Filed 08/22/16 Page 1 of 2 2 Respectfully submitted, JEFF LANDRY ATTORNEY GENERAL BY: s/Michael C. Keller MICHAEL C. KELLER (#20895) SCOTT G. CENTORINO (#36826) ASSISTANT ATTORNEYS GENERAL LOUISIANA DEPARTMENT OF JUSTICE LITIGATION DIVISION 400 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 Telephone No.: (504) 599-1200 Facsimile No.: (504) 599-1212 E-Mail: kellerm@ag.louisiana.gov centorinos@ag.louisiana.gov CERTIFICATE OF SERVICE I hereby certify that on August 22, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. I further certify that a copy of the foregoing was mailed to the pro se plaintiff at her most current address of record via First Class U.S. Mail. s/Michael C. Keller____________ MICHAEL C. KELLER Case 2:16-cv-11626-JCZ-KWR Document 8-2 Filed 08/22/16 Page 2 of 2