Floyd v. City of Kenner , 351 F. App'x 890 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2009
No. 08-30637 Charles R. Fulbruge III
Clerk
CEDRIC FLOYD
Plaintiff - Appellant
v.
CITY OF KENNER, Louisiana; NICK A CONGEMI, Former Chief of Police,
City of Kenner, Louisiana, Individually and in his official capacity; STEVE
CARAWAY, Chief of Police, City of Kenner, Individually and in his official
capacity; MICHAEL CUNNINGHAM, Police Officer, Kenner Police
Department, Individually and in his official capacity; CLIFF DEROCHE,
Police Officer, Kenner Police Department, Individually and in his official
capacity
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-6414
Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Cedric Floyd brought civil rights claims against the City of Kenner,
Louisiana. and four of its police officers. The district court dismissed Floyd’s suit
after determining that he failed to state claims upon which relief could be
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-30637
granted. For the reasons that follow, we affirm the district court’s judgment in
part and reverse it in part.
I. BACKGROUND
This case arose out of the relief effort that followed Hurricane Katrina. As
Kenner’s chief administrative officer, Floyd was charged with overseeing a
center that distributed food and supplies. The center operated during the month
of September 2005 and was patrolled both by National Guardsmen and Kenner
policemen.
Floyd maintains that he occasionally delivered supplies to individuals who
could not reach the center during normal hours of operation. He would load the
supplies and take them away from the center. Those activities, juxtaposed with
charges that Floyd misappropriated supplies, are key to this dispute.
Floyd contends that Kenner’s mayor once directed him to deliver items to
a local apartment complex. Upon arriving at the complex, he says he was
confronted by then-Chief of Police Nick Congemi. Floyd claims that Congemi
saw him as a political nemesis because Floyd helped derail Congemi’s earlier bid
for mayor. At the apartment complex, Floyd claims that Congemi became
“flustered, embarrassed, and angry” due to their verbal exchange.
Within one business day of the confrontation, National Guardsmen from
the center complained that Floyd was illegally distributing some supplies. Later
that same day, one of the National Guardsmen who lodged the complaint was
patrolling the neighborhood where Floyd lived. With him was Officer Cliff
Deroche. Deroche alleges that they heard Floyd’s house alarm go off. They then
allegedly went onto Floyd’s property and saw relief items in plain view. They
reported the discovery to a Kenner police detective, Michael Cunningham. He
then used the information as a basis to file an affidavit in support of search and
arrest warrants. Steve Caraway, the then-chief of investigations, is said to have
approved Cunningham’s filing.
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No. 08-30637
A search warrant was issued and executed. Kenner police seized relief
supplies from Floyd’s home. Floyd was arrested for malfeasance in office but
never prosecuted.
Floyd subsequently filed a pro se civil rights action against the City of
Kenner, as well as Caraway, Congemi, Cunningham, and Deroche, both in their
individual and official capacities. Less than four months later, Floyd obtained
counsel. An amendment was filed which named additional defendants.1 He
maintains that the Defendants “were all part of [an] effort to illegally search his
residence and falsely arrest him for theft/malfeasance” and that it was all
“motivated by the political animus” that Congemi had towards him.
The Defendants filed a motion to dismiss, arguing that Floyd failed to
allege facts sufficient to defeat qualified immunity. Before ruling on the motion,
the district court ordered Floyd to file a reply in order to “provide ‘greater detail’
and [to] assist the Court in deciding whether qualified immunity is proper given
the specific facts and allegations raised in [Floyd]’s [c]omplaint.” After
evaluating the response, the district court dismissed Floyd’s claims with
prejudice. Floyd’s appeal followed.
II. DISCUSSION
We review a Rule 12(b)(6) dismissal de novo. Ballard v. Wall, 413 F.3d
510, 514 (5th Cir. 2005). To survive a motion to dismiss, a plaintiff is required
to plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
1
The amended complaint added numerous National Guardsmen as defendants, but
Floyd later dismissed these individuals from the lawsuit.
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No. 08-30637
Caraway, Congemi, Cunningham, and Deroche have asserted a qualified
immunity defense. In reviewing those claims, we are guided both by the
ordinary pleading standard and by a heightened one.2 See Schultea v. Wood, 47
F.3d 1427, 1433-34 (5th Cir. 1995) (en banc). Schultea explained that, once a
defendant asserts the defense of qualified immunity, a district court may order
the plaintiff to submit a reply after evaluating the complaint under the ordinary
pleading standard. Id. We held that more than mere conclusions must be
alleged, stating specifically that “a plaintiff cannot be allowed to rest on general
characterizations, but must speak to the factual particulars of the alleged
actions, at least when those facts are known to the plaintiff and are not
peculiarly within the knowledge of defendants.” Id. at 1432. “Heightened
pleading requires allegations of fact focusing specifically on the conduct of the
individual who caused the plaintiff’s injury.” Reyes v. Sazan, 168 F.3d 158, 161
(5th Cir. 1999).
Floyd’s complaint alleged that the district court had jurisdiction under 42
U.S.C. §§ 1983, 1985, and 1986. Floyd’s complaint and Schultea reply make no
other reference to Sections 1985 or 1986. Instead, under his “Statement of
Claim,” Floyd focused solely on Section 1983. On appeal, Floyd makes only two
very general references to Sections 1985 and 1986. He never attempts to set
forth what those claims require or how he would satisfy such requirements. A
party waives arguments that are not adequately briefed. United States v.
2
We emphasize that this heightened pleading standard applies only to claims against
public officials in their individual capacities. The Supreme Court’s decision in Leatherman v.
Tarrant County Narcotics and Intelligence Coordination Unit, 507 U.S. 163 (1993), made clear
that a heightened pleading standard was inapplicable to suits against municipalities. Further,
the heightened standard is inapplicable to claims against public officials in their official
capacity, for we have “explained that official-capacity lawsuits are typically an alternative
means of pleading an action against the governmental entity involved . . . .” Baker v. Putnal,
75 F.3d 190, 195 (5th Cir. 1996).
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No. 08-30637
Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989). Accordingly, we will consider the
possibility of Section 1983 liability only.
To plead a Section 1983 claim, Floyd was required to allege facts
demonstrating that (1) a defendant violated the Constitution or federal law and
(2) that he or she was acting under color of state law while doing so. See
Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005). The
qualified immunity defense to such claims, which applies here only to the claims
against the four officers in their individual capacities, works to shield
government officials from liability when they are performing discretionary
functions, “insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Once a defendant invokes the qualified immunity defense, the plaintiff
carries the burden of demonstrating its inapplicability. Club Retro, L.L.C. v.
Hilton, 568 F.3d 181, 194 (5th Cir. 2009). To satisfy the burden, a plaintiff must
meet a two-prong test. Id. “First, he must claim that the defendants committed
a constitutional violation under current law.”3 Atteberry, 430 F.3d at 253.
“Second, he must claim that the defendants’ actions were objectively
unreasonable in light of the law that was clearly established at the time of the
actions complained of.” Id. “To be clearly established for purposes of qualified
immunity, the contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Id. at 256
(citations, internal quotation marks, and alterations omitted). The objective
unreasonableness inquiry requires us to examine an officer’s belief that his or
3
The Supreme Court recently “relaxed the requirement, established in Saucier v. Katz,
533 U.S. 194 (2001), that we must decide if a constitutional violation occurred before we decide
if the law was clearly established.” Club Retro, 568 F.3d at 194 n.4 (emphasis in original).
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No. 08-30637
her actions were lawful under the particular circumstances. Bush v. Strain, 513
F.3d 492, 502 (5th Cir. 2008).
We now consider Floyd’s claims against each defendant.
A. Deroche
The district court held that, although Floyd “may have established a
possible constitutional violation,” Deroche was entitled to qualified immunity
because his conduct “was not objectively unreasonable in light of clearly
established law.” The conduct to which the district court referred was that of
Deroche’s entering Floyd’s backyard and viewing the supplies. This information
was later used to support search and arrest warrants against Floyd.
We start with an examination of the pleadings as to Deroche. The
Defendants’ answer stated that an unnamed officer (the record indicates it was
Deroche) and a National Guardsman responded to a burglar alarm at Floyd’s
residence. It was “as a result of responding to the burglar alarm numerous
items that appeared to have [been] misappropriated” were seen. The answer
also stated that the search on the next day was based on probable cause set forth
in a warrant.
In his Schultea reply, Floyd had to engage the allegations that supported
qualified immunity. Shultea, 47 F.3d at 1433-34. Floyd stated in the reply that
Deroche was dispatched for the specific purpose of entering the property “in an
effort to secure any means with which to embarrass Floyd, and then falsely
assert[] in an affidavit submitted to a neutral magistrate that the entry had been
in response to a burglar alarm.” Floyd alleges that the alarm company’s records
“reflect that the type of alarm which sounded . . . is that which occurs when
someone tests the door by jiggling the knob” and further contends that the alarm
company’s records “reflect notification that police were on the scene within one
minute of the initial record of the alarm.”
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No. 08-30637
The reasonable inferences that can be drawn from these statements are
that Deroche either intentionally set the alarm off after entering Floyd’s
property in order to provide an excuse for being on the premises, or Deroche
unintentionally set the alarm off while on the premises, then used it as
subterfuge. The Schultea reply directly challenges the claim that the alarm
created the probable cause for Deroche to go to Floyd’s residence.
The Defendants move beyond the point and counterpoint of the pleadings
and claim that Deroche’s conduct must “be examined against the backdrop of
circumstances that have never before existed in this country and which hopefully
will never come to pass again.” Even if Floyd’s allegations are accepted as true,
the Defendants argue, Deroche’s actions must be considered in light of the
exigent circumstances at play, particularly the “chaos and lawlessness that
followed in the wake of Hurricane Katrina and the necessity of insuring that the
vast amounts of donated goods reached those for whom [they were] intended,
rather than being misappropriated for the individual profit of the undeserving.”
We disagree. The complaint and the Schultea reply alleges that Deroche
took advantage of chaotic times in a troubled city as a screen for going to Floyd’s
residence to further the malicious schemes of a political antagonist. There may
be no supportive evidence. But the claim exists. It is presented with sufficient
clarity under our pleading rules to survive dismissal. Hurricane Katrina is an
explanation for many events. It is not a justification for intentional acts of the
sort that Floyd claims.
We note that, even beyond the pleadings, an exhibit to the Defendants’
motion to dismiss is the September 20 application for a search warrant. It
asserts that a National Guardsman and Deroche claimed to have gone to Floyd’s
residence in response to a burglar alarm. An affidavit by Detective
Cunningham, made three days after the search, made the same assertion.
Clearly, concerns about Floyd’s possible misappropriation of relief supplies were
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No. 08-30637
not asserted as the reason for Deroche’s trip to Floyd’s residence. Instead, it was
the burglar alarm. Floyd’s reply to the qualified immunity defense engages that
explanation sufficiently.
In Schultea, we adopted the rationale that, “in some cases, such as in
search cases, probable cause and exigent circumstances will often turn on facts
peculiarly within the knowledge of the defendants. And if there are conflicts in
the allegations regarding the actions taken by the police officers, discovery may
be necessary.” Schultea, 47 F.3d at 1432 (citing Anderson v. Creighton, 483 U.S.
635, 646 n.6 (1987)). Here, the Defendants ask us to accept that Deroche
entered the property for the sole purpose of determining if relief items were
present. At the time, Deroche alleged he entered because of the alarm. Floyd
asserts that Deroche knew that Floyd was not misappropriating relief items;
instead, the entry into the property was all about embarrassing Floyd because
of his past run-ins with then-Chief of Police Congemi.
This is the type of conflict that warrants discovery. The district court
should not have dismissed the claim.
B. Cunningham
Officer Cunningham was the affiant who applied for the search and arrest
warrants that were issued against Floyd. The central thrust of Floyd’s claim
against Cunningham is that both warrant applications contained false
statements and omitted information that would have undermined the validity
of the warrants.
The district court held that Floyd did not set forth sufficient facts to allege a
constitutional violation.
Like the claim against Deroche, the alleged constitutional violation against
Cunningham is of the Fourth Amendment. The Supreme Court has held that,
if an affiant “knowingly and intentionally, or with reckless disregard for the
truth,” includes a false statement in an affidavit, and without that false
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No. 08-30637
allegation probable cause would have been lacking, “the Fourth Amendment
requires that . . . the search warrant must be voided and the fruits of the search
excluded. . . .” Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (also discussing
proper hearing procedures). We have held that “the intentional or reckless
omission of material facts from a warrant application may amount to a Fourth
Amendment violation.” Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006).
From these articulations, it becomes clear that state of mind is a critical
element of the underlying constitutional violation. Our case law acknowledges
that the Supreme Court has “held that the public official’s state of mind [is]
generally no longer relevant in deciding a claim of qualified immunity.”
Tompkins v. Vickers, 26 F.3d 603, 607 (5th Cir. 1994) (emphasis added)
(discussing Harlow, 457 U.S. 800). Nonetheless, we have explained that “motive
or intent must be considered in the qualified immunity analysis where unlawful
motivation or intent is a critical element of the alleged constitutional violation.”
Id. This is one of those claims; namely, that an affiant intentionally acted by
way of an omission in order to cause a constitutional violation.
Floyd has consistently alleged that Cunningham acted at the direction of
then-Chief of Police Congemi, who is said to hold political animus towards Floyd.
At a later stage, Floyd will be required to “produce specific support for his claim
of unconstitutional motive.” Id. at 608. But at the pleading stage, his allegation
that Cunningham’s actions were spurred by Congemi’s ill will suffices.
To be sure, certain portions of Floyd’s Schultea reply are insufficient to
state a plausible claim. Floyd, for example, averred that Cunningham’s affidavit
contained “statements of which he had no personal knowledge” that were “sworn
to by him in reckless disregard of the truth.” The Supreme Court emphasized
in Iqbal that such “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” 129 S. Ct. at 1949.
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But viewed in their entirety, Floyd’s pleadings contain more. The Schultea
reply points out that Cunningham’s affidavit stated that Floyd was observed
loading supplies in a City of Kenner truck on September 19, 2005, at the center,
which is located at 2500 Williams Boulevard. Cunningham’s affidavit also
stated that the items seen in plain view by Deroche at Floyd’s home “were
identical to the ones observed on the bed of the City of Kenner truck” at the
center on September 19. Floyd’s pleadings allege that Cunningham knew this
statement to be false because the center was relocated from 2500 Williams
Boulevard on September 17 and 18, so a City of Kenner truck certainly was not
present at 2500 Williams Boulevard on September 19. Floyd further alleges that
Cunningham knew Floyd was the managing supervisor of the center and that
he possessed “full authority to handle[,] dispose and deliver all hurricane
supples.” It is said that Cunningham nonetheless left this relevant if not critical
information out of his affidavit in order to mislead the magistrate.
Taken as true, these facts are sufficient at least to survive Rule 12(b)(6)
dismissal. Floyd’s complaint alleges, with factual specificity, the type of harm
that was found unconstitutional in Franks. Accordingly, the alleged violation
was “clearly established” at the time Cunningham acted. In addition,
Cunningham’s alleged intentional actions were not objectively reasonable. We
therefore reverse the district court’s dismissal of the claims against
Cunningham.
C. Caraway
The allegations against Caraway are twofold. First, Floyd alleges that
Caraway “participated in, approved and directed the application for Arrest and
Search warrants based upon the assertion of facts he knew to be false, resulting
in the false arrest of Plaintiff Cedric Floyd without probable cause . . . .” At the
time the applications were filed, Caraway served as the police department’s chief
of investigations. Second, Floyd avers that, to date, Caraway has failed to return
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No. 08-30637
the items seized from his home, even though the district attorney directed that
the items be returned. Of particular relevance to this allegation is the fact that
Caraway now serves as Kenner’s chief of police and thus presumably controls the
release of the items.
We first review the allegations with respect to the warrant applications.
Floyd does not complain that Caraway himself filed the alleged unlawful
affidavit in support of the warrants. Instead, he claims that Caraway, in his
capacity as chief investigator, directed and approved the applications filed by
Cunningham. This is an alleged Fourth Amendment violation under Franks, as
we stated in addressing the claim against Cunningham.
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.
Liability under Section 1983 for a supervisor may exist based either on personal
involvement in the constitutional deprivation or “a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional violation.”
Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
We must determine whether Floyd alleged the “factual particulars”
necessary to state a valid Fourth Amendment claim against Caraway. See
Schultea, 47 F.3d at 1432. The relevant allegation is that Caraway “participated
in, approved and directed” the filing of false and misleading affidavits.
In analyzing the issue, we turn to the Supreme Court’s recent decision in
Iqbal. 129 S. Ct. 1937. There, a Pakistani man detained following the
September 11, 2001 terrorist attacks alleged that former Attorney General John
Ashcroft and FBI Director Robert Mueller authorized an unconstitutional
detention policy. Id. at 1942. To state a cognizable claim, the plaintiff was
required to “plead sufficient factual matter to show that petitioners adopted and
implemented the detention policies at issue not for a neutral, investigative
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No. 08-30637
reason but for the purpose of discriminating on account of race, religion, or
national origin.” Id. at 1948-49. The Supreme Court described the factual
matter contained in the complaint:
The complaint contends that petitioners designated respondent a
person of high interest on account of his race, religion, or national
origin, in contravention of the First and Fifth Amendments to the
Constitution. The complaint alleges that “the [FBI], under the
direction of Defendant MUELLER, arrested and detained thousands
of Arab Muslim men . . . as part of its investigation of the events of
September 11.” It further alleges that “[t]he policy of holding post-
September-11th detainees in highly restrictive conditions of
confinement until they were ‘cleared’ by the FBI was approved by
defendants ASHCROFT and MUELLER in discussions in the weeks
after September 11, 2001.” Lastly, the complaint posits that
petitioners “each knew of, condoned, and willfully and maliciously
agreed to subject” respondent to harsh conditions of confinement “as
a matter of policy, solely on account of [his] religion, race and/or
national origin and for no legitimate penological interest.” The
pleading names Ashcroft as the ‘principal architect’ of the policy,
and identifies Mueller as “instrumental in [its] adoption,
promulgation, and implementation.”
Id. at 1944 (citations omitted).
After considering these factual particulars, the Court held that the
plaintiff had not “nudged his claims . . . across the line from conceivable to
plausible.” Id. at 1950-51 (quoting Twombly, 127 S. Ct. at 1974). They were
bare assertions, without detail or context. See id. One might speculate, and the
plaintiff there apparently did, that the actions and knowledge he alleged were
true. See id. It is clear, though, that in the arena of qualified immunity (but
surely not solely in this arena), discovery is not the place to determine if one’s
speculations might actually be well-founded. Consistent with our holding in
Schultea, the pleadings must have sufficient precision and factual detail to
reveal that more than guesswork is behind the allegation. Schultea, 47 F.3d at
1434.
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No. 08-30637
Certainly our precedents have acknowledged that some limited discovery
may at times be needed before a ruling on immunity is proper. As an example,
we referred to “search cases, [because] probable cause and exigent circumstances
will often turn on facts peculiarly within the knowledge of the defendants.” Id.
at 1432. In such a case, “if there are conflicts in the allegations regarding the
actions taken by the police officers, discovery may be necessary.” Id.
The importance of discovery in such a situation is not to allow the plaintiff
to discover if his or her pure speculations were true, for pure speculation is not
a basis on which pleadings may be filed. Rule 11 requires that any factual
statements be supported by evidence known to the pleader, or, when specifically
so identified, “will likely have evidentiary support” after discovery. Fed. R. Civ.
P. 11(b)(3) (emphasis added). There has to be more underlying a complaint than
a hope that events happened in a certain way. Instead, in the “short and plain”
claim against a public official, “a plaintiff must at least chart a factual path to
the defeat of the defendant's immunity, free of conclusion.” Schultea, 47 F.3d
at 1430. Once that path has been charted with something more than conclusory
statements, limited discovery might be allowed to fill in the remaining detail
necessary to comply with Schultea. Id. at 1433-34.
Under these standards, Floyd’s allegations against Caraway amount to
nothing more than speculation. The conclusory assertion that Caraway
“participated in, approved and directed” the filing of false and misleading
affidavits is consistent with finding a constitutional violation, but it needed
further factual amplification. See Iqbal, 129 S. Ct. at 1949. Floyd might not
know everything about what occurred, but the bare allegation does not make it
plausible that he knows anything. Unlike his allegations against Cunningham,
this bare assertion does not provide any detail about what Caraway, as chief of
investigations, did to seek to control Cunningham’s filing of an affidavit. Put
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No. 08-30637
differently, the conclusion presents nothing more than hope and a prayer for
relief.
An example of a situation that falls squarely within the kind of case
justifying limited discovery is discussed in a recently released but non-
precedential opinion by a panel of this court. Morgan v. Hubert, No. 08-30388,
2009 WL 1884605 (5th Cir. July 1, 2009). In Morgan, a plaintiff who was in
protective custody before Hurricane Katrina was transferred to a general prison
population following the storm. Id. at *1. After being beaten and stabbed, the
plaintiff filed a Section 1983 suit against the prison warden. Id. The complaint
presented sufficient detail to demonstrate a highly plausible allegation of an
Eighth Amendment violation. Id. at *6. The events cited were so clear, the
practical effects of such conduct so obvious, that the defendants’ responsibility
under Section 1983 for the plaintiff’s harm simply needed the detail that limited
discovery would either provide or deny. Id.
Unlike in Morgan, Floyd has shown nothing in his complaint to indicate
a basic plausibility to the allegation. His Section 1983 claim premised on a
Fourth Amendment violation therefore fails.
Floyd also alleges that Caraway refused to return Floyd’s seized property.
Floyd’s pleadings did not state which constitutional provision Caraway
supposedly violated. The district court correctly explained that the allegations
possibly fall within the realm of a Fourteenth Amendment due process claim.
Even so, the district court ultimately rejected Floyd’s claim after determining
that the City of Kenner had procedures in place for Floyd to get his property
back, that Floyd had failed to utilize those procedures, and that Floyd had failed
to set forth how the procedures available “deprived him of his property rights
and/or how the available procedures were inadequate.”
The district court’s ruling was consistent with the analysis required under
the Parratt/Hudson doctrine. Under the doctrine, the “unauthorized deprivation
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No. 08-30637
of a plaintiff’s property does not result in a violation of procedural due process
rights if the state provides an adequate postdeprivation remedy.” Alexander v.
Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995) (citations omitted); see also Zinermon v.
Burch, 494 U.S. 113, 128-32 (1990) (discussing the Parratt/Hudson doctrine).
In Louisiana, the civil tort of conversion exists to rectify the type of wrong Floyd
has alleged. Fuller v. XTO Energy, Inc., 989 So. 2d 298, 302 (La. App. 2d Cir.
2008) (“[A] conversion consists of an act in derogation of a plaintiff’s possessory
rights, and any wrongful exercise or assumption of authority over another’s
goods . . . .”). Because Louisiana provides a postdeprivation remedy, relief is not
available to Floyd under Section 1983. See Alexander, 62 F.3d at 712.
Floyd has failed to allege specific facts that constitute a deprivation of
either his Fourth or Fourteenth Amendment rights. Consequently, the district
court’s dismissal with respect to the claims against Caraway was correct.
D. Congemi
Similar to the claims against Caraway, it is alleged that then-Police Chief
Congemi acted in his supervisory role to violate Floyd’s constitutional rights. In
particular, Floyd states that Congemi personally directed the efforts to have
false and misleading affidavits filed against him and that the issuance of those
affidavits, in turn, led to an unlawful search of his home and an unlawful arrest.
He also maintains that Congemi attempted to persuade the district attorney to
prosecute him, even though Congemi knew that he was authorized to handle the
supplies found at his home.
We have already explained that Section 1983 liability for a supervisor may
be based either on personal involvement in the constitutional deprivation or “a
sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.” Thompkins, 828 F.2d at 304. The district court held
that “none of the ‘facts’ alleged as to Congemi amount to a violation of a clearly
established constitutional right.”
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No. 08-30637
We agree. Floyd has failed to provide sufficient factual detail concerning
Congemi’s alleged attempts at personally directing his subordinate officers to file
misleading affidavits. Other than a general background of why Congemi would
have animosity towards Floyd, no facts are alleged that reveal any specifics of
how Congemi personally told other officers to conspire against Floyd. Moreover,
Floyd’s sweeping statement that Congemi attempted to persuade the district
attorney to prosecute him, even though Congemi knew that Floyd was
authorized to handle the supplies, does not shed further light on the subject.
The claims against Congemi lack the detail needed to render them plausible.
See Iqbal, 129 S. Ct. at 1949. Accordingly, they were appropriately dismissed.
E. City of Kenner
Finally, we consider the district court’s dismissal of the City of Kenner.
“[A] municipality cannot be held liable under § 1983 on a respondeat superior
theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). “It is well
established that governmental liability under § 1983 must be premised on a
government policy or custom that causes the alleged constitutional deprivation.”
Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 436 (5th Cir.
2008). Floyd has alleged no facts that would support an inference that the police
officers acted pursuant to a policy or custom.
The district court appropriately dismissed the City.
III. CONCLUSION
We AFFIRM the district court’s dismissal with respect to Floyd’s claims
against the City of Kenner and Officers Caraway and Congemi. We REVERSE
the district court’s dismissal of the individual capacity claims against Officers
Cunningham and Deroche.
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