Bowman v. Sheriffs Office Ouachita Par.

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AARON LARRY BOWMAN v. SHERIFFS OFFICE OUACHITA PARISH, ET AL.

Civ. No. ACTION 3:22-02824

United States District Court, W.D. Louisiana, Monroe Division

February 22, 2023

JUDGE TERRY A. DOUGHTY

REPORT AND RECOMMENDATION

KAYLA DYE MCCLUSKY, UNITED STATES MAGISTRATE JUDGE

Before the undersigned magistrate judge, on reference from the District Court, is an unspecified Rule 12(b) motion to dismiss [doc. # 9] filed by Defendants, City of Monroe (the “City”) and Monroe Police Department (“MPD”). The motion is unopposed. For reasons set forth below, it is recommended that the motion to dismiss be GRANTED and that Plaintiff's claims against the City and MPD be DISMISSED WITH PREJUDICE. It is further recommended that Plaintiff's § 1983 claims against all other Defendants be DISMISSED WITH PREJUDICE and that Plaintiff's remaining state law claims be REMANDED to state court. Finally, it is recommended that Plaintiff's counsel remit the sum of $1,000 to Defendant, Louisiana Department of Public Safety & Corrections (Office of the State Police) (“DPSC”).

Background

This is the second time that Defendant, DPSC, has removed this case to federal court. The first time, the case was styled and numbered as Bowman v. Sheriff's Office Ouachita Parish, et al., Civ. Action No. 20-1372 (W.D. La.) (hereinafter, “Bowman I”). Because Bowman I helps set the stage for the case's current posture, the undersigned will borrow salient portions of the factual background from the February 22, 2021 Report and Recommendation [doc. # 60] issued in Bowman I.

On September 21, 2020, Aaron Bowman filed the instant “Petition for Damages for Police Misconduct and Excessive Force” in the 4th Judicial District Court for the Parish of Ouachita, State of Louisiana, against the following Defendants: Ouachita Parish Sheriff's Office; Sheriff Jay Russell; Metro Narcotics Unit; Monroe Police Department; Louisiana State Police Department; University of Louisiana at Monroe Police Department; City of Monroe, Parish of Ouachita; and Deputy Donovan Ginn.

Bowman alleged that on May 30, 2019, certain officers of the foregoing agencies followed his vehicle home and approached him after he pulled into his driveway. The officers initially inquired and confirmed with Bowman that he did not have any drugs or weapons on him. Nevertheless, the officers proceeded to pull Bowman out of the vehicle. The officers then dragged Bowman face down to the ground and, despite his lack of resistance, hit and kicked him for a period of time. As a result of the attack, Bowman suffered multiple lacerations, a cut to the top of his head, a fractured arm, and broken ribs. According to Bowman, the officers then fabricated a false narrative of the encounter. Bowman was not arrested at the scene, but Deputy Ginn obtained an arrest warrant for him three to four days later.

Bowman contends that the officers' actions were unreasonable violated police procedures, constituted excessive force negligence, bad judgment, and transgressed the Fourth and Fourteenth Amendments to the U.S. Constitution, as well as certain provisions of the Louisiana Constitution. Bowman requested compensatory and punitive damages, plus attorney's fees, under 42 U.S.C. § 1983, Louisiana tort law, and/or the Louisiana Constitution.^[1] On October 22, 2020, Defendant, DPSC (incorrectly sued in the petition as “Louisiana State Police Department”) removed Bowman I to federal court on the basis of federal question jurisdiction, 28 U.S.C. § 1331, pursuant to Bowman's assertion of a claim under 42 U.S.C. § 1983. (Notice of Removal).

On October 29, 2020, DPSC filed a motion to dismiss for lack of personal jurisdiction, insufficiency of service of process, and for failure to state claim upon which relief can be granted (including a prescription argument) pursuant to Rules 12(b)(2) and (4)-(6) of the Federal Rules of Civil Procedure.

On October 30, 2020, Defendant, the Board of Supervisors for the University of Louisiana System (incorrectly sued as “University of Louisiana Monroe Police Department”) (hereinafter, “ULS Board”) filed a motion to dismiss for lack of subject matter jurisdiction (Eleventh Amendment immunity), lack of personal jurisdiction, insufficient service of process and/or service of process, and for failure to state a claim upon which relief can be granted (including a prescription argument) pursuant to Rules 12(b)(1)-(2) and (4)-(6) of the Federal Rules of Civil Procedure.

On November 18, 2020, Bowman filed an amended complaint wherein he again invoked the jurisdiction of the court via 28 U.S.C. §§ 1331, 1343, and 1367. Bowman I, [doc. # 19]. He also effectively substituted Defendants, DPSC and the ULS Board, for the incorrectly named iterations of these parties. He further added ten fictitiously named parties, consisting of five “John Doe” defendants and five “ABC Insurance Company” Defendants. Moreover, the amended complaint voluntarily dismissed the Ouachita Parish Sheriff's Office and Metro Narcotics Unit from the case and clarified some of the allegations against the remaining parties.

On November 18, 2020, Bowman sought and obtained the first of several motions for extensions of time to respond to the pending motions to dismiss. See Bowman I, [doc. #s 20, 22, 24, 26-27, 33-36, 39-41, 44-46].

On December 2, 2020, Defendant, ULS Board, filed its second motion to dismiss, wherein it re-urged its arguments from its initial motion, but re-focused them upon the amended complaint. Bowman I, [doc. # 28]. Also, on December 2, 2020, Defendants, the City and the MPD, filed a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively, a motion to stay the suit pending the outcome of related criminal proceedings. Bowman I, [doc. # 31].

Rounding out the dispositive motion practice, on December 23, 2020, Defendants, Ouachita Parish Sheriff Jay Russell and Deputy Donovan Ginn (collectively, the “Sheriff”) filed a Rule 12(b)(6) motion to dismiss Bowman's claims against them on the basis that the claims were time-barred. Bowman I, [doc. # 37].

Bowman's several extensions of time ultimately resulted in a January 14, 2021 deadline in which to respond to the pending motions and to again amend his pleading, ostensibly to join an additional defendant, Louisiana State Trooper Jacob Brown. See Bowman I, [doc. #s 39-41, 44-46]. However, instead of filing an opposition to the pending motions and an amended complaint to join Trooper Brown, Bowman filed motions to amend his complaint to voluntarily dismiss his federal § 1983 claims and to remand his remaining state law claims to state court. Bowman I, [doc. #s 47 & 48].

On February 5, 2021, most, if not all Defendants filed oppositions to Bowman's motions for leave to amend and to remand. See Bowman I, [doc. #s 53-55].

Importantly, on February 12, 2021, Bowman filed his reply brief, whereby he stated that he did not “object to the dismissal of his federal cause of action . . . with prejudice. Thus, the Defendants w[ill] not have to face the prospect of defending against Mr. Bowman's federal claim now nor in the future.” Bowman I, [doc. # 56].

On February 22, 2021, the court granted Bowman's motion for leave to amend his complaint to strike and remove all federal causes of action under 42 U.S.C. § 1983 or any other federal law. See R&R and 2^nd Amend. Compl., Bowman I, [doc. #s 60 & 61]. Magistrate Judge Hayes also recommended that Bowman's associated motion to voluntarily dismiss, with prejudice, all of his federal claims be granted and that the case be remanded to the Fourth Judicial District Court for the Parish of Ouachita, State of Louisiana.

On March 9, 2021, the District Court granted Bowman's motion to voluntarily dismiss all of his federal claims, with prejudice, and remanded his remaining state law claims to state court. Bowman I [doc. # 67].

Back in state court, Defendants' motion practice resumed with the filing of “exceptions” that urged dismissal of claims and parties on grounds of improper service, lack of capacity, prescription, etc. See Notice of Removal, Exh. A, in globo [doc. # 1]. Curiously, in June 2021, Bowman either filed, or sought leave to file, a third amended petition to join two officers with the United States Drug Enforcement Administration, Darryl Cowan and Victor Zordan. Id., pgs. 390-393. Bowman later disavowed the amendment and voluntarily dismissed Cowan and Zordan. Id.

In due course, a hearing on the pending exceptions and other motions was set for the morning of July 19, 2022. Id. [doc. 1-2, p. 556 ]. However, after 4:00 p.m. on the day before the hearing, Bowman filed at least his fourth amended petition, which he styled as his “First Amended Complaint” (hereinafter referred to as “Latest Amended Complaint” or “LAC”) to finally fulfill his long-stated intention to join Trooper Jacob Brown as a Defendant, but, in so doing, he also inexplicably reasserted his dismissed federal law claims against the existing Defendants, plus the new Defendant, and again explicitly invoked federal question jurisdiction, 28 U.S.C. § 1331. Id., pgs. 662-672.

Not surprisingly, on August 17, 2022, Defendant, DPSC, re-removed the case to federal court on the basis of Bowman's reassertion of his previously dismissed claims under 42 U.S.C. § 1983 against the original Defendants, plus Jacob Brown. (Notice of Removal). Critically, Bowman has made no attempt to retract or withdraw the LAC either during the almost 30-day period prior to removal, or in the almost six-month period since removal.

Meanwhile on September 23, 2022, Defendants, the City and MPD, filed the instant Rule 12(b) motion to dismiss Bowman's claims for five stated reasons: Firs...