Case: 20-30508 Document: 00516100044 Page: 1 Date Filed: 11/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 18, 2021
No. 20-30508
Lyle W. Cayce
Clerk
Jorge Gomez,
Plaintiff—Appellant,
versus
John Galman; Spencer Sutton; City of New Orleans,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-11803
Before Stewart, Ho, and Engelhardt, Circuit Judges.
Per Curiam:
While sitting at his local bar, Jorge Gomez was harassed and later
beaten unconscious by two off-duty New Orleans police officers. Gomez
sued, and the district court dismissed Gomez’s federal claims because it
found that the officers were not acting under color of law. But because
Gomez has alleged sufficient facts at this stage to show that his assailants
utilized their authority as officers to abuse him, the district court erred on
that point. Gomez has not, however, alleged sufficient facts to support all of
his claims. Accordingly, we AFFIRM in part, REVERSE in part, and
REMAND.
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I.
On the evening of July 23, 2018, military veteran Jorge Gomez sat at
the bar at Mid-City Yacht Club. As was often the case, Gomez was wearing
military fatigues. A regular at that bar, Gomez sat by himself and minded his
own business. Then, two officers with the New Orleans Police Department
(“NOPD”), John Galman and Spencer Sutton, arrived on the scene. The
two men were off duty, wore no indicia of being officers, and did not formally
announce their positions with NOPD. Unfortunately, their behavior was not
becoming of an officer of the law. Galman and Sutton harassed Gomez,
calling him a “fake American” and telling him to “go back” to where he
came from. At one point the verbal harassment became physical, and the two
men attempted to pull off Gomez’s clothes. They eventually stole Gomez’s
beret off his head and left the bar. When Gomez followed the officers outside,
Sutton ordered Gomez to stop and not leave the patio of Mid-City Yacht
Club. The officers proceeded to beat Gomez until several bystanders
intervened to assist the bloodied veteran.
After getting pummeled, Gomez managed to pull himself together and
enter his truck to drive to his nearby home. As he was driving away, the
officers ordered Gomez to stop and exit his vehicle. Gomez alleges that
“[b]ecause they acted like police officers” he “believed he was not free to
leave.” Accordingly, Gomez followed the officers’ order and stepped out of
his vehicle. Galman and Sutton again thrashed Gomez. During the attack,
Sutton held Gomez down by restraining his hands behind his back and sitting
on top of him, which Gomez describes as “a police hold,” which the officers
“were trained to do.” Gomez believed he was being arrested. Eventually,
the officers knocked Gomez unconscious. After their victim passed out,
Galman and Sutton did not immediately leave the scene. Instead, Sutton
called NOPD for backup and identified himself to dispatch as a police officer.
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Gomez was rushed to the emergency room by ambulance, where he
was diagnosed with a concussion, a lumbar sprain, and other severe injuries.
Gomez continues to suffer some effects from these wounds. NOPD officers
twice questioned Gomez while he was convalescing. After a short
investigation, Galman and Sutton were charged with simple misdemeanor
battery.
Gomez sued Galman, Sutton, and the City of New Orleans. Against
the officers, Gomez alleged a violation of his constitutional rights under 42
U.S.C. § 1983, as well as various state law claims including assault, battery,
and false arrest. Against the City, Gomez alleged a § 1983 claim for failure to
hire, train, supervise, or discipline officers, as well as various state law claims
including negligent hiring, negligent supervision and retention, and vicarious
liability.
The district court dismissed Gomez’s § 1983 claims against the City
and the officers. The court found that Gomez had not properly alleged that
the officers were acting under of color of law at the time of the attack, and
therefore he could not maintain a § 1983 claim against the officers or the City.
As an alternative holding, the court found that Gomez had failed to allege an
official policy or custom so as to hold the City liable under § 1983. The court
further dismissed the negligent hiring, retention, and supervision, respondeat
superior, and intentional infliction of emotional distress (“IIED”) claims
against the City. The court declined supplemental jurisdiction over the
remaining state law claims. Gomez timely appealed.
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II.
We review a district court’s grant of a motion to dismiss de novo.
Masel v. Villarreal, 924 F.3d 734, 742–43 (5th Cir. 2019). “To survive a
motion to dismiss, ‘a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.’” Id.
(cleaned up). “In conducting this analysis, we accept all well-pleaded facts
as true and view those facts in the light most favorable to the plaintiffs.”
Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d
258, 263 (5th Cir. 2019) (cleaned up). We do not require “detailed factual
allegations,” but the complaint must contain sufficient facts to “allow[] the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A complaint’s “‘naked
assertion[s]’ devoid of ‘further factual enhancement’” will not suffice. Id.
(quoting Twombly, 550 U.S. at 557). Additionally, courts “are not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986); see also Iqbal, 556 U.S. at 678 (holding that
the “tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions”).
“In determining whether a plaintiff’s claims survive a Rule 12(b)(6)
motion to dismiss, the factual information to which the court addresses its
inquiry is limited to (1) the facts set forth in the complaint, (2) documents
attached to the complaint, and (3) matters of which judicial notice may be
taken under Federal Rule of Evidence 201.” Walker v. Beaumont Indep. Sch.
Dist., 938 F.3d 724, 735 (5th Cir. 2019).
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III.
A. “Under Color of Law”
Under 42 U.S.C. § 1983, one may sue “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage of any State”
violates his or her constitutional rights. Based on this language, the Supreme
Court has explained that “[t]o state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was committed by
a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48
(1988). The first question before us is whether Gomez has established that
Galman and Sutton were acting “under color of state law” the night that they
attacked him.
“The traditional definition of acting under color of state law requires
that the defendant in a § 1983 action have exercised power ‘possessed by
virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.’” Id. at 49 (quoting United States v. Classic,
313 U.S. 229, 326 (1941)). More simply, “[u]nder ‘color’ of law means under
‘pretense’ of law.” Screws v. United States, 325 U.S. 91, 111 (1945).
Generally, if an officer is performing their official duties, their acts “are
included whether they hew to the line of their authority or overstep it,”
though “acts of officers in the ambit of their personal pursuits are plainly
excluded.” Id. That said, even if an officer acts for purely personal reasons,
he or she may still act under color of law if they are “acting by virtue of state
authority.” United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991).
Importantly here, it is “clear that whether a police officer is acting
under color of law does not depend on duty status at the time of the alleged
violation.” Id. Rather, to determine whether an officer acted under color of
law, we must consider: (1) “whether the officer misused or abused his official
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power” and (2) “if there is a nexus between the victim, the improper
conduct, and the officer’s performance of official duties.” Bustos v. Martini
Club, Inc., 599 F.3d 458, 464–65 (cleaned up).
Viewing his complaint in the light most favorable to Gomez—as we
must—we determine that he has adequately pleaded facts which establish
that Galman and Sutton acted under the color of law. First, Gomez alleges
that when he exited the bar, Sutton “acting as a police officer, gave Mr.
Gomez a direct order to stop and not leave the patio area of the bar.” Gomez
obeyed this order. Then, when he attempted to drive away after getting
violently beaten, Sutton and Galman “ordered him to stop” and “ordered
[him] to step out of his vehicle.” Gomez claims that “[b]ecause they acted
like police officers, [he] believed he was not free to leave, and did as he was
ordered.”
These allegations are key. A victim usually does not follow orders
from someone who just attacked him without good reason to do so. He is
even less likely do so when—as alleged here—the victim was in the process
of escaping his attackers. The fact that Gomez stopped and exited his vehicle
at his attackers’ commands lends significant credence to his allegation that
he believed them to be police officers, because the complaint offers no reason
for Gomez to obey Galman and Sutton unless they were “acting by virtue of
state authority.” Tarpley, 945 F.2d at 809.
Gomez alleges other facts indicating that Galman and Sutton
“misused or abused their official power.” Bustos, 599 F.3d at 465. For
example, Gomez asserts that the officers “forced him onto his stomach, and
placed his hands behind his back in a police hold as they were trained to do
during an arrest, and effected an arrest of Mr. Gomez.” This caused Gomez
to “believe[] he was being arrested.” The use of the police hold further
indicates that Galman and Sutton were abusing their official power and
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exercising their authority as officers in their efforts to harm Gomez. Further,
Sutton “called for backup in continuing to make an arrest” and Defendants
“identified themselves to NOPD dispatch as NOPD officers.” Gomez
concedes that by the time the officers called for backup he was unconscious.
Nevertheless, Defendants’ call for backup—and especially their
identification of themselves as officers of the law—adds to the “air of official
authority” that pervaded the assault. Tarpley, 945 F.2d at 809. Taken
together, these allegations are sufficient to plead that the officers misused
their official power. Accordingly, the district court erred in finding that
Galman and Sutton did not act under color of law.
Bustos v. Martini Club, Inc. is not to the contrary. In that case, a
plaintiff got into a bar fight with various officers in San Antonio. Bustos, 599
F.3d at 460–61. Because the officers were blocking the back door, the plaintiff
headed for the alley, where the officers were “holding each other’s shoulders
as a group of SWAT officers showing force” and one officer pushed the
plaintiff to the floor. Id. at 461. Bustos also alleged that he called 911, but the
operator would not help him because he could not identify the officers’ badge
numbers, though he did not allege that the officers were in uniform. Id. at
461, 465. The district court found that Bustos failed to plead that the officers
acted under color of law, and this Circuit affirmed. In doing so, we noted that
“Bustos does not allege facts to suggest that the officers who assaulted him
misused or abused their official power,” and that “no ‘air of authority’
pervaded [that] barroom altercation.” Id. at 465.
Here, Gomez has alleged facts that demonstrate an “air of authority”
not present in Bustos. Unlike Gomez, Bustos did not allege that the off-duty
officers gave him orders. And Bustos certainly did not allege that he would
have felt obligated to comply because the defendants were officers of the law.
Although Bustos claimed that the officers who hurt him held each other’s
shoulders like a SWAT team, that act is different in kind from a “police
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hold” that is routinely used during arrests. Indeed, Bustos never claimed
that he felt that he was under arrest. Taken together, the allegations Gomez
levies demonstrate a far greater “air of authority” than that present in Bustos.
Our holding does not disturb well-established case law that “acts of
officers in the ambit of their personal pursuits are plainly” not under color of
law. Screws, 325 U.S. at 111. We merely hold that, viewed in the light most
favorable to Gomez, he has pleaded sufficient facts at this early stage of
litigation to suggest that Galman and Sutton were “acting by virtue of state
authority.” Tarpley, 945 F.2d at 809. His allegations are sufficient to allow
this matter to proceed to discovery, where additional fact-finding may
support—or vitiate—Gomez’s claims.
B. Gomez’s Monell Claim
Because we have determined that Galman and Sutton acted under
color of law, we must determine whether Gomez has adequately pleaded a
claim against the City of New Orleans. In Monell v. Department of Social
Services, the Supreme Court held that municipalities may be sued under
§ 1983 but cannot be held liable for acts of their employees under a theory of
respondeat superior. 436 U.S. 658 (1978). Rather, to state a claim against a
municipality under Monell and its progeny, Gomez must plead that “(1) an
official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” Davidson v. City
of Stafford, Tex., 848 F.3d 384, 395 (5th Cir. 2017). Because Gomez fails to
adequately plead an official policy, we need not address the second or third
elements.
Official municipal policies can take various forms. They often appear
as written policies, but an official policy may also be an unwritten but
“widespread practice that is so common and well-settled as to constitute a
custom that fairly represents municipal policy.” Alvarez v. City of
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Brownsville, 904 F.3d 382, 390 (5th Cir. 2018) (quoting James v. Harris
County, 577 F.3d 612, 617 (5th Cir. 2009)). Gomez presses three theories of
official policies that he alleges caused his harm. First, he asserts that the City
has an official policy or custom of hiring unqualified police officers. Second,
he argues the City has a policy of failing to train its officers in the basic
elements of effective policing. Finally, Gomez contends that the City has an
official policy of protecting its police officers from the consequences of their
wrongdoing, or a “Blue Code of Silence.” We address each of these
purported policies in turn.
We first address Gomez’s claim that the City had a policy of hiring
and retaining unqualified officers. The City may be held liable for decisions
about hiring and retention if Gomez can demonstrate “deliberate
indifference” to the “known or obvious consequence[s]” of such decisions.
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997).
Indeed, “[a] showing of simple or even heightened negligence will not
suffice.” Id. at 407. Deliberate indifference exists “where adequate scrutiny
of an applicant’s background would lead a reasonable supervisor to conclude
that the plainly obvious consequences of the decision to hire would be the
deprivation of a third party’s constitutional rights.” Gros v. City of Grand
Prairie, 209 F.3d 431, 433–34 (5th Cir. 2000) (citing Snyder v. Trepagnier, 142
F.3d 791, 797 (5th Cir. 1998)). To show deliberate indifference, the
connection between the background of the individual and the specific
violation alleged must be strong, as the plaintiff “must show that the hired
officer was highly likely to inflict the particular type of injury [he] suffered.”
Id. at 434; see also Brown, 520 U.S. at 412.
Gomez fails to allege any facts that would demonstrate deliberate
indifference in the hiring or retention of Sutton. Gomez does, however,
allege two instances of prior misconduct by Galman, which he contends put
the City on notice that Galman would engage in conduct violative of citizens’
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constitutional rights. First, Gomez pleads that in May 2018, Galman
performed an illegal, invasive, and public strip search on an arrestee in his
custody. Second, Gomez alleges that in June 2018, Galman hit the passenger
side window of a car while walking by it, and when confronted, he headbutted
the side mirror so hard it knocked the mirror glass loose. The City
determined this act violated at least four of its rules.
Galman’s conduct in these instances was egregious. But it does not
provide support for Gomez’s claim because these incidents are too unlike
Galman’s conduct here to establish “deliberate indifference” on the City’s
part. The Supreme Court has emphasized that “[t]he connection between
the background of the particular [defendant] and the specific constitutional
violation alleged must be strong.” Brown, 520 U.S. at 412 (emphasis added).
Galman’s improper strip-search of an arrestee does not make “plainly
obvious” that Galman had a proclivity toward such brutal violence as alleged
here. True enough, the fact Galman headbutted a car’s mirror suggests that
he is willing to improperly do damage to property. But that is different in
kind from the act Galman is accused of here, which is aggressive physical
violence toward a citizen. These incidents simply do not “show that
[Galman] was highly likely to inflict the particular type of injury [Gomez]
suffered.” Gros, 209 F.3d at 434.
Gomez also relies on the NOPD’s “historically tainted record” of
recruitment and hiring to argue that the City’s flawed practices in those areas
constituted a policy. Gomez’s complaint cites to the findings of a 2011
Department of Justice (“DOJ”) Investigation into the NOPD, which
concluded that deficiencies in recruitment and retention of officers
contributed to a pattern of police misconduct. As a result of the
investigation, in 2012 the City and the DOJ entered into a Consent Decree
which required the City to implement new polices in various areas, including
recruitment and retention. Gomez further alleges that, in 2018, the
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Independent Monitor who oversaw enforcement of the Consent Decree filed
an annual report noting that NOPD continued to deal with deficiencies in
officer recruitment. 1
With respect to the 2011 DOJ report, we do not see how NOPD’s
problems with hiring and retention almost a decade ago translate to a policy
of deliberate indifference in hiring and retention in 2018, when this incident
occurred. To the contrary, the fact that the City entered into a Consent
Decree suggests that the City recognized that a problem existed and agreed
to remedy it. That is hardly consistent with demonstrating “deliberate
indifference” on the City’s part. Of course, for other claims and in other
contexts, the DOJ report and Consent Degree may be useful evidence; but
on these facts, they are not.
The report of the Independent Monitor is closer in time to the
officers’ assault. But it, too, fails as sufficient evidence of deliberate
indifference. Although the report gestures broadly to issues NOPD has with
hiring and retention, it does not discuss specific conduct of officers like what
is alleged here. It therefore fails to “show that [Galman] was highly likely to
inflict the particular type of injury [Gomez] suffered.” Gros, 209 F.3d at 434
(emphasis added). Further, the report makes clear that the City was actively
working to remedy any existing issues in hiring and retention by
implementing the report’s recommended action items. As the district court
noted, “Gomez has simply not alleged the requisite link between instances of
problematic conduct identified in the consent decree or reports and the
1
We note that while Gomez alleges that the Independent Monitor filed his 2017
report on April 10, 2018, the report attached to the Complaint is dated January 18, 2017
and gives no indication it was released in 2018. But whether the report was issued in 2017
or 2018 does not make a material difference here, as the report does not support Gomez’s
claims.
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incident at issue.” We agree. And because none of the evidence that Gomez
pleads adequately supports his hiring and retention claim, that claim fails.
Next, we address Gomez’s argument that the City had a policy of
failing to train its officers. In order to successfully plead a claim for failure to
train, a plaintiff “must plead facts plausibly establishing ‘(1) that the
municipality’s training procedures were inadequate, (2) that the municipality
was deliberately indifferent in adopting its training policy, and (3) that the
inadequate training policy directly caused the violations in question.’”
Ratliff v. Aransas Cnty., 948 F.3d 281, 285 (5th Cir. 2020) (quoting Zarnow v.
City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010)). In the failure-to-train
context, deliberate indifference may be established in two ways. First, a
plaintiff may plead that a municipality had “notice of a pattern of similar
violations at the time the plaintiff’s own rights were violated.” Robles v.
Ciarletta, 797 F. App’x 821, 833 (5th Cir. 2019). Second, failure to train may
amount to deliberate indifference when the specific injury suffered is a
“highly predictable consequence of a failure to train.” Id. at 833–34.
Gomez’s complaint fails under either approach. Gomez does not
allege a single specific instance like the facts here. Instead, he relies solely on
the DOJ investigation and the Independent Monitor’s report. But as
described above, those reports only broadly illustrate officer misconduct
without any discussion of “a pattern of similar violations at the time
[Gomez’s] own rights were violated.” Id. at 833. Nor does Gomez allege any
facts by which the court could find that he suffered harm “as the highly
predictable consequence of a failure to train.” Id. at 833–34. As described
above, Gomez does plead facts regarding two instances of misconduct by
Galman, but neither of those instances are similar enough to the conduct here
to demonstrate that the attack on Gomez was a “highly predictable”
consequence of a failure to train.
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Finally, we address Gomez’s claim that NOPD had a “Blue Code of
Silence,” or official policy of protecting its police officers from the
consequences of their wrongdoing. This claim is easily disposed of. Gomez
alleges no facts showing a “widespread practice that is so common and well-
settled as to constitute a custom that fairly represents municipal policy.”
Alvarez, 904 F.3d at 390. Most of Gomez’s allegations about this policy are
conclusory; and even the paltry facts Gomez alleges to support his claim,
such as that Galman and Sutton expected not to face consequences for their
actions, are contradicted by other allegations, including the swift punishment
the officers received. 2 Further, the non-conclusory allegations speak only to
this incident, and a “customary municipal policy cannot ordinarily be
inferred from single constitutional violations.” Piotrowski v. City of Houston,
237 F.3d 567, 581 (5th Cir. 2001). This claim fails.
Although Gomez musters enough facts to demonstrate the officers
were acting under color of law, he does not allege sufficient facts to support
a Monell claim against the City based on the officers’ actions. Accordingly,
we affirm the district court’s dismissal of Gomez’s § 1983 claim against the
City.
C. Gomez’s State Law Claims
Finally, we turn to the state law claims against the City that the district
court addressed. These include (1) negligent hiring, retention, and
supervision, (2) vicarious liability, and (3) intentional infliction of emotional
distress. We address each in turn.
2
Gomez alleges that both officers were arrested and charged with battery. The
City also represents in its briefing that it terminated Galman and Sutton the day after the
assault.
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We start with Gomez’s claims for negligent hiring and negligent
retention and supervision against the City of New Orleans. “A claim against
an employer for the torts of an employee based on the employer’s alleged
direct negligence in hiring, retaining, or supervising the employee generally
is governed by the same duty-risk analysis” used in Louisiana for negligence
claims. Kelley v. Dyson, 10 So. 3d 283, 287 (La. App. 5 Cir. 2009). The
elements of liability in a Louisiana negligence case are: (1) duty; (2) breach of
duty; (3) cause-in-fact; (4) scope of liability or scope of protection; and (5)
damages. Id. Because the existence of a duty is the only question of law, we
turn our focus to the first factor. Griffin v. Kmart Corp., 776 So. 2d 1226, 1231
(La. 2000).
The district court dismissed the negligent hiring and negligent
retention and supervision claims against the City largely for the same reasons
it dismissed Gomez’s Monell claim. But Louisiana’s test for whether a duty
exists for these claims is different than the test for whether Gomez states a
Monell claim. Specifically, Louisiana law tells us that “[w]hen an employer
hires an employee who in the performance of his duties will have a unique
opportunity to commit a tort against a third party, he has a duty to exercise
reasonable care in the selection of that employee.” Kelley, 10 So. 3d at 287.
The primary focus is whether the “the employment gave the
tortious/criminal employees ‘unique opportunities’ to commit their
wrongdoing.” Id. at 287–88. Of course, this is a world apart from requiring
Gomez to show an official policy of hiring and retaining unqualified officers.
Davidson, 848 F.3d at 395.
Gomez has pleaded sufficient facts to show that Sutton and Galman
did benefit from the “unique opportunities” provided by their employment
during their assault on Gomez. Gomez alleges that he only exited his vehicle
because he was given an order by the officers and felt he was not free to leave.
Gomez further alleges that the officers placed him “in a police hold as they
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were trained to do during an arrest.” The use of a cloak of authority to stop
a victim and the use of a police hold that they had been specifically trained to
perform constitute “unique opportunities” provided by their employment.
Given this, these claims cannot be dismissed on the grounds that the City
owed Gomez no duty. And because the other four elements are factual
questions, Griffin, 776 So. 2d at 1231, we cannot decide them at this early
stage.
A state-law claim for vicarious liability has yet a different test. An
employer may be held vicariously liable for the tortious acts of its employees
only when they are performed “in the exercise of the functions in which they
are employed.” La. Civ. Code art. 2320. Vicarious liability attaches only “if
the employee is acting within the ambit of his assigned duties and also in
furtherance of his employer’s objective.” Baumeister v. Plunkett, 673 So. 2d
994, 996 (La. 1996) (quotations omitted). In other words, “an employee’s
conduct is within the course and scope of his employment if the conduct
is . . . activated at least in part by a purpose to serve the employer.” Patrick
v. Poisso, 882 So. 2d 686, 691 (La. App. 2 Cir. 2004).
The test for vicarious liability is harder for a plaintiff to meet than the
tests for other state law claims discussed above. The plaintiff must
demonstrate not only that the tortfeasors were enabled by “unique
opportunities” of their employment to commit their wrongdoing, but also
that the employee’s conduct is “within the course and scope of his
employment.” Id. Indeed, this is an even greater burden than demonstrating
that an officer’s actions are “under color of law,” which does not depend on
duty-status or whether the action was for the benefit of the state. See Tarpley,
945 F.2d at 809. Gomez pleads no facts that could demonstrate that the
officers’ conduct was “in furtherance of his employer’s objective.”
Baumeister, 674 So. 2d at 996. To the contrary, while Galman and Sutton
may have been able to inflict such harm on Gomez because of their positions
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of authority, NOPD immediately rebuked their actions. The district court
correctly dismissed the vicarious liability claim against the City.
Finally, we turn to Gomez’s intentional infliction of emotional
distress claim. To establish an IIED claim in Louisiana, a plaintiff must show:
“(1) that the conduct of the defendant was extreme and outrageous; (2) that
the emotional distress suffered by the plaintiff was severe; and (3) that the
defendant desired to inflict severe emotional distress or knew that severe
emotional distress would be certain or substantially certain to result from his
conduct.” White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). A careful
review of Gomez’s amended complaint reveals no facts that would support
the first or third elements of this claim against the City. Although Gomez
may have alleged an IIED claim against Galman and Sutton, their conduct is
only attributable to the City through respondeat superior, a claim we have
already explained fails. Therefore, the district court correctly dismissed the
IIED claim against the City.
IV.
For the foregoing reasons, we AFFIRM the grant of the City’s Motion
to dismiss as to Gomez’s Monell claim, vicarious liability claim, and IIED
claim. We REVERSE the dismissal of the § 1983 claims against Galman and
Sutton and the dismissal of Gomez’s state-law negligent hiring, retention,
and supervision claim against the City. We REMAND this matter to the
district court for further proceedings consistent with this opinion.
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No. 20-30508
James C. Ho, Circuit Judge, concurring:
As a strictly doctrinal matter, this is a close case. Gomez alleges that
he believed his assailants were police officers, and that for that reason, he
complied with their orders, rather than flee to avoid further injury. But he
never explains why he believed the defendants were police officers. He does
not allege that they wore uniforms, displayed their badges, or otherwise
presented themselves to him as police officers. And it is not Gomez’s
subjective beliefs, but the officers’ conduct, that determines whether the
defendants acted “under color of [state law]” as required under 42 U.S.C. §
1983. See, e.g., Bustos v. Martini Club Inc., 599 F.3d 458, 464–65 (5th Cir.
2010) (“Whether an officer is acting under color of state law” turns on “(1)
whether the officer misused or abused his official power, and (2) if there is a
nexus between the victim, the improper conduct, and the officer’s
performance of official duties.”) (cleaned up). So I can see how the district
court might have concluded that this case cannot proceed under § 1983.
That said, I am not prepared to dismiss all of Gomez’s claims at this
time. Some circuits have recognized that a plaintiff’s subjective beliefs may
bear “some relevance” to the color of law determination. See, e.g., Barreto-
Rivera v. Medina-Vargas, 168 F.3d 42, 47 (1st Cir. 1999) (“Although we
[have] accorded the subjective reactions of the victim some relevance in the
color of law analysis . . . , the primary focus of the color of law analysis must
be on the conduct of the police officer.”); Strange v. Porath, 104 F.3d 368
(10th Cir. 1996) (noting that, although a victim’s “subjective perception . . .
may be a relevant factor in determining whether [an officer] acted under color
of law, it is not determinative”).
In addition, there is at least some support in our circuit precedent for
the proposition that the officers here acted under color of state law because
they later called for police backup. See, e.g., United States v. Tarpley, 945 F.2d
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806, 809 (5th Cir. 1991) (“Significantly, [the defendant] summoned another
police officer from the sheriff’s station and identified him as a fellow officer
and ally.”). See also Halmu v. Beck, 2021 WL 980912, *4 (S.D. Fla. Mar. 15,
2021) (officers acted under color of law where they “filed a false arrest
affidavit and omitted significant facts to conceal police wrongdoing under
color of state law in order to avoid liability”).
In light of these authorities, I am happy to reverse in part and remand
for further proceedings, and therefore concur.
Moreover, although reasonable minds can debate whether the
misconduct alleged here is actionable under § 1983, it is unquestionably
contemptible.
Accepting the allegations in the complaint as true, as we must at this
stage, Jorge Gomez is a U.S. citizen and decorated military veteran of
Honduran descent. On the night in question, he visited a local bar, proudly
wearing his military regalia. Officers Galman and Sutton ordered Gomez to
approach. They called him a “fake American” and a “liar” and told him to
“go back” to wherever he came from. They attempted to strip off his
military clothing. And then they brutally beat him until two bystanders
intervened to stop the attack. They left Gomez sprawled across a patio table,
bruised and bloodied. After he managed to get up, Gomez entered his car
and began driving away. But the officers ordered him to stop and exit his
vehicle. Believing he had no choice, Gomez complied. The officers then
knocked Gomez to the ground, forced him onto his stomach, held his arms
behind his back, and beat him unconscious.
“Nothing is more corrosive to public confidence in our criminal
justice system than the perception that there are two different legal
standards.” United States v. Taffaro, 919 F.3d 947, 949 (5th Cir. 2019) (Ho,
J., concurring in the judgment). If the allegations in this case are true, the
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officers have not merely brutalized one man—they have badly undermined
public trust in law enforcement. And unfortunately, the misconduct alleged
here is not unique. See, e.g., Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398,
402–06 (5th Cir. 2015) (black high-school students brought Section 1983
claims against public officials after years of racially-motivated harassment,
including racial slurs and nooses placed on their cars); United States v. Harris,
293 F.3d 863, 870, 882 (5th Cir. 2002) (defendant police chief repeatedly
beat Mexican-American in the head with a baton and told FBI agents that
“Mexicans do not have the same rights as ‘real Americans’”); Patel v.
Dennett, 389 F. Supp. 3d 888, 892–93 (D. Nev. 2018) (defendant police
officer told Indian-American to “go back where you came from” before
breaking his arm during illegal arrest); Cotto v. City of Middletown, 158 F.
Supp. 3d 67, 80 (D. Conn. 2016) (defendant police officers used racial
epithets while conducting an illegal, public strip-search without gloves);
Polite v. Town of Clarkstown, 120 F. Supp. 2d 381, 383 (S.D.N.Y. 2000)
(defendant police officers shouted racial epithets at plaintiff arrestees, put
guns to their heads, and threatened to pull the trigger); Hardeway v. City of
Chicago, 1991 WL 203857, *1–2 (N.D. Ill. Oct. 4, 1991) (defendant police
officers beat plaintiff while using profanities and racial slurs).
I agree that the district court should not have dismissed Gomez’s
claims against the officers at this early stage in the proceedings. Accordingly,
I concur.
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