Case: 22-30110 Document: 00516734643 Page: 1 Date Filed: 05/02/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 2, 2023
No. 22-30110 Lyle W. Cayce
____________ Clerk
Daniel Plustache,
Plaintiff—Appellant,
versus
Michael Harrison, New Orleans Police Department Superintendent;
Elizabeth Robins; Kirk Bouyales; Arlinda Westbrook;
Simon B. Hargrove; Arlen S. Barnes; Darryl Watson;
New Orleans City; Gwendolyn L. Nolan, New Orleans Police
Department Commander; Jean W. Jordan,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-4844
______________________________
Before Jolly, Oldham, and Wilson, Circuit Judges.
E. Grady Jolly, Circuit Judge:*
Plaintiff-appellant Daniel Plustache appeals from the district court’s
judgment dismissing his claims under Title VII and 42 U.S.C. § 1983 for
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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failure to state a claim. His state law claims were dismissed for lack of
jurisdiction. Finding no error, we AFFIRM.
I
Although the complaint and the brief tend to be verbose and at times
aimless, the core assertions appear to be: Plustache was employed as a police
officer with the New Orleans Police Department (“NOPD”). Between 2013
and 2018, several of his coworkers and superiors filed complaints regarding
Plustache’s alleged misconduct on the job. Those complaints initiated
disciplinary hearings with the NOPD’s Public Integrity Bureau but no
disciplinary action against Plustache. Plustache contends, however, that
damaging misrepresentations regarding his job performance were made at
those hearings. Plustache requested records regarding the hearings, believing
that those records would “likely ground his exoneration and dismissal” of all
charges from the disciplinary hearings. Nevertheless, his requests were
denied. Plustache further claims that he learned through an anonymous
source that his NOPD superiors had sought authority to arrest him. He
acknowledges, however, that they never arrested him, nor made any further
effort to effect an arrest. In short, his superiors’ efforts to arrest him never
materialized. August 28, 2018, Plustache resigned from his job at the NOPD.
Plustache further alleges that the aforementioned events were part of
an ongoing pattern of harassment by his superiors at the NOPD in retaliation
for his “whistleblowing” regarding problems in his unit. He also argues that
the alleged harassment ultimately led to his constructive termination when
he resigned from his job.
Additionally, Plustache alleges several violations of his constitutional
rights. He first claims that his Fourth Amendment rights were violated by
what he perceived to be the attempt to arrest him. He next contends that his
Eighth Amendment right to be free from cruel and unusual punishment was
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violated when defendants allegedly abused their police powers in their
attempt to arrest him. Finally, he makes several Fourteenth Amendment
claims but does not specify what Fourteenth Amendment rights the
defendants violated. He instead makes generalized claims that the defendants
violated his Fourteenth Amendment rights in attempting to arrest him, in
denying his requests for records from his disciplinary hearings, and in
violating his rights under Title VII.
II
Here, we review the district court’s grant of a Rule 12(c) motion for
judgment on the pleadings under the same de novo standard as is used for a
ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. See
Gentilello v. Rege, 627 F.3d 540, 543–44 (5th Cir. 2010) (citation omitted).
We first turn to Plustache’s Title VII claims. He claims workplace
retaliation, racial discrimination, hostile work environment and constructive
discharge. In states like Louisiana, a plaintiff must file a charge of
discrimination with the Equal Employment Opportunity Commission within
300 days of the alleged unlawful conduct. See Conner v. La. Dep’t of Health &
Hosps., 247 F. App’x 480, 481 (5th Cir. 2007) (per curiam).1 Thus, Plustache
only has viable claims for acts that occurred after August 18, 2018. The single
claim that Plustache alleges within this timeframe concerns his resignation
from the NOPD. Accordingly, we agree with the district court’s
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1
In states like Louisiana that have “an entity with the authority to grant or seek
relief with respect to the alleged unlawful practice, an employee who initially files a
grievance with that agency must file the charge with the EEOC within 300 days of the
employment practice;” in states without such an entity, an employee must file within 180
days. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (applying 42 U.S.C. §
2000e-5(e)(1)).
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determination that his claims relating to workplace retaliation, racial
discrimination, and hostile work environment are time-barred.
Thus, his only remaining Title VII claim is for constructive
termination, which arises from his act of resignation. The district court
determined that Plustache had failed to show that his “working conditions
were so intolerable that a reasonable employee in [his] position would [have
felt] compelled to resign.” Hockman v. Westward Commc’ns, LLC, 407 F.3d
317, 331 (5th Cir. 2004) (citation omitted). The district court did not err. His
claim is based on various circumstances occurring over four years:
complaints from superiors and coworkers regarding his job performance that
resulted in disciplinary hearings (but no disciplinary action), alleged
misrepresentations regarding his job performance at those hearings, and two
denials of his public records requests regarding the disciplinary hearings. We
accept those allegations as true. But there is no authority, nor does he cite
any, that suggests that these allegations are of harassment so extreme that a
reasonable employee would have felt compelled to resign. We therefore hold
that his constructive termination claim is meritless.
We move on to consider Plustache’s § 1983 claims that are based on
alleged constitutional violations of his Fourth, Eighth, and Fourteenth
Amendment rights. “To state a valid claim under § 1983, a plaintiff[] must
(1) allege a violation of rights secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.” Resident Council of
Allen Parkway Vill. v. HUD, 980 F.2d 1043, 1053 (5th Cir. 1993) (citation
omitted). Plustache fails to allege a violation of any federal rights. He does
not allege that he was seized or arrested, effectively undermining any Fourth
Amendment claim he may have. See Rhodes v. Prince, 360 F. App’x 555, 558
(5th Cir. 2010) (per curiam). Similarly, his Eighth Amendment claim fails
because he does not allege that he had been convicted of a crime and thus
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subject to the Eighth Amendment’s prohibition of cruel and unusual
punishment. Palermo v. Rorex, 806 F.2d 1266, 1271 (5th Cir. 1987) (citations
omitted).
Finally, we turn to Plustache’s Fourteenth Amendment claims. These
claims fail because he does not allege that he was deprived of a protected life,
liberty, or property interest. Blackburn v. City of Marshall, 42 F.3d 925, 935
(5th Cir. 1995). Plustache first appears to argue that the defendants
attempted to deprive him of his substantive due process rights by an effort to
seek his arrest. That claim falters because an attempted deprivation, without
more, simply does not state the denial of substantive due process.
Plustache further suggests that defendants violated his procedural due
process rights by denying his requests for records of his disciplinary hearings
because those records would “exonerate” him from all charges filed against
him with the NOPD’s Public Integrity Bureau. That claim fails because there
is no generalized constitutional or federal right to access documents under
the control of state agencies or their political subdivisions. See Wells v. State
Att’y Gens. of La., 469 F. App’x 308, 309 (5th Cir. 2012) (per curiam); see
also Bonnet v. Ward Cnty., 539 F. App’x 481, 483 (5th Cir. 2013) (per curiam)
(citation omitted). In any event, the denial of his records requests cannot
support a § 1983 claim because Louisiana Public Records Law provides an
adequate remedy for the denial of a public records request. See Williams v.
Kreider, 996 F.2d 306 (5th Cir. 1993) (per curiam) (unpublished) (holding
that the remedy provided by La. Stat. Ann. § 44:35(a) precludes a procedural
due process claim).
Finally, Plustache’s claim that Title VII itself confers a constitutional
or substantive right that can be enforced through § 1983 also fails because
enforcement of a right under § 1983 is not available when, as here, the statute
itself provides an exclusive remedy for violations of its own terms. Johnston
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v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989)
(citation omitted).
Accordingly, for the reasons set forth herein, the judgment of the
district court dismissing the complaint is
AFFIRMED.
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