REPORT AND RECOMMENDATION
DONNA PHILLIPS CURRAULT, Magistrate Judge.
This matter was automatically referred to the undersigned United States Magistrate Judge pursuant to Local Rule 73.2(C) and 28 U.S.C. § 636(b)(1)(B) and (C).
Having considered the record, the submissions and arguments of counsel, and the applicable law, IT IS RECOMMENDED that Defendant Gusman's motion to dismiss Count 7 (respondeat superior liability for Deputy Grillier's alleged false imprisonment) be GRANTED without leave to amend and IT IS FURTHER RECOMMENDED that the motion to dismiss Count 4 (negligence-failure to protect), Count 5 (negligence-failure to train and supervise) and Count 7 (respondeat superior liability for Deputy Grillier's alleged negligence) be GRANTED with leave to amend.
Plaintiff Shamieka Pierre filed this complaint against her employer Wellpath, LLC ("Wellpath") and its client Orleans Parish Sheriff Marlin Gusman and Deputy Paul Grillier asserting claims of sexual harassment and retaliation against Wellpath and negligence against all defendants. ECF No. 1, at 9-16. Plaintiff alleges that she was employed as a medical assistant at the Orleans Justice Center ("OJC") by Wellpath and Sheriff Gusman. Id. ¶ 15, at 3. She contends that, while working as a medical assistant at the OJC, a nurse asked her to draw blood from an inmate on pod 4B. Id. ¶¶ 18 & 20, at 4. When Defendant Deputy Grillier initially brought the inmate to the door, the inmate was shirtless, so Plaintiff asked him to put on a shirt. Id. ¶¶21-25, at 4. Defendant Grillier allegedly instructed Plaintiff to go to the pod's visitation booth to draw the inmate's blood, in violation of OJC policy. Id. ¶¶27-30, at 5. Plaintiff contends that, while drawing the inmate's blood on the pod, multiple inmates surrounded her, with their pants down while masturbating. Id. ¶¶34-36, at 5. As she was leaving the pod, one inmate grabbed her buttocks, others groped parts of her body, and some pulled on her clothes, but Defendant Grillier simply watched television instead of protecting her. Id. ¶¶38-45, at 6.
Defendant Sheriff Gusman filed a Motion to Dismiss seeking dismissal of Plaintiff's claims of negligence (failure to protect and failure to train and supervise (Counts 4 and 5)) against him and for respondeat superior liability based on Defendant Grillier's alleged negligence and false imprisonment (Count 7), citing the exclusivity provisions of Louisiana's Worker's Compensation provisions (La. Rev. Stat. § 23:1032).
Plaintiff opposes the motion. ECF No. 27. Although Plaintiff concedes that her Complaint alleges that Sheriff Gusman was her employer, she asks for leave to amend based on discovery indicating that she was an independent contractor, not an employee, of Sheriff Gusman. Id. at 3-4. She also contends that she cannot be considered his statutory employee. Id. at 4-5. Plaintiff argues that she has set forth sufficient factual allegations, and raised new factual allegations, that satisfy the "reasonably foreseeable" prong of the duty/risk analysis (id. at 5-7) and that Defendant Grillier assumed a duty to protect her when he sent her on the pod, but he breached that duty. Id. at 7-8. She argues that discretionary immunity does not apply to a claim of negligence at an operational level and in violation of mandatory policy. Id. at 8-10. As to the respondeat superior claims, Plaintiff argues that, for the same reasons as set forth with regard to the negligence claims against Defendant Gusman, her negligence claims against Defendant Grillier survive, thus providing a basis for respondeat superior liability as to Defendant Gusman. Id. at 10. She concedes, however, that she cannot proceed on the basis of respondeat superior liability as to Defendant Gusman on her false imprisonment claim, and accordingly, consents to dismissal of that claim. Id.
Arguing that a plaintiff cannot amend a complaint through a brief, Defendant Gusman reiterates his demand for dismissal of the tort claims based on the worker's compensation exclusivity provisions. ECF No. 31, at 1-3. Likewise, he argues that Plaintiff cannot rely on facts outside of her complaint to support her contention that the inmate's behavior was reasonably foreseeable. Id. at 3. With regard to discretionary immunity, Defendant Gusman argues that the Sheriff's alleged failure to train and supervise is consistently found to be a ministerial rather than operational function and that no state law, regulation or policy prescribed how the sheriff must train and supervise. ECF No. 31, at 3-4.
Rule 12 Dismissal Standard
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed "for failure to state a claim upon which relief can be granted." A motion to dismiss for failure to state a claim is not meant to resolve disputed facts or test the merits of a lawsuit.
The Supreme Court clarified the Rule 12(b)(6) standard of review in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). To avoid dismissal, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face (i.e., the factual allegations must "be enough to raise a right to relief above the speculative level").
The complaint need not contain detailed factual allegations, but it must offer more than labels, legal conclusions, or formulaic recitations of the elements of a cause of action.
The Duty/Risk Analysis Applicable to Claims of Negligence
Article 2315 of the Louisiana Civil Code provides a cause of action for negligence: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. Civ. Code art. 2315(a). Under Louisiana's duty-risk analysis of negligence liability, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element).
Duty is the "threshold issue."
Louisiana's Worker's Compensation Exclusivity
Louisiana's worker's compensation statute provides that "[i]f an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated." La. Stat. Ann. § 23:1031. If Louisiana's worker's compensation law applies, it precludes other remedies, such as tort remedies:
La. Rev. Stat. § 23:1032(A)(1)(a). Thus, an employee injured in the course of his employment is generally not allowed to recover tort damages against his employer as his exclusive remedy lies in worker's compensation, absent injury from an intentional act.
A prerequisite to workers' compensation coverage "is the existence of an employeremployee relationship."
La. Stat. Ann. § 23:1021(7). "Whether a worker is properly classified as an employee or an independent contractor is a factual question that must be resolved on a case-by-case basis."
Respondeat Superior Liability
The principle of respondeat superior or vicarious liability is codified in Louisiana's Civil Code, which provides, in pertinent part: "Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." La. Civ. Code art. 2320. "Vicarious liability rests in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities."
Louisiana's discretionary immunity statute, La. Rev. Stat. § 9:2798.1, confers immunity from suit to state officers when the allegations are based on the performance of state discretionary acts that are within the course and scope of their lawful powers and duties.
Although courts have historically recognized that a sheriff's hiring, training and supervision of its deputies generally constitute discretionary acts,
Leave to Amend
In Plaintiff's Opposition, Plaintiff argues that the motion to dismiss should be denied because she can amend her complaint to cure the alleged inadequate pleading by adding additional factual allegations. See ECF No. 27. In view of the consequences of dismissal on the complaint alone, and the preference to decide cases on the merits rather than the sufficiency of pleadings, courts often afford at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiff is unwilling or unable to amend in a manner that will avoid dismissal.
Plaintiff's allegation that she was employed by Sheriff Gusman necessarily precludes her tort claims against him under the exclusivity provisions of Louisiana's worker's compensation provisions. Accordingly, dismissal of all claims against Sheriff Gusman in Plaintiff's Complaint (Counts 4, 5 and 7), in its current form, is appropriate. Considering the relevant Rule 15(a) factors applicable to requests for leave to amend
For the foregoing reasons,
IT IS RECOMMENDED that Defendant Sheriff Gusman's Motion to Dismiss (ECF No. 11) be GRANTED as set forth herein:
Plaintiff's claims of negligence (failure to protect in Count 4 and failure to train and supervise in Count 5) and for respondeat superior liability based on Defendant Grillier's alleged negligence (Count 7) should be dismissed, with leave to amend.
IT IS FURTHER RECOMMENDED that Plaintiff be granted thirty (30) days within which to file an Amended Complaint to remedy the deficiencies in the Complaint. Should she fail to amend within the specified time, then her claims against Sheriff Gusman for negligence (failure to protect in Count 4 and failure to train and supervise in Count 5) and respondeat superior liability (Count 7) should be dismissed with prejudice.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.