Kokesh v. Curlee, CIVIL ACTION NO: 19-1372

• Decision Date: 24 October 2019
• Docket Number: CIVIL ACTION NO: 19-1372
• Parties: Adam KOKESH v. Kevin CURLEE, et al.
• Court: U.S. District Court — Eastern District of Louisiana

422 F.Supp.3d 1124

Adam KOKESH

v.Kevin CURLEE, et al.

CIVIL ACTION NO: 19-1372

United States District Court, E.D. Louisiana.

Signed October 24, 2019

Kearney S. Loughlin, Kearney Loughlin, LLC, Lafayette, LA, for Adam Kokesh.

Dennis O. Durocher, Jr., Angela J. O'Brien, Christopher Neal Walters, Louisiana Department of Justice, New Orleans, LA, for Kevin Curlee.

Dennis O. Durocher, Jr., Christopher Neal Walters, New Orleans, LA, Connor K. Junkin, Department of Public Safety Office of Legal Affairs, Baton Rouge, LA, for Kevin Reeves.

Thomas Jeffrey Barbera, Barbera Law Firm, Metairie, LA, for Leon Cannizzaro, Jr.

SECTION: "S" (4)

ORDER AND REASONS

MARY ANN VIAL LEMMON, District Judge

IT IS HEREBY ORDERED that defendant Kevin Curlee's Motion to Dismiss (Rec. Doc. 24) is DENIED ;

IT IS HEREBY ORDERED that defendant Kevin Reeves's Motions to Dismiss (Rec. Docs. 24 and 25) are GRANTED, and the sole claim against him in his official capacity for prospective injunctive relief is DISMISSED .

BACKGROUND FACTS

The following facts are taken from plaintiff's complaint. On January 2, 2019, plaintiff Kokesh was one of two passengers in a motor vehicle operated by a third person and stopped on the shoulder of Interstate 10 in New Orleans. Louisiana State Police Sgt. Kevin Curlee stopped his vehicle behind the vehicle in which Kokesh had been riding and ordered Kokesh and the driver to get in their vehicle. Curlee then ordered the other passenger to remain outside and stand in front of Curlee’s headlights. Curlee then handcuffed the other passenger and accused him of spray-painting the wall adjacent to the shoulder of the roadway. After examining the wall, Curlee acknowledged that the handcuffed passenger had not been spray-painting the wall as Curlee had initially thought, but instead had used water and a stencil to clean a portion of the dirty wall, leaving behind an image of the word "FREEDOM!", the name of a book written by Kokesh.

After Curlee established for himself that no vandalism had taken place, the handcuffed passenger asked Curlee, "What’s going to happen now?" Curlee responded that he would be letting everyone go. Curlee then retrieved his keys and began to uncuff the passenger. As Curlee did so, he noticed that Kokesh was video recording the encounter. At that point, Curlee’s demeanor changed and he asked the handcuffed passenger, "You guys do this for attention? Filming cops for attention?" or words to that effect. Curlee then ordered the driver to get out of the vehicle and walked to the driver’s door while Kokesh remained sitting in the front passenger seat, recording the encounter.

Curlee then demanded documents from Kokesh, saying, "You got your ID on you, bro? Let me see your ID. This is what y'all do? You videotape the police? Let me see your driver’s license bro." Allegedly, Curlee did not ask Kokesh to state his name. Kokesh invoked his rights to counsel and to remain silent and told Curlee that he did not consent to a search of any kind. Curlee responded, "Let me see your driver’s license, sir." Curlee then walked back to his vehicle and turned on bright spotlights pointed at Kokesh’s camera. Thereafter, another Louisiana State Police trooper arrived and ordered Kokesh to get out of the vehicle, unplug his camera, and walk to the back of the vehicle. Curlee asked Kokesh again, "You got your ID on you?" Curlee then told Kokesh, "In just a minute you are going to be put in handcuffs and we're going to find out who you are or you can comply and do it the right way."

As Curlee began to handcuff Kokesh, Kokesh gave his camera to the driver. Curlee told the driver to turn off the camera. Curlee handcuffed Kokesh and told him that he was under arrest. At some point thereafter, Curlee had the driver obtain Kokesh’s driver’s license from the vehicle and deliver it to Curlee. Curlee charged Kokesh with resisting an officer in violation of La. R.S. 14:108(B)(1)(c) and took him to the Harbor Police Substation. From there, Curlee and other officers transported Kokesh to the Orleans Parish jail. Kokesh alleges that before putting Kokesh in the police car for transport, Curlee dropped Kokesh face-down on to the floor, causing his head to hit the floor with great force, and causing intense pain, swelling and concussion-like symptoms. Kokesh remained in jail, allegedly without adequate medical treatment, until his release days later.

Subsequently, the charges initiated by Curlee against Kokesh were rejected by the Orleans Parish District Attorney. Kokesh filed suit against Louisiana State Police Sergeant Kevin Curlee, his supervisor, Kevin Reeves, in his official capacity as Louisiana State Police Superintendent, and Leon Cannizzaro, Jr., in his official capacity as Orleans Parish District Attorney, alleging, inter alia, that La. R.S.14:108(B)(1)(c) is unconstitutional and seeking to enjoin "any future enforcement of the statute, either against Kokesh or others."

The complaint alleges the following claims against Curlee in his individual capacity: state law claims for unlawful detention and false arrest and false imprisonment, kidnaping, battery, malicious prosecution and intentional infliction of emotional distress; § 1983 First Amendment retaliation; a § 1983 claim for Fourth Amendment "malicious prosecution;" and a § 1983 claim for unreasonable seizure, and excessive and unreasonable use of force.

The complaint alleges a cause of action against Reeves, Curlee's supervisor, in his official capacity, for prospective injunctive relief, seeking to enjoin him from seeking to enforce the alleged unconstitutional statute in the future.

At oral argument on the motions, the parties stipulated to the dismissal of any claims against Curlee in his official capacity, any claims against Reeves for money damages, and any state law claims against Curlee. Defense counsel also acknowledged that, assuming the truth of the allegations of the complaint, plaintiff had stated a § 1983 claim against Curlee for excessive force. Accordingly, the remaining claims before the court in the instant motions are the § 1983 claims against Curlee (except for excessive force), and the claim for injunctive relief as to Reeves.

I. Motion to Dismiss Claims against Curlee

Curlee has moved to dismiss the § 1983 claims against him for failure to state a claim, arguing that probable cause is a defense to all of them, and the allegations of plaintiff's complaint reflect that Curlee had probable cause for his actions.

A. Legal Standards

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. "To survive a Rule 12(b)(6) motion to dismiss, ‘enough facts to state a claim for relief that is plausible on its face’ must be pleaded." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face when the plaintiff pleads facts from which the court can "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (citations omitted). The court "must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party." In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008).

B. Title 42 U.S.C. § 1983 Liability

Plaintiff's claims for money damages for First Amendment retaliation, Fourth Amendment unreasonable seizure, Fourth Amendment excessive and unreasonable use of force, and Fourth Amendment "malicious prosecution" are claims under 42 U.S.C. § 1983. That section provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

States, and state officials acting in their official capacities, are not "persons" subject to suit under 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ; Burnette v. Brooks, 250 F.3d 740 (5th Cir. 2001). Thus, the § 1983 claims, if alleged against Curlee in his official capacity, would be barred because state officials acting in their official capacity, are not "persons" subject to suit under 42 U.S.C. § 1983. See Will, supra. However, plaintiff has sued Curlee in his individual capacity. Accordingly, his 1983 claims are not barred on that basis.

C. Analysis

1. Unreasonable seizure

When the police stop a vehicle and detain the occupants, they have effected a Fourth Amendment "seizure," commonly referred to as a Terry stop. Johnson v. Thibodaux City, 887 F.3d 726, 733 (5th Cir. 2018) (citing United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) ) (en banc ). In analyzing a Terry stop, courts first assess whether the initial stop was justified. Id. Second, courts determine whether "the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop." Id. The touchstone is reasonableness, which "eschews bright-line rules [and] instead emphasiz[es] the fact-specific nature of the ... inquiry." Id. quoting Brigham at 507 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) ). "Hence, we require that an officer’s actions after a legitimate stop be ‘reasonably related to the...