     Case: 19-30177      Document: 00515147860         Page: 1    Date Filed: 10/07/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 19-30177                              FILED
                                  Summary Calendar                      October 7, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
ANDREW GRESSETT,

              Plaintiff–Appellant,

v.

NEW ORLEANS CITY; UNIDENTIFIED PARTIES,

              Defendants–Appellees.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:17-CV-16628


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Andrew Gressett, proceeding pro se, appeals the district court’s dismissal
of his complaint for failure to state a claim and denial of leave to amend.
Gressett alleges that an unidentified New Orleans Police officer made “anti-
Trump” and “pro-Black” statements while sitting in an adjacent booth to
Gressett at a Waffle House. Gressett further alleges that he was leaving the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 19-30177
Waffle House a month later when the same police officer, “lying in wait,” stood
in Gressett’s way and insulted him while holstering his taser and revolver.
Gressett claims that these two incidents made him feel “threatened and
intimidated”   although     he   left   each   time   without   further   incident.
Consequently, Gressett sued the police department and the unidentified officer
for civil rights violations under § 1983 and for negligence. The district court
dismissed Gressett’s suit under Federal Rule of Civil Procedure 12(b)(6). 2018
WL 3642008, at *2–3. We agree.
      Gressett continues to argue that he states cognizable claims under
§ 1983 because the officer violated his constitutional rights. See Tex.
Manufactured Hous. Ass’n, Inc. v. City of Nederland, 101 F.3d 1095, 1106 (5th
Cir. 1996) (“Section 1983 affords a private cause of action to any party deprived
of a constitutional right under color of state law.”). But even under the liberal
standard applicable to pro se complaints, Gressett alleges no facts that amount
to a constitutional violation. See Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir.
1993) (per curiam) (“Even a liberally construed pro se civil rights complaint . .
. must set forth facts giving rise to a claim on which relief may be granted.”).
The officer here did not violate the Fourth Amendment because Gressett freely
left both encounters without the officer seizing him. See United States v.
Mendenhall, 446 U.S. 544, 554 (1980) ([A] person has been seized within the
meaning of the Fourth Amendment only if . . . a reasonable person would have
believed that he was not free to leave.”). Also, while the officer’s alleged actions
may be unprofessional, they did not violate Gressett’s Fourteenth Amendment
rights. The officer’s aggressive posturing may amount to an “excess of zeal,”
but they do not constitute an abuse of power that “shocks the conscience.” Petta
v. Rivera, 143 F.3d 895, 902 (5th Cir. 1998).
      Gressett’s negligence pleadings also fail to state a claim because his
complaint only contains oblique references to the police department’s and the
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                                       No. 19-30177
officer’s negligence without outlining the elements for such a claim under
Louisiana law. La. Civ. Code art. 2315; see also Duncan v. Wal-Mart La.,
L.L.C., 863 F.3d 406, 409 (5th Cir. 2017) (explaining that a plaintiff must show
that the defendant must conform to a “specific standard” to properly plead a
negligence claim). In particular, Gressett’s petition does not assert that the
officer and the Department failed “to conform [their] conduct to a specific
standard.” Lemann v. Essen Lane Daiquiris, Inc., 923 So. 2d 627, 633 (La.
2006). With only the bare references to negligence contained within Gressett’s
petition, the district court properly dismissed this claim under Rule 12(b)(6).
       Gressett’s proposed amended pleading also does not cure the deficiencies
in his claims. In his proposed amended pleading, Gressett adds numerous
instances of law enforcement officers satisfying “their sick sense of stalking”
by harassing Gressett over the last twenty years. He also specifically alleges
violations of 18 U.S.C. § 2261A in addition to his § 1983 and negligence claims.
But nothing in the proposed amended complaint describes a Fourth
Amendment seizure in violation of § 1983 or specifies the duty defendants
allegedly breached. 1 Without more, Gressett’s amendments would be futile
because nothing in the proposed amendment states a claim for which relief can
be granted. See Foman v. Davis, 371 U.S. 178, 182 (1962) (explaining that a
court may deny a party leave to amend if amendment would be futile).
       The judgment of the district court is AFFIRMED.




       1 Gressett’s § 2261A claims are invalid too because the statute does not create a civil
cause of action. Rock v. BAE Sys., Inc., 556 F. App’x 869, 871 (11th Cir. 2014) (“[[T]here is no
evidence from which we can infer that Congress intended to create a private right of action
under § 2261A.”).
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