     Case: 19-30113      Document: 00515125256         Page: 1    Date Filed: 09/19/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 19-30113                                FILED
                                  Summary Calendar                      September 19, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
HARVEY LEE CLARK,

              Plaintiff - Appellant

v.

THIBODAUX CITY, and Supervisory Employees; THIBODAUX POLICE
DEPARTMENT; TOMMY ESCHETTE, Mayor; TIMOTHY WAYNE
LIPSCOMB; ROUSES ENTERPRISES; UNIDENTIFIED PARTIES, Rouses
Employees,

              Defendants - Appellees



                  Appeal from the United States District Court
                     for the Eastern District of Louisiana
                            USDC No. 2:18-CV-2364


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
                                             I.
       Harvey Lee Clark brought an action under 42 U.S.C. § 1983, alleging
violations of his First, Fourth, Sixth, Eighth, and Fourteenth Amendment
rights. The defendants all filed motions to dismiss pursuant FED. R. CIV. P.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30113
12(b)(6), which the district court granted.      The district court offered two
explanations for its decision. First, Clark failed to submit a memorandum in
opposition, as required by Local Rule 7.5. Second, the defendants’ motions had
merit. Clark asked the district court to reconsider under the rationale that
Clark, as a pro se litigant, was not familiar with the rules of federal procedure.
He also asked for leave to amend his complaint. His requests were denied.
      Clark appeals the district court’s decision to grant the defendants’
12(b)(6) motions and, in the alternative, its refusal to allow Clark to amend his
complaint. We consider both claims and affirm.
                                       II.
      For Clark to defeat a 12(b)(6) motion, his “factual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The allegations need not be detailed, but
they must contain “more than labels and conclusions”—a mere “formulaic
recitation of the elements of a cause of action will not do.” Id. “[C]onclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(quoting S. Christian Leadership Conference v. Supreme Court of State of La.,
252 F.3d 781, 786 (5th Cir. 2001)).
      The district court was correct to dismiss Clark’s lawsuit for failure to
state a claim under § 1983. In his complaint, Clark raises allegations against
five separate defendants: Rouses Enterprises; Officer Timothy Lipscomb; the
City of Thibodaux; the Thibodaux Police Department; and Tommy Eschette,
Mayor of the City of Thibodaux. His principal charge is that Officer Lipscomb
and Rouses Enterprises conspired to create a false police report that resulted
in him being questioned, detained, and ultimately arrested. The remaining
defendants, he contends, are all liable for the ensuing infringements of his
constitutional rights under a theory of respondeat superior.
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      For clarity’s sake, we will analyze the claims brought against each
defendant in turn.
                                        A.
      Rouses Enterprises is a private entity. It does not qualify for § 1983
liability unless its conduct can be “fairly attributable to the State.” Priester v.
Lowndes County, 354 F.3d 414, 423 (5th Cir. 2004) (quoting Bass v. Parkwood
Hosp., 180 F.3d 234, 241 (5th Cir. 1999)). We have already determined that
“[t]he execution by a private party of a sworn complaint, which forms the basis
for an arrest, is, without more, not sufficient to make that party’s acts state
action.” Sims v. Jefferson Downs Racing Ass'n, Inc., 778 F.2d 1068, 1078–79
(5th Cir. 1985). The plaintiff would need to show, in addition, that the police
were conducting an arrest pursuant to “a preconceived plan” merely because
the plaintiff was designated for arrest by the private party, without
independent investigation. Id. Clark’s complaint does not allege facts along
these lines. He therefore has not stated grounds upon which this court may
grant relief.
                                        B.
      Officer Lipscomb, in contrast, is a government official. He is being sued
in both his individual and official capacities and has asserted qualified
immunity in response. It is well established that in such situations, the court
will consider individual capacity claims under a heightened standard. See
Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). As
such, Clark must plead with “factual detail and particularity” specific conduct
giving rise to a constitutional violation if he is to establish personal liability.
Id. Clark does not satisfy this standard. The complaint never explains how
Officer Lipscomb and Rouses Enterprises conspired together. It never explains
how the police report was false. It never even asserts that Officer Lipscomb
knew that the information contained within the police report was false. All the
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                                  No. 19-30113
complaint does is apply a set of labels to Officer Lipscomb’s actions in the hopes
that this court will accept the plaintiff’s characterization as true. We will not
take at face value conclusionary statements posing as factual allegations. The
claims against Officer Lipscomb in his individual capacity fail.
      Clark’s claims against Officer Lipscomb in his official capacity fare no
better. The Supreme Court has stated that suits against government actors in
their official capacity simply represent an alternative way of seeking relief
against the entity of which an officer is an agent. Hafer v. Melo, 502 U.S. 21,
25 (1991). Accordingly, the Court instructs us to treat such suits as a suit
against the municipal body from which the governmental official derives his or
her authority. Id. This means that to establish liability, Clark must identify
a policy or custom adopted by the City of Thibodaux that was responsible for
the alleged violation of federal law—the very same standard that Clark must
meet to pursue his § 1983 claim against the city. Mason v. Lafayette City-Par.
Consol. Gov't, 806 F.3d 268, 279–80 (5th Cir. 2015). Clark makes no mention
of a policy or custom in his complaint, so his remaining claims against Officer
Lipscomb fail by necessity.
                                       C.
      Municipalities cannot be held liable under § 1983 on a respondeat
superior theory. Webb v. Town of Saint Joseph, 925 F.3d 209, 214 (5th Cir.
2019) (warning that isolated unconstitutional actions by municipal employees
will almost never trigger liability for the municipality). The plaintiff instead
must plead that the civil rights violation occurred pursuant to some sort of
policy or custom promulgated by the city. See Monell v. Dep't of Soc. Servs. of
City of New York, 436 U.S. 658, 690–91 (1978). Clark does not identify such a
policy or custom in his complaint. He therefore has not stated a claim against
the City of Thibodaux.


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                                  No. 19-30113
                                       D.
      The defendants assert that the Thibodaux Police Department is not a
legal entity capable of being sued under Louisiana law. See, e.g., Boice-Durant
v. Kenner Police Dept., 2013 WL 1335643, at *1 n.5 (E.D. La. Mar. 29, 2013)
(specifically finding that the Thibodaux Police Department is not a juridical
entity under Louisiana law); see also Darby v. Pasadena Police Dept., 939 F.2d
311, 313 (5th Cir. 1991) (stating that state law determines entity’s capacity to
sue and be sued).      Clark does not contest this characterization of the
department’s status. Dismissal in this instance was proper.
                                       E.
      As with Officer Lipscomb, Clark brought an action against Mayor
Eschette in both his individual and official capacities. However, unlike the
allegations levelled against Officer Lipscomb, it is not necessary for us to apply
the two pleading standards discussed in Section II.B. As a threshold matter,
Clark must identify “defendants who were either personally involved in the
constitutional violation or whose acts are causally connected to the
constitutional violation alleged.” Anderson, 184 F.3d at 443. Clark makes no
reference of Mayor Eschette in his complaint outside of listing him as a party
to the dispute. Accordingly, the complaint fails to assert that Mayor Eschette’s
actions contributed to the alleged infringement of Clark’s constitutional rights.
Absent this assertion, Clark is missing a key element of his claim against
Mayor Eschette.
                                       III.
      The district court declined to consider Clark’s motion to amend his
complaint because it lacked jurisdiction. This was correct. Clark filed his
notice of appeal on the same day that he filed his motion to amend with the
district court. Once the notice of appeal was submitted, the district court was
divested of its authority over the proceeding until such time as this court
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                                  No. 19-30113
resolves the questions before it and decides whether to remand the case back
to district court. See Moore v. Tangipahoa Par. Sch. Bd., 836 F.3d 503, 504
(5th Cir. 2016).
      In this instance, remand is not appropriate. As we explained above,
Clark’s complaint failed to state sufficient facts to support a claim against the
defendants. Although Clark has offered to amend his complaint, he did not
state how he plans on doing so outside of a general promise in his brief to fix
any “technical errors.” See Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590
(5th Cir. 2016) (requiring a movant to give the court some notice of the nature
of his or her proposed amendments). The errors in his complaint, however, are
substantive, not technical. And we do not believe that they can be corrected
based on Clark’s statements to date. See Matter of Life Partners Holdings, Inc.,
926 F.3d 103, 125 (5th Cir. 2019) (stating that leave to amend need not be
granted when the amended pleadings would not withstand a motion to dismiss
for failure to state a claim).
      What’s more, Clark had the opportunity throughout the course of this
litigation to correct or amend his complaint. See, e.g., FED. R. CIV. P. 15(a)(1)
(a party may amend its pleadings “once as a matter of course” within 21 days
after serving it or after being served a Rule 12(b) motion). He elected not to
take advantage of it. Clark also had the opportunity to oppose the defendants’
motions and explain to the district court why he thought that his complaint
stated sufficient grounds for relief. He again failed to exercise his rights.
Indeed, Clark did not comment on the defendants’ motions until after the
district court had already granted the first dismissal. And, then, the only
argument he offered was that, as a pro se litigant, Clark could not be expected
to know all the rules.
      We affirm.


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