Doe v. McKesson

272 F. Supp. 3d 841
CourtDistrict Court, M.D. Louisiana
DecidedSeptember 28, 2017
DocketCIVIL ACTION NO.: 16-00742-BAJ-RLB
StatusPublished
Cited by8 cases

This text of 272 F. Supp. 3d 841 (Doe v. McKesson) is published on Counsel Stack Legal Research, covering District Court, M.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. McKesson, 272 F. Supp. 3d 841 (M.D. La. 2017).

Opinion

RULING AND ORDER

BRIAN A. JACKSON, CHIEF JUDGE

Before the Court are Defendant DeRay Mckesson’s Motion to Dismiss (Doc. 15) (“Defendant’s Rule 12 Motion”), Defendant DeRay Mckesson’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 9(a) (Doc. 43) (“Defendant’s Rule 9 Motion”), and Plaintiffs Motion to File Amended Complaint for Damages (Doc. 52) (“Plaintiffs Motion to Amend”). Plaintiff filed a memorandum in opposition to Defendant’s Rule 12 Motion, (see Doc. 21), Defendant DeRay Mckesson filed a reply memorandum in support of the Motion, (see Doc. 29), and Plaintiff filed a surreply in opposition to the Motion, (see Doc. 38). Plaintiff also filed a memorandum in opposition to Defendant’s Rule 9 Motion. (See Doc. 44). The Court held oral argument on Defendant’s Rule 12 and Rule 9 Motions.

“[T]he practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.” Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981). Because of its nature as a fundamental guarantee under the First Amendment to the United States Constitution, “[t]he right to associate does not lose all constitutional protection merely because some members of [a] group may have participated in conduct,” such as violence, “that itself is not protected.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). Thus, when a tort is committed in the context of activity that is otherwise protected by the First Amendment, courts must use “precision” in determining who may be held liable for the tortious conduct so that the guarantees of the First Amendment are not undermined. Id. at 916, 102 S.Ct. 3409 (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)).

Plaintiffs alleged injuries in this case — . which he claims to have suffered in the line of duty as a police officer while responding to a demonstration — are not to be minimized. Plaintiff has failed, however, to state a plausible claim for relief against an individual or entity that both has the capacity to be sued and falls within the precisely tailored category of persons that may be held liable for his injuries, which he allegedly suffered during activity that was otherwise constitutionally protected. For the reasons explained herein, Defendant DeRay Mckesson’s Motion to Dismiss (Doc. 15) and Defendant DeRay Mckesson’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 9(a) (Doc. 43) are GRANTED, Plaintiffs Motion to File Amended Complaint for Damages (Doc. 52) is DENIED, and this matter is DISMISSED WITH PREJUDICE.

I. BACKGROUND

In his Complaint, Plaintiff — a Baton Rouge Police Department officer — alleges that he responded to a demonstration that took place on July 9, 2016, at the intersection of Airline Highway and Goodwood Boulevard. (See Doc. 1 at ¶¶ 12, 15-16). Plaintiff avers that Defendant DeRay Mckesson (“Mckesson”) “le[]d the protest,” “acting on behalf of’ Defendant “Black Lives Matter.” (Id. at ¶ 3). Plaintiff asserts that “Black Lives Matter” is a [845]*845“national unincorporated association,” of which Mckesson is a “leader and co-founder.” (Id.).

Although Plaintiff alleges that Mckesson and “Black Lives Matter” “were in Baton Rouge for the purpose of demonstrating, protesting!,] and rioting to incite others to violence against police and other law enforcement officers,” (id. at ¶ 11), Plaintiff concedes that the demonstration “was peaceful” when it commenced, (id. at ¶ 17). Plaintiff avers that “the protest turned into a riot,” (id. at ¶ 18), however, when “activists] began pumping up the crowd,” (id. at ¶ 17). Thereafter, demonstrators allegedly “began to loot a Circle K,” taking “water bottles” from the business and “hurl[ing]” them at the police officers who were positioned at the demonstration. (Id. at ¶ 18). Once the demonstrators had exhausted their supply of water bottles, Plaintiff asserts that an unidentified demonstrator “picked up a piece of concrete or [a] similar rock[-]like substance and hurled [it] into the police.” (Id. at ¶ 20). Plaintiff allegedly was struck by this object, causing several serious injuries. (Id. at ¶ 21),

Plaintiff alleges that Mckesson “was in charge of the protests” and “was seen and heard giving orders throughout the day and night of the protests.” (Id. at ¶ 17). Mckesson, according to Plaintiff, “was present during the protest and ... did nothing to calm the crowd”; instead, Mckesson allegedly “incited the violence on behalf of ... Black Lives Matter.” (Id. at ¶ 19).

Plaintiff brought suit, naming Mckesson and “Black Lives Matter” as Defendants. In his Complaint, Plaintiff states claims in negligence and respondeat superior, asserting that Mckesson and “Black Lives Matter” “knew or should have known that the physical contact[,] riot[,] and demonstration that they staged would become violent ... and ... that violence would result.” (Id. at ¶ 28). The unidentified demonstrator who threw the object' that allegedly struck Plaintiff, he avers, was “a member of ... Black Lives Matter” and was “under the control and custody” of Mckesson and “Black Lives' Matter.” (Id. at ¶ 20). Therefore, according to Plaintiff, Mckesson and “Black Lives Matter” “are liable in solido for the injuries caused to” Plaintiff by the unidentified demonstrator. (Id.-&t ¶ 31).

Mckesson thereafter filed Defendant’s Rule 12 Motion, asserting that Plaintiff failed to state a plausible claim for relief against him, as well as Defendant’s Rule 9 Motion, asserting that “Black Lives Matter” is not an entity that has the capacity to be sued. Plaintiff responded by filing Plaintiffs Motion to Amend, seeking leave of court to amend his complaint to add “# BlackLivesMatter” and Black Lives Matter Network, Inc., as Defendants and to supplement his Complaint with additional factual allegations.

II. DISCUSSION

The Court finds that Plaintiffs Complaint suffers from numerous deficiencies; namely, the Complaint fails to state a plausible claim for relief against Mckesson and it names as a Defendant a social movement that lacks the capacity to be sued. In an attempt to ameliorate these deficiencies, Plaintiff has sought leave of court to amend his Complaint to name two additional Defendants — “# BlackLivesMatter” and Black Lives' Matter Network, Inc.— and to plead additional factual allegations. Plaintiffs proposed amendment, however, would be futile: Plaintiff fails to remedy the deficiencies contained in his initial Complaint with respect to his claims against Mckesson and “Black Lives Matter,” “# BlackLivesMatter” — a hashtag— lacks the capacity to be sued, and Plaintiff fails to state a plausible claim for relief [846]*846against Black Lives Matter Network,.Inc.

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Doe v. Mckesson
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Bluebook (online)
272 F. Supp. 3d 841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-mckesson-lamd-2017.