Floyd v. City of Kenner

351 F. App'x 890
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 29, 2009
Docket08-30637
StatusUnpublished
Cited by24 cases

This text of 351 F. App'x 890 (Floyd v. City of Kenner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Floyd v. City of Kenner, 351 F. App'x 890 (5th Cir. 2009).

Opinion

PER CURIAM: *

Cedric Floyd brought civil rights claims against the City of Kenner, Louisiana, and four of its police officers. The district court dismissed Floyd’s suit after determining that he failed to state claims upon which relief could be granted. For the reasons that follow, we affirm the district court’s judgment in part and reverse it in part.

I. BACKGROUND

This case arose out of the relief effort that followed Hurricane Katrina. As Ken- *892 ner’s chief administrative officer, Floyd was charged with overseeing a center that distributed food and supplies. The center operated during the month of September 2005 and was patrolled both by National Guardsmen and Kenner policemen.

Floyd maintains that he occasionally delivered supplies to individuals who could not reach the center during normal hours of operation. He would load the supplies and take them away from the center. Those activities, juxtaposed with charges that Floyd misappropriated supplies, are key to this dispute.

Floyd contends that Kenner’s mayor once directed him to deliver items to a local apartment complex. Upon arriving at the complex, he says he was confronted by then-Chief of Police Nick Congemi. Floyd claims that Congemi saw him as a political nemesis because Floyd helped derail Congemi’s earlier bid for mayor. At the apartment complex, Floyd claims that Congemi became “flustered, embarrassed, and angry” due to their verbal exchange.

Within one business day of the confrontation, National Guardsmen from the center complained that Floyd was illegally distributing some supplies. Later that same day, one of the National Guardsmen who lodged the complaint was patrolling the neighborhood where Floyd lived. With him was Officer Cliff Deroche. De-roche alleges that they heard Floyd’s house alarm go off. They then allegedly went onto Floyd’s property and saw relief items in plain view. They reported the discovery to a Kenner police detective, Michael Cunningham. He then used the information as a basis to file an affidavit in support of search and arrest warrants. Steve Caraway, the then-chief of investigations, is said to have approved Cunningham’s filing.

A search warrant was issued and executed. Kenner police seized relief supplies from Floyd’s home. Floyd was arrested for malfeasance in office but never prosecuted.

Floyd subsequently filed a pro se civil rights action against the City of Kenner, as well as Caraway, Congemi, Cunningham, and Deroche, both in their individual and official capacities. Less than four months later, Floyd obtained counsel. An amendment was filed which named additional defendants. 1 He maintains that the Defendants “were all part of [an] effort to illegally search his residence and falsely arrest him for theft/malfeasance” and that it was all “motivated by the political animus” that Congemi had towards him.

The Defendants filed a motion to dismiss, arguing that Floyd failed to allege facts sufficient to defeat qualified immunity. Before ruling on the motion, the district court ordered Floyd to file a reply in order to “provide ‘greater detail’ and [to] assist the Court in deciding whether qualified immunity is proper given the specific facts and allegations raised in [Floyd]’s [cjomplaint.” After evaluating the response, the district court dismissed Floyd’s claims with prejudice. Floyd’s appeal followed.

II. DISCUSSION

We review a Rule 12(b)(6) dismissal de novo. Ballard v. Wall, 413 F.3d 510, 514 (5th Cir.2005). To survive a motion to dismiss, a plaintiff is required to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff *893 pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

Caraway, Congemi, Cunningham, and Deroche have asserted a qualified immunity defense. In reviewing those claims, we are guided both by the ordinary pleading standard and by a heightened one. 2 See Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir.1995) (en banc). Schultea explained that, once a defendant asserts the defense of qualified immunity, a district court may order the plaintiff to submit a reply after evaluating the complaint under the ordinary pleading standard. Id. We held that more than mere conclusions must be alleged, stating specifically that “a plaintiff cannot be allowed to rest on general characterizations, but must speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants.” Id. at 1432. “Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiffs injury.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999).

Floyd’s complaint alleged that the district court had jurisdiction under 42 U.S.C. §§ 1983, 1985, and 1986. Floyd’s complaint and Schultea reply make no other reference to Sections 1985 or 1986. Instead, under his “Statement of Claim,” Floyd focused solely on Section 1983. On appeal, Floyd makes only two very general references to Sections 1985 and 1986. He never attempts to set forth what those claims require or how he would satisfy such requirements. A party waives arguments that are not adequately briefed. United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir.1989). Accordingly, we will consider the possibility of Section 1983 liability only.

To plead a Section 1983 claim, Floyd was required to allege facts demonstrating that (1) a defendant violated the Constitution or federal law and (2) that he or she was acting under color of state law while doing so. See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir.2005). The qualified immunity defense to such claims, which applies here only to the claims against the four officers in their individual capacities, works to shield government officials from liability when they are performing discretionary functions, “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

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351 F. App'x 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floyd-v-city-of-kenner-ca5-2009.