Kelvin M. Doss, Jr. v. BEN MORRIS, Chief

1Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.
1
United States Court of Appeals
Fifth Circuit
F I L E D
January 13, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 02-31215
_______________________
KELVIN M. DOSS, JR.,
Plaintiff - Appellant,
v.
BEN MORRIS, Chief; SLIDELL POLICE DEPARTMENT; CITY OF SLIDELL;
ST. PAUL FIRE & MARINE INSURANCE COMPANY,
Defendant - Appellee.
_______________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-2208-T
_______________________
Before DEMOSS, DENNIS, and PRADO, Circuit Judges.1
EDWARD C. PRADO, Circuit Judge.
Kelvin M. Doss brought the underlying suit against the
Slidell Police Department, Police Chief Ben Morris, the City of
Slidell, and St. Paul Fire & Marine Insurance Company, asserting
violation of 42 U.S.C. § 1983 and state law torts of assault,
battery, false imprisonment, and intentional infliction of
emotional distress, under a theory of vicarious liability. The
district court dismissed all of Doss's claims for failure to

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state a claim upon which relief could be granted under FED. R.
CIV. P. 12(b)(6). Doss appeals only the dismissal of his state
law claims.
Background Facts
On February 3, 2001, Kelvin M. Doss was allegedly approached
by four police officers on the street in Slidell, Louisiana.
According to Doss, one of those officers grabbed Doss’s wrists
and pulled his arms behind his back, dislocating both of Doss’s
shoulders. Doss claims that he advised the officer that his
shoulders were injured and requested medical assistance, but the
officer instead forced him to place his hands on a car, causing
Doss further injury. Doss contends that the officers detained
him pursuant to accusations of fighting, and finally released
him. Doss asserts that he in no way provoked the actions of the
officers. Doss further avers that he sought out Slidell Police
Chief Ben Morris on the day of the incident, and complained to
Chief Morris that four officers had wrongly detained and injured
him. Doss claims that Chief Morris agreed to investigate the
matter and discipline the officers involved.
Doss later filed this lawsuit against the defendants,
alleging civil rights violations under 42 U.S.C. § 1983 and
Louisiana tort claims of false imprisonment, assault, battery,
and intentional infliction of emotional distress, under a theory

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of vicarious liability. Defendants filed an Answer denying
Doss’s claims and moved for submission of a Rule 7(a) Reply by
Doss, affirmatively asserting qualified immunity. The district
court granted the motion. Doss filed his Rule 7(a) Reply, and
Defendants moved to dismiss under FED. R. CIV. P. 12(b)(6). The
district court granted the 12(b)(6) motion, dismissing all of
Doss’s claims and entering judgment in favor of Defendants. Doss
moved to alter or amend judgment pursuant to FED. R. CIV. P. 59,
challenging the court’s dismissal of his state law tort claims.
The motion was denied, and Doss timely appealed the district
court’s judgment regarding only the dismissal of his state law
claims of battery, assault, false imprisonment, and intentional
infliction of emotional distress.
Analysis
Rule 12(b)(6) Dismissal of State Law Claims
Doss argues on appeal that the district court erroneously
dismissed his Louisiana tort claims for assault, battery, false
imprisonment, and intentional infliction of emotional distress
under Rule 12(b)(6). This Court reviews dismissals under FED. R.
CIV. P. 12(b)(6) de novo. Green v. Polunsky, 229 F.3d 486, 488
(5th Cir. 2000).
A motion to dismiss under Rule 12(b)(6) is not appropriate
unless the plaintiff’s pleadings on their face show, beyond a

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doubt, that the plaintiff cannot prove any set of facts
sufficient to entitle him to relief. Garrett v. Commonwealth
Mortgage Co., 938 F.2d 591, 594 (5th Cir. 1991). In determining
whether a case was properly dismissed under Rule 12(b)(6), the
reviewing court must assume all facts contained in the pleadings
are true, Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633
(1999), and view the facts in the light most favorable to the
plaintiff. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498 (5th Cir. 2000). Finally, while § 1983 claims are subject to
heightened pleading requirements, state tort claims need only
satisfy the lower threshold of general federal “notice pleading”
requirements to survive a 12(b)(6) motion. Morin v. Caire, 77
F.3d 116, 123 (5th Cir. 1996).
In the instant case, the district court dismissed all of
Doss’s claims, including his state tort claims, against all of
the defendants. At the outset, we note that the district court
concluded in its Rule 7(a) Order that “Plaintiff’s Louisiana tort
claims satisfy” the requirements of general federal “notice
pleading.” Despite this finding, the trial judge ultimately
concluded that Doss failed to state any claims upon which relief
could be granted. The district court’s order dismissing Doss’s
claims was very brief; the court merely stated that Doss failed
to support his allegations, that Doss “admitted that he cannot
identify the person who allegedly injured him,” and that Doss did

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2Appellees assert that there is no such entity as the
“Slidell Police Department”, which can be sued, and that the
“City of Slidell” is the properly named defendant for actions
against the police department. However, the propriety of the
defendants named in this lawsuit is not at issue on appeal;
therefore, we do not address the matter in this opinion.
3Article 2315 is one of the codal bases in Louisiana for a
claim in tort, and states that "[e]very act whatever of man that
causes damage to another obliges him by whose fault it happened
to repair it." See Porteous v. St. Ann’s Café & Deli, 713 So. 2d
454, 456 (La. 1998).
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not “allege[] any facts which would show causation.” The
district court also found that several of Doss’s allegations–none
specifically named–were unfounded based on the facts presented in
his pleadings.
Appellees concede that Doss could correctly bring a claim of
vicarious liability against the City of Slidell2 and its insurer.
They argue, however, that Doss did not sufficiently plead any
underlying state law torts, which is necessary to bring a
vicarious liability claim under Louisiana Civil Code Article
2315.3 In the instant case, the state law torts asserted by Doss
were battery, assault, false imprisonment, and intentional
infliction of emotional distress.
Under Louisiana law, battery is defined as intentional
harmful or offensive contact with a person. Lowrey v. Pettit,
737 So. 2d 213, 216 (La. App. 2 Cir. 1999). To establish
battery, the plaintiff need not prove malice or an intent to
inflict actual damage; a showing that the actor intended to
inflict an offensive contact without the other's consent is

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sufficient. See id. Assault is the imminent threat of a
battery. Bulot v. Intracoastal Tubular Services, Inc., 730 So.
2d 1012, 1018 (La. App. 4 Cir. 1999). False imprisonment may be
proven if the plaintiff was detained and the detention was
unlawful. See Hughes v. Gulf Int’l, 593 So. 2d 776, 780 (La.
App. 4 Cir. 1992). Finally, the Louisiana Supreme Court has held
that the tort of intentional infliction of emotional distress
occurs when a person “by extreme and outrageous conduct
intentionally causes severe emotional distress to another.” See
White v. Monsanto, 585 So. 2d 1205, 1209 (La. 1991).
In his Complaint and Rule 7(a) Reply, Doss alleged that four
Slidell police officers “physically detained” Doss during a Mardi
Gras parade and wrongfully accused him of fighting. Doss further
stated that one officer intentionally handled Doss’s person in
such a manner that Doss’s shoulders were dislocated, and that the
officer further injured Doss by “forcing him to place both of his
hands on a car while his shoulders were dislocated.”
The facts asserted by Doss are admittedly brief. However,
when taken as true and viewed in the light most favorable to
Doss, we find that the foregoing facts describing a police
officer’s intentional and injurious contact with Doss, and Doss’s
alleged wrongful detention sufficiently state claims for battery,
assault, and false imprisonment under a theory of vicarious
liability against the City of Slidell, the city’s insurer, and

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the Slidell Police Department. However, we conclude that Doss
did not sufficiently plead a claim for intentional infliction of
emotional distress, because he did not claim to have suffered
emotional distress of any kind in his pleadings. Consequently,
we conclude that the district court erroneously dismissed Doss’s
state law tort claims against the City of Slidell, the Slidell
Police Department, and St. Paul Fire & Marine Insurance Company
for battery, assault, and false imprisonment, but correctly
dismissed Doss’s claim of intentional infliction of emotional
distress.
Appellees further aver that the dismissal of Doss’s state
law tort claims should be affirmed as to Police Chief Morris, in
particular. A review of the record indicates that Doss’s claims
against Chief Morris were based on an alleged conspiracy to
violate Doss’s civil rights, and that Doss did not plead any
viable state tort law claims against Chief Morris. Accordingly,
we affirm the district court’s dismissal of Doss’s state law
claims with respect to Chief Morris.
Qualified Immunity
Finally, in addition to arguing that Doss’s Louisiana tort
claims were properly dismissed for failure to state a claim, the
appellees contend that they were entitled to qualified immunity
under Moresi v. Department of Wildlife & Fisheries, 567 So. 2d

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4This Court notes that LA. REV. STAT. ANN. § 9:2798.1 (1997)
provides limited statutory immunity for “certain acts carried out
by police officers in the course of their duties.” Ducote v.
City of Alexandria, 677 So. 2d 1118, 1120 (La. App. 1996).
Section 9:2798.1(B) provides that “[l]iability shall not be
imposed on public entities or their officers or employees based
upon the exercise or performance or the failure to exercise or
perform their policymaking or discretionary acts when such acts
are within the course and scope of their lawful powers and
duties.” (emphasis added). However, we do not address the
applicability of section 9:2798:1 in this case, as it was not
expressly invoked by the defendants in the district court or on
appeal.
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1081 (La. 1990).4 The immunity discussed in Moresi, however, is
inapposite to this case. Moresi did not recognize a right to
qualified immunity for conduct that exposes an officer to
liability under Louisiana tort law. Rather, the claims asserted
in Moresi were civil rights claims, and the immunity recognized
in that case was limited to actions “against state officers or
persons acting under the color of state law for damages caused by
a violation of Article I, § 5, of the Louisiana Constitution.”
Id. at 1094. Thus, the qualified immunity laid out in Moresi
does not shield the defendants from the tort claims asserted by
Doss.
Conclusion
Based on the foregoing analysis, we conclude that the
district court’s dismissal of Doss’s claim for intentional
infliction of emotional distress against all defendants, and the
dismissal of all state law claims against Chief Ben Morris, was

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proper and we hereby AFFIRM the district court’s order dismissing
with respect to those claims. However, we further conclude that
the district court’s dismissal of Doss’s state tort claims
against the City of Slidell, the Slidell Police Department, and
the St. Paul Fire & Marine Insurance Company for assault,
battery, and false imprisonment under Rule 12(b)(6) was
erroneous; therefore, we REVERSE that portion of the district
court’s order dismissing those claims. Accordingly, we REMAND
this case for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.

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