United States Court of Appeals

for the Fifth Circuit

No. 20-30508

Jorge Gomez, 

Plaintiff—Appellant,

versus

John Galman; Spencer Sutton; City of New Orleans, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:19-CV-11803 

Before Stewart, Ho, and Engelhardt, Circuit Judges.

Per Curiam:

While sitting at his local bar, Jorge Gomez was harassed and later 

beaten unconscious by two off-duty New Orleans police officers. Gomez 

sued, and the district court dismissed Gomez’s federal claims because it 

found that the officers were not acting under color of law. But because

Gomez has alleged sufficient facts at this stage to show that his assailants 

utilized their authority as officers to abuse him, the district court erred on 

that point. Gomez has not, however, alleged sufficient facts to support all of 

his claims. Accordingly, we AFFIRM in part, REVERSE in part, and 

REMAND. 

United States Court of Appeals

Fifth Circuit

FILED

November 18, 2021

Lyle W. Cayce

Clerk

Case: 20-30508 Document: 00516100044 Page: 1 Date Filed: 11/18/2021
No. 20-30508

2

I.

On the evening of July 23, 2018, military veteran Jorge Gomez sat at 

the bar at Mid-City Yacht Club. As was often the case, Gomez was wearing

military fatigues. A regular at that bar, Gomez sat by himself and minded his 

own business. Then, two officers with the New Orleans Police Department

(“NOPD”), John Galman and Spencer Sutton, arrived on the scene. The

two men were off duty, wore no indicia of being officers, and did not formally 

announce their positions with NOPD. Unfortunately, their behavior was not

becoming of an officer of the law. Galman and Sutton harassed Gomez, 

calling him a “fake American” and telling him to “go back” to where he 

came from. At one point the verbal harassment became physical, and the two 

men attempted to pull off Gomez’s clothes. They eventually stole Gomez’s

beret off his head and left the bar. When Gomez followed the officers outside, 

Sutton ordered Gomez to stop and not leave the patio of Mid-City Yacht 

Club. The officers proceeded to beat Gomez until several bystanders

intervened to assist the bloodied veteran. 

After getting pummeled, Gomez managed to pull himself together and 

enter his truck to drive to his nearby home. As he was driving away, the 

officers ordered Gomez to stop and exit his vehicle. Gomez alleges that 

“[b]ecause they acted like police officers” he “believed he was not free to 

leave.” Accordingly, Gomez followed the officers’ order and stepped out of 

his vehicle. Galman and Sutton again thrashed Gomez. During the attack, 

Sutton held Gomez down by restraining his hands behind his back and sitting 

on top of him, which Gomez describes as “a police hold,” which the officers 

“were trained to do.” Gomez believed he was being arrested. Eventually, 

the officers knocked Gomez unconscious. After their victim passed out, 

Galman and Sutton did not immediately leave the scene. Instead, Sutton 

called NOPD for backup and identified himself to dispatch as a police officer. 

Case: 20-30508 Document: 00516100044 Page: 2 Date Filed: 11/18/2021
No. 20-30508

3

Gomez was rushed to the emergency room by ambulance, where he 

was diagnosed with a concussion, a lumbar sprain, and other severe injuries. 

Gomez continues to suffer some effects from these wounds. NOPD officers 

twice questioned Gomez while he was convalescing. After a short 

investigation, Galman and Sutton were charged with simple misdemeanor 

battery. 

Gomez sued Galman, Sutton, and the City of New Orleans. Against 

the officers, Gomez alleged a violation of his constitutional rights under 42 

U.S.C. § 1983, as well as various state law claims including assault, battery, 

and false arrest. Against the City, Gomez alleged a § 1983 claim for failure to 

hire, train, supervise, or discipline officers, as well as various state law claims 

including negligent hiring, negligent supervision and retention, and vicarious 

liability. 

The district court dismissed Gomez’s § 1983 claims against the City 

and the officers. The court found that Gomez had not properly alleged that 

the officers were acting under of color of law at the time of the attack, and 

therefore he could not maintain a § 1983 claim against the officers or the City. 

As an alternative holding, the court found that Gomez had failed to allege an 

official policy or custom so as to hold the City liable under § 1983. The court 

further dismissed the negligent hiring, retention, and supervision, respondeat 

superior, and intentional infliction of emotional distress (“IIED”) claims 

against the City. The court declined supplemental jurisdiction over the 

remaining state law claims. Gomez timely appealed. 

Case: 20-30508 Document: 00516100044 Page: 3 Date Filed: 11/18/2021
No. 20-30508

4

II.

We review a district court’s grant of a motion to dismiss de novo. 

Masel v. Villarreal, 924 F.3d 734, 742–43 (5th Cir. 2019). “To survive a 

motion to dismiss, ‘a complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.’” Id. 

(cleaned up). “In conducting this analysis, we accept all well-pleaded facts 

as true and view those facts in the light most favorable to the plaintiffs.” 

Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 

258, 263 (5th Cir. 2019) (cleaned up). We do not require “detailed factual 

allegations,” but the complaint must contain sufficient facts to “allow[] the 

court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A complaint’s “‘naked 

assertion[s]’ devoid of ‘further factual enhancement’” will not suffice. Id. 

(quoting Twombly, 550 U.S. at 557). Additionally, courts “are not bound to 

accept as true a legal conclusion couched as a factual allegation.” Papasan v. 

Allain, 478 U.S. 265, 286 (1986); see also Iqbal, 556 U.S. at 678 (holding that 

the “tenet that a court must accept as true all of the allegations contained in 

a complaint is inapplicable to legal conclusions”). 

“In determining whether a plaintiff’s claims survive a Rule 12(b)(6) 

motion to dismiss, the factual information to which the court addresses its 

inquiry is limited to (1) the facts set forth in the complaint, (2) documents 

attached to the complaint, and (3) matters of which judicial notice may be 

taken under Federal Rule of Evidence 201.” Walker v. Beaumont Indep. Sch. 

Dist., 938 F.3d 724, 735 (5th Cir. 2019).

Case: 20-30508 Document: 00516100044 Page: 4 Date Filed: 11/18/2021
No. 20-30508

5

III.

A. “Under Color of Law”

Under 42 U.S.C. § 1983, one may sue “[e]very person who, under 

color of any statute, ordinance, regulation, custom, or usage of any State” 

violates his or her constitutional rights. Based on this language, the Supreme 

Court has explained that “[t]o state a claim under § 1983, a plaintiff must 

allege the violation of a right secured by the Constitution and laws of the 

United States, and must show that the alleged deprivation was committed by 

a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 

(1988). The first question before us is whether Gomez has established that 

Galman and Sutton were acting “under color of state law” the night that they 

attacked him. 

“The traditional definition of acting under color of state law requires 

that the defendant in a § 1983 action have exercised power ‘possessed by 

virtue of state law and made possible only because the wrongdoer is clothed 

with the authority of state law.’” Id. at 49 (quoting United States v. Classic, 

313 U.S. 229, 326 (1941)). More simply, “[u]nder ‘color’ of law means under 

‘pretense’ of law.” Screws v. United States, 325 U.S. 91, 111 (1945). 

Generally, if an officer is performing their official duties, their acts “are 

included whether they hew to the line of their authority or overstep it,” 

though “acts of officers in the ambit of their personal pursuits are plainly 

excluded.” Id. That said, even if an officer acts for purely personal reasons, 

he or she may still act under color of law if they are “acting by virtue of state 

authority.” United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991). 

Importantly here, it is “clear that whether a police officer is acting 

under color of law does not depend on duty status at the time of the alleged 

violation.” Id. Rather, to determine whether an officer acted under color of 

law, we must consider: (1) “whether the officer misused or abused his official 

Case: 20-30508 Document: 00516100044 Page: 5 Date Filed: 11/18/2021
No. 20-30508

6

power” and (2) “if there is a nexus between the victim, the improper 

conduct, and the officer’s performance of official duties.” Bustos v. Martini 

Club, Inc., 599 F.3d 458, 464–65 (cleaned up). 

Viewing his complaint in the light most favorable to Gomez—as we 

must—we determine that he has adequately pleaded facts which establish 

that Galman and Sutton acted under the color of law. First, Gomez alleges

that when he exited the bar, Sutton “acting as a police officer, gave Mr. 

Gomez a direct order to stop and not leave the patio area of the bar.” Gomez 

obeyed this order. Then, when he attempted to drive away after getting 

violently beaten, Sutton and Galman “ordered him to stop” and “ordered 

[him] to step out of his vehicle.” Gomez claims that “[b]ecause they acted 

like police officers, [he] believed he was not free to leave, and did as he was 

ordered.” 

These allegations are key. A victim usually does not follow orders 

from someone who just attacked him without good reason to do so. He is 

even less likely do so when—as alleged here—the victim was in the process 

of escaping his attackers. The fact that Gomez stopped and exited his vehicle 

at his attackers’ commands lends significant credence to his allegation that 

he believed them to be police officers, because the complaint offers no reason 

for Gomez to obey Galman and Sutton unless they were “acting by virtue of 

state authority.” Tarpley, 945 F.2d at 809. 

Gomez alleges other facts indicating that Galman and Sutton

“misused or abused their official power.” Bustos, 599 F.3d at 465. For 

example, Gomez asserts that the officers “forced him onto his stomach, and 

placed his hands behind his back in a police hold as they were trained to do 

during an arrest, and effected an arrest of Mr. Gomez.” This caused Gomez 

to “believe[] he was being arrested.” The use of the police hold further 

indicates that Galman and Sutton were abusing their official power and 

Case: 20-30508 Document: 00516100044 Page: 6 Date Filed: 11/18/2021
No. 20-30508

7

exercising their authority as officers in their efforts to harm Gomez. Further, 

Sutton “called for backup in continuing to make an arrest” and Defendants 

“identified themselves to NOPD dispatch as NOPD officers.” Gomez 

concedes that by the time the officers called for backup he was unconscious. 

Nevertheless, Defendants’ call for backup—and especially their 

identification of themselves as officers of the law—adds to the “air of official 

authority” that pervaded the assault. Tarpley, 945 F.2d at 809. Taken

together, these allegations are sufficient to plead that the officers misused 

their official power. Accordingly, the district court erred in finding that 

Galman and Sutton did not act under color of law. 

Bustos v. Martini Club, Inc. is not to the contrary. In that case, a 

plaintiff got into a bar fight with various officers in San Antonio. Bustos, 599 

F.3d at 460–61. Because the officers were blocking the back door, the plaintiff 

headed for the alley, where the officers were “holding each other’s shoulders 

as a group of SWAT officers showing force” and one officer pushed the 

plaintiff to the floor. Id. at 461. Bustos also alleged that he called 911, but the 

operator would not help him because he could not identify the officers’ badge 

numbers, though he did not allege that the officers were in uniform. Id. at 

461, 465. The district court found that Bustos failed to plead that the officers 

acted under color of law, and this Circuit affirmed. In doing so, we noted that 

“Bustos does not allege facts to suggest that the officers who assaulted him 

misused or abused their official power,” and that “no ‘air of authority’ 

pervaded [that] barroom altercation.” Id. at 465. 

Here, Gomez has alleged facts that demonstrate an “air of authority” 

not present in Bustos. Unlike Gomez, Bustos did not allege that the off-duty 

officers gave him orders. And Bustos certainly did not allege that he would 

have felt obligated to comply because the defendants were officers of the law. 

Although Bustos claimed that the officers who hurt him held each other’s

shoulders like a SWAT team, that act is different in kind from a “police 

Case: 20-30508 Document: 00516100044 Page: 7 Date Filed: 11/18/2021
No. 20-30508

8

hold” that is routinely used during arrests. Indeed, Bustos never claimed

that he felt that he was under arrest. Taken together, the allegations Gomez 

levies demonstrate a far greater “air of authority” than that present in Bustos. 

Our holding does not disturb well-established case law that “acts of 

officers in the ambit of their personal pursuits are plainly” not under color of 

law. Screws, 325 U.S. at 111. We merely hold that, viewed in the light most 

favorable to Gomez, he has pleaded sufficient facts at this early stage of 

litigation to suggest that Galman and Sutton were “acting by virtue of state 

authority.” Tarpley, 945 F.2d at 809. His allegations are sufficient to allow 

this matter to proceed to discovery, where additional fact-finding may 

support—or vitiate—Gomez’s claims. 

B. Gomez’s Monell Claim

Because we have determined that Galman and Sutton acted under 

color of law, we must determine whether Gomez has adequately pleaded a 

claim against the City of New Orleans. In Monell v. Department of Social 

Services, the Supreme Court held that municipalities may be sued under 

§ 1983 but cannot be held liable for acts of their employees under a theory of 

respondeat superior. 436 U.S. 658 (1978). Rather, to state a claim against a 

municipality under Monell and its progeny, Gomez must plead that “(1) an 

official policy (2) promulgated by the municipal policymaker (3) was the 

moving force behind the violation of a constitutional right.” Davidson v. City 

of Stafford, Tex., 848 F.3d 384, 395 (5th Cir. 2017). Because Gomez fails to 

adequately plead an official policy, we need not address the second or third 

elements. 

Official municipal policies can take various forms. They often appear 

as written policies, but an official policy may also be an unwritten but 

“widespread practice that is so common and well-settled as to constitute a 

custom that fairly represents municipal policy.” Alvarez v. City of 

Case: 20-30508 Document: 00516100044 Page: 8 Date Filed: 11/18/2021
No. 20-30508

9

Brownsville, 904 F.3d 382, 390 (5th Cir. 2018) (quoting James v. Harris 

County, 577 F.3d 612, 617 (5th Cir. 2009)). Gomez presses three theories of 

official policies that he alleges caused his harm. First, he asserts that the City 

has an official policy or custom of hiring unqualified police officers. Second, 

he argues the City has a policy of failing to train its officers in the basic 

elements of effective policing. Finally, Gomez contends that the City has an

official policy of protecting its police officers from the consequences of their 

wrongdoing, or a “Blue Code of Silence.” We address each of these 

purported policies in turn. 

We first address Gomez’s claim that the City had a policy of hiring 

and retaining unqualified officers. The City may be held liable for decisions 

about hiring and retention if Gomez can demonstrate “deliberate 

indifference” to the “known or obvious consequence[s]” of such decisions. 

Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997). 

Indeed, “[a] showing of simple or even heightened negligence will not 

suffice.” Id. at 407. Deliberate indifference exists “where adequate scrutiny 

of an applicant’s background would lead a reasonable supervisor to conclude 

that the plainly obvious consequences of the decision to hire would be the 

deprivation of a third party’s constitutional rights.” Gros v. City of Grand 

Prairie, 209 F.3d 431, 433–34 (5th Cir. 2000) (citing Snyder v. Trepagnier, 142 

F.3d 791, 797 (5th Cir. 1998)). To show deliberate indifference, the 

connection between the background of the individual and the specific 

violation alleged must be strong, as the plaintiff “must show that the hired 

officer was highly likely to inflict the particular type of injury [he] suffered.” 

Id. at 434; see also Brown, 520 U.S. at 412. 

Gomez fails to allege any facts that would demonstrate deliberate 

indifference in the hiring or retention of Sutton. Gomez does, however,

allege two instances of prior misconduct by Galman, which he contends put 

the City on notice that Galman would engage in conduct violative of citizens’

Case: 20-30508 Document: 00516100044 Page: 9 Date Filed: 11/18/2021
No. 20-30508

10

constitutional rights. First, Gomez pleads that in May 2018, Galman 

performed an illegal, invasive, and public strip search on an arrestee in his 

custody. Second, Gomez alleges that in June 2018, Galman hit the passenger 

side window of a car while walking by it, and when confronted, he headbutted 

the side mirror so hard it knocked the mirror glass loose. The City 

determined this act violated at least four of its rules. 

Galman’s conduct in these instances was egregious. But it does not 

provide support for Gomez’s claim because these incidents are too unlike 

Galman’s conduct here to establish “deliberate indifference” on the City’s 

part. The Supreme Court has emphasized that “[t]he connection between 

the background of the particular [defendant] and the specific constitutional 

violation alleged must be strong.” Brown, 520 U.S. at 412 (emphasis added). 

Galman’s improper strip-search of an arrestee does not make “plainly 

obvious” that Galman had a proclivity toward such brutal violence as alleged 

here. True enough, the fact Galman headbutted a car’s mirror suggests that 

he is willing to improperly do damage to property. But that is different in 

kind from the act Galman is accused of here, which is aggressive physical 

violence toward a citizen. These incidents simply do not “show that 

[Galman] was highly likely to inflict the particular type of injury [Gomez] 

suffered.” Gros, 209 F.3d at 434. 

Gomez also relies on the NOPD’s “historically tainted record” of 

recruitment and hiring to argue that the City’s flawed practices in those areas 

constituted a policy. Gomez’s complaint cites to the findings of a 2011

Department of Justice (“DOJ”) Investigation into the NOPD, which 

concluded that deficiencies in recruitment and retention of officers 

contributed to a pattern of police misconduct. As a result of the 

investigation, in 2012 the City and the DOJ entered into a Consent Decree 

which required the City to implement new polices in various areas, including 

recruitment and retention. Gomez further alleges that, in 2018, the 

Case: 20-30508 Document: 00516100044 Page: 10 Date Filed: 11/18/2021
No. 20-30508

11

Independent Monitor who oversaw enforcement of the Consent Decree filed 

an annual report noting that NOPD continued to deal with deficiencies in 

officer recruitment.1

With respect to the 2011 DOJ report, we do not see how NOPD’s 

problems with hiring and retention almost a decade ago translate to a policy 

of deliberate indifference in hiring and retention in 2018, when this incident 

occurred. To the contrary, the fact that the City entered into a Consent 

Decree suggests that the City recognized that a problem existed and agreed

to remedy it. That is hardly consistent with demonstrating “deliberate 

indifference” on the City’s part. Of course, for other claims and in other 

contexts, the DOJ report and Consent Degree may be useful evidence; but 

on these facts, they are not. 

The report of the Independent Monitor is closer in time to the 

officers’ assault. But it, too, fails as sufficient evidence of deliberate 

indifference. Although the report gestures broadly to issues NOPD has with 

hiring and retention, it does not discuss specific conduct of officers like what 

is alleged here. It therefore fails to “show that [Galman] was highly likely to 

inflict the particular type of injury [Gomez] suffered.” Gros, 209 F.3d at 434 

(emphasis added). Further, the report makes clear that the City was actively 

working to remedy any existing issues in hiring and retention by 

implementing the report’s recommended action items. As the district court 

noted, “Gomez has simply not alleged the requisite link between instances of 

problematic conduct identified in the consent decree or reports and the 

1 We note that while Gomez alleges that the Independent Monitor filed his 2017 

report on April 10, 2018, the report attached to the Complaint is dated January 18, 2017 

and gives no indication it was released in 2018. But whether the report was issued in 2017 

or 2018 does not make a material difference here, as the report does not support Gomez’s 

claims. 

Case: 20-30508 Document: 00516100044 Page: 11 Date Filed: 11/18/2021
No. 20-30508

12

incident at issue.” We agree. And because none of the evidence that Gomez 

pleads adequately supports his hiring and retention claim, that claim fails. 

Next, we address Gomez’s argument that the City had a policy of 

failing to train its officers. In order to successfully plead a claim for failure to 

train, a plaintiff “must plead facts plausibly establishing ‘(1) that the 

municipality’s training procedures were inadequate, (2) that the municipality 

was deliberately indifferent in adopting its training policy, and (3) that the 

inadequate training policy directly caused the violations in question.’” 

Ratliff v. Aransas Cnty., 948 F.3d 281, 285 (5th Cir. 2020) (quoting Zarnow v. 

City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010)). In the failure-to-train

context, deliberate indifference may be established in two ways. First, a 

plaintiff may plead that a municipality had “notice of a pattern of similar 

violations at the time the plaintiff’s own rights were violated.” Robles v. 

Ciarletta, 797 F. App’x 821, 833 (5th Cir. 2019). Second, failure to train may 

amount to deliberate indifference when the specific injury suffered is a

“highly predictable consequence of a failure to train.” Id. at 833–34. 

Gomez’s complaint fails under either approach. Gomez does not 

allege a single specific instance like the facts here. Instead, he relies solely on 

the DOJ investigation and the Independent Monitor’s report. But as 

described above, those reports only broadly illustrate officer misconduct 

without any discussion of “a pattern of similar violations at the time 

[Gomez’s] own rights were violated.” Id. at 833. Nor does Gomez allege any 

facts by which the court could find that he suffered harm “as the highly 

predictable consequence of a failure to train.” Id. at 833–34. As described 

above, Gomez does plead facts regarding two instances of misconduct by 

Galman, but neither of those instances are similar enough to the conduct here 

to demonstrate that the attack on Gomez was a “highly predictable” 

consequence of a failure to train. 

Case: 20-30508 Document: 00516100044 Page: 12 Date Filed: 11/18/2021
No. 20-30508

13

Finally, we address Gomez’s claim that NOPD had a “Blue Code of 

Silence,” or official policy of protecting its police officers from the 

consequences of their wrongdoing. This claim is easily disposed of. Gomez 

alleges no facts showing a “widespread practice that is so common and wellsettled as to constitute a custom that fairly represents municipal policy.” 

Alvarez, 904 F.3d at 390. Most of Gomez’s allegations about this policy are 

conclusory; and even the paltry facts Gomez alleges to support his claim, 

such as that Galman and Sutton expected not to face consequences for their 

actions, are contradicted by other allegations, including the swift punishment 

the officers received.2 Further, the non-conclusory allegations speak only to 

this incident, and a “customary municipal policy cannot ordinarily be 

inferred from single constitutional violations.” Piotrowski v. City of Houston, 

237 F.3d 567, 581 (5th Cir. 2001). This claim fails. 

Although Gomez musters enough facts to demonstrate the officers 

were acting under color of law, he does not allege sufficient facts to support 

a Monell claim against the City based on the officers’ actions. Accordingly, 

we affirm the district court’s dismissal of Gomez’s § 1983 claim against the 

City. 

C. Gomez’s State Law Claims

Finally, we turn to the state law claims against the City that the district 

court addressed. These include (1) negligent hiring, retention, and 

supervision, (2) vicarious liability, and (3) intentional infliction of emotional 

distress. We address each in turn. 

2 Gomez alleges that both officers were arrested and charged with battery. The 

City also represents in its briefing that it terminated Galman and Sutton the day after the 

assault. 

Case: 20-30508 Document: 00516100044 Page: 13 Date Filed: 11/18/2021
No. 20-30508

14

We start with Gomez’s claims for negligent hiring and negligent 

retention and supervision against the City of New Orleans. “A claim against 

an employer for the torts of an employee based on the employer’s alleged 

direct negligence in hiring, retaining, or supervising the employee generally 

is governed by the same duty-risk analysis” used in Louisiana for negligence 

claims. Kelley v. Dyson, 10 So. 3d 283, 287 (La. App. 5 Cir. 2009). The 

elements of liability in a Louisiana negligence case are: (1) duty; (2) breach of 

duty; (3) cause-in-fact; (4) scope of liability or scope of protection; and (5) 

damages. Id. Because the existence of a duty is the only question of law, we 

turn our focus to the first factor. Griffin v. Kmart Corp., 776 So. 2d 1226, 1231 

(La. 2000). 

The district court dismissed the negligent hiring and negligent

retention and supervision claims against the City largely for the same reasons 

it dismissed Gomez’s Monell claim. But Louisiana’s test for whether a duty 

exists for these claims is different than the test for whether Gomez states a 

Monell claim. Specifically, Louisiana law tells us that “[w]hen an employer 

hires an employee who in the performance of his duties will have a unique 

opportunity to commit a tort against a third party, he has a duty to exercise 

reasonable care in the selection of that employee.” Kelley, 10 So. 3d at 287. 

The primary focus is whether the “the employment gave the 

tortious/criminal employees ‘unique opportunities’ to commit their 

wrongdoing.” Id. at 287–88. Of course, this is a world apart from requiring 

Gomez to show an official policy of hiring and retaining unqualified officers. 

Davidson, 848 F.3d at 395.

Gomez has pleaded sufficient facts to show that Sutton and Galman 

did benefit from the “unique opportunities” provided by their employment 

during their assault on Gomez. Gomez alleges that he only exited his vehicle 

because he was given an order by the officers and felt he was not free to leave.

Gomez further alleges that the officers placed him “in a police hold as they 

Case: 20-30508 Document: 00516100044 Page: 14 Date Filed: 11/18/2021
No. 20-30508

15

were trained to do during an arrest.” The use of a cloak of authority to stop 

a victim and the use of a police hold that they had been specifically trained to 

perform constitute “unique opportunities” provided by their employment. 

Given this, these claims cannot be dismissed on the grounds that the City 

owed Gomez no duty. And because the other four elements are factual 

questions, Griffin, 776 So. 2d at 1231, we cannot decide them at this early 

stage. 

A state-law claim for vicarious liability has yet a different test. An 

employer may be held vicariously liable for the tortious acts of its employees 

only when they are performed “in the exercise of the functions in which they 

are employed.” La. Civ. Code art. 2320. Vicarious liability attaches only “if 

the employee is acting within the ambit of his assigned duties and also in 

furtherance of his employer’s objective.” Baumeister v. Plunkett, 673 So. 2d 

994, 996 (La. 1996) (quotations omitted). In other words, “an employee’s 

conduct is within the course and scope of his employment if the conduct

is . . . activated at least in part by a purpose to serve the employer.” Patrick 

v. Poisso, 882 So. 2d 686, 691 (La. App. 2 Cir. 2004). 

The test for vicarious liability is harder for a plaintiff to meet than the 

tests for other state law claims discussed above. The plaintiff must

demonstrate not only that the tortfeasors were enabled by “unique 

opportunities” of their employment to commit their wrongdoing, but also 

that the employee’s conduct is “within the course and scope of his 

employment.” Id. Indeed, this is an even greater burden than demonstrating 

that an officer’s actions are “under color of law,” which does not depend on 

duty-status or whether the action was for the benefit of the state. See Tarpley, 

945 F.2d at 809. Gomez pleads no facts that could demonstrate that the 

officers’ conduct was “in furtherance of his employer’s objective.” 

Baumeister, 674 So. 2d at 996. To the contrary, while Galman and Sutton 

may have been able to inflict such harm on Gomez because of their positions 

Case: 20-30508 Document: 00516100044 Page: 15 Date Filed: 11/18/2021
No. 20-30508

16

of authority, NOPD immediately rebuked their actions. The district court 

correctly dismissed the vicarious liability claim against the City. 

Finally, we turn to Gomez’s intentional infliction of emotional 

distress claim. To establish an IIED claim in Louisiana, a plaintiff must show: 

“(1) that the conduct of the defendant was extreme and outrageous; (2) that 

the emotional distress suffered by the plaintiff was severe; and (3) that the 

defendant desired to inflict severe emotional distress or knew that severe 

emotional distress would be certain or substantially certain to result from his 

conduct.” White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). A careful 

review of Gomez’s amended complaint reveals no facts that would support 

the first or third elements of this claim against the City. Although Gomez 

may have alleged an IIED claim against Galman and Sutton, their conduct is 

only attributable to the City through respondeat superior, a claim we have 

already explained fails. Therefore, the district court correctly dismissed the 

IIED claim against the City. 

IV.

For the foregoing reasons, we AFFIRM the grant of theCity’s Motion 

to dismiss as to Gomez’s Monell claim, vicarious liability claim, and IIED 

claim. We REVERSE the dismissal of the § 1983 claims against Galman and 

Sutton and the dismissal of Gomez’s state-law negligent hiring, retention, 

and supervision claim against the City. We REMAND this matter to the 

district court for further proceedings consistent with this opinion. 

Case: 20-30508 Document: 00516100044 Page: 16 Date Filed: 11/18/2021
No. 20-30508

17

James C. Ho, Circuit Judge, concurring:

As a strictly doctrinal matter, this is a close case. Gomez alleges that 

he believed his assailants were police officers, and that for that reason, he 

complied with their orders, rather than flee to avoid further injury. But he 

never explains why he believed the defendants were police officers. He does 

not allege that they wore uniforms, displayed their badges, or otherwise 

presented themselves to him as police officers. And it is not Gomez’s

subjective beliefs, but the officers’ conduct, that determines whether the 

defendants acted “under color of [state law]” as required under 42 U.S.C. § 

1983. See, e.g., Bustos v. Martini Club Inc., 599 F.3d 458, 464–65 (5th Cir. 

2010) (“Whether an officer is acting under color of state law” turns on “(1) 

whether the officer misused or abused his official power, and (2) if there is a 

nexus between the victim, the improper conduct, and the officer’s

performance of official duties.”) (cleaned up). So I can see how the district 

court might have concluded that this case cannot proceed under § 1983.

That said, I am not prepared to dismiss all of Gomez’s claims at this 

time. Some circuits have recognized that a plaintiff’s subjective beliefs may 

bear “some relevance” to the color of law determination. See, e.g., BarretoRivera v. Medina-Vargas, 168 F.3d 42, 47 (1st Cir. 1999) (“Although we 

[have] accorded the subjective reactions of the victim some relevance in the 

color of law analysis . . . , the primary focus of the color of law analysis must 

be on the conduct of the police officer.”); Strange v. Porath, 104 F.3d 368 

(10th Cir. 1996) (noting that, although a victim’s “subjective perception . . . 

may be a relevant factor in determining whether [an officer] acted under color 

of law, it is not determinative”).

In addition, there is at least some support in our circuit precedent for 

the proposition that the officers here acted under color of state law because 

they later called for police backup. See, e.g., United States v. Tarpley, 945 F.2d 

Case: 20-30508 Document: 00516100044 Page: 17 Date Filed: 11/18/2021
No. 20-30508

18

806, 809 (5th Cir. 1991) (“Significantly, [the defendant] summoned another 

police officer from the sheriff’s station and identified him as a fellow officer 

and ally.”). See also Halmu v. Beck, 2021 WL 980912, *4 (S.D. Fla. Mar. 15, 

2021) (officers acted under color of law where they “filed a false arrest 

affidavit and omitted significant facts to conceal police wrongdoing under 

color of state law in order to avoid liability”).

In light of these authorities, I am happy to reverse in part and remand 

for further proceedings, and therefore concur.

Moreover, although reasonable minds can debate whether the 

misconduct alleged here is actionable under § 1983, it is unquestionably

contemptible.

Accepting the allegations in the complaint as true, as we must at this 

stage, Jorge Gomez is a U.S. citizen and decorated military veteran of 

Honduran descent. On the night in question, he visited a local bar, proudly 

wearing his military regalia. Officers Galman and Sutton ordered Gomez to 

approach. They called him a “fake American” and a “liar” and told him to 

“go back” to wherever he came from. They attempted to strip off his 

military clothing. And then they brutally beat him until two bystanders 

intervened to stop the attack. They left Gomez sprawled across a patio table, 

bruised and bloodied. After he managed to get up, Gomez entered his car 

and began driving away. But the officers ordered him to stop and exit his 

vehicle. Believing he had no choice, Gomez complied. The officers then 

knocked Gomez to the ground, forced him onto his stomach, held his arms 

behind his back, and beat him unconscious.

“Nothing is more corrosive to public confidence in our criminal 

justice system than the perception that there are two different legal 

standards.” United States v. Taffaro, 919 F.3d 947, 949 (5th Cir. 2019) (Ho, 

J., concurring in the judgment). If the allegations in this case are true, the 

Case: 20-30508 Document: 00516100044 Page: 18 Date Filed: 11/18/2021
No. 20-30508

19

officers have not merely brutalized one man—they have badly undermined 

public trust in law enforcement. And unfortunately, the misconduct alleged 

here is not unique. See, e.g., Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 

402–06 (5th Cir. 2015) (black high-school students brought Section 1983 

claims against public officials after years of racially-motivated harassment, 

including racial slurs and nooses placed on their cars); United States v. Harris, 

293 F.3d 863, 870, 882 (5th Cir. 2002) (defendant police chief repeatedly 

beat Mexican-American in the head with a baton and told FBI agents that 

“Mexicans do not have the same rights as ‘real Americans’”); Patel v. 

Dennett, 389 F. Supp. 3d 888, 892–93 (D. Nev. 2018) (defendant police 

officer told Indian-American to “go back where you came from” before 

breaking his arm during illegal arrest); Cotto v. City of Middletown, 158 F. 

Supp. 3d 67, 80 (D. Conn. 2016) (defendant police officers used racial 

epithets while conducting an illegal, public strip-search without gloves);

Polite v. Town of Clarkstown, 120 F. Supp. 2d 381, 383 (S.D.N.Y. 2000)

(defendant police officers shouted racial epithets at plaintiff arrestees, put 

guns to their heads, and threatened to pull the trigger); Hardeway v. City of

Chicago, 1991 WL 203857, *1–2 (N.D. Ill. Oct. 4, 1991) (defendant police 

officers beat plaintiff while using profanities and racial slurs).

I agree that the district court should not have dismissed Gomez’s 

claims against the officers at this early stage in the proceedings. Accordingly, 

I concur.

Case: 20-30508 Document: 00516100044 Page: 19 Date Filed: 11/18/2021