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that this opinion should not be published and is not precedent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

FILED

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
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
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.

8

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
9

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.