Musso v. George et al

ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DUSTIN MUSSO 	CIVIL ACTION NO.
VERSUS
25-194-BAJ-EWD
CAPTAIN ENRICO GEORGE, ET AL.
NOTICE
Please take notice that the attached Magistrate Judge’s Report and Recommendation has
been filed with the Clerk of the U.S. District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the
attached report to file written objections to the proposed findings of fact, conclusions of law, and
recommendations set forth therein. 	Failure to file written objections to the proposed findings,
conclusions and recommendations within 14 days after being served will bar you, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the District Court.
ABSOLUTELY 	NO 	EXTENSION 	OF 	TIME 	SHALL 	BE 	GRANTED 	TO 	FILE
WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.
Signed in Baton Rouge, Louisiana, on February 5, 2026.
S
Case 3:25-cv-00194-BAJ-EWD Document 40 02/05/26 Page 1 of 17

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DUSTIN MUSSO 	CIVIL ACTION NO.
VERSUS
25-194-BAJ-EWD
CAPTAIN ENRICO GEORGE, ET AL.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is the Motion to Remand,1 filed by Dustin Musso (“Plaintiff”), which is
opposed by Defendant State of Louisiana, through the Department of Public Safety and
Corrections (“DPSC”). 2 Also before the Court is the 12(b)(6) Motion to Dismiss,3 filed by DPSC,
which is opposed by Plaintiff.4
Because the consent of unserved defendants is not required for removal, and because
removal was properly premised on this Court’s federal question subject matter jurisdiction, it is
recommended5 that Plaintiff’s Motion to Remand be denied. It is further recommended that the
Motion to Dismiss be denied as moot to the extent it seeks dismissal of claims that Plaintiff has
not asserted against DPSC and denied as to Plaintiff’s remaining state law vicarious liability claim
against DPSC, which survives a Fed. R. Civ. P. 12(b)(6) analysis.
1 R. Doc. 10; see also, R. Doc. 17 (reply memorandum).
2 R. Doc. 13.
3 R. Doc. 9. DPSC did not file a reply memorandum.
4 R. Doc. 11.
5 See, e.g., Davidson v. Georgia-Pacific, L.L.C., 819 F.3d 758, 765 (5th Cir. 2016) (“[A] motion to remand is a
dispositive matter on which a magistrate judge should enter a recommendation to the district court subject to de novo
review.”) and 28 U.S.C. § 636(B)(1)(b) (authorizing a district judge to refer a motion to dismiss to a magistrate judge
for report and recommendation).
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I. 	BACKGROUND
This is a civil action for damages arising out of injuries Plaintiff allegedly sustained while
incarcerated at the Louisiana State Penitentiary at Angola (“LSP”).6 On or about June 10, 2022,
Plaintiff filed his Petition for Damages/Use of Force (“Petition”) against DPSC, Captain Enrico
George (“George”), Sergeant Andrew Hausey (“Hausey”), and Master Sergeant Jeffrey Hall
(“Hall”) (together George, Hausey, and Hall are the “Officer Defendants”) in Louisiana state
court.7 According to Plaintiff, the relevant facts underlying his claims are as follows: Plaintiff has
mental and emotional disabilities for which he receives treatment at LSP, of which the Officer
Defendants are aware.8 	On April 8, 2021, Plaintiff was escorted from his dorm for medical
treatment, while in full restraints, when he encountered George at a gate. Plaintiff was left in a
visitation room for nine hours, despite his request for medical services.9 	George then placed
Plaintiff in the cell of an inmate who had allegedly been asked by another officer to assault
Plaintiff.10 When George returned, he told Plaintiff that Plaintiff was being returned to his dorm.
Plaintiff reiterated his request for medical treatment. George grabbed Plaintiff’s hands, Plaintiff
pulled back, and George struck Plaintiff.11 Hausey and Hall ran into the room and struck Plaintiff
as well, causing Plaintiff to fall to the floor where he was kicked and knocked unconscious. The
Officer Defendants pulled Plaintiff’s hood over his head and sprayed his face with chemical agent
(“the Incident”).12 	Major Karla Williams ordered the Officer Defendants to stop. 	Plaintiff was
taken to the shower and saw an EMT but did not receive treatment until the next day when the
6 R. Doc. 1-3, p. 3.
7 R. Doc. 1-3, pp. 3-9.
8 Id., p. 4, ¶ 6.
9 Id., pp. 4-5, ¶¶ 7-8.
10 Id., p. 5, ¶ 9.
11 Id., p. 5, ¶¶ 10-11.
12 Id., p. 5, ¶¶ 12, 14.
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Incident was discovered by higher ranking officials.13 	The Incident was captured on video and
photos were taken the next day. Several officers were allegedly terminated for submitting false
reports and covering up the use of force against Plaintiff.14
In the Petition, Plaintiff asserted a 42 U.S.C. § 1983 claim against “Defendants” for their
use of excessive force and cruel and unusual punishment in violation of the Fourth and/or Eighth
Amendments to the United States Constitution, as well as a 42 U.S.C. § 1988 claim for punitive
damages, attorney’s fees and costs.15 Plaintiff also asserted a claim of battery, and/or intentional
infliction of emotional distress, against “Defendants” pursuant to La. Civ. Code art. 2315.16
Finally, Plaintiff asserted a claim of respondeat superior liability pursuant to La. Civ. Code arts.
2315, 2317, and 2320.17 Plaintiff was granted pauper status by the state court, but the case was
stayed until Plaintiff paid the entire filing fee in January 2025.18
DPSC was served with the Petition and citation through the Louisiana Attorney General’s
office on February 6, 2025 and removed the case to this Court on March 7, 2025 on the basis of
federal question jurisdiction due to Plaintiff’s § 1983 claim.19 As of the time of removal, DPSC
alleged that it was the only served defendant.20 The only defendant that has appeared besides DPSC
is Hausey, who was served on June 11, 2025, and who filed an Answer on July 22, 2025. 21
13 Id., p. 5, ¶¶ 15-16.
14 Id., p. 6, ¶¶ 18-19.
15 Id., pp. 7-8, ¶¶ 32-34, 37.
16 Id., p. 8, ¶¶ 38-39.
17 Id., p. 8, ¶ 40.
18 Id., pp. 15-16 and see p. 18.
19 R. Doc. 1-3, pp. 21, 23; R. Doc. 1, ¶ 1.
20 R. Doc. 1, ¶ 4.
21 R. Doc. 23, pp. 1, 3; R. Doc. 32.
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On April 4, 2025, DPSC filed its Motion to Dismiss Plaintiff’s claims on several grounds
under Rule 12(b)(6).22 The same day, Plaintiff filed his Motion to Remand, which is discussed
first because it raises jurisdictional challenges.23 The motions are fully briefed, and oral argument
is not necessary.
II. 	I T IS RECOMMENDED THAT P LAINTIFF ’ S M OTION TO R EMAND BE D ENIED
A. Legal Standards for Remand
“Federal courts are courts of limited jurisdiction…It is to be presumed that a cause lies
outside this limited jurisdiction….”24 “Under 28 U.S.C. § 1331, federal courts have federal
question jurisdiction over any case that ‘arises under’ the laws of the United States.” “A federal
question exists ‘only in those cases in which a well-pleaded complaint establishes that either
federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.’”25 “The removing party has the burden of
proving federal subject matter jurisdiction.26 Remand is proper if at any time the court lacks subject
matter jurisdiction.27 The removal statute is strictly construed and any doubt as to the propriety of
removal should be resolved in favor of remand.28
22 R. Doc. 9.
23 In light of the Motion to Remand, the scheduling conference was canceled, and entry of a scheduling order was
deferred pending resolution of the Motion to Remand. R. Docs. 8, 12.
24 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
25 Ysleta Del Sur Pueblo v. City of El Paso, 433 F.Supp.3d 1020, 1025 (W.D. Tex. 2020), aff’d, No. 20-50313, 2021
WL 5504744 (5th Cir. Nov. 23, 2021) (citations omitted).
26 Garcia v. Koch Oil Co. of Texas Inc., 351 F.3d 636, 638 (5th Cir. 2003).
27 See 28 U.S.C. § 1447(c).
28 Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
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B. The Rule of Unanimity Was Satisfied at Removal
Plaintiff’s first raises a procedural challenge to removal, which is that DPSC failed to
satisfy the rule of unanimity, i.e., “[w]hen a civil action is removed solely under section 1441(a),
all defendants who have been properly joined and served must join in or consent to the removal of
the action to federal court.”29 Plaintiff initially argued that DPSC has agreed to permit service on
its current employees through DPSC paralegal, Rhonda Weldon, and in this case, the three Officer
Defendants were served through Weldon before removal. In support, Plaintiff relied on a notice of
service from the state court clerk stating that service was made on all Defendants through Weldon
on March 6, 2025 (sic, February 6, 2025). 30 Plaintiff, therefore, contended that the consent of the
Officer Defendants was required when the case was removed.
In response, DPSC asserts that 28 U.S.C. § 1446(b)(2)(A) requires the consent of
defendants who are “properly joined and served” at the time of removal. In this case, service on
Weldon for the Officer Defendants was ineffective because, despite the representations in the state
court clerk’s notice, none of the Officer Defendants were DPSC employees at the time of the
February 6, 2025 service on Weldon.31 Therefore, DPSC argues that the consent of the Officer
Defendants was not necessary because these defendants were not properly served at the time of
removal.32 In support, DPSC attaches Weldon’s affidavit stating that she could not accept service
on behalf of the Officer Defendants on February 6, 2025 because they were no longer employed
29 28 U.S.C. § 1446(b)(2)(A); Baxter v. Anderson, No. 16-142, 2016 WL 3748720, at *3 (M.D. La. June 21, 2016)
(citation omitted).
30 R. Doc. 10-2, p. 1 (incorrectly alleging service on Weldon was on March 6, 2025); R. Doc. 10-3, p. 1 (November
21, 2017 letter from the Louisiana Attorney General’s office advising that Weldon is authorized to accept service for
all currently employed DPSC employees); R. Doc. 10-4, p. 1 (state court notice stating service was made on all
Defendants through Weldon on February 6, 2025) (this is also attached to the Notice of Removal at R. Doc. 1-3, p.
26).
31 R. Doc. 13, p. 7.
32 R. Doc. 13, p. 2.
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at DPSC. 33 Plaintiff’s reply memorandum admits that Plaintiff does not have service information
for the Officer Defendants, and notably, Plaintiff did not contest Weldon’s affidavit, nor did
Plaintiff present any other evidence showing that the Officer Defendants were served before
removal.34
A violation of the rule of unanimity renders a removal procedurally defective, requiring
remand.35 	However, the Fifth Circuit has recognized three exceptions to the rule of unanimity,
including the one applicable here, which, as DPSC points out, applies to non-removing defendants
who have not been served by the time of removal.36 	“By its terms, § 1446(b)(2)(A) does not
impose any requirements on defendants who were not properly served.” 37 Here, DPSC has
established that, at the time of removal, the Officer Defendants were not properly served through
Weldon (or any other DPSC employee)38 because they were no longer DPSC employees when
Weldon received service; therefore, Plaintiff’s procedural argument for remand lacks merit.39
33 R. Doc. 14 (“[Weldon] has access to DPSC employment records and was unable to accept service for George,
Hausey, and Hall, because by February 6, 2025, when Plaintiff’s Petition was served on DPSC, George, Hausey, and
Hall no were no longer employed by DPSC.”).
34 R. Doc. 17. Plaintiff implicitly acknowledges that the Officer Defendants were not properly served because, on the
same date Plaintiff filed his reply memorandum, Plaintiff sought the issuance of summonses for two of the three
Officer Defendants. Plaintiff sought a summons for the third Officer Defendant about a week later. Hausey was
personally served on June 11, 2025. R. Docs. 18, 23. George was personally served on July 5, 2025. R. Docs 20, 31.
35 Getty Oil Corp., a Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 (5th Cir. 1988).
36 Baker v. Amazon Logistics, Inc., No. 23-3991, 2023 WL 6880357, at *4 (E.D. La. Oct. 18, 2023), citing Wagner v.
Gov’t Emps. Ins. Co., No. 18-10281, 2019 WL 626430, at *3 (E.D. La. Feb. 14, 2019) and World Prayer Tabernacle
v. Certain Underwriters at Lloyd’s, London, 22-2289, 2022 WL 4949125, at *1 (E.D. La. Oct. 4, 2022); R. Doc. 13,
p. 5.
37 Shakouri v. Davis, 923 F.3d 407, 410 (5th Cir. 2019).
38 Aside from the clerk’s notice of service, the return of service information on the citation directed to all Defendants,
which is attached to the Notice of Removal, contains a stamp with the date of February 6, 2025 and the name “Deputy
Lavonita Ealy,” an East Baton Rouge Parish deputy sheriff. R. Doc. 1-3, p. 24. Plaintiff does not rely on this return
of service; however, even if he had, it fails on the same grounds. The stamp has a box to indicate service on Weldon,
which is not checked. Even if the box were checked, or even if Deputy Ealy was authorized to accept service on
behalf of the Officer Defendants (which has not been shown), service on Ealy is still ineffective because the Officer
Defendants were no longer employed by DPSC when service on Ealy was made. See also R. Doc. 13, pp. 5-6. DPSC’s
other arguments refuting the propriety of service need not be reached.
39 George has now been served but has not appeared, and the Clerk has entered a default against him. R. Docs. 31, 35.
Service was attempted on Hall several times but not effected. R. Doc. 37. Plaintiff also filed a Waiver of Service
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C. Removal of the Entire Case by DPSC Was Proper
Plaintiff additionally contends that remand is warranted because, while DPSC removed the
whole case based on federal subject matter jurisdiction, Plaintiff did not assert any federal claims
against DPSC. Rather, Plaintiff’s federal claims are only asserted against the Officer Defendants,
but they had not consented to removal, and without the Officer Defendants’ appearance, “there is
no federal claim or controversy before the court.”40 DPSC argues that removal was proper because
Plaintiff asserts federal claims in this case, and this Court has supplemental jurisdiction over
Plaintiff’s state law claim against DPSC, which factually overlaps with Plaintiff’s federal claims.41
Plaintiff replies that, in light of DPSC’s claim that the Officer Defendants were not served, the
Court does not have jurisdiction until the Officer Defendants against whom Plaintiff asserted the
federal claims have been served or waive service.42
In Hutchinson v. Reed, another case involving civil rights claims filed by Plaintiff’s counsel
against DPSC and an unserved officer defendant, the United States District Court for the Western
District of Louisiana considered and soundly rejected Plaintiff’s argument that DPSC cannot
remove a case when the federal claims are not asserted against DPSC, and the officer defendant
has not consented to removal.43 This Report adopts the reasoning of Hutchinson, as did another
division of this Court in Washington, which involved similar facts. If this Report is adopted,
with Hall’s name printed on it, but the Waiver is unsigned and is, therefore, ineffective. R. Doc. 27 and see, e.g.,
Arnold v. Brookway Corp., No. 09-205, 2010 WL 1904865, at *1 (S.D. Miss. May 10, 2010) (holding that a waiver
of service that contained only the defendant’s printed name, but not his signature, was ineffective). Therefore, it will
be recommended that the Clerk’s Entry of Default against Hall, which was entered based on the defective Waiver, be
vacated.
40 R. Doc. 10-2, pp. 1-2.
41 R. Doc. 13, pp. 3-4. DPSC acknowledges that Plaintiff’s Motion to Remand and Opposition to the Motion to
Dismiss clarified which claims are asserted against which Defendants, which is unclear from the Petition.
42 R. Doc. 17.
43 Hutchinson v. Reed, No. 24-1532, 2025 WL 451838, at *2 (W.D. La. Jan. 21, 2025), report and recommendation
adopted, No. 24-1532, 2025 WL 449825 (W.D. La. Feb. 10, 2025). See also Washington v. Dep’t of Pub. Safety &
Corr., No. 25-55, 2025 WL 1749973, at *2 (M.D. La. May 19, 2025), report and recommendation adopted, No. 25-
55, 2025 WL 1749652 (M.D. La. June 24, 2025) (citing Hutchinson).
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Plaintiff’s counsel should be advised to refrain from asserting this argument in this Court in the
future without citing and addressing that the argument was rejected in Washington, and in this
case.44
A civil action over which the district courts have original jurisdiction “may be removed by
the defendant or the defendants” to the federal district court.45 “Section 1446 sets forth the
procedure for removal by a ‘defendant or defendants’ with the obligation to remove commencing
from service. Whether a civil action is removable upon the basis of federal question jurisdiction is
to be determined by the allegations of the plaintiff’s ‘well-pleaded complaint’ as of the time of
removal.”46 “If a case is removed based on a federal claim, the federal court may exercise
supplemental jurisdiction over state law claims that are part of the same case or controversy.”47
“Nothing in the removal statutes or any jurisprudence cited by Plaintiff limits the right to remove
44 Plaintiff cites Chicago, R. I. & P. Ry. Co. v. Martin, 178 U.S. 245, 248 (1900) (remanding a case removed by
receivers based on their federal appointment, and holding that the consent of the non-federally appointed receiver
defendant was still required, even if it could not have removed the case if it had been the sole defendant) and Doe v.
Kerwood, 969 F.2d 165, 167 (5th Cir. 1992) (remanding a case removed by the Red Cross under the general removal
statute on the basis that the Red Cross is a federal instrumentality per its federal charter, and rejecting the Red Cross’s
arguments that unanimity is required only among those who are entitled to remove the case, and that because it is a
federal instrumentality, it did not have to obtain the consent of other defendants to remove). The removals in these
cases were by federal instrumentalities, whose federal status gave rise to federal question jurisdiction which the non-
removing defendants did not have. Plaintiff tries to rely on the language from these cases, which hold that the consent
of non-removing defendants is still required even if they could not remove the cases themselves. R. Doc. 10-2, pp. 2-
3. Those holdings do not have bearing on the removal in this case, which does not involve removal by a federal agency
or instrumentality on the basis of its federal status. Here, any Defendant could have removed the case under § 1331
and § 1367 based on Plaintiff’s express assertion of a federal question and supplemental jurisdiction over the state law
claims.
45 28 U.S.C. § 1441(a). This provision provides for the removal of the entire action, not just isolated claims. See
Jackson v. Wal-Mart Stores Texas, LLC, 925 F.Supp.2d 810, 813 (N.D. Tex. 2013) (analyzing §1441(a) and holding:
“The Court concludes that, under a plain reading of the statute’s text, the phrase ‘civil action’ refers to an entire case
rather [than] [] separate causes of action within a case …. Moreover, the Supreme Court has noted that ‘[t]he language
of this section obviously permits the removal of a case that contains only claims that ‘arise under’ federal law.’ Wis.
Dept. of Corr. v. Schacht, 524 U.S. 381, 386, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) (emphasis added).” (internal
string cite omitted).
46 Hutchinson, 2025 WL 451838, at *2, citing Manyweather v. oodlawn Manor, Inc., 40 F.4th 237, 242 (5th Cir. 2022).
47 Hutchinson, 2025 WL 451838, at *2, citing 28 U.S.C. § 1367(a).
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based on federal question to a defendant against whom a federal claim is directly asserted. If a
federal claim appears in the plaintiff’s complaint, any defendant may remove it.”48
Here, while Plaintiff has now clarified in his opposition to the Motion to Dismiss and
Motion to Remand that his federal § 1983 claim and state law tort claims are asserted against the
Officer Defendants, and only the state law vicarious liability claim is asserted against DPSC,49
Plaintiff clearly pleaded a federal claim against the Officer Defendants. 	As such, co-defendant
DPSC was permitted to remove the entire case. Plaintiff’s argument to the contrary lacks merit.
Accordingly, it is recommended that Plaintiff’s Motion to Remand be denied.
III. 	I T IS RECOMMENDED THAT DPSC’ S M OTION TO DISMISS BE DENIED
A. Legal Standard for Dismissal for Failure to State a Claim under Rule 12(b)(6)
Rule 12(b)(6) motion seeks dismissal of the complaint for failure to state a claim upon
which relief can be granted. In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal,50 the United
States Supreme Court addressed the standard of pleading that a plaintiff must meet to survive a
motion to dismiss under Rule 12(b)(6). Specifically, “[f]actual allegations must be enough to raise
48 Hutchinson, 2025 WL 451838, at *2, quoting Madsen v. City of Lincoln, 2021 WL 2783749, *3 (D. Neb. 2021)
(“Even assuming no federal claim was alleged against the County Defendants, they are ‘defendants’ and are permitted
to remove a complaint alleging federal claims to the federal court.”); Air Liquide Mexico S. de R.L. de C.V. v. Talleres
Willie, Inc., 2014 WL 2526914, *3 (S.D. Tex. 2014) (defendant was entitled to remove case even though the federal
claim was not directed at it); Smith v. Smart Buy Homes, 2008 WL 5122840, *1 (W.D. Okla. 2008) (“That the federal
claim was brought against a defendant other than the one who initiated the removal is immaterial.”); Cartwright v.
Thomas Jefferson University Hosp., 99 F.Supp.2d 550, 553 (E.D. Pa. 2000) (“[I]f a case is removable, any defendant,
including a defendant not named in any federal-law count, must be permitted to file a notice of removal.”); and Solis
v. Chase Bank USA, N.A., 2006 WL 487855 (W.D. Tex. 2006) (removal on federal question jurisdiction proper by a
defendant against whom the federal question claim was not alleged).
49 R. Doc. 10-2, p. 1 (“The only defendants against whom a federal claim was filed is M. Sgt. Andrew Hausey, Captain
Enrico George, and Sgt. Jeffrey Hall….”) and p. 2 (“The claim pled against the state is respondeat superior only.”)(and
referencing the Third Claim for Relief in the Petition, which asserts state law vicarious liability). See also R. Doc. 11,
p. 1 (“The only federal claim that may lie is a Monell claim and none was plead [sic],” and referring to the foregoing
in the Motion to Remand), p. 2 (“The claim pled against the state is respondeat superior only….”), (“Here, two claims
were pled against both M.Sgt. Andrew Hausey, Captain Enrico George, and Sgt. Jeffrey Hall: violation of state law
battery and of federal law civil rights under 42 USC § 1983 for violated the 8th Amendment right of DUSTIN
MUSSO.”) and p. 3 (“No federal claim was pled against the state.”).
50 Twombly, 550 U.S. 544 (2007) and Iqbal, 556 U.S. 662 (2009).
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a right to relief above the speculative level.”51 “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.’”52 “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”53
It follows that, “where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader
is entitled to relief.’”54 	“Where a Complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement
to relief.’”55 	On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court
“must accept as true all of the factual allegations contained in the Complaint,”56 and “view them
in the light most favorable to the plaintiff.”57 	While factual assertions are presumed to be true,
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” alone are
not enough to withstand a Rule 12(b)(6) motion.58
B. The Motion to Dismiss is Moot to the Extent it Seeks Dismissal of Federal Claims
Not Pleaded Against DPSC
The Motion to Dismiss asserts three arguments: first, Plaintiff’s § 1983 and § 1988 claims
against DPSC fail because DPSC is not a “person” who can be sued under those statutes; second,
51 Twombly, 550 U.S. at 555.
52 Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 570.
53 Iqbal, 556 U.S. at 678.
54 Id. at 679.
55 Id. at 678 (internal quotation marks omitted).
56 Erickson v. Pardus, 551 U.S. 89, 94 (2007) and Spinosa v. Foremost Ins. Co. Grand Rapids, Michigan, No. 23-
1226, 2024 WL 3245611, at *1 (M.D. La. June 28, 2024) (Jackson, J.), aff’d, No. 24-30472, 2025 WL 304530 (5th
Cir. Jan. 27, 2025).
57 Spinosa, 2024 WL 3245611 at *1, citing City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 152-53 (5th
Cir. 2010).
58 Iqbal, 556 U.S. at 678.
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DPSC cannot be held liable under § 1983 for the actions of the Officer Defendants under a
respondeat superior theory because DPSC was not involved in the Incident and did not have
unconstitutional policies that resulted in Plaintiff’s injuries; and third, DPSC is not vicariously
liable under state law for the tortious conduct of the Officer Defendants because DPSC lacked
knowledge of the conduct at the time it occurred.59
In his opposition to the Motion to Dismiss and Motion to Remand, Plaintiff clarified that
he is NOT asserting any federal claims against DPSC; rather, Plaintiff is only asserting state law
vicarious 	liability 	claims 	against 	DPSC 	for 	the 	Officer 	Defendants’ 	tortious 	conduct.60
Furthermore, the Petition does not assert a federal respondeat superior claim. 	Therefore, it is
recommended that DPSC’s Motion to Dismiss be denied as moot on the first two arguments, i.e.,
to the extent it seeks dismissal of Plaintiff’s § 1983 and § 1988 claims, as well as an (unpleaded)
federal respondeat superior liability claim, because those claims have not been asserted against
DPSC, as Plaintiff has clarified.
C. At this Stage, Plaintiff Has Stated a Plausible Claim Against DPSC for Vicarious
Liability Under State Law
As to the third and only remaining claim of state law vicarious liability, DPSC alleges that
it cannot bear vicarious liability for the actions of the Officer Defendants under La. Civ. Code art.
2320 (“Art. 2320”) because “DPSC had no actual or constructive knowledge of the alleged tortious
conduct against Plaintiff at issue in this case until after it occurred, and therefore was helpless to
prevent it.” Citing authority from Louisiana’s First Circuit Court of Appeal (“First Circuit”), DPSC
argues that while an employer is answerable for the damage occasioned by its employees in the
exercise of their employment functions, this responsibility only attaches when the employer might
59 R. Doc. 9-1, pp. 4-7.
60 R. Doc. 10-2, pp. 1-2; see also R. Doc. 11, pp. 1-3.
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have prevented the act that caused the damage but failed to do so.61 DPSC argues that the First
Circuit has held that Art. 2320 explains the exceptions to the general rule imposing vicarious
liability on an employer, and damage cannot be imputed to an employer where the employer had
no actual or constructive knowledge of the damage-causing conduct until after the incident
occurred because, without that knowledge, there is no way the employer could have prevented the
damage-causing act.62 DPSC argues that Plaintiff has not claimed, nor can he establish, that DPSC
had actual or constructive knowledge of the Officer Defendants’ tortious acts until after the
Incident occurred, and therefore, DPSC had no opportunity to prevent the Incident.63 DPSC
additionally argues that Plaintiff’s vicarious liability claim would still fail, even if Article 2320
could be construed to mean that when an employee causes harm, the employer faces vicarious
liability if they could have reasonably predicted that such harm could occur and did not take steps
to prevent it. 	This is because Plaintiff admits that DPSC had protocols and policies in place to
prohibit abusive conduct toward inmates; thus, DPSC contends that Plaintiff cannot show that
DPSC failed to act to prevent the Officer Defendants from harming Plaintiff. Further, DPSC should
not be held responsible for the harm caused by the Officer Defendants, which DPSC took measures
to prohibit, but that still occurred in a manner that did not give actual or constructive knowledge
to DPSC. 64
61 R. Doc. 9-1, p. 6, citing Alexander v. Lowes Companies, 96-2169 (La.App. 1 Cir. 9/19/97); 701 So.2d 239, 242-43
(reversing summary judgment for the defendant store owner on the plaintiff’s claim that the defendant was vicariously
liable under Art. 2320 for the acts of a worker who injured the plaintiff with a floor buffer, and finding genuine issues
of material fact as to whether the defendant controlled the worker who injured the plaintiff and whether the defendant
impliedly authorized the use of an unsafe practice).
62 R. Doc. 9-1, p. 6, citing Cox v. Gaylord Container Corp., 2003-0692 (La.App. 1 Cir. 2/23/04); 897 So.2d 1, 6-8, on
reh’g, (Feb. 16, 2005), writ denied, 2005-0749 (La. 5/6/05); 901 So. 2d 1102 (granting summary judgment to the
employer and finding that the employer did not bear Art. 2320 vicarious liability to the plaintiff, who alleged her
unborn child was injured when she drove her forklift into a steel beam while pregnant).
63 R. Doc. 9-1, pp. 6-7.
64 R. Doc. 9-1, p. 7.
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Plaintiff alleges that the Officer Defendants committed a battery on Plaintiff when they
attacked him and sprayed him with chemical agent while he was fully restrained. Plaintiff alleges
that DPSC placed the Officer Defendants65 into a position of power and authority over Plaintiff,
who was required to comply with their orders; therefore, DPSC potentially bears vicarious liability
for the Officer Defendants’ battery of Plaintiff.66
The Motion should be denied on the issue of whether DPSC bears vicarious liability under
Art. 2320 for the tortious conduct of the Defendant Officers. DPSC alleges it had no constructive
knowledge of the Incident, and therefore, it could not have prevented the Incident; however, it is
not clear what DPSC knew, what policies it had in place, and whether it could have prevented the
Incident.67 Resolution of this claim depends on resolution of the underlying tort claims against the
Officer Defendants, which are not currently at issue in the Motion to Dismiss. Another division of
this Court has recognized that the State can be subject to vicarious liability under Art. 2320 for the
tortious conduct of its law enforcement officers in Wooten v. Harrell, stating:
Under La. Civ. Code art. 2320, ‘an employer is subject to vicarious
liability for the tortious conduct of his employee, irrespective of his
title, while acting within the course and scope of employment.’
Governmental 	entities 	‘do 	not 	enjoy 	special 	protection 	from
vicarious liability under Louisiana law and are subject to respondeat
superior like every other employer.’ The Louisiana Supreme Court
65 Plaintiff’s Opposition sometimes refers to officers who are not defendants in this case, e.g., R. Doc. 11, pp. 1, 6
(referring to Lt. Emmanuel Ellis). 	The Court construes these mistaken references as references to the Officer
Defendants.
66 R. Doc. 11, pp. 5-7, citing, e.g., Penn v. St. Tammany Par. Sheriff’s Off., 2002-0893 (La.App. 1 Cir. 4/2/03), 843
So. 2d 1157, 1161 (“Excessive force transforms ordinarily protected use of force into an actionable battery, rendering
the defendant officer and his employer liable for damages.”) (citation omitted); Anderson v. Louisiana ex rel. LA Dep’t
of Corr., No. 12-1821, 2013 WL 5707860, at *3 (W.D. La. Oct. 17, 2013) (“[I]n the prison setting, Louisiana courts
have held that it is the State, not the supervisor, who bears liability for the acts of its employee.”)(citations omitted);
and Thompson v. France, No. 20-1842, 2020 WL 5761188, at *3 (E.D. La. Sept. 28, 2020) (denying Tangipahoa
Parish’s motion to dismiss the plaintiff inmate’s Art. 2320 vicarious liability claim against the Parish for the abusive
actions of its employee, and finding that the plaintiff sufficiently stated a claim that the employee who abused the
plaintiff was “actuated” by the Parish and used his apparent authority to engage in the abuse) (Plaintiff’s other citations
omitted).
67 DPSC’s motion seeks Rule 12(b)(6) dismissal, not Rule 56 summary judgment, and DPSC has not introduced any
evidence on this issue, such that the current motion could be converted to one for summary judgment. Furthermore,
DPSC’s cited authority does not involve an alleged battery by law enforcement officers.
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has ‘stated that an employee’s conduct is generally within the course
and scope of his employment if the conduct is of the character and
nature that he is employed to perform, occurs substantially within
the authorized limits of time and space, and is activated at least in
part by a purpose to serve the employer.’
Plaintiff alleges the City should be held vicariously liable for the
acts of Officer Harrell, Officer Bouriaque, and Sergeant Smith
because these officers were acting in the course and scope of their
employment during the arrest. Because the Court has found that
Plaintiff 	has 	stated 	claims 	against 	Officer 	Harrell, 	Officer
Bouriaque, and Sergeant Smith for malicious prosecution and
defamation under Louisiana law, there are potentially culpable
employees for which the City could be held vicariously liable. Thus,
the City’s motion [to dismiss] is denied as to the claims of vicarious
liability for the state law claims.68
At this stage, Plaintiff has stated a plausible claim against DPSC for vicarious liability under state
law sufficient to withstand a Rule 12(b)(6) analysis.
IV. 	RECOMMENDATION
The consent of the Officer Defendants was not required at the time of removal because
they were not properly served. DPSC’s removal of the entire case was proper, and the Court has
federal question and supplemental jurisdiction over Plaintiff’s claims in this case. 	Plaintiff has
clarified that he is not asserting any federal claims against DPSC and Plaintiff has stated a state
68 Wooten v. Harrell, No. 23-368, 2024 WL 1815349, at *9 (M.D. La. Apr. 25, 2024). See also Mitchell v. Louisiana,
No. 20-470, 2022 WL 17070524, at *9 (M.D. La. Nov. 17, 2022) (Jackson, J.) (finding a genuine issue of material
fact as to whether the State was vicariously liable under Art. 2320 for the state law torts of its officers, and holding:
“It follows that LDPSC’s sole objection to respondeat superior liability—that Lt. Stark ‘committed no tortious acts’
…—also fails. Plainly, the same evidence establishing a substantial dispute regarding Lt. Stark’s liability for
negligence and battery also establishes a substantial dispute regarding LDPSC’s vicarious liability as Lt. Stark’s
employer. See La. C.C. art. 2317; Breaux, 326 So.2d at 482 (‘the state is ... liable for its employee’s failure to use
reasonable care in preventing harm after they had reasonable cause to anticipate it.’); cf. Hughes v. Savell, 902 F.2d
376, 379 (5th Cir. 1990) (‘Although the state does not insure inmates against personal attacks, the state is responsible
when its employees fail to use reasonable care to protect inmates from injuries inflicted by other prisoners which the
authorities know or have reason to anticipate will occur. ... Those cases which do consider the responsibility of
individual state prison employees routinely impute the employee’s negligence to the state for purposes of assigning
liability.’); see also Payne v. Tonti Realty Corp., 04-752 (La.App. 5 Cir. 11/30/04), 888 So.2d 1090, 1094 (‘An
employer may be vicariously liable for the intentional acts of its employees.’) (citing La. C.C. Art. 2320), writ denied
2005-0192 (La. 4/1/05), 897 So.2d 606.”).”).
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law claim for vicarious liability under La. Civ. Code art. 2320 against DPSC sufficient to withstand
a Rule 12(b)(6) analysis. Accordingly,
IT IS RECOMMENDED that Motion to Remand, 69 filed by Plaintiff Dustin Musso, be
DENIED.
IT IS FURTHER RECOMMENDED that the Clerk’s Entry of Default entered against
Defendant Jefrey Hall70 be VACATED because there is not adequate proof in the record that Hall
was served or that he waived service.
IT IS FURTHER RECOMMENDED that the 12(b)(6) Motion to Dismiss, filed by
Defendant the State of Louisiana through the Department of Public Safety and Corrections,71 be
DENIED.
IT IS FURTHER RECOMMENDED that, if this Report and Recommendation is
adopted, Plaintiff’s counsel be instructed that she is to refrain from asserting in this Court in the
future that the State of Louisiana through the Department of Public Safety and Corrections cannot
remove a case from state court because no federal claim is asserted against it, only against
individual defendants, without citing and addressing that this argument was rejected in Washington
v. Dep’t of Pub. Safety & Corr., No. 25-55, 2025 WL 1749973, at *2 (M.D. La. May 19, 2025),
report and recommendation adopted, No. 25-55, 2025 WL 1749652 (M.D. La. June 24, 2025), and
in this case.
69 R. Doc. 10
70 R. Doc. 39.
71 R. Doc. 9.
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ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
IT IS FURTHER RECOMMENDED that, if this Report and Recommendation is
adopted, this case be referred to the undersigned for a scheduling conference.
Signed in Baton Rouge, Louisiana, on February 5, 2026
S
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