from the United States District Court for the Middle District
JOLLY, ELROD, and WILLETT, Circuit Judges.
PETITION FOR PANEL REHEARING
GRADY JOLLY, CIRCUIT JUDGE
petition for panel rehearing is hereby GRANTED. We WITHDRAW
the court's prior opinion of April 24, 2019, and
substitute the following opinion.
a public protest against police misconduct in Baton Rouge,
Louisiana, an unidentified individual hit Officer John Doe
with a heavy object, causing him serious physical injuries.
Following this incident, Officer Doe brought suit against
"Black Lives Matter," the group associated with the
protest, and DeRay Mckesson, one of the leaders of Black
Lives Matter and the organizer of the protest. Officer Doe
later sought to amend his complaint to add Black Lives Matter
Network, Inc. and #BlackLivesMatter as defendants. The
district court dismissed Officer Doe's claims on the
pleadings under Federal Rule of Civil Procedure 12(b)(6), and
denied his motion to amend his complaint as futile. Because
we conclude that the district court erred in dismissing the
case against Mckesson on the basis of the pleadings, we
REMAND for further proceedings relative to Mckesson. We
further hold that the district court properly dismissed the
claims against Black Lives Matter.We thus REVERSE in part,
AFFIRM in part, and REMAND for further proceedings not
inconsistent with this opinion.
9, 2016, a protest took place by blocking a public highway in
front of the Baton Rouge Police Department
headquarters. This demonstration was one in a string of
protests across the country, often associated with Black
Lives Matter, concerning police practices. The Baton Rouge
Police Department prepared by organizing a front line of
officers in riot gear. These officers were ordered to stand
in front of other officers prepared to make arrests. Officer
Doe was one of the officers ordered to make arrests. DeRay
Mckesson, associated with Black Lives Matter, was the prime
leader and an organizer of the protest.
presence of Mckesson, some protesters began throwing objects
at the police officers. Specifically, protestors began to
throw full water bottles, which had been stolen from a nearby
convenience store. The dismissed complaint further alleges
that Mckesson did nothing to prevent the violence or to calm
the crowd, and, indeed, alleges that Mckesson "incited
the violence on behalf of [Black Lives Matter]." The
complaint specifically alleges that Mckesson led the
protestors to block the public highway. The police officers
began making arrests of those blocking the highway and
participating in the violence.
point, an unidentified individual picked up a piece of
concrete or a similar rock-like object and threw it at the
officers making arrests. The object struck Officer Doe's
face. Officer Doe was knocked to the ground and
incapacitated. Officer Doe's injuries included loss of
teeth, a jaw injury, a brain injury, a head injury, lost
wages, "and other compensable losses."
the Baton Rouge protest, Officer Doe brought suit, naming
Mckesson and Black Lives Matter as defendants. According to
his complaint, the defendants are liable on theories of
negligence, respondeat superior, and civil conspiracy.
Mckesson subsequently filed two motions: (1) a Rule 12(b)(6)
motion, asserting that Officer Doe failed to state a
plausible claim for relief against Mckesson and (2) a Rule
9(a)(2) motion, asserting that Black Lives Matter is not an
entity with the capacity to be sued.
Doe responded by filing a motion to amend. He sought leave to
amend his complaint to add factual allegations to his
complaint and Black Lives Matter Network, Inc. and
#BlackLivesMatter as defendants.
district court granted both of Mckesson's motions,
treating the Rule 9(a)(2) motion as a Rule 12(b)(6) motion,
and denied Officer Doe's motion for leave to amend,
concluding that his proposed amendment would be futile. With
respect to Officer Doe's claims against
#BlackLivesMatter, the district court took judicial notice
that it is a "hashtag" and therefore an
"expression" that lacks the capacity to be sued.
With respect to Officer Doe's claims against Black Lives
Matter Network, Inc. the district court held that Officer
Doe's allegations were insufficient to state a plausible
claim for relief against this entity. Emphasizing the fact
that Officer Doe attempted to add a social movement and a
"hashtag" as defendants, the district court
dismissed his case with prejudice. Officer Doe timely
considering a motion to dismiss under Rule 12(b)(6), we will
not affirm dismissal of a claim unless the plaintiff can
prove no set of facts in support of his claim that would
entitle him to relief. Alexander v. Verizon Wireless
Servs., L.L.C., 875 F.3d 243, 249 (5th Cir. 2017).
"We take all factual allegations as true and construe
the facts in the light most favorable to the plaintiff."
Id. (citing Kelly v. Nichamoff, 868 F.3d
371, 374 (5th Cir. 2017)). To survive, a complaint must
consist of more than "labels and conclusions" or
"naked assertions devoid of further factual
enhancement." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007) (internal quotation marks and brackets
omitted)). Instead, "the plaintiff must plead enough
facts to nudge the claims across the line from conceivable to
plausible." Hinojosa v. Livingston, 807 F.3d
657, 684 (5th Cir. 2015) (internal quotation marks, brackets,
and ellipses omitted) (quoting Iqbal, 556 U.S. at
district court's denial of a motion to amend is generally
reviewed for abuse of discretion. Thomas v. Chevron
U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016).
However, where the district court's denial of leave to
amend was based solely on futility, we instead apply a de
novo standard of review identical in practice to the Rule
12(b)(6) standard. Id. When a party seeks leave from