David Thomas, et al v. Bastrop

Filing

UNPUBLISHED OPINION FILED. [10-30340 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 11/22/2010 [10-30340]

David Thomas, et al Case: 10-30340 v. Bastrop

Document: 00511280874 Page: 1 Date Filed: 11/01/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30340 S u m m a r y Calendar November 1, 2010 Lyle W. Cayce Clerk

D A V I D GLEN THOMAS, Plaintiff - Appellant v. B R I D G E F I E L D CASUALTY INSURANCE COMPANY, INCORPORATED, I n t e r v e n o r Plaintiff - Appellant v. C I T Y OF BASTROP, D e fe n d a n t - Intervenor Defendant A p p e lle e

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 3:08-CV-1066

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* P la in t iff-A p p e lla n t David Glen Thomas ("Thomas") and Intervenor P la in t iff-A p p e lla n t Bridgefield Casualty Insurance Company ("Bridgefield") a p p e a l from the district court's grant of summary judgment dismissing Thomas's
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-30340 Document: 00511280874 Page: 2 Date Filed: 11/01/2010

No. 10-30340 fe d e r a l and state law claims.1 We agree with the district court that no genuine is s u e of material fact exists on Thomas's claims, and that Defendant-Appellee C it y of Bastrop ("the City") is entitled to judgment as a matter of law. Accordingly, we AFFIRM. T h is case arises out of the personal injury Thomas sustained on August 10, 2 0 0 7 , after he responded to an armed standoff at the Budget Inn in Bastrop, L o u is ia n a . That day, two members of the Bastrop Police Department ("BPD") w e r e shot while attempting to serve an arrest warrant on Dennis Clem ("Clem"). Thomas, who was working as an operations manager for a local ambulance s e r v ic e , overheard the dispatch report someone lying on the side of the road near C it y Hall. After confirming with the Sheriff's Office that an ambulance was on t h e way, Thomas decided to assist and he drove to the victim's reported location in his company vehicle. While en route, Thomas heard by radio that there was p o s s ib ly another victim in the Budget Inn parking lot. He proceeded there. W h e n Thomas arrived, he saw Officer Josh Hawthorne of the BPD c r o u c h e d behind a car with his weapon drawn. Officer Hawthorne motioned to T h o m a s , then told him to "stay down" and to come to the rear of the car. Thomas, who was armed with his personal handgun, went to Hawthorne's c o v e r e d position. There, Thomas learned that the two victims were BPD officers a n d that the wounded victim lying in the parking lot was Officer John Smith. Thomas also learned that the shooter had taken cover in one of the motel rooms. A security camera at the Budget Inn recorded the entire incident. The v id e o shows BPD Captain Sherman Burrell standing over Officer Smith in the p a r k in g lot with his gun drawn, and calling to Thomas and Officer Hawthorne t o "come on" and that he had them "covered," ostensibly to speed paramedic help

The district court dismissed all of Thomas's federal and state claims. Thomas and Bridgefield only appeal the dismissal of Thomas's negligence claim under Louisiana tort law.

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Case: 10-30340 Document: 00511280874 Page: 3 Date Filed: 11/01/2010

No. 10-30340 t o Officer Smith. Officer Hawthorne escorted Thomas and a second emergency m e d ic a l technician to where Officer Smith was lying. The video shows that w h ile the two paramedics were attending to Officer Smith, BPD officers in d e fe n s iv e positions nearby, including Captain Burrell, yelled at Clem to "come o u t with [his] hands up." Clem emerged from the motel room where he had been s h e lt e r e d , a pistol in each hand, and began shooting to his left and right. BPD o ffic e r s returned fire. T h e security video shows that when the shooting began, Thomas retreated t o a corner behind him while, unbeknownst to Thomas, Clem was moving to the s a m e location. In the ensuing gunfight between Clem and BPD officers, Clem w a s fatally wounded. Thomas was shot in the arm. I n July 2008, Thomas filed suit against the City under 42 U.S.C. § 1983. Thomas alleged that the BPD's conduct during the incident, and particularly C a p t a in Burrell's as the senior officer on the scene, violated Thomas's rights u n d e r the Fourth and Fourteenth Amendments to the U.S. Constitution. Thomas also stated a negligence claim under Louisiana tort law. B o t h parties moved for summary judgment.2 The district court found that T h o m a s acted voluntarily when he responded to the emergency call, and that his p r e s e n c e at the Budget Inn, the scene of a live standoff, was a function of T h o m a s 's own conscience rather than police influence. The court also noted that T h o m a s had failed to produce any proof, other than his own assertions, of who s h o t him.3 The court thus found that no genuine issues of material fact existed
Bridgefield had intervened in the suit to recover the value of workers compensation benefits paid to Thomas. Bridgefield did not join in Thomas's partial summary judgment motion and did not file an opposition to the City's summary judgment motion. While Thomas's complaint alleged that he was struck by a bullet fired by Captain Burrell or some other BPD officer, in briefing to the district court Thomas conceded that he did not know who shot him. Despite having the bullet fragments that were removed from his arm, Thomas failed to produce any forensic evidence that could have determined whether the bullet that hit him was fired from a police weapon.
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No. 10-30340 o n Thomas's Fourth or Fourteenth Amendment claims. The court likewise found t h a t Thomas had failed to offer any evidence that would support a reasonable f a c t-fin d e r 's determination in favor of municipal liability under § 1983. The c o u r t granted the City's motion for summary judgment and dismissed Thomas's fe d e r a l claims accordingly. Turning to Thomas's state negligence claim, the district court found that C a p t a in Burrell's conduct was reasonable under the circumstances, and that in lig h t of the factors articulated by the Louisiana Supreme Court in Kyle v. City o f New Orleans, 353 So.2d 969, 973 (La. 1977), Captain Burrell did not breach a n y duty owed to the public, or to Thomas, here. The court also found that T h o m a s had failed to carry his burden of proof on the elements of actual and le g a l causation required to prove negligence. The district court granted the C it y 's motion for summary judgment and dismissed Thomas's state claim. Thomas and Bridgefield have only appealed the district court's ruling on T h o m a s 's state negligence claim. We review the district court's grant of summary judgment de novo. Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 233 (5th Cir. 2010). Summary judgment is proper when, viewing the evidence and inferences in the lig h t most favorable to the nonmoving party, there is an absence of genuine is s u e s of material fact and one party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c)(2). "If the record taken as a whole could not lead a rational t r ie r of fact to find for the nonmoving party, there is no genuine issue for trial." F r io u v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991) (citing M a ts u s h ita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A t the outset, we note that Thomas's brief seemingly fails to challenge the d is t r ic t court's summary judgment finding on the element of actual causation. Ordinarily this omission would be fatal. See Yohey v. Collins, 985 F.2d 222, 2242 5 (5th Cir. 1993) (arguments not briefed on appeal are abandoned). We also 4

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No. 10-30340 n o te , however, that Thomas has arguably presented the issue of cause-in-fact, a l b e i t in his argument on the element of breach. Appellant's Br. 13-15. We lib e r a lly construe Thomas's brief and find that the issue of actual causation is n o t abandoned. See S.E.C. v. Recile, 10 F.3d 1093, 1096-97 (5th Cir. 1993). In Louisiana, a police officer's liability for negligence is determined by a p p lic a t io n of the duty/risk analysis, which requires that a plaintiff prove all five o f the following elements: 1 ) the defendant had a duty to conform his conduct to a specific s t a n d a r d of care; 2 ) the defendant breached his duty by failing to conform his conduct t o the specified standard; 3 ) the defendant's breach was a cause-in-fact of the plaintiff's injury; 4 ) the defendant's breach was a legal cause of the plaintiff's injury; and 5 ) the plaintiff sustained actual damages as a result of the d e fe n d a n t 's breach. M a th ie u v. Imperial Toy Corp., 646 So. 2d 318, 322 (La. 1994); see also Roberts v . Benoit, 605 So. 2d 1032, 1041-46 (La. 1991). The district court found that T h o m a s failed to carry his summary judgment burden of proof on the elements o f breach, actual causation, and legal causation. We need only affirm the district c o u r t's ruling on one of these grounds to affirm the court's summary judgment. T h o m a s contends that Captain Burrell breached the required standard of c a r e by failing to secure the crime scene before calling Thomas to render aid to O ffic e r Smith.4 We disagree. In a matter of seconds, Captain Burrell was forced t o weigh the threat that Clem­who was barricaded in his motel room at the

In his opposition to the City's motion for summary judgment, Thomas argued that Captain Burrell breached his duty in two ways: (i) by calling on Thomas to enter the crime scene and render aid to Officer Smith before securing the area; and (ii) by calling for Clem, an armed suspect, to "come out with [his] hands up" while Thomas was nearby. Thomas only presses the first argument on appeal; the second is waived. See Madison Recycling Associates v. Comm'r, 295 F.3d 280, 284 n.10 (2d Cir. 2002) (argument made by petitioners in moving for summary judgment but not renewed on appeal deemed waived).

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Case: 10-30340 Document: 00511280874 Page: 6 Date Filed: 11/01/2010

No. 10-30340 t i m e ­ p o s e d to all present, against the urgent need to get paramedic aid to O ffic e r Smith, who was lying shot in the parking lot. While Captain Burrell's d e c is io n to summon paramedic help can easily be second-guessed, police officers a r e not held to a standard of perfect hindsight, and their chosen course of action is not required to be the "best," or even a "better," alternative. Mathieu, 646 So. 2 d at 325. The law only requires that an officer's conduct was reasonable under t h e circumstances. Id. at 326. When analyzed in light of the Kyle factors, 353 S o .2 d at 973, we have no trouble concluding that Captain Burrell's actions, while n o t the only alternative, did not fall outside the scope of reasonableness here. See Mathieu, 646 So. 2d at 326 (no breach of duty of care where police officers " h a d to make a quick decision under extremely charged circumstances."). The district court's grant of summary judgment is AFFIRMED.5

Thomas also asks us to consider the issue of legal causation, specifically, whether the district court erred in applying the professional rescuer's doctrine. We do not decide that issue here. Our finding on the element of breach (i.e., Captain Burrell's conduct was reasonable) moots Thomas's remaining arguments.

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