Mitchell et al v. New Orleans City et al
Filing
129
ORDER & REASONS: granting 95 Plaintiffs, Judonna Mitchell and LaShonda Saulsberry's Motion for Partial Summary Judgment Against Defendants Melvin Williams and the City of New Orleans. Signed by Judge Carl Barbier on 6/3/16. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUDONNA MITCHELL ET AL.
CIVIL ACTION
VERSUS
NO: 06-4021
CITY OF NEW ORLEANS ET AL.
SECTION: “J”(4)
ORDER & REASONS
Before the Court is a Motion for Partial Summary Judgment
Against Defendants Melvin Williams and the City of New Orleans
(Rec. Doc. 95) filed by Plaintiffs, Judonna Mitchell and LaShonda
Saulsberry; an opposition (Rec. Doc. 102) filed by Defendant the
City of New Orleans; an opposition (Rec. Doc. 118) filed by
Defendant Melvin Williams; and Plaintiffs’ reply (Rec. Doc. 128).
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that the motion should be
GRANTED for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This civil rights case arises from an incident involving two
former
New
resulted
in
Orleans
the
Police
death
of
Department
Raymond
(“NOPD”)
Robair.
On
officers
July
31,
that
2006,
Plaintiffs, the adult daughters of Robair, filed this lawsuit
against
the
City
of
New
Orleans
(“City”)
and
various
former
employees of the NOPD. (Rec. Doc. 1.) Due to pending criminal
proceedings that arose out of the same facts and circumstances,
this matter was stayed on March 14, 2007. (Rec. Doc. 12.)
On July 29, 2010, the United States filed an indictment in
the Eastern District of Louisiana against Melvin Williams and
Matthew Dean Moore, the two NOPD officers involved in Robair’s
death. According to evidence presented at the criminal trial,
Williams and Moore stopped Robair on a city street on the morning
of July 30, 2005. While Moore restrained Robair, Williams kicked
Robair in the side and struck him repeatedly with a metal baton.
Robair
suffered
fractured
ribs
and
a
ruptured
spleen,
which
triggered massive internal bleeding. Williams and Moore drove
Robair to Charity Hospital, where they told medical personnel that
they suspected Robair was suffering from a drug overdose. Neither
officer mentioned that Robair’s condition was a result of a trauma.
Based on this information, the hospital staff initially treated
Robair as an overdose patient. Robair was immediately taken to the
operating
room
once
doctors
discovered
that
he
had
internal
bleeding, but it was too late to save him. Robair was pronounced
dead at Charity Hospital shortly after his arrival.
After
Robair’s
death,
Williams
and
Moore
filled
out
an
incident report describing their interactions with Robair and the
staff at Charity Hospital. According to the report, the officers
saw an unidentified man clutch his chest and fall to the ground,
so they took the man to the hospital. The report did not mention
2
Williams’ use of force on Robair. Later, Moore falsely stated to
the FBI that Williams never used force on Robair.
Following a jury trial, Williams was convicted of causing the
death of Robair while depriving him of his civil rights, in
violation of 18 U.S.C. § 242. 1 On appeal, the United States Court
of Appeals for the Fifth Circuit affirmed the convictions and
sentences. See United States v. Moore, 708 F.3d 639 (5th Cir.
2013). After all direct appeals in the criminal case concluded,
the Court lifted the stay and reinstated this case to the Court’s
active docket. (Rec. Doc. 16.)
After the stay was lifted, Plaintiffs filed their First
Amended
Complaint.
(Rec.
Doc.
36.)
Plaintiffs
assert
federal
claims against the City under 42 U.S.C. §§ 1983 and 1988 for
deprivation of civil rights. Id. at 11-14. In addition, Plaintiffs
assert a survival action and wrongful death action under Louisiana
law, seeking to recover damages suffered by Robair before death
and damages suffered by the Plaintiffs as a result of the wrongful
death of their father. Id. at 14.
Plaintiffs
filed
the
instant
Motion
for
Partial
Summary
Judgment Against Defendants Melvin Williams and the City of New
Orleans (Rec. Doc. 95) on April 5, 2016. The City opposed the
motion on April 11, 2016. Upon an unopposed motion filed by
1
In addition, Williams and Moore were both convicted of aiding and abetting
obstruction of justice by filing a false police report, and Moore was also
convicted of making a false statement to the FBI.
3
Williams, the Court continued the submission date to May 4, 2016.
On May 5, 2016, the Court granted Williams leave to file his
opposition after the deadline. Upon Plaintiffs’ motion, the Court
continued the submission date to June 1, 2016. The Court granted
Plaintiffs leave to file their reply on May 25, 2016. The motion
is now before the Court on the briefs.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, a court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing
the
evidence.”
Delta
&
Pine
Land
Co.
v.
Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but
a
party
cannot
defeat
summary
judgment
with
conclusory
allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
4
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int'l
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.
PARTIES’ ARGUMENTS AND DISCUSSION
Plaintiffs move for partial summary judgment against Melvin
Williams and the City of New Orleans on four categories of claims.
5
First, Plaintiffs seek summary judgment on their § 1983 claim
against Williams for use of excessive force in violation of the
Fourth
Amendment
of
the
United
States
Constitution.
Second,
Plaintiffs seek summary judgment on their state law wrongful death
and survival claims against Williams for his actions resulting in
the
death
of
Raymond
Robair.
Third,
Plaintiffs
seek
summary
judgment on their state law vicarious liability claims against the
City, as Williams’s employer, for Williams’s tortious misconduct.
Fourth, Plaintiffs seek summary judgment on part of their § 1983
claim against the City for municipal liability under Monell v.
Department of Social Services, 436 U.S. 658 (1978).
Plaintiffs support their motion with three types of evidence:
(1)
the
Defendants’
admission;
(2)
responses
facts
to
established
Plaintiffs’
in
the
requests
federal
for
criminal
conviction of Williams, which Plaintiffs argue are conclusively
established for purposes of this motion under the doctrine of
collateral estoppel; and (3) testimony of Williams and Matthew
Dean Moore from their criminal trial.
A.
Section 1983 Claim Against Williams
As an initial matter, Plaintiffs contend that the factual
issues essential to the federal criminal conviction of Williams
under 18 U.S.C. § 242 are conclusively established for purposes of
this
motion
under
the
doctrine
of
collateral
estoppel.
In
opposition, Williams concedes that Plaintiffs’ argument might have
6
some legal merit but argues that the Court should deny Plaintiffs’
motion and allow for some discovery to be had to ensure that there
is a sufficient factual basis for Plaintiffs’ estoppel argument.
Williams fails to show that he cannot present facts essential
to justify his opposition for specified reasons by affidavit or
declaration, as required by Rule 56(d). 2 Williams asserts in his
opposition that “it would be reasonable to allow [his recentlyenrolled counsel] the opportunity to obtain and review the records
of the criminal prosecution [and] the verdict” prior to answering
Plaintiffs’
motion.
(Rec.
Doc.
118,
at
5
n.4.)
However,
the
transcript of Williams’s criminal trial is public record, and
Plaintiffs have submitted evidence showing that Williams’s former
counsel and current counsel have received extensive discovery
throughout the course of this suit. Moreover, the Court has twice
continued the submission date of this motion and granted Williams
leave to file his opposition after the deadline. It does not appear
that
further
discovery,
or
further
review
of
the
documents
produced, will provide evidence essential to justify Williams’s
opposition.
2
The party seeking to obtain a continuance of a motion for summary judgment in
order to obtain further discovery must indicate to the court (1) “why he needs
additional discovery” and (2) “how the additional discovery will create a
genuine issue of material fact.” Krim v. BancTexas Grp., Inc., 989 F.2d 1435,
1442 (5th Cir. 1993). “If it appears that further discovery will not provide
evidence creating a genuine issue of material fact, the district court may grant
summary judgment.” Id.
7
Collateral
estoppel,
also
known
as
“issue
preclusion,”
precludes litigating an issue if the identical question has been
litigated in a prior suit which could not have been decided without
its resolution. See Bradberry v. Jefferson County, 732 F.3d 540,
548-49 (5th Cir. 2013). Offensive use of collateral estoppel occurs
when the plaintiff seeks to foreclose the defendant from litigating
an issue the defendant has previously litigated unsuccessfully in
an action with another party. Parklane Hosiery Co. v. Shore, 439
U.S. 322, 356 n.4 (1979).
It is well established that a prior criminal conviction may
work as an estoppel against the defendant in a subsequent civil
proceeding. Emich Motors Corp. v. Gen. Motors Corp., 340 U.S. 558,
568 (1951). “In the case of a criminal conviction based on a jury
verdict of guilty, issues which were essential to the verdict must
be regarded as having been determined by the judgment.” Id. at
569. “Because of the existence of a higher standard of proof and
greater
procedural
conviction
is
protection
conclusive
as
in
to
a
an
criminal
issue
prosecution,
arising
against
a
the
criminal defendant in a subsequent civil action.” United States v.
Thomas, 709 F.2d 968, 972 (5th Cir. 1983).
To apply collateral estoppel offensively, the plaintiff must
show
that
four
conditions
are
met:
“(1)
the
issue
under
consideration is identical to that litigated in the prior action;
(2) the issue was fully and vigorously litigated in the prior
8
action; (3) the issue was necessary to support the judgment in the
prior case; and (4) there is no special circumstance that would
make it unfair to apply the doctrine.” Winters v. Diamond Shamrock
Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998). Courts have broad
discretion to determine whether the offensive collateral estoppel
bar should apply. Id. at 92.
Here, the underlying issue is whether Williams is liable as
a matter of law for Plaintiffs’ § 1983 claim, on account of his
criminal conviction under § 242. In order to prevail under § 1983,
“a plaintiff must (1) allege a violation of a right secured by the
Constitution or laws of the United States and (2) demonstrate that
the alleged deprivation was committed by a person acting under
color of state law.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.
2013). Similarly, to prove a violation of § 242, “the government
must prove beyond a reasonable doubt that the defendant: (1)
willfully; (2) deprived another of a federal right; (3) under color
of law.” United States v. Moore, 708 F.3d 639, 645 (5th Cir. 2013).
Substantively, Plaintiffs allege that Williams used excessive
force
in
violation
of
the
Fourth
Amendment
right
against
unreasonable seizure. Likewise, the indictment upon which Williams
was ultimately convicted charged him with willfully depriving
Robair of the right to be free from the use of unreasonable force
from a law enforcement officer, thereby causing bodily injury and
death. “To prevail on an excessive force claim, a plaintiff must
9
establish: (1) injury (2) which resulted directly and only from a
use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable.” Harris v. Serpas, 745 F.3d
767, 772 (5th Cir. 2014). The Fourth Amendment analysis under §
242 is identical to that employed in § 1983 excessive force claims.
See United States v. Brugman, 364 F.3d 613, 616 (5th Cir. 2004).
The predominant issue determined during Williams’s criminal
proceedings is identical to the issue now before the Court. In
fact, § 1983 and § 242 are generally considered analogues. See
Adickes v. S. H. Kress & Co., 398 U.S. 144, 214 n.23 (1970)
(explaining that the “linguistic differences” between § 1983 and
§ 242 “have not been thought to be substantive”); Fundiller v.
City of Cooper, 777 F.2d 1436, 1439 (11th Cir. 1985) (describing
§ 242 as “the criminal counterpart to section 1983”); United States
v. Stokes, 506 F.2d 771, 776 (5th Cir. 1975) (describing § 1983 as
“the civil counterpart to § 242”). Moreover, this is not an issue
of first impression in the Fifth Circuit. See, e.g., Page v.
Starks, No. 14-221, 2016 WL 347585, at *2-3 (N.D. Miss. Jan. 28,
2016) (holding that former police officer who pleaded guilty to
depriving the plaintiff of his Fourth Amendment rights in violation
of § 242 was liable as a matter of law for plaintiff’s excessive
force claim under § 1983); Vela v. Alvarez, 507 F. Supp. 887, 889
(S.D. Tex. 1981) (same).
10
The
remaining
conditions
for
application
of
collateral
estoppel are also met in this case. Because Williams was convicted
by a jury after a full trial, there can be no dispute that the
issue
presently
under
consideration
was
fully
and
vigorously
litigated in the prior action. For the reasons discussed above,
the Court also finds that the issue was necessary to support
Williams’s criminal conviction. Without establishing Williams had
violated Robair’s Fourth Amendment right to be free from the use
of unreasonable force, an essential element under § 242, the
deprivation of a federal constitutional right, would not have been
satisfied.
Lastly, no special circumstances exist that would make it
unfair to apply collateral estoppel. The Supreme Court has set out
three
special
unfair:
(1)
circumstances
when
the
that
plaintiff
would
easily
make
issue
could
have
preclusion
joined
the
previous action but chose not to; (2) if the defendant had little
incentive to defend vigorously; and (3) if the judgment upon which
the plaintiff seeks to rely is itself inconsistent with a previous
judgment in favor of the defendant. Parklane Hosiery, 439 U.S. at
330-31.
None
Therefore,
of
those
precluding
circumstances
Williams
from
are
applicable
relitigating
here.
whether
he
violated Robair’s Fourth Amendment right to be free from the use
of unreasonable force would be neither inappropriate nor unfair.
11
Accordingly,
the
Court
finds
the
doctrine
of
collateral
estoppel applies in this instance and Plaintiffs may introduce the
prior judgment to establish all matters of fact and law necessarily
decided by the conviction and the verdict on which it was based.
As a result, each of the elements for Plaintiffs’ § 1983 claim
against Williams is conclusively established. Because there is no
genuine issue of material fact as to whether Williams, while acting
under color of state law, used excessive force in violation of the
Fourth Amendment, which resulted in bodily injury and death,
Plaintiffs are entitled to summary judgment on their § 1983 claim
against Williams.
B.
State Law Wrongful Death and Survival Claims Against Williams
Plaintiffs also move for summary judgment against Williams on
their
state
law
claims
for
wrongful
death
and
survival.
The
foundation for Louisiana tort law is found in Louisiana Civil Code
article 2315: “Every act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it.” La.
Civ. Code art. 2315. Under this article, a person may recover
damages for injuries caused by a wrongful act of another. Landry
v.
Bellanger,
Louisiana
851
embraces
encompasses
So.
a
liability
2d
943,
broad
based
949
civilian
on
misconduct. Id.
12
(La.
2003).
concept
negligence
of
or
Furthermore,
“fault”
that
intentional
Under Louisiana law, excessive force claims are analyzed
under general negligence laws, which employ a duty-risk analysis.
Manis v. Zemlik, 96 So. 3d 509, 513 (La. App. 5 Cir. 2012). Police
officers owe a duty of reasonableness when effecting an arrest or
approaching a subject. Id. (citing La. Code Crim. Proc. art. 220).
The use of excessive force transforms an otherwise lawful arrest
into an actionable battery, rendering the officer and his employer
liable for any injuries which result. Id. (citing Kyle v. City of
New Orleans, 353 So. 2d 969 (La. 1977)). If the arrest is unlawful
then all force used to effectuate the arrest is excessive and
constitutes a battery. 3 See Ross v. Sheriff of Lafourche Par., 479
So. 2d 506, 510 (La. App. 1 Cir. 1985) (“[T]he physical attack of
a private citizen by a police officer absent a valid arrest
constitutes a battery.”).
In Louisiana, excessive force claims are analyzed under a
reasonableness standard similar to that used to evaluate § 1983
excessive force claims. Kyle, 353 So. 2d at 972-73. “Whether the
force used is reasonable depends upon the totality of the facts
and circumstances in each case,” and the factors to consider are
analogous to the factors under federal law. Id. at 973. In fact,
3
Under Louisiana law, the intentional tort of battery is a harmful or offensive
contact with a person, resulting from an act intended to cause the plaintiff to
suffer such a contact. Landry, 851 So. 2d at 949. “The defendant’s intention
need not be malicious nor need it be an intention to inflict actual damage. It
is sufficient if the defendant intends to inflict either a harmful or offensive
contact without the other’s consent.” Id. (citing Caudle v. Betts, 512 So. 2d
389, 391 (La. 1987)).
13
“Louisiana’s
excessive
force
tort
mirrors
its
federal
constitutional counterpart.” Deville v. Marcantel, 567 F.3d 156,
172 (5th Cir. 2009). Therefore, the Fifth Circuit has explained
that a court’s decision on a plaintiff’s Louisiana excessive force
claim will mirror its decision on the plaintiff’s § 1983 excessive
force claim. Id. at 173.
Given the similarity between excessive force claims under §
1983 and Louisiana law, the doctrine of collateral estoppel is
equally applicable to Plaintiffs’ pendent state law claims. See
Vela,
507
F.
Supp.
at
889-91
(holding
that
police
officer’s
criminal conviction under § 242 worked as offensive collateral
estoppel in plaintiff’s subsequent civil case against the officer
on pendent state law claim of assault and battery). As discussed
above, a jury convicted Williams of willfully depriving Robair of
his right to be free from excessive force. In affirming this
conviction, the Fifth Circuit held that the evidence in the record,
particularly testimony from witnesses who saw Williams kick Robair
while he was on the ground, supported the jury’s verdict. Moore,
108 F.3d at 646. Furthermore, the Fifth Circuit concluded that
Williams’s behavior in kicking and beating Robair was a “gross
deviation from a reasonable standard of care” and that evidence in
the record supported a finding that Williams acted with an intent
to do bodily harm. Id. at 648. These are the elements to prove a
14
claim for excessive force and intentional battery under Louisiana
law.
Because Robair died as a result of the injuries Williams
inflicted on him, Williams’s battery and use of excessive force
against Robair gives rise to two distinct causes of action: a
survival action under article 2315.1 and a wrongful death action
under 2315.2. Although both actions arise from a common tort,
survival and wrongful death actions are separate and distinct.
Taylor v. Giddens, 618 So. 2d 834, 840 (La. 1993) (citing Guidry
v. Theriot, 377 So. 2d 319 (La. 1979)). The survival action comes
into existence simultaneously with the existence of the tort and
is
transmitted
to
certain
designated
beneficiaries
upon
the
victim’s death. Id.; see also La. Civ. Code art. 2315.1. Unlike
the wrongful death action, the survival action permits recovery
for the damages suffered by the victim from the time of injury to
the moment of death. Taylor, 618 So. 2d at 840. On the other hand,
the wrongful death action does not arise until the victim dies and
it compensates the beneficiaries for their own injuries that they
sustained as a result of the victim’s wrongful death. Id.; see
also La. Civ. Code art. 2315.2.
In the criminal conviction, the jury found that Williams’s
violation of Robair’s civil rights resulted in Robair’s death.
(Rec. Doc. 95-6.) On appeal, the Fifth Circuit affirmed, finding
that a jury could reasonably conclude from the evidence that
15
Robair's death was proximately caused by and the foreseeable result
of being kicked in the chest by Williams. Moore, 708 F.3d at 647.
Consequently, there is no genuine issue of material fact that
Williams’s fault caused Robair’s death. Furthermore, in this case,
Plaintiffs are Robair’s adult daughters, as confirmed by a court
order of filiation. (Rec. Doc. 95-13.) As such, Plaintiffs are the
proper parties to recover Robair’s damages through the survival
action, see La. Civ. Code art. 2315.1(A)(1), and to recover damages
for his wrongful death, see La. Civ. Code art. 2315.2(A)(1).
Accordingly, Plaintiffs are entitled to summary judgment against
Williams on their state law claims for wrongful death and survival.
C.
State Law Vicarious Liability Against the City
Next, Plaintiffs move for summary judgment against the City
on their state law wrongful death and survival claims, under the
theory that the City is vicariously liable for Williams’s conduct.
In opposition, the City argues that Plaintiffs’ motion should be
denied in this regard because there are genuine issues in dispute
as to whether Williams was acting in the course and scope of his
employment at the time he committed the criminal acts against
Robair.
Under Louisiana law, municipalities do not enjoy special
protection from vicarious liability and are subject to respondeat
superior like every other employer. Deville, 567 F.3d at 173-74.
The principle of vicarious liability or respondeat superior is
16
codified in Louisiana Civil Code article 2320, which provides that
an employer is liable for the tortious acts of its employees “in
the exercise of the functions in which they are employed.” La.
Civ. Code art. 2320. Thus, the issue for the Court is whether
Williams’s
tortious
conduct
against
Robair
was
sufficiently
employment-related that vicarious liability should attach.
The threshold question is whether the employee’s conduct was
in
the
course
and
scope
of
his
employment.
The
“course
of”
employment refers to the time and place, while the “scope of”
employment refers to being engaged in the functions for which
employed. See Russell v. Noullet, 721 So. 2d 868, 871 (La. 1998).
The inquiry requires the trier of fact to determine whether the
employee’s tortious conduct was “so closely connected in time,
place and causation to his employment-duties as to be regarded a
risk of harm fairly attributable to the employer’s business, as
compared with conduct motivated by purely personal considerations
entirely extraneous to the employer’s interests.” Id. (quoting
LeBrane v. Lewis, 292 So. 2d 216, 218 (La. 1974)).
The question of whether an employee’s tortious conduct was
sufficiently
employment-related
that
a
court
should
impose
vicarious liability upon the employer is a mixed question of fact
and law. Id. In LeBrane v. Lewis, the Louisiana Supreme Court
identified four factors to be considered in determining vicarious
liability: (1) whether the tortious act was primarily employment
17
rooted; (2) whether the tortious act was reasonably incidental to
the performance of the employee’s duties; (3) whether the act
occurred on the employer’s premises; and (4) whether it occurred
during the hours of employment. 292 So. 2d at 218. It is not
necessary that all four factors be met in order to find liability;
each case must be decided on its specific facts. Bates v. Caruso,
881 So. 2d 758, 762 (La. App. 4 Cir. 2004).
Generally, an employee’s conduct is within the course and
scope of his employment if “the conduct is of the kind 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.” Orgeron v. McDonald, 639 So. 2d
224, 226-27 (La. 1994). That the predominant motive of the employee
is to benefit himself does not prevent the employee’s conduct from
falling within the scope of his employment. Ermert v. Hartford
Ins. Co., 559 So. 2d 467, 477 (La. 1990). If the purpose of serving
the employer’s business actuates the employee to any appreciable
extent, the employer is subject to liability. Richard v. Hall, 874
So. 2d 131, 138 (La. 2004).
In contrast to negligence cases, in which the focus is on the
employee’s general activities at the time of the accident, in
intentional tort cases the court must determine “whether the
tortious
act
itself
was
within
the
scope
of
the
servant’s
employment.” Ermert, 559 So. 2d at 478. Importantly, however, “the
18
fact that an act is forbidden or is done in a forbidden manner
does not remove that act from the scope of employment.” Price v.
La. Dep't of Transp. & Dev., 608 So. 2d 203, 210 (La. App. 4 Cir.
1992). “The scope of risks attributable to an employer increases
with the amount of authority and freedom of action granted to the
servant in performing his assigned tasks.” Richard, 874 So.2d at
138.
“In police cases, Louisiana courts give special weight to the
authority wielded by on-duty police officers in performing the
vicarious liability analysis.” Doe v. Morris, No. 11-1532, 2013 WL
3933928, at *4 (E.D. La. July 30, 2013). For example, in Applewhite
v. City of Baton Rouge, the court held the City of Baton Rouge
vicariously liable for a police officer’s rape of a woman while he
was performing duties for the city. 390 So. 2d 119, 120-22 (La.
App. 1 Cir. 1979). The plaintiff in that case was walking along
the highway with companions when a uniformed on-duty officer
ordered her into his police car to be taken to jail for vagrancy.
Id. at 120. The officer then parked his car and forced the
plaintiff to engage in sex. Id. Although the City of Baton Rouge
maintained that the officer’s actions were far removed from the
course and scope of his employment, the court found otherwise. The
court found it significant that the officer “was on duty in uniform
and armed, and was operating a police unit at the time of this
incident.” Id. at 121.
19
The court in Applewhite also emphasized that a police officer
is
“a
public
servant
given
considerable
public
trust
and
authority.” Id. After reviewing Louisiana jurisprudence in the
context of police officers, the court concluded that “almost
uniformly, where excesses are committed by such officers, their
employers are held to be responsible for their actions even though
those actions may be somewhat removed from their usual duties.”
Id.; see also Cheatham v. Lee, 277 So. 2d 513 (La. App. 1 Cir.
1973) (holding city vicariously liable for battery committed by
officer
who
was
in
uniform
and
armed
but
was
off
duty
and
chaperoning private party outside of city limits); Bourque v. Lohr,
248 So. 2d 901 (La. App. 1 Cir. 1971) (holding city vicariously
liable for torts committed by an off-duty officer, uniformed
officer in his private vehicle).
On the other hand, the Louisiana Supreme Court’s decisions
finding no vicarious liability for torts committed by police
officers are distinguishable from the instant case. For example,
in Russel v. Noullet, the Louisiana Supreme Court held that an
off-duty police officer’s assault of a bystander and shooting into
a crowd of people were outside the course and scope of his
employment. 721 So. 2d at 870-73. In that case, the officer was
off duty, not wearing his uniform, and drinking at a social
gathering when one of his brothers got into a fight and a crowd
gathered. Id. at 870-71. The officer assaulted a bystander who
20
informed him that she intended to report him to the police, and he
then shot his gun into the crowd to protect himself from the
pursuing mob. Id. at 872-73.
The City relies primarily on Pendergast v. Leal, No. 98-3730,
2001 WL 777032 (E.D. La. July 10, 2001). In Pendergast, an officer
of the Gretna Police Department persuaded the plaintiff to quit
her job and pursue employment as an Intelligence Analyst with the
United States Customs Service. Id. at *1. At the time, the officer
was assigned to the High Intensity Drug Trafficking Area (“HIDTA”),
a task force comprised of federal and local agencies, and was
supervised by a Customs Special Agent. Id. The officer presented
the
plaintiff
with
a
letter
purportedly
“selecting”
her
for
employment, and her purported “work” consisted of driving around
with the officer to various locations and conducting surveillance.
Id. However, the plaintiff was never a federal employee. The court
held that the City of Gretna could not be held vicariously liable
because the officer was assigned to the HIDTA task force and the
only involvement the Gretna Police Department had with the officer
at the time was paying his salary. Id. at *4. Moreover, the court
reasoned that the officer’s deception was not incidental to his
employment because the officer did not have any administrative,
personnel, or procurement duties; he had no authority to hire or
fire anyone. Id. at *4, *8. The City’s focus on Pendergast is
unavailing. Pendergast is distinguishable on the facts, and the
21
court’s decision was primarily based on the fact that the officer
had been assigned to a special task force at the time when the
incidents occurred and was not under the control of the Gretna
Police Department.
The relevant facts in this case are undisputed. Williams was
an employee of the City assigned to the NOPD. (Rec. Doc. 95-8, at
3.)
On
the
day
in
question,
Williams
was
working
overtime
conducting a proactive patrol in a specific area where he was
assigned to work. Id. at 4. Williams conducted the patrol in a
marked NOPD vehicle, which he was driving. Id. In the course of
his patrol, Williams encountered Robair. Id. At the time of the
encounter, Williams was wearing his NOPD uniform. (Rec. Doc. 9510, at 3.) Williams admitted that he was carrying NOPD issued
equipment,
including
handcuffs,
a
firearm,
and
an
expandable
baton. Id. Furthermore, Williams admitted that he was on duty when
he encountered Robair. 4 Id. at 2.
Considering the undisputed facts and Louisiana precedent, the
Court finds that Williams was acting within the court and scope of
4 Although the City objected to Plaintiffs’ request for admission regarding
Williams’s “on duty” status, claiming that it “calls for speculation and a legal
conclusion,” Williams admitted that he was on duty and the evidence supports
this conclusion. Williams testified at his criminal trial that his shift started
at 8:00 a.m. on July 30, 2005, and the encounter with Robair occurred at
approximately 9:00 a.m. (Rec. Doc. 95-11, at 4.) Further, Williams admitted
that the City paid him for working for the NOPD that day. (Rec. Doc. 95-10, at
2.) Moreover, the City failed to include a separate statement of material facts
in opposition to Plaintiffs’ motion, as required by Local Rule 56.2. Therefore,
all material facts in Plaintiffs’ statement are deemed admitted for purposes of
this motion.
22
his employment at the time of the incident. Williams was carrying
out his employment duties in an area where he was assigned to work.
He testified that he went to patrol that particular area because
it is a “known hot area where narcotics are being sold,” and that
Robair’s block, specifically, is “a hot spot.” (Rec. Doc. 95-11,
at 5.) Like the officer in Applewhite, Williams was on the job, in
uniform, armed with police approved equipment, and operating a
police vehicle when he encountered Robair. Robair was handcuffed,
beaten with an NOPD issued baton, and transported to the hospital
in the NOPD vehicle. The fact that Williams’s actions were criminal
does not relieve the City of vicarious liability. Accordingly, the
LeBrane factors support the conclusion that Williams was acting
within the course and scope of his duties. Thus, his employer, the
City, may be held vicariously liable for his conduct under state
law.
D.
Predicate Constitutional Violation for Plaintiffs’ Monell
Claim Against the City
Lastly, Plaintiffs move for summary judgment on part of their
§ 1983 Monell claim against the City. Municipal liability under §
1983 requires proof of three elements: “(1) an official policy (or
custom), of which (2) a policymaker can be charged with actual or
constructive knowledge, and (3) a constitutional violation whose
‘moving force’ is that policy or custom.” Valle v. City of Houston,
613 F.3d 536, 541 (5th Cir. 2010). At this time, Plaintiffs move
23
for partial summary judgment on the “constitutional violation”
component of the third element of their Monell claim.
As discussed above, Plaintiffs have established that Williams
violated
Robair’s
unreasonable
partial
Fourth
seizure.
summary
Amendment
Accordingly,
judgment
on
right
to
Plaintiffs
the
be
are
“constitutional
free
from
entitled
to
violation”
component of the third element of their Monell claim. However, the
“constitutional violation” component is a narrow subpart of the
third element of the claim. As discussed more fully in the Court’s
May 2, 2016 Order and Reasons (Rec. Doc. 112), to satisfy the third
element,
Plaintiffs
must
still
establish
that
a
policy
was
“promulgated with deliberate indifference” to the known or obvious
consequences
that
the
constitutional
violation
would
result.
Piotrowski v. City of Houston, 237 F.3d 567, 579(5th Cir. 2001).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Partial
Summary Judgment Against Defendants Melvin Williams and the City
of New Orleans (Rec. Doc. 95) is GRANTED.
New Orleans, Louisiana, this 3rd day of June, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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