Vinas et al v. City of New Orleans et al

Filing 29

ORDER AND REASONS granting 14 Motion for Partial Summary Judgment. Signed by Judge Martin L.C. Feldman on 9/21/11. (tsf, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MATTHEW VIÑAS

CIVIL ACTION

Versus

NO. 10-03211

CHIEF RONAL E. SERPAS, ET AL.

SECTION: “F” “4"

ORDER AND REASONS
Before the Court is the defendants’ motion for partial
summary judgment.

For the reasons that follow, the motion is

GRANTED.
Background
This case arises out of plaintiff’s arrest by officers of
the New Orleans Police Department while he was partying on
Bourbon Street during a visit to New Orleans.
During the early morning hours of October 4, 2009, plaintiff
and his friend were visiting Bourbon Street.
drinks while there.

Plaintiff had a few

At one point in the night, plaintiff was on

the balcony of a Bourbon Street bar and threw beads from the
balcony onto the street.

Shortly after coming out of the bar,

two New Orleans Police officers handcuffed plaintiff and arrested
him.

The plaintiff complained more than once that his handcuffs

were too tight, and one of the officers loosened his cuffs.
(Plaintiff’s handcuffs were too tight for approximately ten
minutes).

Plaintiff was taken to Central Lockup for the night

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and was released the next day.

The reasons given for the arrest

were plaintiff’s public drunkenness and disturbing the peace.
Plaintiff filed this suit in September 2010, asserting
numerous claims against, among others, the two officers who
arrested him, the City of New Orleans, and the New Orleans Chief
of Police.

As one of his claims, plaintiff contends that the

arresting police officer used excessive force in handcuffing him
and hurt his wrists.

Plaintiff asserts excessive force claims

under both federal and state law.

Plaintiff also asserts a

municipal liability claim against the City of New Orleans,
asserting broadly that the City had a policy or custom of
encouraging intimidating and abusive treatment of people when
police officers arrest them.

The pending motion seeks summary

relief on the excessive force and municipal liability claims.
I. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.

See Matsushita Elec.

Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine

issue of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See id.

Therefore, "[i]f the evidence is merely

colorable, or is not significantly probative," summary judgment
is appropriate.

Id. at 249-50 (citations omitted).

Summary

judgment is also proper if the party opposing the motion fails to
establish an essential element of his case.
Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex Corp. v.

In this regard, the non-

moving party must do more than simply deny the allegations raised
by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents do not qualify as competent opposing evidence.
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549
(5th Cir. 1987).

Finally, in evaluating the summary judgment

motion, the Court must read the facts in the light most favorable
to the non-moving party.

Anderson, 477 U.S. at 255.

II. Plaintiff’s excessive force claims
A. Excessive force claim under federal law
A claim under federal law that a law enforcement officer
used excessive force in apprehending or arresting a person is
analyzed under the Fourth Amendment to the United States

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Constitution.

Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865,

104 L.Ed. 2d 443 (1983).

To establish an excessive force claim,

the plaintiff must demonstrate: “(1) an injury (2) which resulted
directly and only from the use of force that was excessive to the
need and (3) the force used was objectively unreasonable.”
v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).

Glenn

Further,

the “injury must be more than a de minimis injury and must be
evaluated in the context in which the force was employed.”

Id.

As the Fifth Circuit has expressly held, “handcuffing too
tightly, without more, does not amount to excessive force."

Id.

Plaintiff points to nothing that might establish that he
received an injury as a result of being handcuffed too tightly.
Plaintiff admitted in his deposition that he never received
treatment for his wrists.

He further stated that he never told

anyone about his wrists being harmed when he arrived at Central
Lockup after his arrest.

Reminded of the Fifth Circuit’s

injunction that “handcuffing too tightly, without more, does not
amount to excessive force,” the Court grants defendant’s motion
for partial summary judgment as to plaintiff’s federal excessive
force claim.
B. Excessive force claim under state law
Under Louisiana law,
The use of force by law enforcement officers
must be tested by the "reasonable force"
standard established by La. Code Crim. Proc.
Ann. art. 220. The test precludes clearly
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inappropriate force. The use of force when
necessary to make an arrest is a legitimate
police function. But if the officers use
unreasonable or excessive force, they and
their employer are liable for any injuries
which result. Whether the force used is
reasonable depends upon the totality of the
facts and circumstances in each case.
Robertson v. Hessler, 13 So. 3d 1214, 1226 (La. Ct. App. 2009).
Even under this test, the Court finds that tight handcuffs do not
equate with excessive force, without more.

As with plaintiff’s

claim for excessive force under federal law, on this record, the
plaintiff fails to allege an actual injury, beyond the temporary
discomfort of the tight handcuffs.
III. Plaintiff’s municipal liability claim
The Fifth Circuit has held that,
A municipality is liable under § 1983 for a
deprivation of rights protected by the
Constitution or federal laws that is
inflicted pursuant to official policy.
Official policy is: 1. A policy statement,
ordinance, regulation, or decision that is
officially adopted and promulgated by the
municipality's lawmaking officers or by an
official to whom the lawmakers have delegated
policy-making authority; or 2. A persistent,
widespread practice of city officials or
employees, which, although not authorized by
officially adopted and promulgated policy, is
so common and well settled as to constitute a
custom that fairly represents municipal
policy. Actual or constructive knowledge of
such custom must be attributable to the
governing body of the municipality or to an
official to whom that body had delegated
policy-making authority.
Bennett v. Slidell, 735 F.2d 861, 862 (5th Cir. 1984).

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The Court

finds nothing in the record which would tend to establish that
the City of New Orleans had an official policy of encouraging
intimidating and abusive treatment of people when officers arrest
them.

Plaintiff has failed to point to either a policy

statement, ordinance, or regulation, or a persistent widespread
practice that would support their claim for municipal liability.
Plaintiff’s observation that “the recent history of the New
Orleans Police Department may of itself be sufficient to satisfy
the ‘culpability and causation’ test required by Monell” is a
telling admission of plaintiff’s inability to do more than hope.
Plaintiff’s remaining federal claims are: (1) false arrest
in violation of the Fourth, Fifth, Eighth and Fourteenth
Amendments to the U.S. Constitution; (2) conspiracy on the part
of the New Orleans Police Department in violating plaintiff’s
civil rights; and (3) violation of plaintiff’s equal protection
rights under the U.S. Constitution as a result of plaintiff’s
false arrest, false charging, and denial of a good faith
prosecution.

Plaintiff’s remaining state law claims relate to

alleged violations of plaintiff’s rights under the Louisiana
State Constitution and Louisiana state statutes.

The officers

allegedly violated plaintiff’s rights to: due process of law,
individual dignity, privacy, judicial review, human treatment,
and access to courts under the Louisiana Constitution.

Further,

plaintiffs contend violations of state statutes for battery,

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kidnaping, false imprisonment, extortion, negligence, and
imprudence or want of skill.
Accordingly, IT IS ORDERED: that the defendants’ motion is
GRANTED with respect to plaintiff’s claims for excessive use of
force under both state and federal law, as well as plaintiff’s
claim for municipal liability.

New Orleans, Louisiana, September 21, 2011

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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