Badie v. New Orleans City et al
Filing
72
ORDER & REASONS granting in part and denying in part 56 Motion to Dismiss Case or, alternatively Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman. (clm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EMOND BADIE ET AL.
CIVIL ACTION
VERSUS
NO. 11-2991
THE CITY OF NEW ORLEANS ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is defendants’ motion to dismiss under
Federal Rule 12(c), or, alternatively, for summary judgment under
Federal Rule 56.
For the reasons that follow, the motion is
GRANTED in part, and DENIED in part.
Background
This dispute arises out of events that occurred during a
traffic stop.
On January 4, 2011, a New Orleans Police Department Officer,
George Olivier, observed a Chevrolet Camaro on the road with
expired license plate tags.
Emond Badie was driving the vehicle,
with his two minor daughters as passengers.
As Badie turned off
the road and into his apartment complex, Officer Olivier followed
Badie and activated his lights until Badie eventually stopped the
vehicle.
The events that followed are disputed.
Badie submits that
Officer Olivier demanded that he exit the vehicle, and that even
1
though he complied, Officer Olivier first handcuffed him and then
tased him multiple times.
Badie further submits that after he was
tased, Officer Olivier either wrapped the loose taser wire around
his wrists or connected the wire to the handcuffs, and also hit him
in the head with the taser gun.
Officer Olivier, however, submits
that he instructed Badie to remain in the vehicle but that Badie
instead
exited
the
vehicle
becoming
belligerent
and
hostile.
Officer Olivier submits he then ordered Badie to put his hands on
the roof of the car, and that a struggle ensued when he attempted
to handcuff Badie.
Officer Olivier submits he then repeatedly
ordered Badie to put his hands behind his back, and only after
Badie failed to comply did he tase Badie in the rear portion of his
left thigh.
Officer Olivier denies wrapping the taser wire around
Badie's wrists or hitting Badie with the taser gun.
A
video
camera
attached
to
Officer
Olivier's
taser
gun
captured the events immediately preceding Badie's tasing as well as
the tasing itself.
At the end of the altercation, Officer Olivier
placed Badie under arrest for an expired license plate tag, lack of
current registration, disregarding an officer's signal, improper
signal method, and resisting an officer.
On
December
6,
2011,
Badie
filed
suit
in
this
Court,
individually and on behalf of his minor daughters, naming as
defendants
the
City
of
New
Orleans;
the
New
Orleans
Police
Department; the New Orleans Superintendent of Police, Ronal Serpas,
2
in
his
official
and
individual
capacity;1
and
Olivier, in his official and individual capacity.
numerous claims under federal and state law.
Officer
George
Badie alleges
Under federal law,
Badie asserts that defendants violated his Fourth, Fifth, Eighth,
and Fourteenth Amendment rights and are liable pursuant to 42
U.S.C. § 1983.
Specifically, Badie contends that the defendants
violated his constitutional rights to be free from the use of
excessive force and cruel and unusual punishment and to due process
of law.
Badie claims these violations were the direct result of
illegal policies and customs of the City and Superintendent Serpas,
and that defendants conspired together to deprive him of his
rights.
Under state law, Badie alleges various torts, including
assault, battery, false arrest, false imprisonment, intentional
infliction of emotional distress, slander, criminal conspiracy, and
negligence.
In sum, Badie seeks compensatory and punitive damages
for himself, and compensatory damages on behalf of his daughters.
On January 24, 2012, plaintiff moved to voluntarily dismiss
all claims against the NOPD, which the Court granted on January 25,
2012.
Plaintiff's claims against the City, Superintendent Serpas,
and Officer Olivier remain pending. Defendants now move to dismiss
plaintiff's claims under Federal Rule 12(c), or, alternatively, for
1
Plaintiff purports to sue Superintendent Serpas in his
individual as well as his official capacity, however, plaintiff
raises no substantive allegations to support this conclusory
statement.
3
summary judgment under Federal Rule 56.
I.
A.
The standard for deciding a motion under Rule 12(c) of the
Federal Rules of Civil Procedure is the same as the standard for
deciding a motion under Rule 12(b)(6).
Great Plains Trust Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir.
2002). “A motion brought pursuant to [Rule 12(c)] is designed to
dispose of cases where the material facts are not in dispute and a
judgment on the merits can be rendered by looking to the substance
of the pleadings and any judicially noticed facts.” Id. at 312
(quoting Hebert Abstract Co. v. Touchstone Props. Ltd., 914 F.2d
74, 76 (5th Cir. 1990)).
In considering a Rule 12(b)(6), or a Rule 12(c), motion, the
Court “accepts ‘all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff.’” See Martin K. Eby Constr.
Co. v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead ‘enough facts to state a claim to relief that is plausible on
its face.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
569 (2007)).
“Factual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
4
the allegations in the complaint are true (even if doubtful in
fact).”
Twombly, 550 U.S. at 555 (quotation marks, citations, and
footnote omitted).
With some exceptions, the Court’s review on a motion to
dismiss is limited to the complaint and any attachments.
See Fin.
Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir.
2006).
Documents attached to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to the claim. Causey v. Sewell CadillacChevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.
2000)).
B.
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."
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
5
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.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
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.
C.
An exception to the summary judgment standard, however, may
apply in cases involving video evidence.
"When opposing parties
tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment."
6
Scott v. Harris, 550 U.S. 372,
380 (2007).
Accordingly, where the non-moving party's version of
facts is clearly belied by videotape evidence, the Court considers
the facts "in the light depicted by the videotape."
Id. at 381.
However, if the contents of the video are too uncertain, the Court
must view the facts in the light most favorable to the non-moving
party.
Ramirez v. Martinez, 716 F.3d 369, 374-75 (5th Cir. 2013).
II.
A.
Plaintiff
asserts
§
1983
claims
against
the
City,
Superintendent Serpas, and Officer George Olivier.
1.
Municipalities are “persons” within the meaning of § 1983.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
But
“[t]hey are liable only for their own acts and not those attributed
to them by principles of respondeat superior.”
Victoria W. v.
Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citing Monell, 436
U.S. at 691-92).
“[A] local government may not be sued under
§ 1983 for an injury inflicted solely by its employees or agents.
Instead, it is when execution of a government’s policy or custom
... inflicts the injury that the government as an entity is
responsible
In
under
other
§
words,
1983.”
Monell,
municipal
436
liability
U.S.
for
at
civil
694.
rights
violations under § 1983 is causation-driven, rather than respondeat
superior.
Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir.
7
2008).
Thus, in determining whether municipal liability attaches,
the Court looks to whether the plaintiff has shown, first, that the
municipality adopted a policy2 with “deliberate indifference” to
its
known
and
obvious
consequences,
and
second
that
the
municipality was the “moving force” behind the constitutional
violation.
City of Canton, Ohio v. Harris, 489 U.S. 378 (1989).3
The defendants contend that the plaintiff fails to state a
Monell claim that is plausible on its face.
Plaintiff
appears
to
assert
that
The Court agrees.
the
City
through
Superintendent Serpas failed to train, supervise, or discipline
Officer Olivier.
conclusory.
The plaintiff's allegations are merely vague and
Not only does plaintiff fail to identify in his
pleadings an official policy or custom, he falls well short of
alleging that the City adopted a policy or participated in a
widespread practice with deliberate indifference to its known
2
Official municipal policy pursuant to Monell, the U.S.
Supreme Court has observed, “includes the decisions of a
government’s lawmakers, the acts of its policymaking officials,
and practices so persistent and widespread as to practically have
the force of law.” See Connick v. Thompson, 131 S.Ct. 1350, 1359
(2011)(citations omitted) (“These are ‘action[s] for which the
municipality is actually responsible.’”).
3
A plaintiff must show that unconstitutional conduct is
directly attributable to the municipality through some official
custom or policy; “isolated unconstitutional actions by municipal
employees will almost never trigger liability.” See Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)(citations
omitted).
8
consequences;4 moreover, plaintiff also fails to allege causation:
a violation of constitutional rights whose “moving force” is the
City’s policy or custom.
The
Court
need
only
reference
the
purely
boilerplate
allegations of the complaint to demonstrate that plaintiff has
failed to state a claim for municipal liability.
In Paragraphs 17
and 18, the plaintiff asserts:
The constitutional violations and injuries to
plaintiff were caused directly and proximately
by the customs, policies, and practices of the
defendant, CITY, through the NOPD and the
defendant SERPAS, Chief of Police.
These
customs, policies and practices of the
defendants CITY and SERPAS include: (1) The
failure
to
properly
train,
supervise,
discipline, transfer, counsel, or otherwise
control police officers engaged in the
excessive use of force and other police abuse;
(2) the police code of silence; (3) police
misconduct in order to protect themselves, the
Department and the CITY from civil liability,
criminal prosecutions and internal discipline.
These
allegations
are
too
generic
and
entitled to the presumption of truthfulness.
conclusory
to
be
Courts “do not
presume true a number of categories of statements,” the Fifth
4
To establish deliberate indifference, a plaintiff must show
a pattern of violations that are fairly similar to what
ultimately transpired so that the failure of the City to respond
with different training, better supervision, or punishment
reflects a deliberate and conscious choice to endanger
constitutional rights. See Valle v. City of Houston, 613 F.3d
536 (5th Cir. 2010). The plaintiff has failed to plead facts
that if taken as true would allow the Court to draw the inference
that the City is liable for the alleged misconduct of the named
police officer.
9
Circuit
reminds,
“including
legal
conclusions;
mere
‘labels’;
‘[t]hreadbare recitals of the elements of a cause of action’;
‘conclusory statements’; and ‘naked assertions devoid of further
factual enhancement.’”
See Morgan v. Swanson, 659 F.3d 359, 370
(5th Cir. 2011) (citations omitted). These allegations simply fail
to include sufficient factual matter which, accepted as true, would
state a claim for municipal liability that is plausible on its
face.
The factual allegations in the complaint focus instead on
individual police officer conduct, for which the City is not liable
absent a showing that the moving force behind the conduct is the
City’s policy or custom.
Absent any allegation whatsoever attributing the alleged use
of excessive force to an official policymaker, and some policy or
custom (let alone that any hypothetical policy or widespread
practice was the moving force behind the constitutional violations)
that was adopted with deliberate indifference, the plaintiff fails
to state a Monell claim.5
2.
“The doctrine of qualified immunity protects public officials
from liability for civil damages insofar as their conduct does not
5
Any separate "supervisory liability" claim against
Superintendent Serpas likewise fails. Mouille v. City of Live
Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992) (citing Monell, 436
U.S. at 691-95). Plaintiff fails to allege any affirmative
action by or policy of Superintendent Serpas that caused his
alleged injuries. Mouille, 977 F.2d at 929.
10
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”
Brown v. Strain, 663
F.3d 245, 249 (5th Cir. 2011) (internal quotation marks and citation
omitted).
“Qualified immunity balances two important interests –
the need to hold public officials accountable when they exercise
power
irresponsibly
and
the
need
to
shield
officials
from
harassment, distraction, and liability when they perform their
duties reasonably.”
Pearson v. Callahan, 555 U.S. 223 (2009).
In
fact, “[q]ualified immunity represents the norm” and “is designed
to shield from civil liability all but the plainly incompetent or
those who violate the law.”
Brady v. Fort Bend County, 58 F.3d
173, 174 (5th Cir. 1995).
To
determine
whether
a
public
official
is
entitled
to
qualified immunity, the Court must determine (1) whether plaintiff
has shown a violation of a constitutional right, and (2) "whether
the
right
at
issue
was
clearly
defendant's alleged misconduct."
established
at
the
time
of
Pearson, 555 U.S. at 232-33
(internal quotation marks and citation omitted).
Once a defendant
has invoked the defense of qualified immunity, the burden shifts to
the plaintiff to show that the defense is unavailable. See Collier
v. Montgomery, 569 F.3d 214, 217-18 (5th Cir. 2009) (“Although
nominally an affirmative defense, the plaintiff has the burden to
negate the assertion of qualified immunity once properly raised.”).
A
plaintiff
must
establish
that
11
the
defendants
were
either
personally involved in the deprivation or that their wrongful
actions were causally connected to the deprivation. James v. Texas
Collin
Co.,
535
F.3d
365,
373
(5th
Cir.
2008).
And,
“each
individual defendant’s entitlement to qualified immunity [should be
examined] separately.”
Jacobs v. West Feliciana Sheriff’s Dept.,
228 F.3d 388, 395 (5th Cir. 2000)(citation omitted).
a.
Superintendent
Serpas
asserts
entitlement
to
qualified
immunity, and submits that plaintiff has failed to meet his burden
to negate the assertion.
The Court agrees.
Plaintiff has neither
alleged nor demonstrated that Superintendent Serpas violated a
clearly established constitutional right.
232.
Pearson, 555 U.S. at
Any remaining claims against Superintendent Serpas in his
individual capacity are therefore dismissed.
b.
Officer Olivier likewise asserts entitlement to qualified
immunity and submits that plaintiff has failed to meet his burden.
Plaintiff, however, contends that Officer Olivier violated his
constitutional rights to be free from excessive force and false
arrest, and malicious prosecution.6
There is no dispute that
Officer Olivier had probable cause to arrest plaintiff; plaintiff
6
Although plaintiff also alleges cruel and unusual punishment,
due process violations, and conspiracy in his complaint, he fails
to even mention these claims in his response to Officer Olivier's
assertion of qualified immunity.
12
pled guilty to one of the charges for which he was arrested (no
current vehicle registration).
Thus, plaintiff fails to allege a
constitutional violation for false arrest or malicious prosecution.
Heck v. Humphrey, 512 U.S. 477 (1994); see also Gibson v. State,
758 So. 2d 782, 788 (La. 2000).
Accordingly, Officer Olivier is
entitled to qualified immunity on the false arrest and malicious
prosecution claims.
Plaintiff's claim of excessive force, however, presents a
different question.
To establish that Officer Olivier violated
plaintiff's constitutional right to be free from excessive force,
plaintiff must show: "(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."
Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
Glen v. City of
Although a showing of
"significant injury" is no longer required in the context of an
excessive force claim, the Fifth Circuit requires a plaintiff to
have "suffered at least some form of injury."
180 F.3d 699, 700 (5th Cir. 1999).
Williams v. Bramer,
Further, the injury must be
"more than a de minimis injury" and must be evaluated in the
context in which the force was deployed. Id.
To determine whether
a use of force was reasonable, the Court looks to the totality of
the circumstances, giving "careful attention to the facts and
circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat
13
to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight."
Graham
v. Connor, 490 U.S. 386, 396 (1983).
Officer Olivier submits that plaintiff fails to allege an
injury, or alleges only a de minimis injury.
not
only
alleges
unconsciousness,
and
various
scars,
injuries
he
also
However, plaintiff
including
presents
severe
medical
pain,
records
indicating he suffered various abrasions, a first-degree burn on
his hand, and a contusion on his head.
Moreover, plaintiff
successfully alleges that his injuries resulted directly from
Officer Olivier's unreasonable use of force, whether true or not.
Officer Olivier next asserts his conduct was not excessive to
the force needed or objectively unreasonable.
Although he admits
he tased plaintiff, Officer Olivier insists he did so before
handcuffing plaintiff and only in response to plaintiff's active
resistance. Plaintiff, however, contends Officer Olivier tased him
after he was already handcuffed.
Officer Olivier submits this Court should reject plaintiff's
version of the facts and instead view the facts in the light
depicted by the video captured by Officer Olivier's taser gun.
However, plaintiff's version of the facts is not so "blatantly
contradicted" by the video such that no reasonable jury could
believe it.
Scott, 550 U.S. at 380.
The contents of the video are
too uncertain to discount plaintiff's allegations.
14
Ramirez, 716
F.3d at 374-75.
The camera faces downward; little of what occured
is visible, and the audio is muddled by a barking dog.
The video
establishes only some degree of hostility from plaintiff, that
Officer Olivier repeatedly requested that plaintiff place his hands
behind his back, and that Officer Olivier then tased plaintiff for
about twenty seconds.
Although the video undermines plaintiff's
contention that he was tased after he was handcuffed, it in no way
contradicts plaintiff's allegation that Officer Olivier later
wrapped the deployed taser wire around his wrists and hit him in
the head with the taser gun.
taser gun stops firing.
In fact, the video ends once the
Moreover, the record establishes that
plaintiff suffered first degree burns to his hand and a contusion
on his head, which cannot be explained by Officer Olivier's version
of tasing plaintiff's rear thigh.
Because the video does not
blatantly contradict plaintiff's allegations regarding Officer
Olivier's actions after the tasing, the Court views the evidence in
the light most favorable to plaintiff.
Viewing the record in the
light most favorable to the plaintiff, any reasonable officer in
Officer Olivier's place could arguably have recognized his conduct
was objectively unreasonable.
If, as plaintiff alleges, Officer
Olivier wrapped hot taser wire around his wrists and hit him in the
head with the taser gun after he was handcuffed and subdued, then
a reasonable jury might decide that Officer Olivier's conduct was
clearly excessive and objectively unreasonable.
15
Ramirez, 716 F.3d
at
378-79
(use
unreasonable).
of
force
after
handcuffing
That's what trials are for.
is
objectively
Not summary judgment.
The right to be free from excessive force is beyond dispute.
Pearson, 555 U.S. at 232-33; see Ramirez, 716 F.3d at 379. Because
a genuine issue of material fact exists with respect to whether
Officer Olivier continued to use force against the plaintiff after
he was handcuffed and subdued, Officer Olivier is not summarily
entitled
to
qualified
immunity
with
respect
to
plaintiff's
excessive force claim.
B.
Next, defendants target the state law claims for false arrest,
false imprisonment, slander, criminal conspiracy, and negligence.
For
reasons
plaintiff's
already
highlighted
allegations
regarding
in
this
those
Order
state
and
law
Reasons,
claims
are
woefully incomplete and wholly conclusory. See Morgan, 659 F.3d at
370.
As for plaintiff's claim of intentional infliction of
emotional
distress,
plaintiff
offers
nothing
to
support
that
Officer Olivier desired to inflict severe emotional distress or
knew or was substantially certain that such distress would result.
See White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
However, with respect to plaintiff's state law claims for
assault, battery, and excessive force, the factual basis for these
claims mirrors plaintiff's § 1983 excessive force claim.
them, summary judgment is denied.
16
As to
Robertson v. Hessler, 13 So. 3d
1214, 1225-32 (La. App. 4 Cir. 2009); see Ramirez, 716 F.3d at 37980.
C.
Finally, defendants challenge plaintiff's request for punitive
damages.
Punitive damages may be available for a § 1983 violation
where the violation involves recklessness or gross disregard for
the rights of the complaining party.
Smith v. Wade, 461 U.S. 30,
56 (1983); Lincoln v. Case, 340 F.3d 283, 291 (5th Cir. 2003).
Once again, material issues of fact obstruct summary relief.
In summary, defendants' motion is GRANTED IN PART as to all
claims against the City, all claims against Superintendent Serpas,
and all claims against Officer Olivier except for the federal and
state law claims for excessive force, assault, and battery, as to
which defendants' motion is DENIED IN PART.
New Orleans, Louisiana, September 12, 2013
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?