Bailey et al v. Normand et al

Filing 100

ORDER AND REASONS denying 94 Motion for Attorney Fees and Costs. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DENISE BAILEY ET AL.

CIVIL ACTION

VERSUS

NO: 12-2795

NEWELL NORMAND ET AL.

SECTION: “H”(2)

ORDER AND REASONS
Before the Court is Defendant's Motion for Attorney's Fees and Costs (R.
Doc. 94). For the following reasons, the Motion is DENIED.
BACKGROUND
In this action, Plaintiffs, appearing both individually and on behalf of their
deceased mother Willie Nell Bullock, alleged that on November 16, 2011, the
Gretna Police Department and Special Response Team (SRT) executed a search
warrant at Bullock's home. Plaintiffs alleged that during the execution of the
warrant, officers kicked Bullock, causing her to fall, strike the concrete, and
suffer injuries to the mouth and abdomen. At the time, Bullock was 65 years
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old, suffering from stage four cancer, and recovering from surgery on her
abdomen.

Plaintiffs alleged that these injuries resulted in a delay of

chemotherapy treatment, which contributed to Bullock's death.

Plaintiffs

brought claims of excessive force under 42 U.S.C. § 1983, assault, battery, false
imprisonment, and false arrest against three Gretna police officers, Scott Vinson,
James Price, and Russell Lloyd. In addition, they asserted claims of vicarious
and supervisory liability under section 1983 and allegations of negligent hiring,
supervision, and training against Chief of Police Arthur Lawson Jr. and Scott
Vinson, in his capacity as Lieutenant Commander of the SRT.
On October 10, 2014, this Court granted summary judgment to the
defendants, holding that Defendants were entitled to qualified immunity.
Through the course of discovery in this matter, Plaintiffs learned that many of
the allegations stated in their Complaint were false. Indeed, in their Opposition
to Defendant's Motion for Summary Judgment, Plaintiffs acknowledged that the
officers named in the Complaint were no longer the officers they believed had
assaulted Bullock. Plaintiffs were, however, denied leave to amend their
Complaint at that stage in the litigation in order to add the newly discovered
officers.1 Plaintiffs conceded that the officers named in the Complaint were not
responsible for the injuries allegedly sustained by Bullock.
Further, Plaintiffs failed to support their allegations that the Gretna
Police Department did not adequately train, discipline, or supervise their officers
when (1) they did not keep a record of complaints made against officers, (2) no
1

R. Doc. 76.

2

officers were disciplined in connection with this incident, and (3) the number of
officers used in the execution of this search warrant was excessive. Plaintiffs did
not indicate how these actions violated Bullock's constitutional rights, nor how
they were causally connected to the incident at issue in this case. Plaintiffs also
failed to show any prior incidents in which these policies lead to constitutional
violations.
After this Court granted summary judgment in its favor, Defendants
moved for attorney's fees and costs on the ground that Plaintiffs' claims were
frivolous.
LEGAL STANDARD

Pursuant to 42 U.S.C. § 1988, a court may, in its discretion, award
attorney's fees to the prevailing party in a section 1983 action. "A prevailing
defendant [in a section 1983 action] is entitled to fees only when a plaintiff's
underlying claim is frivolous, unreasonable, or groundless."2 "[A] court must ask
whether the case is so lacking in arguable merit as to be groundless or without
foundation rather than whether the claim was ultimately successful."3 "To
determine whether a claim is frivolous or groundless, [the Fifth Circuit has]
stated that courts may examine factors such as: (1) whether the plaintiff
established a prima facie case; (2) whether the defendant offered to settle; and
(3) whether the court dismissed the case or held a full trial."4 If a suit involves
2

Myers v. City of W. Monroe, 211 F.3d 289, 292 (5th Cir. 2000).

3

Offord v. Parker, 456 F. App'x 472, 474 (5th Cir. 2012).

4

Doe v. Silsbee Indep. Sch. Dist., 440 F. App'x 421, 425 (5th Cir. 2011).

3

both frivolous and non-frivolous claims, a court may grant reasonable fees to the
prevailing defendant only for costs that the defendant would not have incurred but for
the frivolous claims.5 Accordingly, a court must assess the frivolity of each claim
individually.6
LAW AND ANALYSIS

A. Assault, Battery and Section 1983 Excessive Force Claims
Defendants argue that they should be awarded attorney's fees in this
matter because Plaintiffs' claims of excessive force, assault, and battery lacked
foundation in law or fact. Specifically, Defendants point to the fact that none of
Plaintiffs' witnesses actually saw an officer strike Bullock, that the officers sued
were ultimately revealed to have never entered Bullock's home, and that
Bullock's statements regarding the incident were inconsistent.
Plaintiffs argue that their case, although unsuccessful, was not frivolous.
Plaintiffs state that their failure to prove many of the allegations in the
Complaint or name the correct officers from the outset was due to Bullock's
death shortly before the case was filed. Because Bullock was no longer available
to testify and because she was the only person inside the house at the time of the
incident, Plaintiffs had no non-law enforcement witnesses to verify her claims.
As proof of their claims, Plaintiffs point to the record of Bullock's visit to the
hospital shortly after the search of her home. The record indicates that Bullock

5

Fox v. Vice, 131 S. Ct. 2205, 2215 (2011).

6

See Greco v. Velvet Cactus, LLC, No. 13-3514, 2014 WL 6684913, at *2 (E.D. La. Nov.
25, 2014).

4

was treated for abdominal bruising and had a swollen and lacerated lip.7 It also
indicates that Bullock told hospital personnel that her injuries were a result of
being thrown to the ground by a Gretna police officer in her home earlier that
day.8
In determining whether a claim is frivolous, the Supreme Court has urged
that:
[I]t is important that a district court resist the understandable
temptation to engage in post hoc reasoning by concluding that,
because a plaintiff did not ultimately prevail, his action must have
been unreasonable or without foundation. . . . No matter how honest
one's belief that he has been the victim of discrimination, no matter
how meritorious one's claim may appear at the outset, the course of
litigation is rarely predictable. Decisive facts may not emerge until
discovery or trial."9
This Court holds that while Plaintiffs had a difficult time proving the allegations
of their Complaint, there is sufficient evidence in the record to establish that
their claims were not groundless or lacking in factual support. The record
reveals that Bullock sustained an injury on the day of the search, which she
stated was caused by an officer during the search of her home.10 "Thus, this is
7

R. Doc. 97-13.

8

R. Doc. 97-13.

9

Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412,
421–22 (1978).
10

Dudley v. Johnson, 99 F.3d 1134 (5th Cir. 1996) ("Having carefully reviewed the
record, we conclude that Dudley's civil rights claim, while weak, was not without arguable legal
merit or factual support. The record reflects that Dudley was forcibly restrained by Johnson
and that she possibly suffered injury as a result. Accordingly, we conclude that the district
court did not abuse its discretion in denying Defendants' request for attorney's fees.").

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not a case where plaintiff[s'] claims were manufactured out of whole cloth."11
Plaintiffs' difficulty in identifying the responsible officers does not render their
claims groundless; these decisive facts merely did not emerge until Plaintiffs
were allowed discovery.12 It is possible that Plaintiffs would have established a
prima facie case of excessive force had they been able to identify the responsible
officers from the outset.
B. False Imprisonment/False Arrest
Defendants next allege that Plaintiffs' allegations of false arrest and false
imprisonment were frivolous because Bullock was never arrested. Plaintiffs did
not dispute that Bullock was never arrested. Instead, they alleged that Bullock
was constructively imprisoned in a chair outside of her home during the
execution of the search warrant. The record includes an interview with Bullock
by the Internal Affairs Division of the Greta Police Department in which she
stated that she was not allowed to reenter her home, nor were her children
allowed to approach her to check on her condition during the search. To
establish a prima facie case of false imprisonment, Plaintiffs need only have
shown (1) detention of the person and (2) the unlawfulness of the detention.13
Formal arrest by a police officer is not a requirement of a false imprisonment

11

Greco, 2014 WL 6684913, at *3.

12

See Christiansburg, 434 U.S. at 421–22.

13

Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La. 2006).

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claim.14 Accordingly, Plaintiffs' claim that Bullock was falsely imprisoned is not
lacking a basis in law or fact.
C. Section 1983 Vicarious Liability
Defendants next point out that Plaintiffs' Complaint expressly alleges that
Defendant Police Chief Arthur Lawson, Jr. was vicariously liable for the actions
of the officers accused of using excessive force against Bullock. It is well settled
that "[u]nder section 1983, supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability."15 Accordingly, this allegation
had no basis in law and was frivolous.
Despite this finding, the Court declines to award attorney's fees pursuant
to section 1988 that would not have been incurred but for Plaintiffs' allegations
of vicarious liability. While such a claim was frivolous, the factual allegations
underpinning this case are not. Plaintiffs should not be penalized for the
decision of their attorneys to include a legally baseless allegation in the
Complaint.16 "Those issues . . . should be addressed [if at all] in [a] Motion[] for
Sanctions whether under Fed R. Civ. P. 11 or 28 U.S.C. § 1927."17
14

See, e.g., Noel v. Jack Eckerd Corp., 594 So. 2d 1138, 1138 (La. Ct. App. 1992)
(discussing plaintiff's claim alleging the defendant's employees detained him for over one hour
when they suspected him of shoplifting).
15

Hobart v. Estrada, No. 13-20022, 2014 WL 4564878 (5th Cir. Sept. 16, 2014).

16

See Broussard v. Lafayette Consol. Gov't, No. 13-CV-2872, 2015 WL 745671, at *4
(W.D. La. Feb. 20, 2015) ("[T]he Court found that Plaintiff's legitimate factual allegations were
construed by her attorneys into legal claims found to be frivolous, groundless and
unreasonable. Section 1988 does not authorize the award of attorney's fees against a plaintiff's
attorney. In the instant case, it would be unfair to penalize Plaintiff for the decisions of her
attorneys, and the undersigned declines to do so.").
17

Id.

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D.

Section

1983

Supervisory

Liability

and

Negligent

Hiring,

Supervision, and Training
Next, Defendants argue that Plaintiffs' allegations of negligent training,
supervision, and hiring were frivolous because none of the Plaintiffs testified to
any knowledge of a policy or custom that caused a constitutional violation.
While this may be true, that fact alone does not render Plaintiffs' claims
frivolous. Indeed, Plaintiffs supported their allegations with expert testimony.
Their expert testified that the Gretna Police Department does not adequately
train, discipline, or supervise their officers because (1) they do not keep a record
of complaints made against officers, (2) no officers were disciplined in connection
with this incident, and (3) the decision to use as many SRT officers as were
available in executing the search warrant was likely to lead to constitutional
violations because of safety concerns. The fact that these allegations did not rise
to the level of a constitutional violation does not make them groundless or
frivolous. Indeed, Defendants have not offered any evidence that the facts on
which Plaintiffs placed these allegations are false. Accordingly, this Court
declines to award attorney's fees to Defendants on the basis of this claim.
Having discussed the merit of Plaintiffs' claims above, this Court now
considers the final two factors set forth by the Fifth Circuit in considering the
frivolity of a claim: (1) whether the defendant offered to settle and (2) whether
the court dismissed the case or held a full trial.18 First, neither side has
indicated whether there was ever an offer to settle, but the parties attended a
18

Doe, 440 F. App'x at 425.

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settlement conference before the magistrate judge prior to the dismissal of this
case. Finally, this case was dismissed on summary judgment prior to trial. This
Court notes, however, that the parties engaged in a significant amount of
discovery over the nearly two year pendency of this suit.19 While this Court has
taken these factors into consideration, they are merely guideposts.20
"Determinations regarding frivolity are to be made on a case-by-case basis."21
As such, these factors do not convince this Court that attorney's fees are justified
in this case.
In support of this holding, the Court notes the policy behind 42 U.S.C. §
1988. "The primary purpose of § 1988 is to encourage private enforcement of the
civil rights statutes, while at the same time protecting defendants from
burdensome litigation having no legal or factual basis."22

"[A]n award of

attorney's fees to a prevailing defendant under § 1988 is 'presumptively
unavailable'" unless the defendant proves the plaintiff's claim was "frivolous,
unreasonable, or groundless."23 The Fifth Circuit has "affirmed awards of
attorney's fees where the plaintiff's civil rights claim lacks a basis in fact or
relies on an undisputably meritless legal theory."24 This Court holds that this
is not such a case. While it has no trouble acknowledging that the incident and
19

See R. Doc. 26 (stating that defendants had completed 12 depositions and produced
more than 5,000 documents but further discovery was needed).
20

Doe, 440 F. App'x at 424.

21

Id. at 425.

22

Id.

23

Id.

24

Id.

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injuries alleged in Plaintiffs' Complaint may have been exaggerated, this Court
cannot say that Plaintiffs' claims lacked a basis in fact. Plaintiffs' claims were
based on the documented statements of their deceased mother. It is undisputed
that Bullock sought medical care within hours of the search of her home and
that she believed that members of the Gretna Police Department were to blame
for her injuries. This Court will not penalize Plaintiffs for seeking to vindicate
their deceased mother's rights. As such, this Court declines to award attorney's
fees in this matter.

CONCLUSION
For the foregoing reasons, Defendants' Motion is DENIED.

New Orleans, Louisiana, this 18th day of March, 2015.

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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