Digiovanni et al v. Lawson et al

Filing 66

ORDER granting 30 Motion for Summary Judgment, and Plaintiffs' claims against the Gretna Defendants are Dismissed With Prejudice. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PHILLIP DIGIOVANNI AND

CIVIL ACTION

CONNIE DIGIOVANNI
VERSUS

NO. 13-334

ARTHUR LAWSON, ET AL.

SECTION "B"(4)
ORDER AND REASONS

Causes of Action
Plaintiffs, Phillip Digiovanni and Connie Digiovanni, brought
the

instant

U.S.C.

§

suit

1983

against

and

state

various
tort

government

law

for

defendants

alleged

police

under

42

misconduct

following the arrest of Phillip Digovanni.
Defendants represent two separate law enforcement agencies and
municipalities: (1) “The Gretna Defendants”—Chief Arthur Lawson, the
City

of

Gretna,

Officer

Phillip

Sardino,

and

other

unidentified

Gretna officers; and (2) “The Jefferson Defendants”—Sheriff Newell
Normand, Deputy Joshua Dennis, and unidentified Jefferson officers.1
For

the

Defendants’

following

Motion

for

reasons,
Summary

IT

IS

Judgment

ORDERED
(Rec.

that
Doc.

the
No.

Gretna
30)

is

GRANTED, and Plaintiffs’ claims against the Gretna Defendants are
DISMISSED WITH PREDJUDICE. Plaintiffs maintain all causes of action
alleged against the remaining Jefferson Defendants.

1

Officer Daniel Banhardt, the Gretna City Police Department, and the Jefferson
Parish Sheriff’s Department were all previously named defendants but voluntarily
dismissed from the action by Plaintiffs. (Rec. Doc. Nos. 19, 21).

1 

Facts of the Case
Plaintiffs claim that on February 23, 2012 Phillip Digiovanni
called the Gretna Police Department regarding threats made to him by
a group of males whom he had a prior altercation with. According to
Plaintiffs, the men had surrounded Phillip Digiovanni’s car as he was
driving,

screamed

obscenities

and

threats,

and

blocked

him

from

passing down the street. In response, Phillip Digiovanni placed a gun
on the dashboard of his vehicle. This caused the men to relinquish,
and to let him pass.
Upon arriving home, Plaintiffs called the police. Officer Daniel
Banhardt

of

Plaintiffs’

the

Gretna

residence.

He

Police
asked

Department
Phillip

was

dispatched

Digiovanni

if

he

to

had

a

weapon. Phillip Digiovanni responded he did, and that there was a
pistol inside his residence. Officer Banhardt then advised Phillip
Digiovanni that he had an outstanding criminal attachment, and placed
2

him under arrest.

A second officer, Phillip Sardino, then arrived on

the scene.
Plaintiffs allege that sometime thereafter officers asked Connie
Digiovanni

to

go

into

Plaintiffs’

residence

to

retrieve

the

gun

Phillip Digiovanni had informed the police about. She complied. A
police

officer

followed

her

into

the

residence

–

without

her

2

Phillip Digiovanni claims he was physically disabled at the time of his arrest.
His disability requires him to wear a permanent colostomy bag – a fact Plaintiffs’
counsel mentions twenty-three separate times in his Opposition to the instant
Motion for Summary Judgment. (Rec. Doc. No. 36).

2 

permission – and retrieved the gun. The gun was then removed from the
residence and retained by the officers.3
Phillip

Digiovanni

was

then

taken

to

the

Jefferson

Parish

Correctional Center (JPCC), and was booked with Aggravated Assault
and Disturbing the Peace. Sometime thereafter, Plaintiffs allege that
Deputy Joshua Dennis of the Jefferson Parish Sherriff’s Department
began to taunt Phillip Digiovanni. Then, Dennis, along with other
officers, beat Phillip Digiovanni causing injuries to his body.
Phillip Digiovanni was later released from jail on a $200.00
personal bond. Connie Digiovanni picked-up Phillip Digiovanni from
the

jail

and

transported

him

to

Ochsner

Medical

Center

where

he

received medical attention for injuries he claims to have received
while at JPCC. The instant suit followed.
Nature of Motion and Relief Sought
The Gretna Defendants now seek summary judgment on all claims.
Plaintiffs oppose. The Jefferson Defendants have filed nothing in
relation to the pending motion, nor have they filed their own motion
for summary judgment. Accordingly, the Court’s review of the instant
motion is limited to those claims concerning the Gretna Defendants.
Analysis
I. Summary Judgment Standard
Summary judgment is proper if the record evidence shows that
there is no genuine issue as to any material fact, and that the

3

Plaintiffs claim that to date they have never recovered the gun seized by police.

3 

moving party is entitled to judgment as a matter of law.

Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

A

genuine issue exists if the evidence would allow a reasonable trier
of fact to return a verdict for the nonmovant.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

Although the Court must

consider the evidence with all reasonable inferences in the light
most favorable to the nonmoving party, the nonmovant must produce
specific facts to demonstrate that a genuine issue exists for trial.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). “[T]he issue of material fact required by Rule 56 to
be present to entitle a party to proceed to trial is not required to
be

resolved

conclusively

in

favor

of

the

party

asserting

its

existence; rather, all that is required is that sufficient evidence
supporting the claimed factual dispute be shown to require a jury or
judge to resolve the parties’ differing versions of the truth at
trial.” First National Bank of Arizona v. Cities Service Co., 391
U.S. 253, 288-89 (1968).
II. Defenses
The Gretna Defendants claim several governmental immunities and
categorical defenses from suit, which they argue require dismissal of
Plaintiffs’ claims. The Court will review each defense in turn.
A. Municipal Liability
Local governing bodies cannot be held vicariously liable under
42 U.S.C. § 1983 purely for the actions of their employees. Monell v.
4 

Dep't of Soc. Services of City of New York, 436 U.S. 658, 659 (1978).
Rather, a local government may only be liable under § 1983 where an
“official policy” of the governing body inflicts injury such that the
government as an entity can fairly be held responsible. Id. at 694.
Where a government officer is sued in their official capacity
the analysis is the same — since an official capacity suit is treated
as a suit against the governing body. Burge v. Parish of St. Tammany,
187 F.3d 452, 468 (5th Cir. 1999). Thus, where an officer is sued in
their official capacity under a theory of vicarious liability for the
actions of other employees, the officer may only be held liable where
they had policymaking authority, and where they instituted a policy
or practice that caused the eventual injury. Id.; Flores v. Cameron
Cnty., Tex., 92 F.3d 258, 263 (5th Cir. 1996).
In analyzing whether a policy actually exists, “[a] plaintiff
may

not

infer

a

policy

merely

because

harm

resulted

from

some

interaction with a governmental entity.” Colle v. Brazos Cnty., Tex.,
981 F.2d 237, 245 (5th Cir. 1993). Rather, a specific policy must be
alleged for liability to attach. Murray v. Town of Mansura, 76 F.
App'x

547,

549

(5th

Cir.

2003).

For

example,

in

cases

where

an

arresting police officer commits a constitutional violation, it does
not necessarily follow that the city adopted a policy endorsing such
acts for which the city can be held liable. Colle at 245.
Plaintiffs

allege

in

their

Complaint

that

Officer

Sardino’s

actions were unlawful, and “are imputed to their employer . . . Chief
5 

of Police, Arthur Lawson, whom supervised and employed [Sardino].”
Complaint at ¶ 12 (Rec. Doc. No. 1). Plaintiffs however point to no
policy – either in their Complaint or in their opposition to the
instant motion — implemented by Chief Lawson that caused Plaintiffs’
alleged injury. Accordingly, relief is not cognizable and Plaintiffs’
claims against Chief Lawson for vicariously liability are dismissed.
Burge at 468; Colle at 245.
Plaintiffs’ claim that Chief Lawson failed to properly train
officers similarly fails. Plaintiffs do not identify any specific
lack of supervision or training that led to the alleged false arrest
of Phillip Digiovanni.4 Plaintiffs’ claims against the City of Gretna

4

Indeed, Phillip Digiovanni admitted in deposition that he would not be able to
prove this claim at trial:
Q. Paragraph 17 says, “Petitioners aver that defendant, Chief of Police,
Arthur Lawson, failed to supervise and train defendants, Banhardt, Sardino,
and ABC Gretna Officers, as described in this hereinabove matter.”
A. I never said that. I mean, no. What about it?
Q. Do you know that to be a fact?
A. No.
Q. - - that they weren’t trained?
A. No.
Q. Okay. Do you have an expert witness that is going to say they weren’t
trained.
A. No.
Q. “That this failure to train and supervise unleashed these
Defendant/Officers upon Petitioner, to commit the offenses and torts
heretofore described under color of law.” Did the Gretna Police Officers do
anything other than arrest you and bring you to jail?
A. No.
Q. And they didn’t hit you or assault you?

6 

additionally lack merit. Plaintiffs point to no policy or practice
instituted by the City that can explain any of the officer’s alleged
misdeeds. Colle at 245.
B. Individual Liability
Since no municipal or official capacity liability exists, the
Court next considers whether individual capacity suits can proceed
against

Chief

Lawson

or

Officer

Sardino.

Upon

review,

all

of

Plaintiffs’ individual capacity claims against the Gretna Defendants
are easily dismissed.
First, Plaintiffs’ claims that Phillip Digiovanni was unlawfully
arrested

lack

outstanding

merit.

criminal

Phillip

Digiovanni

attachment

for

was

contempt

arrested
of

on

court.

an
See

Defendants’ Motion for Summary Judgment, Exhibit B, (Rec. Doc. No.
30-2). This more than gave Officer Sardino probable cause for the
arrest, and can therefore not support a claim for violations of §
1983 nor a state tort claim for false arrest and imprisonment. Allen
v. Normand, 2009 WL 2448253 *14 (E.D. La. Aug. 7, 2009); Dyas v.
Shreveport

Police

Dep't,

136

So.

3d

897,

903

(La.

Ct.

App.

2014)(“[I]f there was probable cause to arrest, then there is no
false arrest cause of action.”). Plaintiffs’ counsel discusses at
length the two other charges Phillip Digiovanni was arrested for.

A. No.
Defendants’ Motion for Summary Judgment, Exhibit A, Deposition of PHILLIP
DIGIOVANNI, pgs. 68-69 (Rec. Doc. No. 30-2).

7 

These other offenses are ultimately irrelevant to the unlawful arrest
analysis — since the arrest as a whole was supported by probable
cause given the outstanding attachment. See Wells v. Bonner, 45 F.3d
90, 95 (5th Cir. 1995)(“If there was probable cause for any of the
charges made . . . then the arrest was supported by probable cause,
and the claim for false arrest fails.”).
Second, to the extent that Phillip Digiovanni contends Greta
officers

assaulted

him,

this

claim

is

belied

by

his

deposition

testimony. After describing the beating he claimed occurred at the
Jefferson Parish Correctional Center (JPCC), Phillip Digiovanni was
asked “you can’t sit here today and tell me honestly that any Gretna
policemen were involved in that; correct?”

Defendants’ Motion for

Summary Judgment, Exhibit A, Deposition of PHILLIP DIGIOVANNI, p. 38
(Rec. Doc. No. 30-2). He responded “Correct.” Id. When ask whether he
was injured by the Gretna police officers who arrested him prior to
his being taken to the JPCC, he responded “No, sir, I wasn’t.” Id. p.
40. Later, when asked “[d]id any Gretna Police officer assault you or
batter you?” he responded “No.” Id. at 58-59. Even disregarding these
admissions, Plaintiffs have offered no evidence into the record to
establish

the

involvement

of

any

Gretna

officer

in

his

alleged

assault at JPCC. Accordingly, judgment as a matter of law dismissing
the

assault

claims

as

they

relate

appropriate.

8 

to

the

Gretna

defendants

is

Third, Plaintiffs’ claims for unlawful search and seizure must
fail.

Connie

Digiovanni’s

deposition

testimony

establishes

that

Officer Daniel Banhardt was the only officer to enter her home to
retrieve the gun. Defendants’ Motion for Summary Judgment, Exhibit A,
Deposition of CONNIE DIGIOVANNI, p. 12-16 (Rec. Doc. No. 30-2). Thus,
if an unconstitutional search did occur, Officer Banhardt is the only
person that could be held individually liable. Officer Banhardt was
dismissed from this action voluntarily by plaintiffs several months
ago.

See

conduct

(Rec.
a

liability,

Doc.

complete
since

no

No.

19,

analysis

21).
on

Therefore,

whether

potentially

liable

the

the

Court

search

defendant

need

could

remains

not

permit
in

the

on

the

action.
Lastly,

Plaintiffs’

state

claims

for

conversion

fail

existing record.5 Plaintiffs’ gun was seized as part of the police
investigation surrounding his altercation and arrest. Counsel for the
Gretna Defendants represents that there is a procedure in place for
retrieving property seized as evidence of a crime. Defendants’ Motion
for

Summary

reportedly

Judgment,

only

(Rec.

recently

Doc.

availed

No.

44

at

themselves

of

7-8).
this

Plaintiffs
procedure

–

filing a motion with the Gretna Mayor’s Court on July 14, 2014.

5

Technically speaking, no cause of action for conversion exists in the Louisiana
Civil Code. Gibbs v. Harris, 799 So. 2d 665, 669-70 (La. Ct. App. 2001). However,
“causes of action for conversion have been inferred from the Codal articles
providing that the right of ownership, possession, and enjoyment of movables are
protected by actions for the recovery of the movables themselves, actions for
restitution of their value, and actions for damages. La. C.C. arts. 511, 515, 521,
524, 526, and 2315.” Dual Drilling Co. v. Mills Equip. Investments, Inc., 721 So.
2d 853, 856 (La. 1998).

9 

Plaintiffs have submitted nothing to contradict this fact, nor any
independent evidence that they have made a formal request for the gun
that was denied by the Gretna defendants. Accordingly, Plaintiffs
cannot meet their burden to prove conversion at this time since they
fail

to

demonstrate

the

Gretna

Defendants

unlawfully

displaced

Plaintiffs’ property or were ever in unauthorized possession of the
property.6
To the extent that Plaintiffs argue the conversion of their
property

additionally

argument

fails

on

supports
the

their

existing

federal

record.

§

1983

“The

claim,

random

that

and

unauthorized intentional deprivation of property by a state actor
does not constitute a civil-rights violation if the state provides a
meaningful post-deprivation remedy.”

Armendariz v. Chief of Police,

Odessa Police Dep't, 478 F. App'x 792, 793 (5th Cir. 2010). Plaintiff
has adequate state court remedies for his state based conversion
claim

and

appears

to

be

pursuing

same.

We

decline

to

exercise

supplemental jurisdiction over the state tort claims.

6

Tortious conversion under Louisiana law includes any of the following:
1) possession is acquired in an unauthorized manner; 2) the chattel is
removed from one place to another with the intent to exercise control over
it; 3) possession of the chattel is transferred without authority; 4)
possession is withheld from the owner or possessor; 5) the chattel is altered
or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted
over the chattel.

Dual Drilling Co. v. Mills Equip. Investments, Inc., 721 So. 2d 853, 857 (La.
1998). However, to succeed in a conversion claim the Plaintiff must specifically
prove the fault of the Defendant in displacing the property. Id. at fn.3.

10 

For

the

Defendants’

foregoing

Motion

for

reasons,
Summary

IT

IS

Judgment

ORDERED
(Rec.

that
Doc.

the
No.

Gretna
30)

is

GRANTED, and Plaintiffs’ claims against the Gretna Defendants are
DISMISSED WITH PREDJUDICE. Plaintiffs maintain all causes of action
alleged against the remaining Jefferson Defendants.

New Orleans, Louisiana, this 30th day of July, 2014.

_______________________________
UNITED STATES DISTRICT JUDGE

11