Hill et al v. New Orleans City et al

Filing 117

ORDER AND REASONS granting in part and denying in part 105 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 1/12/2015. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DARRIN HILL, ET AL.

CIVIL ACTION

VERSUS

NO. 13-2463

NEW ORLEANS CITY, ET AL.

SECTION “B”(3)

ORDER AND REASONS

I.

NATURE OF MOTION AND RELIEF SOUGHT
Before

the

Court

Defendants’1

are

Motion

for

Summary

Judgment seeking dismissal of the claims of Plaintiffs, Darrin
and Marie Hill (Rec. Doc. 105), Plaintiffs’ Response thereto
(Rec. Doc. 112), and Defendants’ Reply (Rec. Doc. 116). For the
reasons that follow, IT IS ORDERED THAT Defendants’ Motion for
Summary Judgment (Rec. Doc. 105) is GRANTED IN PART and DENIED
IN PART.
II. FACTS AND PROCEDURAL HISTORY
This
Darrin

case

Hill

arises

for

out

nearly

of

two

the

incarceration

decades

1

for

an

of

Plaintiff

aggravated

rape,

Made defendants herein are: (1) The City of New Orleans; (2) Ronal Serpas,
in his official capacity as Superintendent of the New Orleans Police
Department; (3) Arnesta Taylor, in his official capacity as former
Superintendent of the New Orleans Police Department; (4) Cathey Carter, New
Orleans Police Department Detective; (5) Allen Gressert, New Orleans Police
Department Detective; (6) Antoine Saacks, Jr., New Orleans Police Department
Assistant Superintendent/Deputy Chief; (7) Joseph Hebert, New Orleans Police
Department Officer; (8) Howard Lewis, New Orleans Police Department Officer;
(9) Robert Haar, New Orleans Police Department Detective; (10) Daniel
Waguespack, New Orleans Police Department Crime Lab Criminalist; and (11)
Unidentified Parties.

1

kidnapping, and attempted burglary of which he was eventually
exonerated via DNA evidence. The material uncontested facts are
as follows:
On the night of July 1, 1992, two individuals, identified
as E.V. and G.T. out of respect for their privacy, were present
at the shore of Lake Ponchartrain in New Orleans, Louisiana.
(Rec. Doc. 112 at 4).2 At approximately 11 p.m., two indviduals
confronted

the

couple.

(Rec.

Doc.

112

at

4).

One

of

the

individuals has since been confirmed to be Derrick Woodberry, a
nearly 18-year-old, 6’1”, 180-pound black male. (Rec. Doc. 112
at 4). Woodberry brandished a blue-steel handgun at the couple
in an attempt to rob them. (Rec. Doc. 105-1 at 3). When informed
that G.T. did not have a wallet, Woodberry instructed G.T. to
walk into the lake and threatened to kill E.V. if G.T. did not
comply. (Rec. Doc. 105-1 at 3). Woodberry then kidnapped E.V.
and forced her at gunpoint to drive G.T.’s car to the parking
lot of a nearby supermarket, where he struck her in the face
with the gun and proceeded to anally rape her. (Rec. Doc. 112 at
4). Following this incident, Woodberry left in a red or burgundy
colored Nissan vehicle with the unidentified accomplice who had
followed him to the scene. (Rec. Doc. 112 at 4).
Later that night, on July 2, 1992 at approximately 12:53
a.m., New Orleans Police Department (“NOPD”) Detective, Cathey
2

G.T. and E.V. were boyfriend and girlfriend, respectively.
2

Carter

(“Det.

Carter”),

was

notified

of

the

rape

and

armed

robbery, and proceeded to meet with NOPD Officers Harold Lewis
(“Ofc. Lewis”) and Robert Haar (“Ofc. Haar”), who responded to
the initial call regarding the incident. E.V. and G.T. related
their account of the above events to Det. Carter. (Rec. Doc.
105-1

at

2-3).

G.T.

provided

a

detailed

description

to

the

officers of a perpetrator “6’ to 6’2” tall, 180 lbs, 19 to 21
years

old,

with

brown

skin,

short

hair,

and

a

thin

build,

wearing a red baseball cap, a red shirt, and dark color shorts,
and

displaying

a

blue

steel

handgun.”

(Rec.

Doc.

112

at

5)(citing Rec. Doc. 112-9 at 94 – Handwritten Notes of Det.
Carter).

Following

their

meeting

with

G.T.

and

E.V.,

the

officers requested assistance from a rape unit. (Rec. Doc. 105-1
at 3). E.V. was transported to a local hospital where a rape kit
was collected and logged into evidence by Det. Carter, along
with the underwear worn by E.V. immediately following the rape.
(Rec. Doc. 112 at 9).
At approximately 2:00 p.m. on the day following the rape,
July 2, 1992, E.V. contacted Det. Carter to inform her that a
checkbook

bearing

the

name

“Darren

Hill”

and

address

“4860

Camelia Street” was found in G.T.’s vehicle, i.e., the vehicle
in which the rape was committed. (Rec. Doc. 105-1 at 4).3 Neither

3

The Court notes Plaintiffs’ contention that the evidence cited by Defendants
in support of this fact states that “Det. Carter contacted [E.V.],” although
such is immaterial for present purposes. (See Rec. Doc. 1112-1 at 7).
3

E.V. nor G.T. knew anyone by that name. (Rec. Doc. 105-1 at 5).
The

record

recovery
artist

of

for

reflects
the

that

checkbook,

purposes

of

some

E.V.

may

creating

aggressor,

however

the

occurred.4

In

event,

any

at

parties
a

a

point
have

met

composite

dispute

wanted

shortly

whether

bulletin

following

with

a

sketch
such
was

police
of

her

actually

eventually

created, identifying the perpetrator consistently with G.T.’s
description of the subject, set forth supra. (Rec. Doc. 112-1 at
9).
Det. Carter was assigned as the lead investigator of the
crimes against G.T. and E.V. and was assisted by Det. Allen
Gressert.

(Rec.

Doc.

112

at

5).

Following

recovery

of

the

checkbook, Det. Carter ran a search of the name “Darren Hill,”
which appears to have led to Plaintiff, Darrin Hill. Over the
course of the ensuing investigation, G.T. and E.V. were each
shown photographic lineups that included a photograph of Darrin
Hill in an array of six individuals. (Rec. Doc. 112-1 at 10,
13).5

As will be discussed fully in the Court’s analysis, the

4

Plaintiffs note: “Defendants do not cite to any direct testimony regarding
the circumstances of the creation [of] the composite drawing, only the
resulting wanted bulletin (which does not discuss how the composite was
created.)” (Rec. Doc. 112-1 at 9). Plaintiffs further note that the wanted
bulletin matches a description of the subject that neither party disputes was
furnished by G.T., rather than E.V. (Rec. Doc. 112-1 at 9).
5
As is noted below, only E.V.’s alleged identification of Darrin Hill was
relied upon for purposes of the application for arrest warrant in Plaintiff
Hill’s original case. The failure to also use G.T.’s alleged identification
is curious to say the least and is a point of contention between the parties,
discussed, infra.
4

parties vigorously dispute the circumstances surrounding both of
these

lineup

procedures.

However,

Defendants

contend

that

Plaintiff, Darrin Hill, was identified by both E.V. and G.T.
upon viewing the photographic lineups. (Rec. Doc. 105-1 at6-7).
Det.

Carter

also

conducted

some

degree

of

investigation

into the address listed on the checkbook recovered from G.T.’s
car.

Although

the

particular

address,

4860

Camelia,

was

unoccupied, that unit is part of a “double” complex and adjoins
4862 Camelia, an address Plaintiffs contend was then publicly
listed as occupied by Trenetta Woodberry, sister of perpetrator
Derrick Woodberry. (Rec. Doc. 106-2 at8). It is not clear that
this information was sought or uncovered by Det. Carter at the
time.

However,

the

record

reflects

that

a

canvass

of

the

surrounding neighborhood located a red Nissan vehicle matching
the

description

of

the

escape

car

driven

by

Woodberry’s

accomplice to flee the scene of the rape. (Rec. Doc. 112 at 8).
Det.

Carter

information

appears
of

this

to

have

vehicle

taken

down

although,

as

the
will

license
be

plate

discussed

below, she did not further pursue this lead. (Rec. Doc. 112 at
8).
On July 17, 1992, Det. Carter applied for an arrest warrant
for Plaintiff Darrin Hill, stating as grounds that: “through
investigation the subject’s identity was revealed. His B of I
photograph was obtained and placed in a lineup, [and] during the
5

lineup, the victim positively identified the . . .

subject as

her assailant in the perpetration of the . . . offense.” (Rec.
Doc. 105-15 at 1 – Application for Arrest Warrant). The warrant
was issued by a magistrate judge the same day. (Rec. Doc. 10516).6
On August 23, 1992, Plaintiff Darrin Hill reported to an
NOPD

precinct

with

his

mother,

Plaintiff

Marie

Hill,

after

learning that Darrin was wanted in connection with the July 1
incident. (Rec. Doc. 105-1 at 9, 106-2 at 8). Hill was advised
of his rights and arrested at that time. (Rec. Doc. 105-1 at 9).
On October 1, 1992, a grand jury indicted Hill on charges of
aggravated rape, second degree kidnapping, attempted aggravated
crime against nature, and two counts of armed robbery. (Rec.
Doc. 105-1 at 9). On October 7, 1992, Hill was arraigned and it
appears E.V. identified him in court as the perpetrator of the
rape. (Rec. Doc. 105-1 at 9).7

6

As will be material for the discussion to follow, this reflects that the
magistrate’s probable cause determination was based, at most, on: (1) the
checkbook recovered from G.T.’s car and (2) E.V.’s identification of Darrin
Hill in connection with the photographic lineup procedure. There is no
reference to any other evidence presented or relied upon in connection with
the warrant application.
7
Plaintiffs object that: “Defendants have cited no admissible evidence to
support this fact. Defendants’ only citation is to an allegation in
Plaintiffs’
complaint,
explicitly
made
upon
information
and
belief.
Subsequent discovery has revealed no evidence that E.V. testified at Darrin
Hill’s arraignment, only that he entered a plea of not guilty.” (Rec. Doc.
112-1). However, at the later trial of Derrick Woodberry in 2013, despite the
fact that E.V. now acknowledges that Darrin Hill was not her rapist, E.V.
testified that she identified Darrin Hill in court as the man who attacked
and raped her. It is unclear whether this refers to Hill’s arraignment or his
actual trial, although this distinction is irrelevant here.

6

On November 9, 2012, a suppression hearing was conducted in
the criminal district court in which the charges against Darrin
Hill were pending. (Rec. Doc. 105-1 at 9). At this hearing, Hill
sought

to

have

evidence

of

E.V.’s

identification

suppressed.

(Rec. Doc. 105-1 at 9). The State called Det. Carter and E.V. to
provide

sworn

testimony

about

the

photographic

line-up.8

The

defense called no witnesses and the district court denied Hill’s
motion to suppress. (Rec. Doc. 105-1 at 9).
Given

his

serious

mental

illness,

Hill

was

repeatedly

deemed incompetent to assist in his own defense and to stand
trial, causing him to remain incarcerated for the next seven
years. (Rec. Docs. 112-2 at 25, 106-2 at 10).9 On February 11,
1999, Hill was ultimately tried and found not guilty by reason
of insanity.10 (Rec. Doc. 105-1 at 10). As a result, Hill spent

8

Plaintiffs dispute whether this was the same line-up shown to E.V. and/or
G.T. (See Rec. Doc. 112-1 at 20)(“There is no record that this lineup is the
same lineup shown to E.V. on July 17, 1992. The lineup was designated with
New Orleans Police Department Item No. G-0721-91, Catalog No. 52H2, Control
Number C 018908, . . . but none of these numbers appear on the docket entry
relating to the suppression hearing. . . . Moreover, although other evidence
relating to Darrin Hill’s criminal case has been found at the Orleans Parish
Criminal District Court, including Hill’s booking photograph and E.V.’s rape
kit, . . . the photo array submitted into evidence at the November 9, 1992
hearing has never been found.”)
9
The record reflects that Hill suffers from bipolar and schizoaffective
disorders as well as a borderline range of intellectual functioning. He
resides with and is cared for by his mother, Plaintiff Marie Hill. (See Rec.
Doc. 1 at 2).
10

In Louisiana, such a determination requires (1) a finding beyond a
reasonable doubt that the Defendant committed the factual elements of the
charged offense, but (2) that he was criminally insane. See, e.g., State v.
Marmillion, 339 So.2d 788, 796 (La. 1976); State v. Branch, 99-1484 (La.
3/17/00); 759 So. 2d 31. Thus, such an adjudication is the functional
equivalent of a conviction. See DeLeon v. City of Corpus Christi, 488 F.3d
7

the following three years incarcerated.11

Finally, in January

2012, the Orleans Parish Criminal District Court granted a joint
motion by the New Orleans Innocence Project and the State of
Louisiana to test the rape kit associated with the attack. (Rec.
Docs. 105-1 at 10, 112-2 at 25). The DNA present on the swabs
was

revealed

not

to

belong

to

Hill,

but

instead

to

Derrick

Woodberry. (Rec. Doc. 105-1 at 10). Woodberry was later tried
and convicted of E.V.’s rape and robbery as well as a similar
incident that occurred in the early 1990s. (Rec. Doc. 112 at
10). Following his exoneration by DNA evidence, on April 26,
2012,

counsel

for

Hill

and

the

Orleans

Parish

District

Attorney’s Office filed a joint application to vacate Hill’s
conviction and dismiss the indictment against him. The Orleans
Parish Criminal District Court granted the order the next day,
on a finding by “clear and convincing evidence of . . . Darrin
Hill’s factual innocence,” and ordered him released immediately.
(Rec. Doc. 112-2 at 25).
On April 25, 2013, Plaintiffs Darrin and Marie Hill filed a
Complaint in this Court seeking recovery for alleged damages
sustained as a result of Defendants’ actions. (Rec. Doc. 1)

639, 652-56 (5th Cir. 2007)(holding that “a deferred adjudication order is a
conviction for the purposes of Heck’s favorable termination rule”).
11

Plaintiffs note that Hill’s commitment was ordered continued on a number of
occasions based on a finding that he presented a danger to others, based,
Plaintiffs allege, “solely due to findings that he had committed the crimes
against E.V. and G.T..” (Rec. Doc. 112-2 at 25).
8

Plaintiff Darrin Hill alleges deprivations of his civil rights
under the First, Fourth, and Fourteenth Amendments to the United
States Constitution, Title II of the Americans with Disabilities
Act (the “ADA”), as well as the constitution and statutes of the
State of Louisiana. (Rec. Doc. 1 at 26). Plaintiff Marie Hill
alleges

deprivations

of

her

“right

to

familial

association”

under the First and Fourteenth Amendments to the United States
Constitution as well as her right of consortium under the laws
of the State of Louisiana. (Rec. Doc. 1 at 26).
III. CONTENTIONS OF MOVANTS
Defendants

advance

six

primary

arguments

in

favor

of

summary judgment as to the claims of Hill. These are, first,
that probable cause existed for Hill’s arrest in 1992 based on
the

presence

of

identifications

the

via

checkbook

photographic

in

G.T.’s

lineups,

car,
and

the

other

alleged
evidence

known to officers at that time. Second, because probable cause
existed for Hill’s arrest, Defendants are protected from suit
under

the

doctrine

of

qualified

immunity.

Third,

Defendants

argue that even in the absence of probable cause, they are still
protected

by

qualified

immunity

because

a

reasonable,

albeit

mistaken, belief by officers as to the existence of probable
cause is sufficient to invoke its protection. Fourth, Defendants
argue Hill’s claims relating to alleged deprivations of Fourth
Amendment rights are prescribed as a matter of law at the time
9

of the instant suit. Fifth, Defendants argue Plaintiffs’ claims
under 42 U.S.C. § 1983 against Defendant, Police Chief Ronal
Serpas, in his official capacity, fail under Monell v. Dep’t of
Social Servs., 436 U.S. 658 (1978). Finally, Defendants argue
Hill has not asserted a cognizable claim for relief under Title
II of the ADA.
As to Plaintiff Marie Hill, Defendants argue Mrs. Hill’s
“familial association” claim does not exist, or, if it does
exist, it was not “clearly established” for liability under §
1983 at the time of Hill’s arrest, thereby entitling Defendants
to qualified immunity on this issue.
IV. CONTENTIONS OF OPPONENTS
A. Plaintiff Darrin Hill
Plaintiff Darrin Hill argues Defendants mischaracterize his
primary claim for relief, which is not one for false arrest
under the Fourth Amendment, but rather a deprivation of due
process

under

the

Fourteenth

Amendment

via

suppression

of

exculpatory evidence and suggestive identification procedures.
Hill argues the underlying facts would allow a reasonable jury
to

infer

deliberate

police

misconduct

sufficient

to

prevent

Defendants from invoking qualified immunity. Hill further argues
that his Fourth Amendment rights were violated and that such
claims are not prescribed for purposes of this suit because it
was initiated within one year of the vacatur of his underlying
10

conviction and dismissal of the charges against him, citing Heck
v.

Humphrey,

512

U.S.

477,

112

S.Ct.

2364,

129

L.Ed.2d

383

(1994). Hill further argues he has indeed asserted cognizable
claims for relief under Title II of the ADA because a reasonable
jury could find Defendants discriminated against him, in part,
on

the

basis

of

his

disability

(i.e.,

his

mental

illness).

Finally, Hill contends Defendants have failed to challenge his
various state law claims which accordingly survive the instant
motion.
B. Plaintiff Marie Hill
As

to

her

claims,

Mrs.

Hill

argues

Fifth

Circuit

jurisprudence recognizes a mother’s right to recover for injury
caused by the state’s deprivation of her son’s constitutionally
secured liberty interests, citing Rhyne v. Henderson Cnty., 973
F.2d 386, 391 (5th Cir. 1992); Logan v. Hollier, 711 F.3d 690-91
(5th Cir. 1983). Mrs. Hill further argues that a constitutional
right to familial association is recognized under Supreme Court
cases such as Stanley v. Illinois, 405 U.S. 645 (1972) and Moore
v. City of East Cleveland, 431 U.S. 494, 499 (1977), and that
such

right

Hill’s

was

arrest

“clearly
in

1992

established”
for

purposes

immunity.
V. SUMMARY JUDGMENT STANDARD

11

by

the

time

of

defeating

of

Darrin

qualified

Summary judgment is proper if the pleadings, depositions,
interrogatory
affidavits,

answers,

show

that

and
there

admissions,
is

no

together

genuine

issue

with
as

any

to

any

material fact and that the moving party is entitled to judgment
as a matter of law.

Fed. R. Civ. P. 56; see also Celotex Corp.

v. Catrett, 477 U.S. 317, 327 (1986).

A genuine issue exists if

the evidence would allow a reasonable jury to return a verdict
for the nonmovant.
242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

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.

Webb v.

Cardiothoracic Surgery Assocs. of N. Texas, 139 F.3d 532, 536
(5th

Cir.

1998).

The

moving

party

bears

the

initial

responsibility of informing the district court of the basis for
its motion. Celotex, 477 U.S. at 323. The movant must point to
“portions

of

‘the

pleadings,

depositions,

and

admissions

on

interrogatories,
affidavits’

which

it

believes

file,

demonstrate

answers
together

the

absence

to
with
of

a

genuine issue of material fact.” Id. (citing Fed. R. Civ. P.
56). If and when the movant carries this burden, the nonmovant
must

then

depositions,

go

beyond

the

interrogatory

pleadings
responses,

evidence to establish a genuine issue.
12

and

use

admissions,

affidavits,
or

other

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[W]here
the non-movant bears the burden of proof at trial, the movant
may merely point to an absence of evidence, thus shifting to the
non-movant
judgment

the

burden

proof

that

of

demonstrating

there

is

an

by

issue

competent
of

summary

material

fact

warranting trial. . . . Only when ‘there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party’ is a full trial on the merits warranted.” Lindsey v.
Sears Roebuck and Co., 16 F.3d 616 (5th Cir. 1994). Accordingly,
conclusory rebuttals of the pleadings are insufficient to avoid
summary judgment.

Travelers Ins. Co. v. Liljeberg Enter., Inc.,

7 F.3d 1203, 1207 (5th Cir. 1993).
VI. DISCUSSION
A. Claims of Plaintiff Darrin Hill
Before
Defendants,
context

taking
the

in

up

Court

which

Darrin
is

such

Hill’s

compelled
claims

various
to

must

make
be

claims
very

analyzed.

against

clear

the

Although

Defendants attempt throughout their Motion for Summary Judgment
to cast various aspersions as to the possibility of guilt on the
part of Hill, the uncontroverted evidence reveals the following:
(1) Hill was conclusively exonerated of the rape of E.V. by DNA
evidence, which neither party disputes; (2) DNA evidence has
conclusively
rape

was

confirmed

Derrick

that

Woodberry,

the

actual

who
13

has

perpetrator
since

been

of

E.V.’s

tried

and

convicted of that crime; and (3) E.V. consistently maintained
throughout Hill’s initial trial, and the subsequent proceedings
relating

to

perpetrator

Mr.

of

Woodberry’s

the

rape

was

conviction,

involved

in

that

the

only

attack

and

the
was

present with her in G.T.’s car. Thus, syllogistically, there
remains no doubt as to the fact that Darrin Hill is not guilty
of the rape of E.V. and that he was not in the car with her at
the time of that incident. Defendants’ repeated attempts to blur
this issue are misleading and troubling.
1) Claims of Due Process Violations under the
Fourteenth Amendment
As

noted

above,

characterizations
relate

to

of

his

deprivations

Darrin

Hill

primary

claims.

of

due

disputes

process

These,

Defendants’
he

guarantees

contends,
under

the

Fourteenth Amendment through suppression of exculpatory evidence
and use of suggestive identification techniques in securing his
arrest,
argue

subsequent
that,

Plaintiff,
immunity.

prosecution,

regardless

they
This

are

of

the

entitled

immunity

to

shields

and
type
the

adjudication.
of

claim

privilege

public

Defendants

asserted

by

of

qualified

officials,

including

police officers, from liability and suit unless their conduct
violates

“clearly

established”

statutory

or

constitutional

rights of which a reasonable officer would have known. Babb v.
Dowman, 33 F.3d 472, 477 (5th Cir. 1994); Gibson v. P.A. Rich,
14

44 F.3d 274, 277 (5th Cir. 1995). Thus, in order to defeat
qualified immunity, a plaintiff must “plead facts showing (1)
that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established at the time of
the challenged conduct.’” Ashcroft v. al-Kidd, 131 S.Ct. 2074,
2080, 179 L.Ed.2d 1149 (2011)(citing Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). District
courts have discretion to decide which of the two prongs to
analyze first. Id.
(a)

Alleged

Use

of

Suggestive

Identification

Procedures
In Geter v. Fortenberry, the United States Court of Appeals
for

the

suspect’s

Fifth

Circuit

Fourteenth

stated

Amendment

that
Due

an

officer

Process

violates

rights

when

a
the

officer “procures a false identification by unlawful means.” 849
F.3d 1550, 1559 (5th Cir. 1988)(“Geter I”). In that case, the
defendant brought a § 1983 claim arising out of his arrest,
prosecution,

and

conviction

for

a

robbery

he

was

ultimately

proven not to have committed. Id. The Court held there was no
legal issue as to the fact that “a police officer cannot avail
himself of a qualified immunity defense if he procures false
identification
violates

by

clearly

unlawful
established

means

.

.

.

constitutional

for

such

activity

principles.”

849

F.2d at 1559. However, the court concluded that the plaintiff’s
15

allegations as to the deliberate manipulation of evidence by
police officers were overly conclusory and therefore remanded to
the district court for additional discovery to determine whether
sufficient facts existed to preclude summary judgment on the
qualified immunity defense. 849 F.2d at 1559-61.12 On remand, the
plaintiff came forward with specific allegations that officers
had

obtained

false

and

fraudulent

identifications

by,

inter

alia, insisting that witnesses pick an individual from a photo
lineup, prodding witnesses to select another picture when they
had chosen “incorrectly”, and becoming hostile when a witness
refused to cooperate. See Geter v. Fortenberry, 882 F.2d 167,
170-71 (5th Cir. 1989)(“Geter II”). These, the Fifth Circuit
concluded

on

second

appeal,

were

sufficient

to

affirm

the

district court’s denial of summary judgment on the issue of
qualified immunity as to the plaintiff’s charges of due process
violations stemming from suggestive identification procedures.
882 F.2d at 170. As the foregoing indicates, at least as early
as 1988, the time of Geter I, it was “clearly established” for
purposes of the qualified immunity framework that deliberately
securing a false identification through unlawful means amounted
to a constitutional harm under the Fourteenth Amendment, which
12
See Geter I, 849 F.2d at 1559 (“Geter’s charges in his federal pleadings
against [the officer] are, however, conclusory assertions without the leaven
of confirming factual details. For example, Geter’s complaint never states
who gave the false identifications, what ‘unlawful means’ were used to
procure the identifications, or what exculpatory evidence [the officer]
suppressed and concealed.”)

16

could form the basis of a valid cause of action under § 1983.
Thus, the sole issue where this type of claim is asserted is as
to

whether

the

plaintiff

has

sufficient

factual

support

to

establish his claims in order to overcome a summary judgment
motion.
In Good v. Curtis, the Fifth Circuit had occasion to review
facts

strikingly

similar

to

those

at

issue

in

the

instant

matter. 601 F.3d 393 (5th Cir. 2010). There, the court stated:
[T]his case concerns a situation where the
criminal defendant has been exonerated and
was wrongly convicted because—taking the
facts most favorable to [the plaintiff]—a
police officer deliberately framed him. The
DNA evidence that cleared [the plaintiff]
and secured his freedom also removes all
doubt
as
to
the
inaccuracy
of
[the
witness’s] identification. The reason for
the misidentification, we must assume at
this summary judgment juncture, was [the
officer’s] concerted efforts to manipulate
the photo.
Id. at 398. Relying on the Geter decisions, the court concluded
the plaintiff’s allegations that the officer stated he planned
to

frame

the

plaintiff

for

failing

to

cooperate;

that

the

officer artificially manipulated the plaintiff’s photograph to
conform to a composite sketch and description of the perpetrator
of

the

altered

crime;

and

that

the

photograph

with

the

officer
purpose

knowingly
of

presented

obtaining

a

the

false

identification, were sufficient to “create a factual basis for

17

finding

a

constitutional

violation

within

[the

plaintiff’s]

Fourteenth Amendment § 1983 claim.” Id. at 399-400.
In

the

present

case,

Hill

alleges

the

“unlawful

means”

employed to secure his false identification included the use of
the photographs of two white individuals in the photo array
presented to E.V. and G.T., as well as the presentation of the
photograph of an individual who was approximately twice Hill’s
age at the time. These facts, Hill alleges, rendered the lineup
unduly suggestive. (See Rec. Doc. 112-2 at 17).
As noted above, the description provided by G.T. of the
physical

characteristics

of

E.V.’s

aggressor

indicate

him

to

have been a black male approximately 19 to 21 years old. NOPD
policy relating to photographic lineups at the time required
that the photographs “shown . . . be of persons of the same race
and similar in age and physical characteristics” as the suspect.
(See Rec. Doc. 112-2 at 16). Thus, information indicating that
half of the photographs depicted individuals with dramatically
different

appearances

from

Hill’s

(and

from

the

alleged

perpetrator) raises an inference that the procedure was unduly
suggestive.13 This inference is bolstered in the context of a
summary judgment motion in which all reasonable inferences are

13

Plaintiffs note that the lineup itself is missing, but that records of the
individuals selected for inclusion of the lineup still exist. The
individuals’ names and Bureau of Identification (“B of I”) numbers appear to
have been preserved and form the basis for Plaintiffs’ contentions concerning
the identification procedure. (See Rec. Doc. 112-2 at 16).
18

to

be

drawn

in

favor

of

the

non-movant,

Hill.

Parties

also

dispute by reference to various state records the ability of the
rape victim to make an un-suggested identification of Hill. (See
Rec. Docs. 112 at 14-5; 112-2 at 7; 112-8 at 91; 105-1 at 17).
Viewing the foregoing in the light most favorable to the
non-movant, a genuine and triable issue of material fact exists
as to whether Defendants employed an unduly suggestive lineup
procedure to obtain a false identification of Plaintiff Darrin
Hill. A reasonable jury could decide that issue either way.14
(b)

Alleged Suppression of Exculpatory Evidence

Plaintiffs further argue that Defendants infringed Hill’s
due

process

rights

by

evidence.

Specifically,

disclose

information

surrounding
relating

to

E.V.’s
an

suppressing
Plaintiffs

relating

alleged

contend

to

identification,

allegedly

(i)

(ii)

identification

that
the

various
by

exculpatory
failure

to

circumstances
discrepancies

G.T.,

(iii)

the

information uncovered while investigating the address listed on
the checkbook, and (iv) the alleged omission of the results of
analysis of the rectal swabs collected following the rape, all

14

See, e.g., Good v. Curtis, 601 F.3d 393, 400 (5th Cir. 2010)(“Having found
a constitutional violation, we turn briefly to the second prong of qualified
immunity . . . . [Q]ualified immunity generally protects ‘all but the plainly
incompetent or those who knowingly violate the law ’ Malley v. Briggs, 475
U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). In the instant case,
Curtis is alleged to have intentionally secured a false identification that
produced a wrongful conviction in retaliation for a suspect’s failure to
cooperate in an unrelated matter – a Malley ‘knowing violation of the law.’”)
19

raise

the

inference

that

Defendants

suppressed

exculpatory

evidence in violation of Hill’s due process rights.
i.

Credibility of E.V.’s Identification

As to E.V.’s identification of Hill, Plaintiffs argue that
(i) the failure to point out E.V.’s initial inability to confirm
that she could identify her assailant, (ii) failure to note the
extended amount of time it took for E.V. to identify Hill, (iii)
failure

to

expressly

transcribe

the

manner

in

which

E.V.

selected Hill’s photograph, and (iv) failure to indicate that
Det. Carter confirmed with E.V. that she had selected the man
whose

name

appeared

on

the

checkbook,

all

constituted

the

suppression of exculpatory evidence. (See Rec. Doc. 112-8 at
91.).

Plaintiffs

compromised

the

argue

this

evidence

credibility

of

would

E.V.’s

have

materially

identification

for

purposes of the magistrate’s probable cause determination, the
result

of

Hill’s

suppression

hearing,

and

ultimately

his

adjudication. (Rec. Doc. 112 at 13-17). Det. Carter’s warrant
application suggests that effectively the sole piece of evidence
presented to the magistrate judge was E.V.’s identification of
Hill in the photo array. Although there is a general reference
to

“investigation”,

nothing

in

the

warrant

application

specifically refers to the discovery of the checkbook in E.V.’s
car, nor that this checkbook was ever confirmed to actually

20

belong to Hill during the initial proceedings.15 Thus, there is a
reasonable inference to be drawn that disclosure of the evidence
relating to the credibility of E.V.’s identification of Hill
could

have

resulted

in

a

denial

of

the

initial

warrant

application.16
ii.

G.T.’s Allegedly Exculpatory Identification

Plaintiffs also argue the evidence suggests officers may
have suppressed an exculpatory identification by G.T.. To this
end, Plaintiffs note G.T. testified that he participated in a
photographic lineup selection in 1992, in which he identified an
individual as the perpetrator. (See Rec. Doc. 112 at 12)(citing
G.T.

Woodberry

Trial

Testimony

–

Rec.

Doc.

Deposition of G.T. – Rec. Doc. 105-14 at 28).

105-13

at

12;

However, there is

no contemporaneous report of that identification procedure; no
evidence that G.T. was asked to sign the photograph selected (as
required pursuant to NOPD procedure); no motion to suppress any

15

The warrant application states, in relevant part: “Through investigation
the subject’s identify was revealed, his B of I photograph obtained and
placed in a lineup. During this lineup, the victim positively identified the
above subject as her assailant in the perpetration of the above offenses.”
(Rec. Doc. 105-15). Although Hill appears to have later acknowledged that the
checkbook belonged to him (Plaintiffs argue it was taken from him by
Woodberry, and further object to the admissibility of Hill’s testimony given
the repeated findings that he is incapable of standing trial), this does not
appear to have occurred until 2012, and would therefore not have been
evidence for purposes of the warrant application or initial hearings relating
to Hill’s prosecution. (See Rec. Doc. 112-1 at 7).

16

Defendants contend that discovery of the checkbook bearing the name “Darren
Hill” alone amounted to probable cause for Hill’s arrest. However, the fact
that there is no reference to the checkbook in the warrant application as
well as the information relating to the investigation of the address listed
on the checkbook, discussed infra, belie this notion.
21

identification

by

G.T.

in

the

original

proceedings;

and

the

record reflects that various defendants denied contemporaneous
knowledge

of

G.T.’s

participation

in

any

such

procedure

(although they now appear to concede that G.T. was, in fact,
shown a lineup at some point in time). (See Rec. Doc. 112 at
12). Plaintiffs cite deposition testimony of Defendants, Det.
Allen

Gressertt,

Sergeant

Joseph

Hebert

(Det.

Carter’s

supervisor), and non-party Det. Lymous, that, had G.T. made a
positive identification of Hill, there would have been no reason
to

fail

to

investigation

record
of

or

Hill

report
and

his

as

much

during

subsequent

the

initial

prosecution.

(See

Deposition of Gressertt - Rec. Doc. 112-9 at 43-46; Deposition
of Lymous – Rec. Doc. 112-5 at 48-50; Deposition of Hebert –
Rec. Doc. 112-6 at 35-38). Thus, there is an issue of fact as to
whether G.T. was shown a photographic lineup and, if so, whether
he identified an individual other than Hill, which evidence was
suppressed by Defendants.17 Further supporting a triable issue on
this item is G.T.’s alleged certainty that the individual he
identified at the time of the initial lineup review was Hill and
that Hill was E.V.’s aggressor. (See Rec. Doc. 105-1 at 7).
G.T.’s apparently staunch adherence to this position in the face

17

Indeed, Sergeant Hebert testified that if information came to light that an
exculpatory identification had been made and suppressed, the entire
investigation would have had to have been re-examined. (Rec. Doc. 112- at 3738).

22

of conclusive DNA evidence to the contrary could, at the very
least, support a reasonable inference by the trier of fact that
G.T. was either exposed to suggestive identification procedures
or that G.T.’s credibility was faulty.18 As such, Defendants are
not entitled to summary judgment on this issue.
iii.

Information Relating to the Checkbook

A plaintiff seeking recovery from a police officer for the
type of constitutional tort alleged here “must tender evidence
establishing misconduct that exceeds mere negligence.” Sanders
v. English, 950 F.2d 1152, 1159 (5th Cir. 1992). Generally, mere
negligence in pre- or post-arrest investigations will not rise
to the level of actionable conduct. See Herrera v. Millsap, 862
F.2d

1157,

1160

(5th

Cir.

1989)(summary

judgment

appropriate

when plaintiff’s evidence, at most, showed mere negligence in
investigating facts before obtaining arrest warrant); Simmons v.
McElveen, 846 F.2d 337, 339 (5th Cir. 1988)(summary judgment
appropriate when plaintiff’s evidence merely established that
defendants
investigation

were
and

negligent
in

failing

in
to

18

conducting
inform

district

post-arrest
attorney’s

Plaintiffs cite the “Eyewitness Identification Expert Summary Report”
prepared by Jennifer Dysart, Ph.D., Deputy Chair of the Department of
Psychology, John Jay College of Criminal Justice, (Rec. Doc. 112-10 at 19),
to explain that: “G.T.’s continued belief today that he identified Darrin
Hill despite Darrin Hill’s proven innocence is a classic example of the
effects of commitment bias.”; see also, Good v. Curtis, 601 F.3d 393, 399
(5th Cir. 2010)(“Applying Geter I and II to the instant case, Good has
clearly met his burden at this early stage. Good alleged that Doe’s
identification was tainted by Curtis’s conduct. That taint persists to this
day as Doe still insists on Good’s guilt even after his exoneration by
indisputable forensic evidence.”)
23

office

of

exculpatory

evidence)(cited

in

Sanders,

supra,

950

F.2d at 1159). However, when an officer deliberately conceals
exculpatory evidence or fails to release an arrestee once he
learns

of

the

arrestee’s

innocence,

rather

than

merely

negligently failing to uncover exculpatory evidence, such may be
sufficient to defeat summary judgment. See Geter II, 882 F.2d at
170-71 (deliberate concealment of exculpatory evidence violates
clearly

established

constitutional

principles);

Sanders

v.

English, 950 F.2d 1152, 1162 (5th Cir. 1992)(failure to release
after officer knew or should have known of innocence, rather
than

allegation

of

failure

to

take

affirmative

steps

to

investigate, sufficient to state cause of action); Gay v. Wall,
761 F.2d 175, 178-79 (4th Cir. 1989)(Baker does not preclude a
cause of action under § 1983 premised on an officer’s failure to
release

an

arrestee

once

he

learns

of

the

arrestee’s

innocence)(cited in Sanders, supra, 950 F.2d at 1162).
Plaintiffs argue Defendants deliberately ignored evidence
pointing
have

away

been

from

Hill,

uncovered

particularly

through

proper

information

that

investigation

of

could
the

information on the checkbook found in G.T.’s car and the absence
of any mention of mental illness in the descriptions provided to
police by E.V. and G.T.. (Rec. Doc. 112 at 8-9). To this end,
Plaintiffs argue that Hill’s severe mental illness would have

24

been plainly apparent to officers at his initial interview and
that this should have put them on notice that Hill did not match
the description provided by the witnesses, neither of whom made
any reference to mental illness. They further argue that the
discrepancies

between

the

spelling

of

“Darren

Hill”

on

the

checkbook and Hill’s name, Darrin Hill, as well as the fact that
the

address

on

the

checkbook

did

not

match

Hill’s

address,

further cast doubt as to Hill’s identity as the perpetrator.
Finally, the record reflects that the address of the adjoining
unit

was

publicly

listed

as

occupied

by

actual

perpetrator

Derrick Woodberry’s sister and that a red Nissan matching the
description

of

the

getaway

vehicle

was

located

in

the

same

neighborhood. (See Rec. Doc. 106-2 at 19). Det. Carter did not
proceed to investigate further the occupant of the adjoining
unit or the lead as to the getaway vehicle. (Rec. Doc. 112 at
19).
As to the facts of Hill’s mental illness being readily
apparent and the spelling of his name not matching that on the
checkbook exactly, these items would have been equally apparent
to the magistrate, grand jury, and district judge, all of whom
reviewed the evidence presented to them. As such, the Court does
not see how Plaintiffs can reasonably characterize these items
as having been suppressed. To the extent Plaintiffs rely on
these

items

to

suggest

that

Defendants
25

should

have

further

pursued the leads as to the occupant of the unit adjoining 4860
Camelia and the getaway vehicle, it is also unclear that this
conduct

would

rise

above

the

level

of

negligence,

so

as

to

become actionable under § 1983.
Nevertheless, Det. Carter appears not to have reported that
Hill did not reside at the address indicated on the checkbook
(which she later conceded at her deposition would have been
important information at the time of her 1992 investigation)19
and

further

that

a

vehicle

matching

the

description

of

the

getaway vehicle was located near that address (which would have
increased

the

location

to

likelihood
the

that

the

perpetrator).

address

These

may

was

a

relevant

reasonably

be

characterized as the omission of exculpatory evidence because
their disclosure would have weakened the relevance of Darrin
Hill’s name being a close match to the one on the checkbook
recovered from G.T.’s car. Because it appears that the checkbook
name

was

possibly

the

only

other

piece

of

evidence

used

in

conjunction with E.V.’s identification for the initial warrant
19

See Rec. Doc. 112-8 at 188-89 (Deposition – Det. Carter) (“Q. And if it
turned out that the person living at 4860 Camelia Street was not Darrin Hill,
that would be important information for an investigator; correct? A. Correct.
Q. Because that would tend to indicate that the checkbook might be the kind
of checkbook that was used for criminal activity; correct? A. Correct.”).
Although Det. Carter states that she does not specifically remember whether
she spoke to anyone who lived at 4860 Camelia at the time of her canvass, she
acknowledges that she would have written such a fact down, had it occurred.
(Rec. Doc. 112-8 at 72). This combined with evidence that 4860 Camelia was
unoccupied at the time of the investigation raise a triable issue as to
whether Det. Carter confirmed that Darrin Hill did not reside at 4860 Camelia
and then failed to report this exculpatory information. (See Rec. Doc. 112-10
at 6, 8).
26

application, if at all, evidence indicating Darrin Hill was not
connected to this address would have been exculpatory and a jury
could reasonably find that it was intentionally suppressed by
Det. Carter. As such, there barely remains a triable issue as to
whether

Det.

Carter

deliberately

suppressed

potentially

exculpatory evidence relating to the lack of connection between
Darrin Hill and the address listed on the checkbook recovered
from G.T.’s car.
iv.

Alleged

Suppression

of

Exculpatory

Forensic

Evidence
Most troubling of all the items of exculpatory evidence
alleged to have been suppressed by Defendants are the results of
the analysis of the rectal swabs collected immediately following
E.V.’s rape. According to Plaintiffs, the results of forensic
tests connected with the investigation were reported directly to
Det.

Carter.

Moreover,

the

results

of

every

forensic

report

commissioned - apart those relating to the rectal swabs - are
contained in Hill’s original case file. (Rec. Doc. 112 at 17).
Because analysis of the DNA contained on the rectal swabs is
what ultimately exonerated Hill roughly twenty years later, the
omission of this critical piece of evidence is stunning.20 Thus,

20

Evidence in the record corroborates Plaintiffs’ contentions that the
results of other forensic tests were included in Hill’s case file. (See Rec.
Doc. 112-3). Additionally, an item reflecting the results of a “Seminal Fluid
– Blood Grouping” examination (Rec. Doc. 112-3 at 48), apparently prepared by
the Orleans Parish Coroner’s Office and dated “7/6/92”, was produced to
27

a genuine issue of fact exists as to whether Det. Carter and/or
other

defendants

deliberately

suppressed

the

results

of

the

rectal swab analysis, which, if confirmed, would amount to a
violation of Hill’s due process rights.21 This issue is properly
reserved to the jury.
v. Conclusion as to Hill’s Fourteenth Amendment Claims
Viewing

the

foregoing

allegations

in

conjunction

with

supportive record evidence in the light most favorable to Hill
as non-movant, it is clear that various issues of disputed fact
exist

sufficient

to

survive

summary

judgment

on

Hill’s

Fourteenth Amendment claims. If Hill is able to persuade a jury
that Defendants engaged in suggestive identification techniques
and deliberately suppressed items of exculpatory evidence, he
will

have

made

out

a

clear

claim

for

violation

of

his

due

process rights under the Fourteenth Amendment. This is conduct
that was “clearly established” as violative of constitutional
rights and actionable under § 1983 at the time of Hill’s initial
prosecution in 1992. See Brown v. Miller, 519 F.3d 231, 238 (5th
Cir.

2008)(“By

1967,

a

public

official’s

concealment

of

Plaintiffs in connection with this litigation – demonstrating that seminal
fluid testing did occur in connection with the initial investigation. If
Plaintiffs are correct that the results of this examination were deliberately
suppressed from Hill’s case file, such conduct will be actionable as a
deprivation of Hill’s due process rights under the Fourteenth Amendment.
Plaintiffs further allege that forensic evidence in the form of a report of
any comparison between Darrin Hill’s fingerprints and the latent prints
lifted from the crime scene is also missing from the case file. (Rec. Doc.
112-2 at 24).

28

exculpatory

evidence

was

a

constitutional

violation

in

this

circuit.”). Defendants are not entitled to qualified immunity on
this claim. Further, it is no answer, as Defendants contend,
that the issuance of a warrant by a neutral magistrate or an
indictment by a grand jury would somehow attenuate the taint of
the

procedures

employed

if

they

are

proven

to

have

been

suggestive and deliberately suppressive of exculpatory evidence.
See

Hand

v.

Gary,

838

F.2d

1420,

1428

(5th

Cir.

1988)(“Any

misdirection of the magistrate or the grand jury by omission or
commission

perpetuates

behavior.”);
2010)(“[T]o
Fourteenth

Good
the

v.

the

Curtis,

extent

Amendment,

taint
601

that

this

Curtis’s

of

the

F.3d

original

393,

doctrine

failure

to

400

official
(5th

applies
disclose

Cir.

to

the

that

he

manipulated the lineup or that Doe’s resulting testimony may
have been tainted preserve the causal chain.”)

2) Claims of Fourth Amendment Violations
A “longstanding principle of judicial restraint requires
that courts avoid reaching constitutional questions in advance
of the necessity of deciding them.” Camreta v. Greene, 131 S.Ct.
2020, 2031, 179 L.Ed.2d 1118 (2011)(citing Lying v. Northwest
Indian Cemetery Protective Assn., 485 U.S. 429, 445, 108 S.Ct.
1319, 99 L.Ed.2d 534 (1988)). However, the regular policy of
constitutional

avoidance

does

not

29

always

fit

the

qualified

immunity situation, because “it threatens to leave standards of
official conduct permanently in limbo,” such that officials may
persist

in

liability
Court

challenged

in

future

resolves

practices,

damages

Hill’s

Fourth

knowing

actions.

Id.

Amendment

they

Thus,

claims

can

avoid

although

on

the

limitations

grounds, it is necessary to address the substantive validity of
any such claims as a prudential matter as well as for purposes
of application of the relevant limitations periods.
i.

Defendants’ Contentions Relating to
Probable Cause

As to Hill’s claim of an unreasonable seizure under the
Fourth Amendment, made actionable under § 1983, Defendants also
focus

in

large

measure

on

the

notion

that

Hill

cannot

demonstrate an absence of probable cause for his arrest. This,
Defendants contend is fatal to his claim. (See. Rec. Doc. 105-1
at 1). They further argue that the issuance of an arrest warrant
by a magistrate as well as indictment by a grand jury further
insulate Defendants from liability under § 1983. (Rec. Doc. 1051 at 8). The Court is not inclined to agree with this overly
simplified interpretation of Fourth Amendment jurisprudence in
this area.
To be sure, “[t]he Constitution does not guarantee that
only

the

guilty

will

be

arrested.

If

it

did,

§

1983

would

provide a cause of action for every defendant acquitted – indeed
30

for every suspect released.” Baker v. McCollan, 443 U.S. 137,
145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). Thus, as a
general

rule,

where

an

alleged

Fourth

Amendment

violation

“involves a search or seizure pursuant to a warrant, the fact
that a neutral magistrate has issued a warrant is the clearest
indication

that

officers

acted

in

an

objectively

reasonable

manner,” so as to entitle them to the protection of qualified
immunity.

Messerschmidt

v.

Millender,

132

S.Ct.

1235,

1245

(2012)(citing United States v. Leon, 468 U.S. 897, 922-23, 104
S.Ct. 3405, 82 L.Ed.2d 677 (1984)). It is equally true, however,
that an exception allowing suit exists where, for example, “the
warrant was ‘based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.’” Id.
Recently,
occasion

to

the

apply

Fifth
this

Circuit,

standard

in

under

Good

v.

similar

Curtis,

circumstances.

There, the court stated:
[W]e conclude that Curtis is not entitled to
qualified
immunity
on
Good's
Fourth
Amendment
claims.
Contrary
to
Curtis's
arguments, “[t]he initiation of criminal
charges without probable cause may set in
force events that run afoul of explicit
constitutional
protection—the
Fourth
Amendment if the accused is seized and
arrested, for example ... and some such
claims may be made under 42 U.S.C. § 1983.”
Castellano v. Fragozo, 352 F.3d 939, 953–54
(5th Cir.2003) (en banc). “As applied to the
qualified immunity inquiry, the plaintiff
31

had

must show that the officers could not have
reasonably believed that they had probable
cause to arrest the plaintiff for any
crime.” O'Dwyer v. Nelson, 310 Fed.Appx.
741, 745 (5th Cir.2009) (citing Devenpeck v.
Alford, 543 U.S. 146, 125 S.Ct. 588, 160
L.Ed.2d 537 (2004)). . . . On June 18, 1983,
Good was arrested for the rape and burglary
of Doe on a warrant issued upon Curtis's
probable cause affidavit. This second arrest
forms
the
foundation
of
Good's
Fourth
Amendment claim. At the time he swore out
the probable cause affidavit for the second
arrest, Curtis had no evidence before him
suggesting Good was the perpetrator other
than the false identification he procured
from Doe. Accordingly, Curtis could not have
reasonably believed that he had probable
cause to arrest Good, and the district court
did not err in determining that the genuine
issues of fact were material such that he is
not
entitled
to
summary
judgment
on
qualified immunity in the instant case.
Good

v.

Curtis,

601

F.3d

393,

401

(5th

Cir.

2010).

In

the

present case, Plaintiff alleges that E.V.’s identification was
tainted by the unduly suggestive nature of the tactics used in
procuring it. Plaintiff further alleges that officers were aware
at the time they submitted the application for Hill’s arrest
that G.T. had made an exculpatory identification, and that they
were further on notice that Hill did not reside at the address
listed on the checkbook recovered from G.T.’s car. Importantly,
the only discrete item of evidence specifically recited in the
warrant

application

is

the

identification

“by

the

victim”

(E.V.). Viewing the evidence in the light most favorable to
Plaintiff, there is a triable issue as to whether a reasonable
32

officer would have believed probable cause existed to support
the

warrant

application

if

it

was,

indeed,

based

solely

on

E.V.’s tainted identification. Thus, there is a genuine issue as
to whether probable cause existed at all.22
Notwithstanding

the

above,

in

Franks

v.

Delaware,

the

Supreme Court recognized that where “a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and . . . the
alleged

statement

is

necessary

to

the

finding

of

probable

cause,” a cognizable Fourth Amendment injury occurs such that
evidence obtained from a search authorized by the warrant must
be excluded “to the same extent as if probable cause was lacking
on the face of the affidavit.” 438 U.S. 154, 155, 98 S.Ct. 2674,
57 L.Ed.2d 667 (1978). Thus, the relevant inquiry is whether,

22

Further, Plaintiffs correctly note that many of the items relied upon by
Defendants in support of their argument that probable cause existed do not
support such a finding under relevant standards. (Rec. Doc. 112 at 2). These
include (listed at Rec. Doc. 105-1 at 17): (1) that Darrin Hill’s checkbook
was found in the vehicle in which E.V. was raped (a fact that was not
conclusively established until 2012); (2) that E.V. identified Darrin Hill in
the lineup “without having seen him other than on the night of her attack” (a
statement that has been disproven by forensic evidence and the import of
which has further been impugned by Plaintiffs’ allegations herein); (3) that
both victims repeatedly identified Darrin Hill in and out of court (the
record does not reflect that G.T. identified Darrin Hill in court in the
initial proceedings – further his alleged identification in connection with
the initial proceedings was not reported by Defendants); (4) that G.T.
continues to be “one hundred percent certain” that he saw Darrin Hill on the
night of the attack (this statement does not reflect G.T.’s testimony who
maintains, erroneously, that Hill was E.V.’s attacker, notwithstanding the
fact that his ex post facto mental impressions are irrelevant to the facts as
they existed in 1992); (5) an arrest warrant issued by a neutral magistrate
judge (Plaintiffs’ allegations that the evidence submitted to the magistrate
was tainted remove the neutral intermediary inference); and (7) a criminal
court judge upheld E.V.’s identification (here again, allegations of tainted
evidence remove the potential imprimatur of a neutral intermediary).
33

excluding the false information, there is sufficient evidence
contained in the affidavit to support the magistrate’s probable
cause finding. Id. at 156. To the extent Det. Carter’s statement
that

E.V.

identified

Hill

as

her

assailant

could

be

characterized as a misstatement - if Plaintiff is correct that
the identification was the result of suggestive procedures Plaintiff has articulated an actionable Fourth Amendment Franks
violation sufficient to overcome Defendants’ qualified immunity.
See,

United

States

1980)(recognizing

v.

Martin,

that

the

615

F.2d

Franks

318,

328

rule

(5th

deals

Cir.
with

misstatements).
Further,

the

alleged

misstatements

in

the

warrant

application are not the only basis for finding an actionable
Fourth Amendment violation under present circumstances. As noted
in Martin, supra, United States v. Park, 531 F.2d 754, 758-59
(5th

Cir.

1976),

“recognized

that

allegations

of

material

omissions were to be treated essentially similarly to claims of
material misstatements.” 615 F.2d at 328; accord, Hale v. Fish,
899 F.2d 390, 400, n.3 (5th Cir. 1990)(“The holding in Franks
applies

to

omissions

as

well.”).

Thus,

in

the

present

circumstances where Hill complains of the omission of various
items

of

exculpatory

evidence,23

23

it

becomes

necessary

to

Which include: G.T.’s exculpatory identification, the suggestive techniques
used to procure E.V.’s identification as well as her delay in making an
identification, the fact that Darrin Hill did not reside at the address
34

determine “that the omissions were in fact made, and, second,
that they were made intentionally or with a reckless disregard
for the accuracy of the affidavit.” Id. If so, the Court is
required to determine “whether, if the omitted material had been
included in the affidavit, the affidavit would still establish
probable cause for” the plaintiff’s arrest.” Id. The degree of
intent is material, as “negligent omissions will not undermine
the affidavit.” Martin, supra, 615 F.2d at 329 (citing United
States v. House, 604 F.2d 1135, 1141 (8th Cir. 1979).

Here,

Defendants have conceded in deposition testimony that, if true
and known to officers at the time, the fact of an exculpatory
identification by G.T.; that Darrin Hill did not reside at 4860
Camelia; that a vehicle matching the getaway car was found near
that address; and that E.V. hesitated before identifying Darrin
Hill, would all have been important items to report in their
investigation.

Thus,

viewing

the

evidence

in

the

light

most

favorable to Hill (to conclude that these facts exist), their
omission from the warrant application would certainly appear to
have been the result of deliberate manipulation in order to
secure a finding of probable cause. See, e.g., Hale, supra, 899

listed on the checkbook found in G.T.’s car, that a vehicle matching the
description of the getaway vehicle was located near that address, and that
Darrin Hill’s appearance differed from the description provided by G.T. in a
number of ways, not least of which is his apparent severe mental illness. The
record reflects that Hill was, at the time, 26 years old, 5’7” tall, and 135
pounds (i.e., up to 7 years older, up to 7” shorter, and nearly 50 pounds
lighter than the description provided to NOPD of the perpetrator). (See Rec.
Doc. 112 at 4).
35

F.2d

at

‘clearly

400

(“If

critical’

the
to

facts
a

omitted

finding

of

from

an

probable

affidavit

are

cause,

then

recklessness may be inferred from the proof of the omission
itself.”)(citing United States v. Martin, 615 F.2d 318, 329 (5th
Cir. 1980)). There is a genuine issue remaining as to whether
the inclusion of these facts would have allowed the magistrate
judge to conclude that probable cause existed to issue a warrant
for Hill’s arrest, particularly where the basis for that action
appears to have relied entirely upon the alleged identification
by E.V..
In light of the foregoing, it appears Hill asserts valid
causes of action for deprivations of his Fourth Amendment rights
under § 1983. However, as discussed below, these claims were
nevertheless time-barred at the filing of this suit in April
2013.
(a)

Prescription of Plaintiff’s Fourth
Amendment Claims

It is well-settled that the question of the length of the
prescriptive or limitations period applicable to a § 1983 action
is determined by reference to state personal injury law, while
the accrual of such period is a question of federal law. Wallace
v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973
(2006). In the context of the general false imprisonment action,
the limitations period begins the moment the arrestee becomes
36

detained pursuant to legal process. Id. at 389. This is because
false imprisonment consists of detention without legal process.
Id. In the vast majority of cases, it must be assumed, this
occurs when “he is bound over by a magistrate or arraigned on
charges”;

the

point

at

which

he

becomes

held

pursuant

to

process. Id. Thus, in the context of a “false arrest” claim,
damages for that claim cover the time of detention up until
issuance of process or arraignment, but not more. Wallace, 549
U.S.

at

390.

By

contrast,

once

legal

process

is

issued,

“unlawful detention forms part of the damages for the ‘entirely
distinct’

tort

of

malicious

prosecution,

which

remedies

detention accompanied, not by absence of legal process, but by
wrongful institution of legal process. . . . From that point on,
any damages recoverable must be based on a malicious prosecution
claim and on the wrongful use of judicial process rather than
detention itself.” Id.
Under

these

circumstances,

neither

party

adequately

addresses the material distinction between the pre- and posttrial periods of Hill’s detention. See Castellano v. Fragozo,
352 F.3d 939, 959 (5th Cir. 2003)(“[W]e adhere to the view that
the umbrella of the Fourth Amendment, broad and powerful as it
is, casts its protection solely over the pretrial events of a
prosecution,”

while

noting

that

recovery

for

damages

arising

from trial and wrongful conviction - as opposed to arrest and
37

pretrial

detention

-

could

find

footing

in

the

Fourteenth

Amendment.)
Defendants argue merely that Hill asserts claims for false
arrest, the limitations period for which began to accrue as soon
as he was held “pursuant to legal process;” here, the moment a
warrant was issued for his arrest or, at the latest, when he was
arraigned.

Although

the

Court

does

not

decide

whether

a

plaintiff who, as Hill here alleges, was arrested pursuant to a
warrant based on tainted evidence, is held “pursuant to legal
process,” it is clear that any claims Hill may have had under
the Fourth Amendment began to accrue by the time he was tried
(and ultimately adjudicated not guilty by reason of insanity).24
Thus,

his

nature,

Fourth

began

to

Amendment
accrue

in

claims,
1999

and

whatever
were

their

precise

prescribed

by

the

filing of the instant suit in 2013, applying Louisiana’s oneyear prescriptive period for personal injury actions. La. Civ.
Code

ann.

art.

3492

(“Delictual

actions

are

subject

to

a

liberative prescription of one year.”)
Accordingly, Defendants are entitled to summary judgment
dismissing Hill’s claims arising under the Fourth Amendment for
his

pre-trial

detention.

However,

24

as

discussed

above,

these

As noted, supra, this amounted to the functional equivalent of a conviction
by suspending the limitations period for purposes of any action that would
implicate the validity of the underlying adjudication and further to the
extent it involved a judicial determination that the elements of the charged
offense had been proven beyond a reasonable doubt.
38

issues

do

not

deprivations

dispose

of

of

due

his

process

remaining
rights

claims

under

relating

the

to

Fourteenth

Amendment. Defendants have not specifically brought limitations
challenges

to

these

claims,

and

as

such

they

are

waived.

However, the Court notes that, in any event, such claims do not
begin

to

accrue

until

the

underlying

wrongful

conviction

is

vacated and charges are dismissed. See Castellano v. Fragozo,
352 F.3d 939, 959 (5th Cir. 2003)(“Justice Scalia’s opinion in
Heck v. Humphrey
overwhelming

answers any question of limitations in the

percentage

of

cases,

including

this

case.

It

concludes that no such claim accrues until the conviction has
been set aside where, as here, the suit calls the validity of
the conviction into play.”)(citing Heck v. Humphrey, 512 U.S.
477,

114

S.Ct.

2364,

129

L.Ed.

2d

383

(1994)).

Here,

these

occurred by April 25, 2012 - at the earliest - and were not
time-barred by the filing of the instant suit on April 21, 2013.
3) Claims under Title II of the ADA
Plaintiffs

allege

that

Defendants

discriminated

against

Hill in violation of Title II of the ADA, which requires proof
(1) that the plaintiff has a qualifying disability, (2) that the
plaintiff was discriminated against by a public entity, and (3)
that such discrimination was by reason of his disability. Hale
v.

King,

642

F.3d

492,

499

(5th

Cir.

2011).

According

to

Plaintiffs, the sole issue in this respect, given Hill’s severe
39

mental illness, is whether a reasonable jury could find that
Hill

was

discriminated

against

by

Defendants

because

of

his

disability (e.g., because they thought they could get away with
doing so). (See Rec. Doc. 112 at 25-26). In support of this
contention, Plaintiffs cite Defendants’ alleged (1) manipulation
of identification procedures, (2) burying of exculpatory witness
statements

and

other

information,

(3)

and

hiding

of

helpful

crime lab reports. (Rec. Doc. 112 at 26).
Defendants

counter

that

courts

have

only

recognized

two

types of Title II claims in the context of arrests: (1) wrongful
arrest, where police arrest a suspect based on his disability
(i.e.,

misperceiving

activity);

and

(2)

the

effects

reasonable

of

disability

accommodation,

as
where

criminal
police

properly arrest a suspect but fail to reasonably accommodate his
disability during the investigation or arrest, causing him to
suffer greater injury or indignity than other arrestees. (Rec.
Doc. 105-1 at 28)(citing Gohier v. Enright, 18 F.3d 1216, 122021 (10th Cir. 1999)).
Under the present circumstances there is nothing in the
record to support a claim of wrongful arrest based on Hill’s
disability. As such, the sole colorable claim would be that
Defendants failed to reasonably accommodate Hill as a result of
his disability. Plaintiffs have failed to raise a genuine issue
of fact as to this claim. All of the instances of conduct cited
40

by Plaintiffs are rendered superfluous in light of the fact that
Hill was represented by counsel in connection with the original
proceedings. (See, e.g., Rec. Doc. 112-2 at 24 – references to
motion to suppress, etc.) There are simply no allegations that
Defendants took advantage of Hill’s disability by, for instance,
attempting to extract inculpatory admissions from him during a
custodial

interrogation

while

failing

to

accommodate

his

disability. Compare Delano-Pyle v. Victoria County, Tex., 302
F.3d 567, 576 (5th Cir. 2002)(affirming jury verdict on Title II
claim where officer failed to take suspect’s hearing problem
into account while conducting a field sobriety test and issuing
Miranda

warnings). Indeed, the record is devoid of any such

admissions by Hill, who appears to have maintained his innocence
throughout. Hill would not have been present for the review of
the

photographic

lineups

by

manipulation

and

suppression

unlikely

have

been

to

less

E.V.
of

and

G.T.

evidence

effective

and

by

against

the

alleged

Defendants
a

are

non-disabled

defendant, particularly one represented by counsel.
In

light

of

the

foregoing,

Plaintiffs

have

failed

to

establish that a reasonable jury could find for Hill on his
Title II claims and Defendants are entitled to summary judgment
as to these.
4) Claims under State Law

41

Defendants specifically challenge three of the Louisiana
state law claims asserted by Plaintiffs; for (i) false arrest,
(ii) malicious prosecution, and (iii) intentional infliction of
emotional distress (“IIED”). (Rec. Doc. 116 at 8-9). As to the
former two, Defendants primarily argue that the existence of
probable cause for Hill’s arrest is fatal. As to the latter,
Defendants assert a lack of requisite intent.
i.
A

False Arrest

claim

of

false

arrest

under

state

law

in

Louisiana

requires showing that: (1) the plaintiff was detained and (2)
that the detention was unlawful. Dumas v. City of New Orleans,
01-0448

(La.

App.

4

Cir.

12/05/01);

803

So.2d

1001,

1003.

“[P]robable cause is an absolute defense to any claim against
police

officers

for

wrongful

arrest,

false

imprisonment,

or

malicious prosecution.” (Rec. Doc. 116 at 8)(citing Harris v.
Eckerd Corp., 35,135 (La. App. 2 Cir. 09/26/01); 796 So.2d 719,
722. Probable cause is determined according to the totality of
the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct.
2317, 76 L.Ed. 2d 527 (1983). While probable cause is a fluid
concept insusceptible of precise definition, the “substance of
all the definitions of probable cause is a reasonable ground for
belief of guilt . . . and that the belief of guilt must be
particularized with respect to the person to be searched or

42

seized.” Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct.
795, 157 L.Ed.2d 769 (2003)(internal citations omitted).
As

discussed

in

detail

above,

Plaintiffs

have

raised

a

number of genuine issues of material fact surrounding Hill’s
arrest, which include: (1) what was known to Defendants at the
time

of

the

warrant

application,

(2)

whether

exculpatory

evidence was suppressed, (3) whether the identification relied
upon in securing the warrant was suggestive, and (4) whether
Defendants

willfully

ignored

evidence

tending

to

direct

the

investigation away from Hill as a suspect. In light of these
unresolved questions, which involve credibility determinations
unquestionably reserved to the jury, the Court is unable to
conclude

that

Plaintiffs

cannot

establish

the

absence

of

probable cause for Hill’s arrest. As such, summary judgment is
precluded as to Hill’s state law claim of false arrest.
ii.
The

Malicious Prosecution

elements

of

a

Louisiana

malicious

prosecution

claim

are: (1) the commencement or continuance of an original criminal
or civil judicial proceeding; (2) its legal causation by the
present defendants against plaintiff who was defendant in the
original proceedings; (3) its bona fide termination in favor of
the present plaintiff; (4) the absence of probable cause for
such proceeding; (5) the presence of malice therein; and (6)
damage

conforming

to

legal

standards
43

resulting

to

plaintiff.

Wiley v. Wiley, 01-0726, (La. App. 3 Cir. 11/7/01); 800 So.2d
1106, 1009, writ denied, 01-3232 (La. 2/8/02); 809 So.2d 129.
For the same reasons as above, a genuine issue persists as to
the

existence

or

lack

of

probable

cause

for

Hill’s

arrest.

Further, although the Fifth Circuit has since concluded that
there no longer exists a constitutional violation co-extensive
with

the

elements

of

the

common

law

tort

of

malicious

prosecution, such was previously the case. See Castellano v.
Fragozo, 352 F.3d 939 (5th Cir. 2003). And still, a successful
showing

of

Fourteenth

deprivations
Amendment

of

due

stemming

process
from

rights

the

manipulation

the

under

or

suppression of evidence in order to initiate a prosecution - as
Hill has established here – overlaps to a large degree with the
elements

of

Further,

in

a

state

light

malicious
of

Hill’s

prosecution

claim.

id.

concerning

allegations

See

the

manipulation and suppression of exculpatory evidence, Defendants
are incorrect that the record does not contain any indication of
malice on their behalf for this type of claim. (See Rec. Doc.
116

at

9);

Sanders

v.

English,

950

F.2d

1152,

1163

(“Deliberately concealing or deliberately failing to disclose
exculpatory

evidence,

like

‘maliciously

tendering

false

information,’ can, as under the circumstances here present, form
the basis for an inference that a defendant police officer acted
with

malice

in

initiating

and
44

maintaining

a

prosecution.”)

Accordingly, Defendants are not entitled to summary judgment on
Hill’s malicious prosecution claim.
iii.

IIED

A claim of IIED in Louisiana requires: (1) extreme and
outrageous conduct by the defendants; (2) that the emotional
distress suffered by the plaintiff was severe; and (3) that the
defendants desired to inflict severe emotional distress or knew
that severe emotional distress would be certain or substantially
certain to result. White v. Monsanto, 585 So.2d 1205, 1209-10
(La. 1991); Biagas v. St. Landry Parish Sheriff Office, 13-642,
(La. App. 3 Cir. 12/11/13); 132 So.3d 971, 974. Here again,
Defendants misconstrue the nature of Plaintiffs’ allegations as
well as the lens through which these are viewed in the context
of a summary judgment motion. Drawing all reasonable inferences
in

favor

of

Hill,

his

allegations

are

that

Defendants

deliberately manipulated and suppressed evidence in an effort to
secure Hill’s arrest and ultimate adjudication. If the jury were
to so find, there is no plausible argument to be made that
Defendants would not, at the very least, have been aware that
severe

emotional

distress

would

be

substantially

certain

to

result to Hill. Moreover, such conduct would clearly rise to the
level of extreme and outrageous, which is defined as exceeding
“all possible bounds of decency, and to be regarded as atrocious
and

utterly

intolerable

in

a

civilized
45

community.”

Monsanto,

supra, 585 So. 2d at 1209. This is rendered particularly so in
light

of

Hill’s

mental

illness.

See

id.

at

1210.

(“The

defendant’s knowledge that plaintiff is particularly susceptible
to emotional distress is a factor to be considered.”).

Indeed,

Plaintiffs’ allegations in the instant case amount to the rare
factual predicate in which a colorable claim of IIED actually
exists.

Accordingly,

Defendants

are

not

entitled

to

summary

judgment on Plaintiff’s IIED claim.
5) Claims against Defendant Ronal Serpas in his
Official Capacity
Plaintiffs
Defendant

voluntarily

Ronal

Serpas

in

dismissed
his

their

official

claims

capacity

against
in

their

Response to Defendants’ Motion for Summary Judgment (Rec. Doc.
112

at

3,

n.3)(“Plaintiffs

voluntarily

dismiss

their

Monell

claim (Count X)). As such, the sole issue for the Court on this
item is Defendants’ entitlement to fees incurred in association
with

defending

prevailing

against

plaintiffs

Plaintiffs’

are

entitled

Monell
to

allegations.

attorneys’

fees

While
unless

special circumstances would render an award unjust, prevailing
defendants

are

underlying

claim

entitled
is

to

attorney

frivolous,

fees

unreasonable,

only
or

when

the

groundless.

Mississippi, supra, 921 F.2d at 609. U.S. v. Mississippi, 921
F.2d

604,

plaintiff’s

609
civil

(5th

Cir.

rights

1991).

action
46

is

To

determine

frivolous,

the

whether
court

a
may

consider: (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. Myers
v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000). If a
plaintiff

presents

some

credible

evidence

in

support

of

the

claim, then the case has merit and an award under Section 1988
is inappropriate. Hahn v. City of Kenner, 1 F.Supp. 2d 614, 617
(E.D. La. 1988).
On

this

issue,

Defendants

argue

Plaintiffs

asserted

a

Monell claim supported merely by conclusory allegations that the
“NOPD maintained a policy, custom, or pattern and practice of
condoning

corruption,

that

included

widespread

investigative

misconduct, including by failing to supervise, discipline, and
train its investigative officers.” (See Rec. Doc. 116 at 10).
The Court cannot agree as to the conclusory nature of these
allegations.

Plaintiffs’

Complaint

cites

to

various

sources,

including, inter alia, a report by the International Association
of Chiefs of Police, contemporaneous public admissions by the
NOPD

itself,

and

a

collaborative

finding

by

the

Louisiana

National Guard and the City of New Orleans, detailing extensive
abuses in the Department and lapses in training standards relating in particular to photo lineup procedures - during the

47

early 1990s.25 Indeed, the NOPD’s failings during this period are
notorious and have been extensively documented.26 Accordingly,
the

Court

cannot

conclude

that

Plaintiffs’

allegations

that

inadequate training and patterns of investigative misconduct may
have led to the erroneous arrest and prosecution of Hill during
this same period were “frivolous, unreasonable, or groundless.”
While discovery may ultimately have proven otherwise, the claims
were not baseless at the outset and this motion for summary
judgment was the first opportunity in which to address their
dismissal.

Accordingly,

Defendants

are

not

entitled

to

attorney’s fees on Plaintiffs’ Monell claims.
B. Claims of Plaintiff Marie Hill
As to Plaintiff Marie Hill’s claims under § 1983 relating
to

deprivations

of

the

rights

of

familial

association

and

integrity, Defendants are entitled to qualified immunity. Marie
Hill argues that Defendants “deliberately violated [her] clearly
established First and Fourteenth Amendment rights to be free
from

unwarranted

government

interference

with

her

familial

25

These include, specifically, alleged findings by the Chiefs of Police
report that the department’s failures leave it “dangerously defenseless
against failure-to-train based allegations and lawsuits.” (Rec. Doc. 1 at
21).

26

The Court takes judicial notice of the fact that the NOPD is currently the
subject of a consent decree with the United States Department of Justice,
which is overseen by another section of this Court and relates specifically
to alleged patterns of civil rights violations and other misconduct by the
department. See United States v. City of New Orleans, 12-cv-1924 (E.D. La.
2012)(Morgan, J., presiding).
48

relationship to Hill without due process of law.” (Rec. Doc. 1
at 192).
Defendants counter, first, that this right does not exist
and, second, if it does at all, it was not “clearly established”
to warrant liability under § 1983 at the time of Hill’s arrest
in 1992. Because the Court concludes that the right asserted by
Plaintiff is still not “clearly established,” for purposes of
the

qualified

immunity

analysis,

Defendants

prevail

on

this

issue.
The only contemporaneous decision cited by Plaintiffs that
arguably supports their position is Rhyne v. Henderson Cnty.,
973

F.2d

386,

391

(5th

Cir.

1992).

That

case

involved

the

suicide of a pretrial detainee, alleged to have resulted from
prison officials’ failure to provide him with reasonable medical
care. Id. at 388. The decedent’s mother sought to recover, not
as representative of her son’s estate for his own injuries under
the Texas wrongful death statute, but rather in her own capacity
under § 1983. Writing in 1992, the Fifth Circuit stated: “The
right to such recovery under § 1983 has ‘generated considerable
confusion and disagreement,’ Crumpton v. Gates, 947 F.2d 1418,
1420 (9th Cir. 1991), over which the circuits have divided.
Compare Jaco v. Bloechle, 739 F.2d 239, 243 (6th Cir. 1984) and
Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). The
Supreme Court has yet to decide this question.” Id. The court
49

ultimately concluded that its “decisions allow recovery by [the
mother] for her injury caused by the state’s deprivation of her
son’s constitutionally secured liberty interests.” Rhyne, supra,
973 F.2d at 391. Given that the Rhyne court itself acknowledged
the fractious state of the law in this area in 1992 and that the
Rhyne opinion does little to illuminate the parameters of the
alleged cause of action - declining to elaborate in light of the
fact

that

the

plaintiff

had

failed

to

present

sufficient

evidence of a constitutional deprivation – the Court cannot say
that

there

was

a

association

that

clearly

would

established

allow

a

mother

right
to

of

recover

familial
for

the

unconstitutional deprivations of liberty occasioned against her
son by the state in 1992 under § 1983. Id.
Plaintiffs

are

correct

that

Hope

v.

Pelzer

eschewed

a

narrow, case-specific interpretation of when a constitutional
right can be said to be “clearly established” in order to defeat
qualified immunity, directing instead merely that “in the light
of pre-existing law the unlawfulness must be apparent.” 536 U.S.
730, 739 (2002). However, subsequent decisions have winnowed the
scope of Pelzer to require more than Plaintiffs have asserted
for purposes of the instant cause of action. See, e.g., Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011)(“We
have

repeatedly

told

courts

.

.

.

not

to

define

clearly

established law at a high level of generality. . . . The general
50

proposition,
seizure

for

example,

violates

the

that

Fourth

an

unreasonable

Amendment

is

of

search

little

and

help

in

determining whether the violative nature of particular conduct
is clearly established.”) It is insufficient to rely upon the
broadly

framed

recognition

of

a

right

to

family

autonomy

recognized in cases such as Stanley v. Illinois, 405 U.S. 645,
651 (1972); Moore v. City of East Cleveland, 431 U.S. 494, 499
(1977). Further, as recently as 2012, in a similar case, the
Fifth Circuit found a lack of “caselaw that indicates that a
parent of an adult child has a right to visitation with that
child.” Beddingfield ex rel. Bedingfield v. Deen, 487 F. App’x
232-33 (5th Cir. 2012). The court concluded, therefore, that the
plaintiffs had not demonstrated the defendants had “violated a
clearly

established

association.”

Id.

constitutional

Compelling

as

right

Plaintiffs’

to

familial

arguments

that

Hill’s disability renders his relationship to his mother the
functional equivalent of that between a minor child and parent
may be, Plaintiffs cite no legal support for this contention and
fail to address the fact that Hill appears to remain, for legal
purposes,

a

person

of

full

majority,

(i.e.,

there

is

no

indication that he has been interdicted, so as to legally affect
his status in this regard).
In light of the foregoing, Defendants have shown an absence
of

genuine

issues

of

material
51

fact

and

an

entitlement

as

a

matter
issue.

of

law

They

dismissing

to
are

Mrs.

the

defense

of

therefore

Hill’s

§

qualified

entitled

1983

claims.

immunity

on

to

summary

judgment

The

Court

notes

this

that

Defendants have not challenged Mrs. Hill’s state law consortium
claims, and these remain viable.
Conclusion
As elaborated above, IT IS ORDERED THAT Defendants’ Motion
for Summary Judgment (Rec. Doc. 105) is GRANTED IN PART and
DENIED IN PART, as follows:
(1)

DENIED

as

to

Darrin

Hill’s

Fourteenth

Amendment

due

process claims;
(2)

GRANTED as to Darrin Hill’s Fourth Amendment claims;

(3)

DENIED as to Darrin Hill’s state law claims; and,

(4)

GRANTED as to Marie Hill’s claims under § 1983.

New Orleans, Louisiana, this 12th day of January, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

52