Hill et al v. New Orleans City et al

Filing 193

ORDER AND REASONS DENYING 143 Motion for Summary Judgment; DENYING 144 Motion for Summary Judgment; DENYING 145 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 12/20/2016. (mmv)

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

Before the Court are Defendants’, City of New Orleans, et al
“Supplemental
Waguespack’s

Memorandum
Motion

for

in

Support

Summary

of

Judgment”

Defendant
(Rec.

Doc.

Daniel
143),

“Supplemental Memorandum in Support of Defendant Allen Gressett’s
Motion

for

Summary

Judgment”

(Rec.

Doc.

144),

“Supplemental

Memorandum in Support of Defendant Joseph Hebert’s Motion for
Summary

Judgment”

(Rec.

Doc.

145),

“Plaintiffs’

Consolidated

Memorandum in Opposition to Defendants Hebert’s, Gressett’s, and
Waguespack’s Supplemental Motions for Summary Judgment” (Rec. Doc.
152), “Defendant Allen Gressett’s Reply Memorandum” (Rec. Doc.
162), “Defendant Joseph Hebert’s Supplemental Reply Memorandum”
(Rec. Doc. 163) and “Reply Memorandum in Support of Defendant
Daniel Waguespack’s Motion for Summary Judgment” (Rec. Doc. 164).
For the reasons set forth below,
IT

IS

ORDERED

that

the

Defendants’

Motions

Judgment (Rec. Docs. 143, 144 and 145) are DENIED.

1

for

Summary

I.

FACTS AND PROCEDURAL HISTORY
This case arises out of the incarceration of Plaintiff, Darrin

Hill, for nearly two decades for an aggravated rape, kidnapping,
and attempted burglary of which he was eventually exonerated via
DNA evidence. A more detailed factual background can be found in
this Court’s January 13, 2015 Order, 1 and in the Fifth Circuit’s
Judgment issued as the mandate on April 6, 2016. See Hill v. New
Orleans City, No. 15-30062, 2016 WL 1055736, at *1-3 (5th Cir.
Mar. 15, 2016); (see also Rec. Doc. 126 at 5-9). More important
for the instant motion, however, is a review of the procedural
background.
On April 25, 2013, Hill and his mother filed the instant suit
pursuant to 42 U.S.C. § 1983, naming as Defendants the City of New
Orleans and multiple NOPD employees. (Rec. Doc. 1 at 1). Hill
claimed that the Defendants violated his rights under the First,
Fourth,

and

Constitution,

Fourteenth
as

well

Amendments
as

Title

II

of

the

of

the

United
Americans

States
with

Disabilities Act (“ADA”). (Rec. Doc. 1 at 28-42). Plaintiffs also
brought several Louisiana state law claims. (Rec. Doc. 1 at 4247). On November 21, 2014, the NOPD Defendants moved for summary
judgment on the basis of qualified immunity, arguing that Hill’s
Fourth and Fourteenth Amendment claims failed because there had

1 Hill v. New Orleans City, No. CV-13-2463, 2015 WL 222185, at *1-3 (E.D. La.
Jan. 13, 2015), dismissed in part, remanded in part, No. 15-30062, 2016 WL
1055736 (5th Cir. Mar. 15, 2016); (see also Rec. Doc. 117 at 1-9).

2

been probable cause to arrest him. (Rec. Doc. 105). On January 13,
2015, this Court granted summary judgment in favor of Defendants
on Hill’s Fourth Amendment and ADA claims, but denied summary
judgment on Hill’s Fourteenth Amendment claims and Plaintiffs’
state law claims. Hill, 2015 WL 222185, at *18; (see also Rec.
Doc. 117 at 52).
Regarding Hill’s Fourteenth Amendment claims, this Court held
that Hill offered sufficient evidence to create genuine disputes
of material fact as to whether (1) Defendants employed an unduly
suggestive lineup procedure to obtain a false identification of
Hill; (2) Defendants suppressed evidence calling into question the
credibility

of

the

victim’s

identification

of

Hill;

(3)

the

victim’s boyfriend was shown a photographic lineup and, if so,
Defendants suppressed evidence that he identified someone other
than

Hill;

potentially

(4)

Defendant

exculpatory

Carter

evidence

deliberately

relating

to

the

suppressed
lack

of

connection between Hill and the address listed on the checkbook
recovered from the victim’s boyfriend’s car; and (5) Defendant
Carter and/or other Defendants deliberately suppressed the DNA
evidence that ultimately led to Hill’s exoneration. Hill, 2015 WL
222185, at *6-9; (see also Rec. Doc. 117 at 17-28). Defendants
appealed, seeking interlocutory review of the denial of summary
judgment on qualified immunity as to Hill’s Fourteenth Amendment
claims. (Rec. Doc. 119). In the Judgment issued as the Mandate on
3

April 4, 2016, the United States Fifth Circuit Court of Appeals
dismissed the appeal as to Defendant Carter and remanded it with
regard to the other Defendants, finding that this Court only set
forth disputed facts specific to Defendant Carter and the defense
of qualified immunity required an analysis for each individual
defendant. Hill, 2016 WL 1055736, at *5-6; (see also Rec. Doc. 126
at 13-14).
On April 29, 2016, this Court adopted the parties’ proposed
schedule

for

supplemental

summary

judgment

briefing

on

this

limited issue that will be decided in the instant Order and
Reasons. (Rec. Doc. 134). Before this court are Motions for Summary
Judgment filed on behalf of NOPD Criminalist Daniel Waguespack,
Detective Allen Gressett and Sergeant Joseph Hebert.
II.

LAW AND ANALYSIS
Summary judgment is proper if the pleadings, depositions,

interrogatory

answers,

and

admissions,

together

with

any

affidavits, show that there is no genuine issue as 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).
would

allow

nonmovant.
(1986).

a

reasonable

A genuine issue exists if the evidence
jury

to

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

Although the Court must consider the evidence with all

reasonable inferences in the light most favorable to the nonmoving
4

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, answers to interrogatories, and admissions
on file, together with affidavits’ which it believes demonstrate
the absence 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 go beyond the pleadings and use affidavits,
depositions,

interrogatory

responses,

evidence to establish a genuine issue.

admissions,

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 nonmovant the burden of demonstrating by competent summary judgment
proof that there is an issue of 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, 618 (5th Cir. 1994) (citations omitted). Accordingly,
conclusory rebuttals of the pleadings are insufficient to avoid

5

summary judgment.

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

7 F.3d 1203, 1207 (5th Cir. 1993).
Under the standard as interpreted by the Fifth Circuit, “the
doctrine of qualified immunity protects government officials from
civil damages liability when they reasonably could have believed
that their conduct was not barred by law, and immunity is not
denied

unless

existing

precedent

places

the

constitutional

question beyond debate.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th
Cir. 2013). When evaluating whether or not an official could
reasonably believe that their conduct was not barred by law, “the
court asks whether the law so clearly and unambiguously prohibited
the conduct that every reasonable official would understand that
what he is doing violates the law.” Fletcher, 718 F.3d at 503. The
Fifth Circuit Court of Appeals examines whether there are facts
present

demonstrating

that

each

defendant

(1)

violated

a

constitutional right that was (2) clearly established at the time
of

the

violation

(3)

through

conduct

that

was

objectively

unreasonable. Mowbray v. Cameron County, 274 F.3d 269, 279 (5th
Cir. 2001). This Court will determine whether the Plaintiffs’ have
submitted sufficient facts demonstrating that Daniel Waguespack,
Allen Gressett and Joseph Hebert should not be able to assert
qualified immunity.

6

A. Waguespack’s Motion for Summary Judgment
Defendants

contend

that

Plaintiffs’

did

not

present

any

evidence demonstrating that NOPD Criminalist Daniel Waguespack
violated any of Darrin Hill’s constitutional rights. Waguespack
examined the victim’s underwear for semen, hair and blood inside
of the NOPD crime lab after the crime took place. On July 8, 1992
Waguespack reported to Detective Carter that the underwear did not
contain

any

forensic

evidence

according

to

his

examination.

Plaintiffs’ allege that there is a triable issue of fact as to
what type of test Waguespack used on the underwear.
At issue is whether he did phosphatase
examinations

or

whether

he

only

and

microscopic

conducted a phosphatase

examination. There is contested evidence that he conducted both
examinations and then failed to report the exculpatory results
from the microscopic examination.

Plaintiffs’ base this

allegation upon Mr. Waguespack’s alleged inconsistency in his
testimony regarding whether he conducted both a microscopic test
and a phosphatase test in 1992 when he conducted his examination.
In the Motion for Summary Judgment Waguespack claims that he
only conducted the Phosphatase test and not the microscopic
test. (Rec. Doc. 143 at 6). However Mr. Waguespack’s deposition
testimony

equivocates

regarding

whether

or

not

a

microscopic test was given. (See, Rec. Doc. 143-25, Waguespack
Dep. at 77:23-78:16, 122:8-24).
7

Defendants in their reply argue that these equivocations can
be explained through Waguespack’s use of qualifying phrases such
as “generally” before his answers and that he lacked his notes
during the deposition so he was unsure as to what procedures
he

followed. However, it would be inappropriate to make such

interpretive conclusions at this stage as that would involve a
prohibited weighing of the evidence. A reasonable jury could
determine

that

Waguespack

conducted

a

microscopic

test

and

concealed the results as evidenced by his inconsistent responses.
Tampering

with

such

exculpatory

evidence

would

rise

to

the

level of a constitutional violation and defeat any claims of
qualified immunity. Conversely,

a

reasonable

jury

could

also

find that Waguespack did not conduct the test and hence

not

liable to Plaintiffs.

B. Gressett’s and Hebert’s Motions for Summary Judgment
Defendants

argue

that

Detectives

Gressett’s

and

Sergeant

Hebert’s personal involvement in Detective Carter’s misconduct was
minimal and therefore Plaintiffs’ cannot bring claims against
them.

That

argument

presents

a

closer

issue

here.

However,

liability on Gressett and Hebert may be imposed through their role
as co-conspirators. “A conspiracy may be charged under section
1983 as the legal mechanism through which to impose liability on
all

of

the

defendants

without
8

regard

to

who

committed

the

particular act. To prevail on a conspiracy claim under § 1983, the
plaintiffs must show (1) the existence of a conspiracy involving
state action, and (2) a deprivation of their civil rights in
furtherance of the conspiracy.” Jones v. Bd. of Supervisors of the
Univ. of La. Sys., No. Civ. 14-2304, 2016 U.S. Dist. LEXIS., at
*12 (E.D. La. Feb. 26, 2016) (quoting and citing Pfannstiel v.
City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990)).
The Fifth Circuit has held that “an express agreement is not
required to prove a conspiracy” and that “it is well-settled that
circumstantial

evidence

may

establish

the

existence

of

a

conspiracy, as well as an individual’s voluntary participation in
it and a jury is free to infer the existence of a conspiracy from
the presence, association, and concerted action of the defendant
with others.” United States v. Bowen, 818 F.3d 179 (5th Cir. 2016).
There

is

record

evidence

of

specific

occurrences

of

“presence, association and concerted action” involving Carter,
Gressett and Hebert at various stages of the investigation in both
supervisory and auxiliary roles to each other. (Specifically found
at: Rec. Doc. 144-22, Carter Depo. 250:16-25, 164:14–24, 207:5–25;
Rec. Doc. 144-21, Carter Depo. 137:19-138:6, 164:6–13, 162:9–15,
207:5–6).

A

reasonable

jury

could

find

that

any

purported

wrongdoing committed by Carter could also implicate Gressett and
Hebert. Gressett accompanied Carter throughout the investigation
and would be privy to any wrongdoing committed by Carter (Rec.
9

Doc. 144-22, Carter Depo. 250:16-251:8). Furthermore, Sergeant
Hebert’s role in the investigation was more than merely signing
off on Carter’s reports. Sergeant Hebert was active in discussing
with Carter each step of investigation and had the ability to
influence Carter’s behavior and how he ran the investigation. (See
for example, Rec. Doc. 144-21, Carter Depo. 164:6–24). Discussions
regarding the investigation could reasonably constitute actions in
furtherance of a conspiracy. The relationship between the three
parties and the actions taken by each that could have violated the
constitutional rights of Plaintiffs are replete with material
factual

disputes

and

subject

to

reasonable

divergent

interpretations.
It

would

therefore

be

inappropriate

for

this

Court

to

determine that any of these parties’ actions are shielded by
qualified immunity. It is up to the factfinder and not this court
to

resolve

the factual

who, if any, violated
The

Defendants’

Gressett

and

issues
the

Motions

Hebert

are

that

are

Plaintiffs’

for

Summary

in

dispute regarding

constitutional
Judgment

inappropriate

at

on

this

rights.

behalf
stage.

of
The

Defendants may raise these issues at trial upon a motion for
judgment

as

a

matter

of

law

if

they

can

proffer

undisputed

evidence as to Defendants Gressett and Hebert.
New Orleans, Louisiana, this 20th day of December, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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