Beard v. Wolf et al

Filing 118

ORDER granting 76 Motion in Limine; granting 77 Motion for Partial Summary Judgment. Signed by Judge Jay C. Zainey on 12/17/14. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JANICE BEARD

CIVIL ACTION

VERSUS

NO: 13-4772

CRANE PAUL WOLF, ET AL.

SECTION: "A" (5)

ORDER AND REASONS
The following motion is before the Court: Motion for Partial Summary
Judgment (Rec. Doc. 77) filed by Defendants, Sheriff Daniel Edwards and Crane Wolf.
Plaintiff, Janice Beard, has filed an opposition to the motion. The motion, noticed for
submission on October 22, 2014, is before the Court on the briefs without oral argument. For
the reasons that follow, the motion is GRANTED.
Also before the Court is Defendants' Motion in Limine (Rec. Doc. 76) to exclude
evidence and testimony at trial pertaining to several topics. The motion was noticed for
submission on October 22, 2014. Plaintiff has not responded to the motion. The Court finds
Defendants' unrebutted arguments to be persuasive. The motion in limine will therefore be
GRANTED in its entirety.
I.

Background
Plaintiff Janice Beard brings this action pursuant to 42 U.S.C. § 1983 against

defendants Deputy Crane Paul Wolf and Sheriff Daniel Edwards, both of Tangipahoa Parish.
This action arises out of plaintiff Janice Beard's arrest on February 22, 2013. Beard
was a passenger in a vehicle that was attempting to exit a parking spot at a bar located in
Hammond, Louisiana. (Comp. ¶ 6). The vehicle made contact with another vehicle and
someone called 911. Defendant Wolf responded to the call. Beard contends that Wolf was

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belligerent and for no apparent reason pulled her from the vehicle, maced her, and threw her
to the ground. (Id. ¶ 10). Beard contends that she was then arrested without probable cause
and subjected to excessive force in the process. (Id. ¶¶ 11-2).
Beard alleges that she was denied timely medical treatment and food service while
being held at the jail, and deprived of her personal belongings because she lacked the cash fee
to obtain them. (Id. ¶¶ 13-14, 18). The complaint against Wolf and the official capacity claims
against Sheriff Daniel Edwards are brought pursuant to § 1983 and state law.
Plaintiff was charged with resisting an officer, battery of a police officer, and
disturbing the peace. (Rec. Doc. 45, Fourth Amended Complaint ¶ 80). Those charges were
nolle prossed on April 28, 2014. Plaintiff later amended her complaint to join claims against
the District Attorney for Tangipahoa Parish for malicious prosecution. The Court dismissed
those claims on July 23, 2014 (Rec. Doc. 64).
A jury trial in this matter is scheduled to commence on February 9, 2015. (Rec. Doc.
63).
Defendants now move for partial summary judgment on several issues, each of which
the Court addresses below.
II.

Motion for Summary Judgment
Summary judgment is appropriate only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable

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inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the
moving party has initially shown "that there is an absence of evidence to support the nonmoving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
The Court begins by noting that Plaintiff's opposition to Defendants' motion is for the
most part unresponsive to the specific arguments that Defendants are making. The opposition
not only fails in large part to address Defendants' arguments, but it also includes arguments
in opposition to issues that clearly have not been raised, and to claims that are not part even
part of this lawsuit.1 Plaintiff's opposition totals 546 pages yet the briefing contains only two
citations to the exhibits.2 The party opposing summary judgment must do so by citing to
specific evidence in the record. Willis v. Cleo Corp., 749 F.3d 314, 317 n.3 (5th Cir. 2014)
(citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)). That party must
also explain the "precise manner" in which that evidence supports her argument. Id. (quoting
Forsyth v. Barr, 19 F.3d 1527,1536 (5th Cir. 1994)). Rule 56 does not impose on the district
court a duty to sift through the record in search of evidence to support a party's opposition to

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For instance, at pages 11-13 of the Opposition Plaintiff unexplicably argues about First
Amendment retaliation, which is not part of this case. Plaintiff also spent much of her opposition
arguing the merits of the excessive force and false arrest claims vis à vis Wolf in his individual
capacity. But those claims are not at issue in Defendants' motion.
2

On October 22, 2014, the Court ordered counsel for Plaintiff to deliver a hard copy of the
Opposition to chambers. (Rec. Doc. 98). The Court expressly instructed that the copy was to be
tabbed but counsel ignored this instruction. The Court was provided 546 loose, unbound pages
that have been difficult to use.

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summary judgment. Id. at 317 (quoting Ragas, 136 F.3d at 458).
A. Official Capacity Claims
Plaintiff has sued Sheriff Edwards in his official capacity only, and she has sued
Deputy Wolf in both his official and individual capacities. (Rec. Doc. 3; Amended Comp. ¶
3(A)-(C)). Official capacity suits represent another way of pleading an action against an entity
of which an officer is an agent. Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d
478, 483 (5th Cir. 2000) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Thus, all of
the official capacity claims in this action are against the Sheriff of Tangipahoa Parish.
The sole claim that the Court addresses for purposes of the official capacity claims are
the Fourth Amendment claims for false arrest and excessive force. See the discussion infra
regarding rights listed in the pleadings but that are not implicated under the facts of this case.
The official capacity claims are governed generally by the principles of Monell v.
Department of Social Services of City of New York, 436 U.S. 658 (1978). Under Monell, for a

municipality to be liable for the constitutional violations of one of its employees, the plaintiff
must offer proof of a policy or custom that was the moving force behind the claimed
constitutional violation. Duvall v. Dallas County Tex., 631 F.3d 203, 210 (5th Cir. 2011) (citing
Monell, 436 U.S. at 694).
In her opposition, Plaintiff points to no evidence to support the inference that the
Sheriff had an official policy or custom of allowing officers to use excessive force and to arrest
citizens without probable cause, much less one that was the moving force behind Plaintiff's
injuries.
Plaintiff asserts in her opposition that she should be granted a continuance on
Defendants' motion and she makes reference to outstanding discovery requests but she does
not describe what she expects to discover at this late date. The Court notes that no motions to
compel are pending and Plaintiff's most recent motion before the magistrate judge was
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dismissed due to Plaintiff's counsel's failure to appear for the hearing. (Rec. Doc. 111; Minute
Entry 11/19/14). Plaintiff did have a motion to compel pending but that motion was likewise
dismissed because once again counsel did not appear. (Rec. Doc. 109; Minute Entry
11/12/14). Plaintiff has not demonstrated cause for delaying resolution of Defendants' motion
so no continuance will be granted.
Plaintiff has failed to create an issue of fact as to a policy or custom that was the
moving force behind her alleged injuries. The motion for summary judgment is GRANTED as
to this claim.
Plaintiff also asserts a failure to train/supervise claim as one of her theories of official
capacity liability. To succeed on a failure to train claim the plaintiff must demonstrate that 1)
the municipality's training policy procedures were inadequate, 2) the municipality was
deliberately indifferent in adopting its training policy, and 3) the inadequate training policy
directly caused the plaintiff's injuries. Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th
Cir. 2010) (citing Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996)). A § 1983 failure to
supervise claim requires proof that 1) the supervisor failed to supervise the officer; 2) a causal
link exists between the failure to supervise and the violation of the plaintiff's rights; and 3) the
failure to supervise amounts to deliberate indifference. Goodman v. Harris County, 571 F.3d
388, 395 (5th Cir. 2009) (citing Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998)). To
establish deliberate indifference the plaintiff usually must demonstrate a pattern of violations
and that the inadequacy of the training is obvious and obviously likely to result in a
constitutional violation. Id. (quoting Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003)).
In her opposition Plaintiff suggests that Wolf was unable to testify regarding his
general understanding of the Sheriff's policies.3 Plaintiff points out, without citation to any
3

This assertion contains one of the two citations to the Opposition's exhibits contained in
the entire memorandum. The specific deposition pages cited, however, are not included with the

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evidence or reference to any details, that Wolf had a prior disciplinary history. These
arguments do not address the culpability of the Sheriff as a moving force behind any
violation. Plaintiff has failed to create an issue of fact as to a failure to train/supervise claim.
The motion for summary judgment is GRANTED as to these theories of liability.
B. Miscellaneous Claims
The Original and Amended Complaints contain references to various rights and causes
of action that are not implicated under the facts of this case. Defendants have moved to
dismiss any claims under the Second, Fifth, Sixth, Eighth, and Fourteenth Amendments.
Plaintiff has not responded to this aspect of the motion. Thus, the motion for summary
judgment is GRANTED as to any claims brought under these Amendments.
Any purported separate claim for invasion of privacy is likewise DISMISSED.
C. Claims Under 42 U.S.C. § 1981, 1985(3), and 1986
Defendants move for summary judgment on any claims asserted under §§ 1981,
1985(3), and 1986. Section 1981 prohibits intentional racial discrimination in the making and
enforcing of contracts. Runyon v. McCrary, 427 U.S. 160, 168 (1976); Oden v. Oktibbeha
Cnty., 246 F. 3d 458, 463 (5th Cir. 2001).4 This provision is not implicated under the facts of

excerpts that are Exhibit B, at least not in the copy provided to the Court.
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42 U.S.C. § 1981, entitled Equal Rights Under the Law, provides:

(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes

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this case.
Section 1985 is a civil conspiracy statute.5 The law in this circuit recognizes that a §
the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.
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42 U.S.C. § 1985(2), entitled Obstructing Justice; Intimidating Party, Witness, or Juror,

provides:
If two or more persons in any State or Territory conspire to deter, by
force, intimidation, or threat, any party or witness in any court of the
United States from attending such court, or from testifying to any
matter pending therein, freely, fully, and truthfully, or to injure such
party or witness in his person or property on account of his having so
attended or testified, or to influence the verdict, presentment, or
indictment of any grand or petit juror in any such court, or to injure
such juror in his person or property on account of any verdict,
presentment, or indictment lawfully assented to by him, or of his
being or having been such juror; or if two or more persons conspire for
the purpose of impeding, hindering, obstructing, or defeating, in any
manner, the due course of justice in any State or Territory, with intent
to deny to any citizen the equal protection of the laws, or to injure him
or his property for lawfully enforcing, or attempting to enforce, the
right of any person, or class of persons, to the equal protection of the
laws.
42 U.S.C. § 1985(3), entitled Depriving Persons of Rights or Privileges, provides:
If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the purpose
of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and
immunities under the laws; or for the purpose of preventing or
hindering the constituted authorities of any State or Territory from
giving or securing to all persons within such State or Territory the
equal protection of the laws; or if two or more persons conspire to
prevent by force, intimidation, or threat, any citizen who is lawfully
entitled to vote, from giving his support or advocacy in a legal manner,
toward or in favor of the election of any lawfully qualified person as an
elector for President or Vice President, or as a Member of Congress of
the United States; or to injure any citizen in person or property on
account of such support or advocacy; in any case of conspiracy set

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1985(2) or (3) claim must be grounded on racial animus. Bryan v. City of Madison, 213 F.3d
267, 276 (5th Cir. 2000) (citing Newberry v. East Tex. State Univ., 161 F.3d 276, 281 n.2 5th Cir.
1988)); Mitchell v. City of Sugar Land, No. 10-223, 2011 WL 1156253, at *8 (S.D. Tex. Mar. 25,
2011) (citing Wong v. Stripling, 881 F.2d 200, 202-03 (5th Cir. 1989)).
Plaintiff produces no evidence whatsoever that race played a factor in Wolf's conduct,
much less that he conspired with others to do it. Further, a municipality cannot as a matter of
law enter into a conspiracy. Batiste v. City of Beaumont, 421 F. Supp. 2d 969, 988 (E.D. Tex.
2005); Mitchell, 2011 WL 1156253, at *8 (citing Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998); Hiliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994)). Plaintiff has no
plausible claim under § 1985. And §1986 does not provide an independent cause of action but

instead requires the existence of a valid claim under § 1985.6 Bradt v. Smith, 634 F.2d 796,
forth in this section, if one or more persons engaged therein do, or
cause to be done, any act in furtherance of the object of such
conspiracy, whereby another is injured in his person or property, or
deprived of having and exercising any right or privilege of a citizen of
the United States, the party so injured or deprived may have an action
for the recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators.

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42 U.S.C. § 1986, entitled Action for Neglect to Prevent, provides:
Every person who, having knowledge that any of the wrongs conspired
to be done, and mentioned in section 1985 of this title, are about to be
committed, and having power to prevent or aid in preventing the
commission of the same, neglects or refuses so to do, if such wrongful
act be committed, shall be liable to the party injured, or his legal
representatives, for all damages caused by such wrongful act, which
such person by reasonable diligence could have prevented; and such
damages may be recovered in an action on the case; and any number
of persons guilty of such wrongful neglect or refusal may be joined as
defendants in the action; and if the death of any party be caused by
any such wrongful act and neglect, the legal representatives of the
deceased shall have such action therefor, and may recover not
exceeding $5,000 damages therein, for the benefit of the widow of the
deceased, if there be one, and if there be no widow, then for the benefit

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799 n.3 (5th Cir. 1981).
The motion for summary judgment is GRANTED as to any claims under §§ 1981, 1985,
and 1986.
D. State Law Claims
To recover for intentional infliction of emotional distress under Louisiana law, a
plaintiff must establish 1) that the conduct of the defendant was extreme and outrageous; 2)
that the emotional distress suffered by the plaintiff was severe; 3) and that the defendant
desired to inflict severe emotional distress or knew that severe emotional distress would be
certain or substantially certain to result from his conduct. Stevenson v. Lavalco, Inc., 669 So.
2d 608, 611 (La. App. 2nd Cir. 1996) (citing White v. Monsanto, Co., 585 So. 2d 1205 (La.
1991)).
Defendants point out that Plaintiff has not sought any type of psychiatric or other
psychological help as a result of the encounter with Wolf. Plaintiff fails to point to any
competent evidence to create an issue of fact on this claim, particularly with respect to the
requirement of severe emotional distress. The motion for summary judgment is GRANTED as
to this claim.
Defendants move for summary judgment on any claims that Plaintiff might have
asserted for abuse of process and malicious prosecution. Plaintiff did not address this aspect
of Defendants' motion in her opposition. The motion for summary judgment is GRANTED as
to these claims.
III.

Motion in Limine
Plaintiff has not filed an opposition to Defendants' motion in limine. The Court finds
of the next of kin of the deceased. But no action under the provisions
of this section shall be sustained which is not commenced within one
year after the cause of action has accrued.

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merit to the motion, which will be granted in its entirety, and the following evidence will be
excluded at trial: 1) references to drug usage and/or shooting up the crowd; 2) references to a
lost wage claim (including any expert testimony in this area); 3) accident reconstruction
(including any expert testimony in this area); 4) expert Lloyd Grafton; and 5) references to
settlement.
IV.

Conclusion
All federal claims are dismissed against Defendants in their official capacities. The

only federal claims remaining for trial are Beard's Fourth Amendment claims against Wolf in
his individual capacity for excessive force and false arrest. The supplemental state law tort
claims asserted against Wolfe personally, and against the Sheriff vicariously, for excessive
force and false arrest, also remain for trial. Expert testimony for purposes of establishing
liability will not be admitted.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Partial Summary Judgment (Rec. Doc.
77) filed by Defendants, Sheriff Daniel Edwards and Crane Wolf, is GRANTED as explained
above;
IT IS FURTHER ORDERED that the Motion in Limine (Rec. Doc. 76) filed by
Defendants, Sheriff Daniel Edwards and Crane Wolf, is GRANTED as explained above.
December 17, 2014

_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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