Cruz v Fulton, et al
Filing
74
ORDER & REASONS granting 52 Partial Motion to Dismiss & Partial Motion for Partial Summary Judgment; & granting in part and denying in part 62 Partial Motion to Dismiss Case & Partial Motion for Summary Judgment as stated herein. Signed by Judge Martin L.C. Feldman on 8/31/2016. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELADIO CRUZ, Individually and
on behalf of his Minor Child,
Melissa Cruz
CIVIL ACTION
V.
SECTION "F"
NO. 14-2015
TRACY FULTON, PAUL DIMITRI,
and THE CITY OF NEW ORLEANS
ORDER AND REASONS
Before the Court are two motions: 1) Paul Dimitri’s partial
motion to dismiss pursuant to Rule 12(c) and partial motion for
summary judgment based on qualified immunity; and 2) the City of
New Orleans’ partial motion to dismiss pursuant to Rule 12(c) and
partial motion for summary judgment. For the reasons that follow,
Dimitri’s motion is GRANTED; the City’s motion is GRANTED IN PART
and DENIED IN PART.
Background
This lawsuit arises from a traffic accident turned violent in
an encounter between an off-duty New Orleans police officer and
the plaintiff, Eladio Cruz.
Cruz was driving his vehicle on Earhart Boulevard in New
Orleans on his way home from the grocery store. His wife and two
daughters were in the car. As they approached a traffic light,
Cruz moved into the far left turning lane at the intersection. He
heard the driver of a black vehicle in the lane next to him honk
the horn. While Cruz was stopped at the intersection waiting for
1
the light to change, he saw the black vehicle change lanes and
pull up behind him. A man got out and approached the family
vehicle. The man was Tracy Fulton, an off-duty NOPD officer.
Fulton walked alongside the vehicle and tried to open the
driver’s side door where Cruz was sitting. Cruz was able to lock
the door in time to stop him. Fulton then turned to the back door
where
Cruz’s
daughter
was
sitting.
Fulton
opened
the
door,
apparently yelling expletives at the family. The light turned green
and Cruz drove away. Fulton followed.
The family arrived at home a few blocks away and parked the
car in the driveway. As Cruz began unloading groceries from the
back of the pickup truck, he noticed Fulton walking toward him.
Fulton grabbed Cruz by the shirt; Cruz tried to escape the grip by
slapping Fulton’s hands away. Fulton struck Cruz hard in the face,
knocking him to ground. While Cruz lay dazed on the ground Fulton
kicked
him
in
the
stomach,
allegedly
repeating
derogatory
comments.
Cruz was able to stand up and move toward his pick-up truck.
He reached in the bed of the truck and pulled out a machete that
he used for yard work, hoping to scare Fulton away. Instead, Fulton
pulled out pistol and pointed it at Cruz, threatening to shoot
him. Cruz’s 13 year old daughter stood in front of her father in
the line of fire, pleading with Fulton not to shoot. Cruz gave the
machete to his daughter and told her to go inside and call the
2
police. She called 911 and told the operator that a man was
pointing a gun at her father and threatening to shoot him.
At the same time, Fulton returned to his car and called the
police. He identified himself as a police officer and requested
assistance. He told the dispatcher that a male suspect had hit his
vehicle on Earhart Boulevard and then fled the scene. Fulton
claimed that he followed the suspect home and confronted him, but
the man pulled out a machete. He gave the dispatcher Mr. Cruz’s
address.
NOPD Officer, Paul Dimitri, also a defendant in this case,
responded to the call. He interviewed Fulton, who repeated his
story that Cruz had committed a hit-and-run. Dimitri claims that
he inspected the two vehicles and observed a paint transfer,
corroborating Fulton’s hit-and-run account. He also claims that he
interviewed Cruz’s family, who denied that they had hit Fulton’s
car. Based on his observations, Dimitri concluded that Cruz was at
fault.
Dimitri
issued
Cruz
traffic
citations
for
careless
operation of a vehicle, driving without a license, and hit-andrun.
Cruz was then taken to the hospital. Medical records indicate
that his nose was fractured and swollen. Cruz also complained of
pain to his stomach where Fulton had kicked him. He reported severe
pain in his face, ear, and jaw, where Fulton had punched him.
3
Officers
from
the
NOPD’s
Public
Integrity
Bureau
also
reported to the scene. They opened a criminal investigation into
the incident. After interviewing Cruz and his family members, the
officers ultimately arrested Fulton on charges of second degree
battery.
Officer Dimitri documented the incident in a police report.
According to Cruz, Dimitri attempted to help Fulton avoid criminal
and
civil
fabricating
liability
the
by
traffic
omitting
facts
violations.
from
the
Apparently,
report
there
is
and
no
mention in the report that Fulton attacked Cruz or pulled out his
pistol. 1 The report also allegedly states that Cruz was transported
to the hospital for “an unrelated medical complaint.”
Cruz filed this lawsuit seeking damages for violations of his
constitutional rights under 42 U.S.C. §§ 1983 and 1985(3). He
contends that Fulton and Dimitri conspired to deprive him and his
daughter
of
their
constitutional
rights
on
account
of
their
ethnicity as Hispanics. Cruz also names the City of New Orleans as
a defendant, asserting theories of direct liability and respondeat
superior
(vicarious
liability).
He
lists
numerous
state
and
federal violations that each of the three defendants allegedly
committed.
1
Officer Dimitri’s report is not attached to the plaintiff’s
complaint, nor could the Court locate the report among the hundreds
of unlabeled pages the plaintiff attached to his opposition papers.
4
Paul Dimitri and the City of New Orleans move for summary
judgment and dismissal. Dimitri invokes the defense of qualified
immunity and moves for partial dismissal under Rule 12(c) of the
Federal Rules of Civil Procedure and partial summary judgment. The
City of New Orleans also moves for summary judgment and dismissal
under Rule 12(c). The Court considers each of the defendant’s
motions separately. 2
I. Paul Dimitri
Officer Paul Dimitri styles his motion as one for partial
dismissal
under
Rule
12(c)
and
partial
summary
judgment.
Underlying both theories is his invocation of qualified immunity.
With regard to his Rule 12(c) motion, Dimitri contends that Cruz
has failed to allege sufficient facts to establish that Dimitri
was objectively unreasonable. As for his motion for partial summary
judgment, Dimitri submits that Cruz has failed to create any
genuine issue of material fact as to both the viability of his
claims and the inapplicability of qualified immunity. The Court
considers each partial motion separately.
A.
“The standard for dismissal under Rule 12(c) is the same as
that for dismissal to state a claim under Rule 12(b)(6).” Johnson
2
The Court notes, however, that the defendants do not distinguish
in their disorganized briefs the grounds on which they move for
summary judgment from the grounds they seek dismissal under Rule
12(c). As a result, the Court must infer.
5
v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). Under Rule 8(a)(2)
of the Federal Rules of Civil Procedure, a pleading must contain
a "short and plain statement of the claim showing that the pleader
is entitled to relief."
Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009)(citing Fed. R. Civ. P. 8). "[T]he pleading standard Rule 8
announces does not require 'detailed factual allegations,' but it
demands more than an unadorned, the-defendant-unlawfully-harmedme accusation."
Id. at 678 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
In deciding whether dismissal is warranted, the Court will
not accept conclusory allegations in the complaint as true. Kaiser
Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677
F.2d 1045, 1050 (5th Cir. 1982).
The Court must first identify
allegations that are conclusory and, thus, not entitled to the
assumption of truth.
Iqbal, 556 U.S. at 678-79.
A corollary:
legal conclusions “must be supported by factual allegations.”
at
678.
Assuming
the
veracity
of
the
well-pleaded
Id.
factual
allegations, the Court must then determine “whether they plausibly
give rise to an entitlement to relief.” Id. at 679.
“[A]
complaint
must
contain
sufficient
factual
matter,
accepted as true, to state a claim to relief that is plausible on
its
face.”
Gonzalez
v.
Kay,
577
F.3d
600,
603
(5th
Cir.
2009)(quoting Iqbal, 556 U.S. at 678-79)(internal quotation marks
omitted). “A claim has facial plausibility when the plaintiff
6
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
Compounding the federal pleading standard in this case is
Dimitri’s assertion of qualified immunity.
1.
When
a
plaintiff
seeks
money
damages
from
government
officials for alleged violations of constitutional or statutory
rights, officials sued in their individual capacities may invoke
the defense of qualified immunity.
Because it is an immunity from
suit and not a defense to liability, courts are advised to resolve
the issue “at the earliest possible stage in litigation.”
Hunter
v. Bryant, 502 U.S. 224, 227 (1991)(per curiam).
“Qualified immunity shields government officials from civil
damages liability,” the U.S. Supreme Court has reiterated, “unless
the official violated a statutory or constitutional right that was
7
clearly
established
at
the
time
of
the
challenged
conduct.”
Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012)(citing Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011); Harlow v. Fitzgerald, 457 U.S.
800,
818
(1982)(This
doctrine
protects
government
officials
against individual civil liability “insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”).
“Qualified
immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson v.
Callahan, 555 U.S. 223 (2009)(noting that “[t]he protection of
qualified immunity applies regardless of whether the government
official’s error is ‘a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.’”).
Indeed,
“[q]ualified immunity represents the norm” and “is designed to
shield from civil liability all but the plainly incompetent or
those who violate the law.”
Brady v. Fort Bend County, 58 F.3d
173, 174 (5th Cir. 1995).
In
resolving
a
government
official’s
qualified
immunity
defense, courts have traditionally applied the two-prong process
articulated
in
Siegert
v.
Gilley,
500
U.S.
226
(1991),
and
confirmed by the Supreme Court again in Saucier v. Katz, 533 U.S.
194 (2001). First, the Court must determine whether the plaintiffs
8
have shown a violation of a constitutional right.
Id. at 201.
The second inquiry requires the Court to consider “whether the
right at issue was ‘clearly established’ at the time of the
defendant’s alleged misconduct.”
223 (2009).
court’s
Although the Supreme Court has left to the district
discretion
inquiries,
Pearson v. Callahan, 555 U.S.
the
the
Supreme
sequence
Court
for
has
undertaking
increasingly
these
indicated
two
a
preference for first considering whether a purported right was
clearly established by prior case law “without resolving the often
more difficult question whether the purported right exists at all.”
See Reichle, 132 S.Ct. at 2093 (“This approach comports with our
usual
reluctance
to
decide
constitutional
questions
unnecessarily.”); see also Pearson, 555 U.S. at 238-39 (listing
circumstances in which courts might be best served to bypass the
first step of the Saucier process, such as “when qualified immunity
is asserted at the pleadings stage, the precise factual basis for
the plaintiff’s claim or claims [is] hard to identify”).
Step two of the qualified immunity analysis requires courts
to determine whether the defendants’ conduct “was objectively
reasonable in light of clearly established law.”
Thompson v.
Upshur County, Tex., 245 F.3d 447, 457 (5th Cir. 2001)(citations
omitted). “Fair warning” is the touchstone of this analysis. Bush
v. Strain, 513 F.3d 492, 501-02 (5th Cir. 2008)(citations omitted).
“In other words, ‘existing precedent must have placed the statutory
9
or constitutional question beyond debate.’” Reichle, 132 S.Ct. at
2093 (quoting Camreta v. Greene, 563 U.S. 692 (2011)).
Once
a
defendant
has
invoked
the
defense
of
qualified
immunity, the burden shifts to the plaintiff to show that the
defense is unavailable.
See Collier v. Montgomery, 569 F.3d 214,
217-18 (5th Cir. 2009); see also McClendon v. City of Columbia,
305 F.3d 314, 323 (5th Cir. 2002)(en banc).
"Although qualified
immunity is 'nominally an affirmative defense," the plaintiff
bears a heightened pleading burden 'to negate the defense once
properly raised.'"
Newman v. Guedry, 703 F.3d 757, 761 (5th Cir.
2012)(citing Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.
2008)).
A plaintiff must establish that the defendant was either
personally involved in the deprivation or that his wrongful actions
were causally connected to the deprivation.
James v. Texas Collin
Co., 535 F.3d 365, 373 (5th Cir. 2008).
2.
Officer Dimitri contends that the plaintiff has failed to
allege sufficient facts in the complaint to show that he violated
a clearly established constitutional right.
Cruz’s account of the incident is fact specific. He pleads
that Officer Dimitri acted in concert with Fulton to fabricate
traffic charges and omit key facts from the police report to cover
up Fulton’s illegal and violent behavior. Cruz contends that
Dimitri ignored the eye witness accounts of Cruz’s family, who
10
denied that Cruz’s vehicle ever made contact with Fulton’s and
cited Cruz for traffic violations without the requisite probable
cause. The plaintiff speculates that Dimitri agreed to issue the
traffic citations so city prosecutors could later offer to dismiss
the charges in exchange for Cruz’s agreement to release Fulton and
the City of New Orleans from liability arising from the incident.
According to the plaintiff, Dimitri failed to mention in his police
report any facts about the violent encounter initiated by Fulton,
including the fact that Fulton drew his pistol.
Cruz also lists specific “negligent and intentional acts of
the defendant Dimitri”:
a.
Intimidation by an officer;
b.
Imprudence or want of skill;
c.
Failing to report true, accurate, and/or correct
information to NOPD regarding the incident;
d.
Intentionally placing false information in a police
report;
e.
Conspiracy to deprive plaintiff and Melissa Cruz of
their
civil
and
constitutional
rights
and
conspiracy to impede or prevent them from the
exercise of those rights; and
f.
Violation of plaintiff Cruz’s and Melissa Cruz’s
constitutional rights and civil rights under the
United States Constitution and the Louisiana State
Constitution, as well as State and federal laws,
including but not limited to 42 U.S.C. § 1983, et
seq.
Dimitri addresses each of these specific charges.
11
First, Dimitri provides the statutory requirements to make
out a claim for intimidation by an officer:
A. Intimidation by officers is the intentional use, by
any police officer or other person charged with the
custody of parties accused of a crime or violation of a
municipal ordinance, of threats, violence, or any means
of inhuman treatment designed to secure a confession or
incriminating statement from the person in custody.
La. R.S. § 14:40. Dimitri is correct that the plaintiff has not
pled any facts tending to show that Dimitri threatened Cruz or his
family, acted violently toward them, or treated them inhumanely.
Cruz has failed to state a claim against Dimitri for intimidation
by an officer.
Dimitri next addresses the claim that he failed to report
accurate information to the NOPD and falsified a police report.
Dimitri invokes the Fifth Circuit decision in Smith v. Patri, 99
Fed. Appx. 497, 498 (5th Cir. 2004), in which the Court found that
“there is no right to a completely accurate police report.” More
pointedly, Dimitri relies on the First Circuit case, Landrigan v.
City of Warwick, 628 F.2d 736 (1st Cir. 1980). There, the First
Circuit held that “the mere filing of the false police reports, by
themselves and without more, did not create a right of action in
damages under 42 U.S.C. § 1983.” Id. at 745. The court reasoned
that the focus “should be on the consequences, if any, not on the
mere existence of the report.” Id.
Similarly, the Eighth Circuit
dismissed
based
a
section
1983
action
12
on
a
law
enforcement
official’s deliberate filing of a false accident report. Shock v.
Tester, 405 F.2d 852 (8th Cir. 1969). The court reasoned that the
plaintiff failed to allege how any deprivation of life, liberty,
or property flowed from the officials’ actions, and the false
report.
Without deciding whether a constitutional right against a
false police report exists, Dimitri has offered sufficient support
to show that any such right, in and of itself, is not clearly
established.
Here,
the
dispositive
question
is
whether
the
plaintiff suffered any consequences implicating his constitutional
rights as a result of the false report. Cruz does not allege that
he was deprived of life, liberty, or property as a result of
Dimitri’s report. Nor do the facts support that conclusion. To the
contrary, Cruz was never formally arrested or detained, he was
acquitted of all charges, and importantly, Fulton was arrested for
battery. On this record, Dimitri’s report (which the plaintiff has
conspicuously fails to identify) is of no consequence; it was
effectively superseded by the Public Integrity Bureau’s report,
which is consistent with Cruz’s account of the facts and which
formed the basis for Fulton’s arrest. Cruz has failed as a matter
of law to state a claim under Section 1983 for a deprivation of
his constitutional rights as a result of a false police report.
The more relevant question is whether Dimitri violated Cruz’s
constitutional right to be free from arrest without warrant or
13
probable cause. Because both parties rely on evidence outside of
the pleadings to support their positions, the Court construes the
remainder of Dimitri’s motion as one for summary judgment. Fed. R.
Civ. P. 12(d).
B.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine dispute
of fact exists only “if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See id. Therefore, “[i]f the evidence is merely colorable,
or
is
not
appropriate.
significantly
probative,”
summary
Id. at 249-50 (citations omitted).
judgment
is
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
14
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992). Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claim.
Id. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible at trial do not
qualify as competent opposing evidence.
Martin v. John W. Stone
Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R.
Civ. P. 56(c)(2).
Finally, in evaluating the summary judgment
motion, the Court must read the facts in the light most favorable
to the non-moving party.
“When
a
defendant
Anderson, 477 U.S. at 255.
raises
a
qualified
immunity
defense,
‘whether the conduct of which the plaintiff complains violated
clearly established law’ is an ‘essentially legal question.’”
Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990).
Although the Court views the evidence in a light most favorable to
the nonmovant, “the plaintiff has the burden to come forward with
summary judgment evidence sufficient to create a genuine issue as
to whether the defendant’s conduct was objectively unreasonable in
light of clearly established law.” Id.
The plaintiff’s final two theories of Dimitri’s liability
under Section 1983 are: 1) Dimitri lacked probable cause to cite
Cruz for the traffic violations; and 2) Dimitri conspired with
Fulton to deprive Cruz of due process. The Court turns to each
theory.
15
1.
A defendant has a federally protected right to be free from
unlawful arrest and detention resulting in a significant restraint
in liberty. See Duckett v. City of Cedar Park, Tex., 950 F.2d 272,
278 (5th Cir. 1992). “An arrest or detention may be unlawful if it
is accomplished without due process of law as required by the
Constitution.” Id. “Police officers are, therefore, required under
the Fourth Amendment to make a determination of probable cause
before any significant pretrial restraint or liberty.” Id. “A
police officer has probable cause to arrest if, at the time of the
arrest, he had knowledge that would warrant a prudent person’s
belief that the person arrested had already committed or was
committing a crime.” Id.
“Probable cause is a defense to a § 1983 claim based on an
alleged false arrest.” Pfannstiel, 918 F.2d at 1183. “Even if there
was not probable cause to arrest the plaintiff for the crime
charged, proof of probable cause to arrest the plaintiff for a
related offense is also a defense.” Id. “A defendant is entitled
to qualified immunity unless, ‘on an objective basis, it is obvious
that no reasonably competent officer would have concluded that a
warrant should issue . . . .” Id. (quoting Malley v. Briggs, 475
U.S. 334, 341 (1986)). Here, the question the Court must answer is
16
whether any reasonably competent officer would have found probable
cause to issue Cruz the traffic citations. 3
Attached to his motion, Dimitri submits a sworn affidavit in
which
he
recounts
his
version
of
the
events
surrounding
the
incident in Cruz’s driveway. After he arrived at the scene, Dimitri
says, he first interviewed Tracy Fulton, who told him that Cruz
had struck his vehicle on Earhart Boulevard. According to Dimitri,
Fulton explained that he followed Cruz home and approached Cruz in
his driveway to confront him about the hit-and-run. Fulton claimed
that Cruz tried to kick him; in turn, Fulton punched Cruz; then,
Cruz armed himself with a machete and Fulton armed himself with
his service handgun. Dimitri claims that he inspected the two
vehicles and observed a paint transfer, indicating there had been
at least a minor collision. Dimitri then interviewed Cruz and his
family, who told him they had not been involved in an accident. He
states, “Based on the physical evidence, it was my good-faith
belief that Tracy Fulton’s version of the events was sufficiently
confirmed. Based on my observations, I concluded that Cruz was the
striking vehicle.”
3
The Court notes that Cruz was never formally arrested or
restrained. He did, however, face prosecution for the traffic
charges, although he was acquitted on all of them. Because the
Court finds that Dimitri was not objectively unreasonable in
issuing the citations, the Court need not determine whether Cruz
had a constitutional right to be free from a traffic citation
unsupported by probable cause.
17
Cruz disputes some of these facts. He attaches Dimitri’s
deposition testimony to his opposition papers. Dimitri admitted
during deposition that he did not interview Cruz personally because
he was informed that Cruz did not speak English. Instead, Dimitri
concedes that he only interviewed Cruz’s 13 year old daughter
because she was the only witness who spoke fluent English. He also
admitted that he knew others were in the car but did not interview
them before making his decision to cite Cruz. Cruz contends that,
had Dimitri conducted a more thorough investigation by calling a
translator to interview him and his other family members, Dimitri
would not have had probable cause to issue Cruz the traffic
citations.
The undisputed facts are as follows: Dimitri arrived at the
scene to investigate a reported traffic accident – the hit-andrun. Other officers, including members of the Public Integrity
Bureau, arrived shortly after to investigate the criminal incident
involving
Fulton’s
alleged
misconduct.
When
Dimitri
arrived,
Fulton claimed that Cruz had hit his car and fled the scene.
Dimitri saw matching paint transfers on the vehicles consistent
with Fulton’s story. Dimitri spoke to Cruz’s 13 year old daughter,
who denied that she and her family were involved in an accident.
Dimitri issued Cruz traffic citations for hit-and-run, driving
without a license, and careless operation of a vehicle.
18
Even viewing the facts in a light most favorable to the
plaintiff, there was sufficient evidence to support Dimitri’s
finding of probable cause to issue the citations. Should Dimitri
have interviewed all of the witnesses? Probably. But he was not
objectively unreasonable in failing to do so, particularly in light
of his inability to directly communicate with the non-English
speaking witnesses. Nor was it objectively unreasonable for him to
conclude that a traffic accident had occurred based on the physical
evidence of the paint transfers. Qualified immunity protects “all
but the plainly incompetent or those who knowingly violate the
law.”
Brady,
58
F.3d
at
174.
Dimitri
may
have
made
hurried
assumptions based on incomplete information, but his actions were
not objectively unreasonable on these circumstances. Dimitri is
entitled
to
qualified
immunity
for
issuing
Cruz
the
traffic
citations.
2.
Cruz’s final claim against Dimitri is that the officer engaged
in a conspiracy with Tracy Fulton to deprive Cruz of due process.
Conspiracy is a recognized claim under sections 1983 and 1985(3).
See Pfannstiel, 918 F.2d at 1187. According to the plaintiff,
Dimitri and Fulton conspired to issue Cruz traffic violations to
give the city attorneys leverage to later obtain a release of
liability for Fulton’s actions in exchange for dismissal of the
traffic charges.
19
In a conspiracy claim as alleged here, the Court “must look
first to determine the objective reasonableness of the state action
which is alleged to have caused harm to the plaintiff.” Id. “Only
if that state action is determined not be to objectively reasonable
should we look to whether the officer’s actions were taken pursuant
to a conspiracy.” Id.
Here, the state action that allegedly harmed the plaintiff is
Dimitri’s issuance of traffic citations. The Court has determined
that Dimitri was not objectively unreasonable in finding probable
cause to issue the citations. Accordingly, the inquiry ends; Cruz’s
conspiracy claim fails.
Paul Dimitri’s motion for summary judgment and dismissal on
the basis of qualified immunity is granted.
II. The City of New Orleans
Like Dimitri, the City of New Orleans moves for partial
summary judgment and partial dismissal under Rule 12(c). 4
Cruz asserts claims against the City of New Orleans under
both direct and indirect theories of liability. Cruz contends that
the City is directly liable on two grounds: First, he maintains
that the City directly violated his constitutional rights under
section 1983 for failing to properly train New Orleans police
officers. Second, he asserts an action under State law directly
4
Also like Dimitri, the City does not delineate the grounds for
its motions.
20
against the City for negligent hiring practices. Indirectly, Cruz
invokes the doctrine of respondeat superior, claiming that the
City is responsible for the tortious actions of its employees,
Fulton and Dimitri.
As before, the Court first considers the City’s contention
that Cruz has failed to adequately plead certain claims under Rule
12(c). As for the remaining claims, the Court construes the City’s
motion as one for summary judgment. The Court applies the same
standards previously noted.
A.
The City contends that the plaintiff has failed to plead
sufficient facts to support a section 1983 claim for inadequate
training of police officers. In Monell v. New York City Dept. of
Social Services, 436 U.S. 658 (1978), the United States Supreme
Court held that a municipality can be found liable under Section
1983 only where the municipality itself causes the constitutional
violation at issue. Respondeat superior or vicarious liability
will not attach under section 1983. Id.; see City of Canton, Ohio
v. Harris, 489 U.S. 378, 385 (1989). “It is only when the execution
of the government’s policy or custom . . . inflicts the injury
that the municipality may be held liable under § 1983.” Harris,
489 U.S. at 385 (citations and quotations omitted).
Liability under section 1983 attaches where a deprivation of
a right protected by the Constitution or by federal law is caused
21
by
a
persistent,
widespread
practice
of
city
officials
or
employers. See Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th
Cir. 2003). “The inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train amounts
to deliberate indifference to the rights of persons with whom the
police come into contact.” Harris, 489 U.S. at 387. “[P]roof of
deliberate indifference, generally requires a showing ‘of more
than a single instance of the lack of training or supervision
causing a violation of constitutional rights.’” Burge, 336 F.3d at
370 (quoting Thompson v. Upshur County, 245 F.3d 447, 459 (5th
Cir. 2001)). “Rather, deliberate indifference generally requires
that
a
plaintiff
demonstrate
at
least
a
pattern
of
similar
violations arising from training that is so clearly inadequate as
to be obviously likely to result in a constitutional violation.”
Id.
The City of New Orleans correctly points to a complete absence
of any factual allegations in the plaintiff’s complaint showing
that the City or City officials showed a deliberate indifference
to the rights of people with whom the New Orleans police came into
contact. Nor does the plaintiff plead facts showing a pattern of
similar violations arising from inadequate training. Aside from
the boilerplate assertion that New Orleans police officers are
inadequately
particular
trained,
policy
or
the
plaintiff
persistent
22
does
practice
not
identify
obviously
likely
any
to
result
in
a
constitutional
violation.
Twombly
is
an
express
rejection of boilerplate. Cruz has failed to state claim for a
section 1983 violation against the City of New Orleans.
The remainder of the plaintiff’s claims against the City arise
under State law. Because the parties rely on evidence outside of
the pleadings, the Court construes the remaining portion of the
City’s motion as one for summary judgment. Fed. R. Civ. P. 12(d).
B.
The Court first addresses the plaintiff’s claims against the
City under a theory of respondeat superior or vicarious liability.
Respondeat
superior
is
codified
in
Louisiana
Civil
Code
article 2320. The (somewhat outdated) statute provides: “Masters
and employers are answerable for the damage occasioned by their
servants and overseers, in the exercise of the functions in which
they
are
employed.”
La.
Civ.
Code
art.
2320.
Critically,
an
employer is only responsible for its employee’s actions that are
within the scope of employment. See Baumeister v. Plunkett, 95227 (La. 5/21/96); 673 So. 2d 994. “[F]or an employer to be
vicariously liable for the tortious acts of its employee the
tortious conduct of the [employee must be] so closely connected in
time, place, and causation to his employment duties as to be
regarded as a risk of harm fairly attributable to the employer’s
business, as compared with conduct instituted by purely personal
23
considerations entirely extraneous of the employer’s interest.”
Id. at 996 (alterations in original).
The Louisiana Supreme Court has identified the following
factors to guide the respondeat superior analysis: 1) whether the
tortious act was primarily employment rooted; 2) whether the
violence was reasonably incidental to the performance of the
employee’s duties; 3) whether the act occurred on the employer’s
premises;
and
4)
whether
it
occurred
during
the
hours
of
employment. Id. at 996-97. “The particular facts of each case must
be analyzed to determine whether the employee’s tortious conduct
was within the course and scope of his employment.” Id. at 997.
As Officer Dimitri is entitled to qualified immunity, he has
not engaged in tortious conduct for which the City may be liable.
Accordingly, the only issue is whether the City is vicariously
liable for the tortious conduct of Tracy Fulton. Viewing the facts
in a light most favorable to Cruz, the Court must determine whether
a genuine dispute exists as to whether Fulton was acting within
the scope of his employment of the NOPD during the encounter with
Cruz.
The record establishes that Fulton was off duty at the time
of
the
incident.
He
was
dressed
in
plain
clothes
and
never
identified himself to Cruz or his family as a police officer.
Fulton was driving his personal vehicle, not a police vehicle. The
incident did not occur during hours of employment, and it did not
24
occur at the employer’s premises or while Fulton was on patrol.
Nor is there any evidence (or facts pled) tending to show that the
violence was incidental to the performance of Fulton’s duties as
a
police
officer.
At
best,
the
record
indicates
that
Fulton
overreacted when the plaintiff may have bumped his vehicle and
pursued Cruz to settle a personal score.
Fulton’s conduct has only two apparent connections to his
employment with the NOPD. First, Fulton called a private police
line to report the alleged hit-and-run rather than calling 911.
Directly following the accident, Fulton telephoned the Second
District
requested
Dispatcher
that
and
the
then
the
dispatcher
Police
Command
broadcast
Center
“Officer
and
Needs
Assistance.” Second, Fulton armed himself with his service pistol
during the encounter with Cruz.
The
mere
facts
the
contacted
the
police
establish
that
his
Fulton
dispatcher
tortious
drew
his
directly
conduct
was
service
are
pistol
insufficient
primarily
and
to
employment
rooted. There is no connection in time, place, or causation to
Fulton’s duties as a New Orleans police officer. Instead, Fulton’s
conduct was instituted by purely personal considerations entirely
extraneous of the NOPD’s interests. The plaintiff points to NOPD
policy instructing off-duty officers that they are “not relieved
from the responsibility of taking appropriate police action on any
serious police matter coming to their attention at any time.” But
25
this was not a serious police matter in which Fulton had a duty to
intervene. Rather, Fulton was personally involved in a minor
traffic accident to which he aggressively overreacted.
The plaintiff insists that Fulton was “acting under color of
state law” during the incident. But the Court is not presently
tasked with considering whether Fulton was acting under color of
state law and thus potentially liable under section 1983. 5 Rather,
the proper analysis is whether Fulton was acting within the scope
of his employment with the NOPD. On this record, there is simply
no evidence to suggest that Fulton’s actions were reasonably
incidental to the performance of his duties as a police officer.
Accordingly,
the
City’s
motion
for
summary
judgment
on
the
plaintiff’s respondeat superior claims is granted.
C.
The plaintiff’s only remaining claim against the City of New
Orleans is a State law claim based on the City’s alleged negligence
in hiring, retaining, or supervising Fulton as a police officer.
Negligent hiring is a different claim than respondeat superior. It
is a theory of direct liability governed by Louisiana’s duty-risk
5
“Whether or not an officer is ‘on duty’ is not definitive
regarding whether an officer was acting ‘under color of law.’”
Cobb v. Jones, 2015 WL 5794027 (W.D. La. Oct. 2, 2015)(citing
United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991)). Whether
an officer is acting under color of state law is a different
analysis from whether he was acting within the scope of his
employment.
26
analysis.
Griffin
v.
Kmart
Corp.,
00-1334
(La.
App.
5
Cir.
11/28/00); 776 So.2d 1226, 1231. The duty-risk analysis requires
proof of five essential elements: “duty, breach of duty, causein-fact, scope of the liability of protection, and damages.” Id.
An employer who hires and trains an employee who will be working
with and handling guns owes a duty to exercise reasonable care in
the selection of that employee. Id.
Incidental to his employment as a New Orleans police officer,
Fulton was carrying his service pistol which he pointed at Cruz
and his 13 year old daughter (ultimately as a result of a minor
traffic incident). Regardless of whether Fulton was acting within
the scope of his employment during the incident, the City of New
Orleans has a duty to carefully select and train the employees it
arms with dangerous weapons. The record indicates that Fulton has
been the subject of a long list of disciplinary actions instituted
by the NOPD. The charges brought against him span a decade and
include allegations of dishonesty and carelessness, and they tend
to show a propensity for violence. Why was he continued as an NOPD
law enforcement officer? Reasonable jurors could deliberate the
existence of sufficient evidence for a claim of negligent hiring. 6
6
The Court also notes that the parties’ lackluster briefing fails
to adequately address the issue of negligent hiring for proper
resolution of the claim at this stage.
27
The City’s motion for summary judgment on the plaintiff’s State
law theory of negligent hiring is denied.
IT IS ORDERED that Paul Dimitri’s motion for dismissal and
partial summary judgment on the basis of qualified immunity is
GRANTED.
IT IS FURTHER ORDERED that the City of New Orleans’ motion
for dismissal and summary judgment is GRANTED except as to the
plaintiff’s State law claim for negligent hiring of Tracy Fulton.
New Orleans, Louisiana, August 31, 2016
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
28
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