Hernandez et al v. Green et al

Filing 39

ORDER AND REASONS granting in part and denying in part 24 Motion to Dismiss; denying 24 Motion for Partial Summary Judgment. FURTHER ORDERED that plaintiffs are granted leave to amend the complaint by November 30, 2015. Signed by Judge Helen G. Berrigan on 11/16/2015. (kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BESSIE B. HERNANDEZ, ET AL

CIVIL ACTION

VERSUS

NO. 14-2168

DEREK GREEN, ET AL

SECTION: C(2)
ORDER AND REASONS

Before the Court are the Rule 12(c) motion to dismiss and the Rule 56 motion for partial
summary judgment of defendants Derek Green, Kevin McGuffie, and John Heck of the Jefferson
Parish Sheriff’s Office, and Sheriff Newell Normand both as an individual and in his official
capacity as sheriff (collectively “defendants”). See Rec. Doc. 24. Plaintiffs Bessie B. Hernandez
and Luis A. Hernandez, Sr., suing individually and on behalf of their two minor children, as well
as plaintiff Mercedes Dorila Hernandez (collectively “plaintiffs”) oppose the motions. See Rec.
Docs. 1 & 36. The motions are before the Court on the briefs, without oral argument. Rec. Doc.
29. For the following reasons, the Court PARTIALLY GRANTS AND PARTIALLY DENIES
defendants’ Rule 12(c) motion and DENIES defendants’ Rule 56 motion.
I.

Background
The following is a summary of the factual allegations contained in plaintiffs’ complaint.

See generally Rec. Doc. 1 at 24–35. On the morning of December 5, 2013, Deputy Green and
Deputy McGuffie were directed to drive to plaintiffs’ house and execute a misdemeanor arrest
warrant for “Bessie J. Hernandez” at the home of “Bessie B. Hernandez”––who was not the
actual target of the arrest warrant and otherwise was a law-abiding citizen. See Rec. Doc. 1 at
24–25 (emphasis added). Green and McGuffie parked their squad car such that it was not visible
from plaintiffs’ house. See id. Hearing a knock on her door, plaintiff Bessie B. Hernandez
(alternatively “Mrs. Hernandez”) cracked her door open and addressed the two men. See id.
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Without identifying themselves, one of the deputies asked “Is your name Hernandez?” Id. Mrs.
Hernandez responded “Yes, I am Bessie Hernandez. May I help you?” at which point Deputy
Green grabbed Mrs. Hernandez and handcuffed her right wrist while exclaiming “I got you!” See
id. 25–27.
Frightened, Mrs. Hernandez resisted and attempted to shut the door, at which point
Deputy Green forced his way into Mr. and Mrs. Hernandez’ home. See id. at 26. Mrs.
Hernandez, fearing that she was being kidnapped and that the two men intended to inflict harm
on her and her family, attempted to grab on to a column near the door and yelled for her
husband, Luis (alternatively “Mr. Hernandez”). See id. At this point, both deputies began to
physically and verbally attack Mrs. Hernandez, grabbing her by the hair, pounding her head and
face against the column, and cursing at her. See id. Mr. Hernandez then emerged from the
bedroom and yelled for the two deputies to let go of his wife and stop hitting her. See id. Deputy
McGuffie responding by drawing his gun and yelling “Freeze you son of a b---h or I will shoot
you! Keep your f-----g ass back or we will arrest you too!” See id. at 26–27.
After hearing the noise of the gun being cocked, Mrs. Hernandez ceased resisting the two
deputies. See id. at 27. Mrs. Hernandez was taken by the two deputies from her home, wearing
only a nightgown. See id. While taking her out, Deputy Green twisted her right arm and
intentionally tripped her such that she hit the sidewalk face first. See id. at 27–28. Now on the
ground, Deputy Green drove his knee into Mrs. Hernandez’ back, pushing her face into the
concrete and wrenching her arms in order to fully handcuff her. See id. at 28. The deputies
ordered her to get up, to which she responded she could not, so the deputies pulled her up by her
hair and dragged her to the deputies’ car. See id.

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At this time, Mrs. Hernandez’ daughter, Mercedes Hernandez, arrived and witnessed the
deputies throw her mother towards the deputies’ car such that Mrs. Hernandez’ head slammed
into the door jamb of the car and she again fell to the ground. See id. The deputies then picked
Mrs. Hernandez up and threw her into the car. See id. Mercedes Hernandez asked Deputy Green
what was happening to her mother to which Green responded “Back the f--k up or I will arrest
your ass!” See id. at 28–29. Responding to Mercedes Hernandez’ declaration that she had a right
to be on her parents’ property and ask questions about her mother, Deputy Green asked
Mercedes Hernandez to identify herself. See id. at 29. After doing so, Mercedes Hernandez again
asked what was happening to her mother and whether the deputies had a warrant, to which
Deputy Green responded “I don’t need no f-----g warrant!” See id. Mercedes Hernandez
attempted to take photographs, but was told by Deputy Green that she would be arrested if she
did. See id. Green then ordered Mercedes Hernandez to get her mother’s driver’s license. See id.
Plaintiff Luis Hernandez emerged from the house with the license.
Deputy Green then joined Deputy McGuffie in the front of the deputies’ car at which
point they began asking Mrs. Hernandez for her social security number and name. See id. at 30.
After entering her information in the car’s computer and asking clarifying questions, the deputies
realized that the warrant was not for Mrs. Hernandez and began to curse and accuse each other of
making the mistake. See id. at 31. The deputies did not immediately release Mrs. Hernandez
from the handcuffs, nor did they apologize to her, but rather waited for their supervisor, Sergeant
John Heck, to arrive. See id. Upon arriving and conferring with Deputy Green, Sergeant Heck
ordered that Green uncuff Mrs. Hernandez and apologize. See id. at 32. Green uncuffed Mrs.
Hernandez, but left her in the deputies’ car. See id. As Mrs. Hernandez banged on the inside of
the car and pleaded to be let out, Deputy Green told her to shut up and sit still. See id.

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After some time, Mrs. Hernandez was released from the car and apologized to all present
waited for an ambulance to arrive. See id. at 33. The EMT team “primarily interacted” with the
deputies and sergeant before concluding Mrs. Hernandez was fine and only needed to apply ice.
See id. After the ambulance left, however, Mercedes Hernandez took her mother to the
emergency room, where Mrs. Hernandez received additional medical care and was informed she
had multiple contusions to her “head, right knee, foot, right elbow and back; as well as,
generalized body scratches.” See id. at 33–34. While not entirely clear, it appears Mrs.
Hernandez also suffered a number of fractured teeth. See id. at 21.
Mrs. Hernandez still suffers physically and emotionally from the incident. See id. at 34.
According to the complaint, Mrs. Hernandez’ two minor children arrived home from school that
day and suffered psychological and emotional damage from seeing their mother injured and the
family distraught. See id.
Plaintiffs’ complaint alleges that defendants, individually and in combination, violated 28
U.S.C. § 1983 by unconstitutionally using excessive force, conducting an unlawful and bad faith
arrest of Mrs. Hernandez, and for failing to have the policies and deputy training necessary to
avoid incidents such as the one that occurred on December 5, 2013. See id. at 35–44. While a
little unclear, the complaint also appears to state that the defendants’ also violated 28 U.S.C.
§ 1983 by depriving Mr. Hernandez and Mercedes Hernandez of their own constitutional rights.
See id. Plaintiffs also raise due process claims and allege a conspiracy to violate their right to
equal protection under 42 U.S.C. §§ 1985 and 1986. See id. Plaintiffs additionally raise a varierty
of state law claims. See id.
Defendants now move for partial Rule 12 (c) dismissal or, alternatively, Rule 56
summary judgment on six grounds. See Rec. Doc. 24. First, that Mr. Hernandez, Mercedes

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Hernandez, and the Hernandez’ minor children cannot obtain relief under federal law for injuries
suffered by Mrs. Hernandez. See Rec. Doc. 24 at 1–2. Second, that no plaintiff has a viable claim
under the Fifth, Eighth, and Fourteenth Amendment. Instead, the plaintiffs may only seek relief
for violations of their Fourth Amendment rights. See id. at 2. Third, that Mercedes Hernandez
cannot state a claim for violations of her Fourth Amendment rights because she has failed to
plead that she was seized. See id. Fourth, Mr. Hernandez, Mercedes Hernandez, and the
Hernandez’ two minor children cannot support state law claims for intentional infliction of
emotional distress under Louisiana Civil Code Article 2315.6. See id. Fifth, that plaintiffs cannot
state a 42 U.S.C. § 1985 conspiracy claim, because the complaint does not allege racial animus
and all the defendants in this case constitute a single legal entity. See id. Sixth and finally, that
plaintiffs have also failed to allege facts sufficient to support a plausible claim under 42 U.S.C.
§ 1986. See id. Defendants do not address the Fourth Amendment claims of Mr. or Mrs.
Hernandez. See Rec. Doc. 24-1 at 2 n.1 and 10 n.10. While stating that Mr. and Mrs. Hernandez’
two minor children do not assert federal claims and conceding that the complaint does not
support a § 1985 and § 1986 claim, plaintiffs dispute all of defendants’ other asserted grounds
for dismissal. See Rec. Doc. 36 at 4–5, 7–8.
Defendants’ motion is accompanied by an eight-paragraph statement of uncontested
material facts, which contains at least one notable discrepancy from the alleged facts in
plaintiffs’ complaint. See Rec. Doc. 24-2.1 Specifically, it states that Mrs. Hernandez identified
herself as Bessie J. Hernandez in the moments following her answering the door. Compare id. at
1, with Rec. Doc. 1 at 25. The statement of uncontested facts also contains a number of vague
factual statements, including that “Mrs. Bessie Hernandez violently resisted the Defendants” and

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Defendants’ motion contains an “Exhibit” containing a police report from an apparently unrelated
matter. See Rec. Doc. 24-4. The Court was unable to glean any relevant value from the police report and
accordingly has disregarded it for the purposes of this Order and Reasons.

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that the deputies “used force to overcome Bessie Hernandez’s resistance and subdue her to
further their investigation.” See id. It also states that “Mercedes Hernandez did not come upon
the scene until after Bessie Hernandez had been detained.” See id. at 2. The plaintiffs’ statement
of contested facts contends that the citations in defendant’s statement of uncontested facts either
mischaracterize the complaint or introduce new and unsupported evidence. See Rec. Doc. 36-1.
Furthermore, plaintiffs have requested that the Court grant it leave to amend its pleadings to the
extent the Court finds that the complaint does not sufficiently support any of plaintiffs’ claims.
See Rec. Doc. 36 at 1 n.1.
II.

Standard of Review

A. Judgment on the Pleadings
Rule 12(c) allows the moving party to seek disposition of a case where the material facts
of the case are not in dispute and it is possible for a court to render judgment on the merits based
on the substance of the pleadings and pertinent judicially noticed facts. See Great Plains Trust
Co. V. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002). A court uses the
same standard of review for motions under Rule 12(c) as it does for Rule 12(b)(6) motions. See
Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). Accordingly, a defendant’s Rule 12(c)
motion should be granted when the complaint does not state a viable claim for relief. See Great
Plains, 313 F.3d at 312. The complaint must be plausible on its face. See Doe, 528 F.3d at 418
(quoting Bell Atl. Corp. v. Twombley, 550 U.S. 544, 570 (2007)). A court construes the pleadings
liberally and accepts all well pleaded facts as true. See id. at 312–13. A court disregards
conclusory allegations and unwarranted deductions of fact. See id. at 313.
B. Summary Judgment

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Summary judgment is appropriate when the record before a court supports the conclusion
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. A party moving for summary judgment bears the
initial burden of demonstrating the basis for summary judgment and identifying those portions of
the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to
demonstrate the existence of a genuine issue of material fact. See id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th
Cir. 1994); see also Anderson, 477 U.S. at 249–50. In ruling on a summary judgment motion,
however, a court may not resolve credibility issues or weigh evidence. See Int’l Shortstop, Inc. v.
Rally’s Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). Furthermore, a court must assess the evidence
and draw any appropriate inferences based on the evidence in the light most favorable to the
party opposing summary judgment. See Daniels v. City of Arlington, Texas, 246 F.3d 500, 502
(5th Cir. 2001).
III.

Discussion

A. The Federal Claims of Luis Hernandez, Mercedes Hernandez, and the Hernandez’ Two Minor
Children.
Defendants contend that Mr. Hernandez, Mercedes Hernandez, and the Hernandez’ two
minor children cannot recover for the alleged deprivation of Mrs. Hernandez’ rights. See Rec.
Doc. 24-1 at 8–9. Plaintiffs counter that defendants have misconstrued the complaint and that
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only Mrs. Hernandez seeks relief under federal law for the violation of her constitutional rights.
See Rec. Doc. 36 at 4–5. Specifically, plaintiffs contend that Mr. Hernandez and Mercedes
Hernandez seek relief under § 1983 for violation of their own individual constitutional rights and
that plaintiffs do not bring any federal claims on behalf of the Hernandez’ minor children. See id.
While the complaint is at times vague as to which plaintiff seeks what form of relief for
the various alleged misconduct of defendants, the Court concludes that the complaint adequately
outlines the federal law claims of Mrs. Hernandez, Mr. Hernandez, and Mercedes Hernandez for
violations of their own individual constitutional rights. See Rec. Doc. 1 at 35–36. The factual
allegations in the complaint make it clear enough that Mr. Hernandez and Mercedes Hernandez
claim to have had their own individual rights violated by defendants under the color of state law.
The complaint alleges that Deputy McGuffie pointed his gun at Mr. Hernandez in an effort to
keep Mr. Hernandez from assisting his screaming wife in their home. See Rec. Doc. 1 at 26–27.
The complaint further alleges that Deputy Green threatened to arrest Mercedes Hernandez if she
took photographs of her mother’s arrest. This is sufficient for present purposes.
B. Plaintiffs Fifth, Eighth, and Fourteenth Amendment Claims
Defendants next argue that all of the plaintiffs “have failed to plead a cause of action . . .
under the Fifth, Eighth, and Fourteenth Amendments.” See Rec. Doc. 24-1 at 10. This is because
the conduct of the defendants in question regards unlawful detention and excessive force, which
can only be analyzed under the Fourth Amendment. To support this proposition, defendant
makes cursory citation to Graham v. Connor, 490 U.S. 386, 395 (1989) and U.S. v. Cortez, 449
U.S. 411 (1981).
Defendants’ brief overlooks an entire body of Fifth Circuit law regarding Fourth
Amendment, Eighth Amendment, and due process standards and analysis following the Supreme

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Court’s decision in Graham. See, e.g., Petta v. Rivera, 143 F.3d 895, 901 (5th Cir. 1998) (per
curiam); see also Kitchen v. Dallas County, Tex., 759 F.3d 468, 479 (5th Cir. 2014) (“our
decisions have demonstrated a tendency to “blur” the lines between Fourteenth Amendment and
either Fourth or Eighth Amendment excessive force standards, depending upon the particular
factual context” (internal quotation omitted)); see also Hernandez v. U.S., 757 F.3d 249, 268 (5th
Cir. 2014) (“we have recognized that an excessive-force claim may by asserted as a violation of
due process”).
Here, defendants leave unaddressed pertinent Fourth Amendment analysis as to Mrs. and
Mr. Hernandez and apparently argue that Mercedes Hernandez has no grounds for a § 1983
claim whatsoever. The Court finds the constitutional claims are adequately pled for present
purposes.
C. Mercedes Hernandez’ Fourth Amendment
Defendants argue next that Mercedes Hernandez cannot support a Fourth Amendment
claim. See Rec. Doc. 24-1 at 11–13. Mercedes Hernandez alleges that, after seeing Deputy Green
throw her mother against the deputies’ car, Deputy Green refused to identify himself, cursed
while stating he did not need a warrant to arrest Mrs. Hernandez, then threatened to arrest
Mercedes Hernandez if she took a photograph of the unfolding events while standing on her
parents’ property. See Rec. Doc. 1 at 29. In light of the Petta line of cases discussed in Section
II.B above, the undeveloped factual record, and the piecemeal nature by which defendants seek
to address the plaintiffs’ claims, the Court is not persuaded that dismissal or summary judgment
as to Mercedes Hernandez’ Fourth Amendment claim is warranted at this time.
D. Emotional Distress Claims of Bystanders Under Article 2315.6 of Louisiana Civil Code

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Defendants next argue that Mr. Hernandez, Mercedes Hernandez, and the Hernandez’
two minor children cannot recover for emotional distress suffered by a bystander under Article
2315.6 of the Louisiana Civil Code, because the harm alleged is not sufficiently severe and the
alleged misconduct is not sufficiently outrageous or foreseeable. See Rec. Doc. 24-1 at 14–15,
19–20. Furthermore, defendants argue that Mercedes Hernandez and the two minor children are
further barred from recovery under Article 2315.6, because they did not view or soon after come
upon the scene of Mrs. Hernandez’ alleged injury. See id. at 15–19.
With respect to the insufficient harm and misconduct arguments of defendants, the Court
finds it inappropriate to dismiss or issue summary judgment at this point in the litigation. The
Court is not persuaded that Louisiana law is settled as to the pleaded facts in this case. Defendant
makes only generalized reference to legal standards under Louisiana law without providing
thorough reasoning as to how those standards apply to the facts of this case. See Rec. Doc. 24-1
at 14–15, 19-20. The Court concludes that, for purposes of surviving a motion to dismiss, the
complaint pleads plausible grounds for concluding the plaintiffs did suffer sufficient emotional
harm and that the defendants’ misconduct was sufficiently outrageous. Neither dismissal nor
summary judgment is inappropriate at this time.
Turning to defendants’ other grounds for dismissing some of the Article 2315.6 claims,
the Court rejects the argument that Mercedes Hernandez has failed to plead that she viewed Mrs.
Hernandez’ injury or arrived soon after, but accepts the argument as to the two minor children.
To state a claim under Article 2315.6, there must be an allegation that the plaintiff viewed “an
event causing injury to another person” or came “upon the scene of the event soon thereafter.”
LA. CIV. CODE ANN. art. 2315.6 (2014); see also Craighead v. Preferred Risk Mut. Ins. Co.,
33,731 (La. App. 2 Cir. 8/25/00); 769 So.2d 112. Furthermore, the plaintiff witnessing the events

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or arriving soon thereafter must have been contemporaneously aware that it was the events that
caused harm to the direct victim. See Trahan v. McManus, 97-1224 (La. 3/2/99); 728 So.2d
1273, 1279.
Here, the complaint makes clear that Mercedes Hernandez witnessed Deputy Green
throw her mother against the deputies’ car so that Mrs. Hernandez’ forehead slammed against the
door jamb and she fell to the ground. See Rec. Doc. 1 at 28. The Court concludes that the
complaint sufficiently pleads a temporal connection for the purposes of Article 2315.6.
The Court, however, agrees with defendants that the complaint does not plead a sufficient
temporal connection as to the Hernandez’ two minor children. The complaint states that the
children saw their mother after she returned from the hospital and after the children returned
from school. See Rec. Doc. 1 at 34. That allegation does not sufficiently support the conclusion
that the minor children viewed the injury, came upon the scene soon after Mrs. Hernandez’
alleged harms, or had any awareness of how their mother suffered her alleged injuries. As such,
the Court is persuaded that dismissal of the minors’ Article 2315.6 claim is warranted; however,
will dismiss the claims without prejudice and afford the plaintiffs the opportunity to amend their
complaint, if appropriate.
E. Claims under § 1985 and § 1986
As to plaintiffs’ claims under 42 U.S.C. § 1985 and 42 U.S.C. § 1986, plaintiffs concede
that the complaint fails to clearly allege racial animus and ask for the opportunity to amend the
claims. See Rec. Doc. 36 at 7–8.
IV.

Conclusion

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Although the Complaint may be unnecessarily lengthy, the Court will grant defendants
partial relief only as to the Article 2315.6 claims of the Hernandez’ minor children, and
otherwise finds partial dismissal or summary judgment inappropriate at this time.

Accordingly,
IT IS HEREBY ORDERED that defendant’s Rule 12(c) motion is PARTIALLY
GRANTED as to the plaintiffs’ Article 2315.6 claims of the minor children and PARTIALLY
DENIED as to all other claims. Rec. Doc. 24.
IT IS FURTHER ORDERED that defendant’s Rule 56 motion for partial summary
judgment is DENIED. Rec. Doc. 24.
IT IS FURTHER ORDERED that the plaintiffs are GRANTED LEAVE to amend the
complaint by November 30, 2015, in order to cure any deficiency regarding claims under 42
U.S.C. § 1985 and § 1986 and to otherwise clarify the claims made in accordance with this
ruling.
New Orleans, Louisiana, this 16th day of November, 2015.

____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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