Every et al v. City of Thibodaux et al

Filing 70

ORDER granting in part and denying in part 31 Motion for Summary Judgment. FURTHER ORDERED that Plaintiffs' 55 Cross-Motion for Summary Judgment is DENIED. Signed by Judge Jay C. Zainey on 1/4/16. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACKALENE ROSA JOHNSON and DAWAN
RENE EVERY

CIVIL ACTION

VERSUS

NO. 14-2369

CITY OF THIBODAUX, ET AL.

SECTION A(2)

ORDER
Before the Court is Defendants’ Motion for Summary Judgment (Rec. Doc. 31). The
motion, set for submission on December 2, 2015, is before the Court on the briefs without oral
argument. Plaintiffs’ opposition to the motion also serves as a Cross-Motion for Summary
Judgment (Rec. Doc. 55), which Defendants oppose. This matter is set to be tried to a jury on
January 25, 2016.
I.

Background

Plaintiffs filed suit in this Court on October 15, 2014. (Rec. Doc. 1). Plaintiffs allege
constitutional violations, arising out of a traffic stop that occurred on October 15, 2013. According
to the complaint Officer Stephen Amador stopped a car in which Plaintiffs were passengers.
Amador stopped the car because he recognized the driver as a woman who had an outstanding
warrant. Other officers arrived on the scene, and according to the complaint, “without any lawful
cause whatsoever, surrounded the stopped vehicle, detained the passengers, and began to verbally
accost and intimidate them.” (Rec. Doc. 1, Compl. ¶ 10). The officers then removed Plaintiffs from
the vehicle, “slammed them to the street, brutalized them and arrested them, all without lawful
justification.” (Rec. Doc. 1, Compl. ¶ 11).

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Johnson’s deposition, which Plaintiffs submitted in connection with this motion, alleges
more facts. According to her deposition, an officer stopped the vehicle and told the driver she had
a warrant out for her arrest. (Rec. Doc. 55-13 at 21). The driver responded and cursed at the officer.
(Id.). Officer Buchanan then walked up to the vehicle and asked the women for identification. (Id.).
at 22-23). Plaintiff Every said she did not have her license and asked if she could call her mother
and have her mother bring the license. (Id.). Buchanan said she could. (Id.). Another officer then
came to the vehicle and told Every to hang up the phone. (Id. at 24). Every told the officer
Buchanan had given her permission. (Id. at 24-25). Every and the officer argued, and then
Buchanan and this officer grabbed Every’s head and hand and tried to remove her from the truck.
(Id.). According to Johnson’s deposition, she said nothing throughout this altercation. (Id. at 2526). The officers never asked her to step out of the vehicle and then suddenly Buchanan opened
the door, jerked her out of the car, and slung her to the ground. (Id. at 30).
Defendants’ accounts of the incident differ from Plaintiffs’ versions. According to
Defendant Amador, as he arrested the driver, Plaintiff Every exited the vehicle. (Rec. Doc. 55-6 at
12). Amador recounted that to ensure officer safety, he asked Every to return to the vehicle, and
after several commands, she did so. According to Defendant Adrian Buchanan, Plaintiffs Every
and Johnson were yelling obscenities to the officers. Buchanan then asked them to step out of the
vehicle and identify themselves, and Plaintiffs refused (Rec. Doc. 55-7 at 9). The officers then
removed Plaintiffs from the vehicle and forced them to the ground. (Rec. Doc. 55-7 at 13). As
Buchanan placed handcuffs on Every, she kicked and yelled, telling Buchanan she would have
him fired. Buchanan arrested her on charges of resisting an officer and public intimidation. (Rec.
Doc. 55-7 at 13-14). Officer Christopher Bourg then walked Every to his patrol car, and she began

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running away from him. (Rec. Doc. 55-8 at 6). According to Bourg, Officer Paul Thibodeaux then
used an electronic stun gun (Taser) on Every.
II.

Analysis

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 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 non-moving 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)).
Official-capacity claims
The Fifth Circuit has held that a § 1983 action brought against a chief of police in his
official capacity is tantamount to a suit against the city. Sanders v. English, 950 F.2d 1152, 1159
n.13 (5th Cir. 1992). Similarly, an official-capacity action against a government officer is to be
treated as a suit against the entity of which an officer is an agent. Kentucky v. Graham, 473 U.S.

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159, 165-66 (1985) (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690,
n. 55)). A city can only be liable on account of unconstitutional conduct by such officials if the
city’s policy or custom played a part in the violation. Id. at 166 (citing Monnell); Sanders, 950
F.2d at 1159 n. 13. The plaintiff will have to prove that “the policy or custom in question was
adopted with ‘deliberate indifference’ and that there was ‘a direct causal link between the
municipal action and the deprivation of federal rights.’” Matthews v. Bowie County, Tex., 600 Fed.
App’x 933, 934 (5th Cir. 2015) (quoting In re Foust, 310 F.3d 849, 862 (5th Cir. 2002)). The Fifth
Circuit has held that allegations of an isolated incident are insufficient to establish a custom or
policy. See id. (citing Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)).
Plaintiffs have presented insufficient evidence to show a custom or policy here. Instead,
Plaintiffs have presented evidence on only an isolated incident, which the Fifth Circuit has held is
insufficient to establish a custom or policy. Because Plaintiffs have not shown sufficient evidence
of a custom or policy, they have failed to show evidence of such custom or policy playing a part
in the alleged violation here, as the Fifth Circuit requires. Accordingly, the Court grants summary
judgment for Defendants on Plaintiffs’ claims against the City of Thibodeaux and against each of
the defendants in his or her official capacity.
Individual-capacity claims
Although Plaintiffs assert that Defendants waived the qualified immunity defense by
failing to raise it before now, the Court finds that Defendants have not waived it. The Fifth Circuit
has held that “under Rule 8(c) we do not take a formalistic approach to determine whether an
affirmative defense was waived.” Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir.
2009) (finding no waiver of qualified immunity defense). Instead, courts look “at the overall
context of the litigation.” Id. The Fifth Circuit has found no waiver “where no evidence of

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prejudice exists and sufficient time to respond to the defense remains before trial.” Id. (citing Giles
v. Gen. Elec. Co., 245 F.3d 474, 492 (5th Cir. 2001) (finding no waiver where a new affirmative
defense was raised in a joint pretrial order over a year after complaint was filed); Lubke v. City of
Arlington, 455 F.3d 489, 499 (5th Cir. 2006) (finding no waiver where a defense was raised in a
pretrial motion in limine two years after the complaint was filed and just weeks before trial)). This
Court will therefore consider Defendants’ qualified immunity defense to the individual-capacity
claims.
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Club Retro, L.L.C. v. Hilton, 568 F.3d
181, 194 (5th Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223 (2009)). Once a defendant
raises a qualified immunity defense in a motion for summary judgment, the burden then shifts to
the plaintiff to rebut the defense by establishing that a genuine issue of material fact exists as to
whether the official’s allegedly wrongful conduct violated established law. Michalik v. Hermann,
422 F.3d 252, 262 (5th Cir. 2005).
“To discharge this burden, a plaintiff must satisfy a two-prong test.” Id. (internal quotation
marks omitted). “First, he must claim that the defendants committed a constitutional violation
under current law.” Id. (internal quotation marks and citation omitted). “Second, he must claim
that the defendants’ actions were objectively unreasonable in light of the law that was clearly
established at the time of the actions complained of.” Id. (internal quotation marks and citation
omitted). “The second prong of the analysis is better understood as two separate inquiries: whether
the allegedly violated constitutional rights were clearly established at the time of the incident; and,
if so, whether the conduct of the defendants was objectively unreasonable in light of that then

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clearly established law.” Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (internal
quotation marks and citations omitted).
The qualified immunity standard, “even on summary judgment, gives ample room for
mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate
the law.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (internal quotation marks
and citation omitted). The doctrine “purposefully shields police officers’ split-second decisions
made without clear guidance from legal rulings” and “protect[s] officers from the sometimes hazy
border between excessive and acceptable force, and to ensure that before they are subjected to suit,
officers are on notice their conduct is unlawful.” Pasco, 566 F.3d at 582.
Defendants argue that Plaintiffs have no evidence to carry their burden of proof in defeating
a qualified immunity defense. Plaintiffs respond that Defendants violated clearly established First
Amendment law and Fourth Amendment law by arresting Plaintiffs for allegedly yelling and
cursing, forcibly removing Plaintiffs from the vehicle, and seizing Every’s phone.
The Court will not consider Plaintiffs’ First Amendment claim, as Plaintiffs mention it for
the first time in their Response/Cross-Motion for Summary Judgment, which they filed on
December 17, 2015, roughly one month before the January 25, 2016, trial date in this matter. The
Court also notes that Plaintiffs failed to file this response by the extended deadline they requested
from the Court. In light of this untimely pleading, the Court will not consider the First Amendment
claim.
The Fourth Amendment grants individuals the right to be free from unreasonable search
and seizure, including the right to be free from the use of excessive force by law enforcement.
Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996). In order to state a claim for excessive force
in violation of the Constitution, the plaintiff must prove “(1) an injury, which (2) resulted directly

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and solely from the use of force that was clearly excessive to the need and the excessiveness of
which was (3) objectively unreasonable.” Id. If a defendant’s use of force was reasonable under
the circumstances, then there is no violation of the Fourth Amendment. Estate of Shaw v. Sierra,
366 Fed. Appx. 522, 523 (5th Cir. 2010). In evaluating whether the force used by officers is
excessive, a court must balance the facts and circumstances of each case, “including the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham
v. Connor, 490 U.S. 386, 396 (1989).
In Bush v. Strain, the Fifth Circuit reversed the district court’s grant of summary judgment
based on qualified immunity when the plaintiff stated that she did not resist arrest or attempt to
flee at the time the officer slammed her face into a nearby vehicle and caused injuries. Bush v.
Strain, 513 F.3d 492, 502 (5th Cir. 2008). The Fifth Circuit reasoned that the officer should have
known that he could not slam the plaintiff's face forcefully into a vehicle while she was restrained.
Id. Similarly, in Coons v. Lain, the Fifth Circuit determined that a qualified immunity defense did
not apply when the plaintiff alleged that the officer slammed him against a wall, threw him down
on a bench, and twisted his arm behind his back. Coons v. Lain, 277 Fed. Appx. 467, 469-70 (5th
Cir. 2008). In viewing the facts in the light most favorable to the plaintiff, the court concluded that
the officer’s use of force was unreasonable. Id.
In accord with Michalik, Plaintiffs have the burden to rebut Defendants’ defense of
qualified immunity by showing that genuine issues of material fact exist as to whether Defendants'
alleged wrongful conduct violated clearly established law. The Fourth Amendment right to be free
from the use of excessive force by law enforcement officers during arrest clearly was established
under Ikerd and in effect at the time of Plaintiffs’ injuries. Furthermore, Plaintiffs have alleged

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sufficient facts to demonstrate a claim for excessive force under Ikerd. Plaintiffs suffered injuries
that allegedly resulted directly and solely from the use of force by Defendants. Viewing the facts
in a light most favorable to Plaintiffs, the Court is not persuaded that a qualified immunity defense
applies for the excessive force claims.
The Court is also not persuaded that a qualified immunity defense applies for the false
arrest claims. Viewing the facts in a light most favorable to Plaintiffs, the Court again finds that
genuine issues of material fact exist as to whether Defendants’ alleged wrongful conduct violated
clearly established law on false arrest.
In summary, all federal claims are dismissed against Defendants in their official capacities.
However, for the foregoing reasons, the Court finds that there are issues of fact here that preclude
full summary judgment for Defendants or for Plaintiffs on the individual-capacity claims. Thus,
remaining for trial are the Fourth Amendment claims against Defendants in their individual
capacities for excessive force and false arrest.
Accordingly, IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 31)
filed by Defendants is GRANTED IN PART, insofar as it regards Plaintiffs’ official-capacity
claims;
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. 31)
filed by Defendants is DENIED IN PART, insofar as it regards Plaintiffs’ individual-capacity
claims;
IT IS FURTHER ORDERED that Plaintiffs’ Cross-Motion for Summary Judgment
(Rec. Doc. 55) is DENIED.

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January 4, 2016

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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