Vardin v. Magellan et al

Filing 255

ORDER & REASONS. It is ORDERED that Defendants' Motion for Summary Judgment (R. Doc. 250 ) is GRANTED. Plaintiff's claims against Former Chief of Police Todd Duplantis, Chief of Police Dana Coleman, Officer Kyle Faulk, Officer Milton Wolf , Officer Richard Hunter, Officer Jeffrey Jackson, Officer Christina Payne, Officer Georgie Jones, Officer Kurt Wolfertz, Officer Jerome Deville, Officer Dawn Celestine, and Internal Affairs Officer Terry Buquet are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BETTY J. VARDIN

CIVIL ACTION

VERSUS

NO: 14-2729

MAGELLAN HEALTH, ET AL.

SECTION: “J”(2)

ORDER & REASONS
Before the Court is a Motion for Summary Judgment filed by
Defendants 1 (R. Doc. 250) and an opposition thereto filed by
Plaintiff, Betty Vardin (R. Doc. 252). Having considered the motion
and legal memoranda, the record, and the applicable law, the Court
finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
Through

the

duration

of

this

litigation

the

Court

has

struggled to form a coherent narrative from the factual allegations
contained in Plaintiff’s complaint. See (R. Doc. 133.) As to the
Defendants in this motion, however, it appears that Plaintiff’s
complaints stem from her May 17, 2013, interaction with an elderly
man, Newton Bergeron, who allegedly made threats against Plaintiff
and later allegedly justified those threats by stating that Todd
Duplantis, former Chief of the Houma Police Department, told him

1

Defendants include: Former Chief of Police Todd Duplantis, Chief of Police
Dana Coleman, Officer Kyle Faulk, Officer Milton Wolf, Officer Richard Hunter,
Officer Jeffrey Jackson, Officer Christina Payne, Officer Georgie Jones, Officer
Kurt Wolfertz, Officer Jerome Deville, Officer Dawn Celestine, and Internal
Affairs Officer Terry Buquet.

to kill her. In response to these threats, Plaintiff called the
Houma Police Department. See (R. Doc. 250-6.) Defendant Officer
Richard Hunter and Defendant Officer Jeffery Jackson responded to
Plaintiff’s call and came to Plaintiff’s residence. See id.; (R.
Doc. 250-7.) At the scene, the officers found Mr. Bergeron unable
to explain himself as if he was suffering from a mental ailment. 2
Plaintiff requested that Mr. Bergeron be arrested, however no
arrests were made and no citations issued. Id. Ultimately, Officer
Hunter contacted Mr. Bergeron’s son who came and took Mr. Bergeron
home. Id. Officer Hunter and Officer Jackson were never informed
during their interactions with the Plaintiff that she believed
Defendant Todd Duplantis sent Mr. Bergeron to kill her.
Just two days later, on May 19, 2013, Plaintiff contacted the
Houma Police Department alleging that Mr. Bergeron was stalking
her. See (R. Doc. 250-8.) This time Defendant Officer Brandon
Lovell responded to Plaintiff’s call. Id. Plaintiff asserted that
Mr. Bergeron was passing her house in a vehicle repeatedly, and
that she feared for her life. Id. Officer Lovell contacted Mr.
Bergeron’s son again and no citations or arrests were made. Id.
Plaintiff complains that she received little to no response from
the Houma Police Department as to this incident.

2

The officers spoke to Mr. Bergeron’s son who believes that Mr. Bergeron may
be suffering from a mental ailment.

2

On July 24, 2013, Plaintiff appeared before the Terrebonne
Parish Council to complain about the Houma Police Department and
its officers. See (R. Doc. 250-9.) Plaintiff explained to the
council that she was having a problem with a suspicious person—
presumably Mr. Bergeron—stalking her family, and that she asked
for the Houma Police Department’s assistance but received little
or no response. Id. Plaintiff also requested that the council
provide her with the police department’s “chain of command.” Id.
The council referred Plaintiff to Defendant Dana Coleman, who at
the

time

was

Houma

Police

Department’s

Head

of

Detectives.

Defendant Coleman states that he never spoke to the Plaintiff after
July

24,

2013,

and

that

there

is

no

departmental

record

of

Plaintiff calling for him after that date. See (R. Doc. 250-10.)
On December 2, 2013, Defendant Officer Kristina Payne was
contacted by Plaintiff’s neighbor, Lucille Tillman, who complained
that she was being harassed by Plaintiff constantly calling the
police with unfounded complaints. See (R. Doc. 250-11.) On December
23, 2013, Plaintiff again contacted the Houma Police Department to
complain that Mrs. Tillman and her husband were burning wood in
their yard causing to smoke to flow into her house. See (R. Doc.
250-12.) Officer Nicholas Pellegrin spoke to Plaintiff over the
phone

about

this

incident.

Id.

Officer

Pellegrin

informed

Plaintiff that it was not illegal for the Tillmans to burn wood in

3

their yard and advised that the parties come to a mutual agreement.
Id. No arrests were made and no citations were issued.
On December 30, 2013, Defendant Officer Payne was advised by
her superior, Defendant Kyle Faulk, to contact and advise Plaintiff
that if she filed any other unsubstantiated reports against the
Tillmans that she would be issued a summons or jailed. See (R.
Doc. 250-11.) No arrests were made and no citations were issued.
On January 2, 2014, Defendant Officer Brandon Lovell responded to
a report by Plaintiff that the Tillmans were operating a meth lab
and allowing smoke to blow into her yard. See (R. Doc. 250-8.)
Officer Lovell went to the Tillmans’ home, did not find any signs
of a meth lab, and did not issue a citation or make an arrest. Id.
On January 7, 2014, Officer Pellegrin executed an Order of
Protective Custody (OPC) 3 on Plaintiff and transported her to
Terrebonne

General

Medical

Center.

(R.

Doc.

250-12.)

Officer

Pellegrin reported that the OPC was executed without incident and
that Plaintiff was transported directly to the hospital. Id. While
at the hospital, Plaintiff underwent a psychiatric evaluation and
later released. See (R. Doc. 250-14.) On March 5, 2014, Defendant
Officer

Kurt

Wolfertz

and

Defendant

Officer

Jerome

Deville,

executed another OPC on Plaintiff. See (R. Doc. 250-15.) Officer
Wolfertz

3

transported

Plaintiff

to

See La. Rev. Stat. § 28:53.2.

4

Dr.

Pamela

Dupont,

P.N.P.,

located in Gray, Louisiana which was in accordance with the OPC.
Id.
On

May

7,

2014,

Plaintiff

contacted

the

Houma

Police

Department complaining that fumes from her neighbors’ car were
entering her bedroom. (R. Doc. 250-21.) Defendant Officer Georgie
Jones responded to the complaint and informed Plaintiff it was
usual for fumes to exit a vehicle when a vehicle is started. Id.
Plaintiff did not want to speak with Officer Jones anymore and the
call ended. Once again, no citations were issued and no arrests
were made.
On December 2, 2014, Plaintiff filed a Petition for Damages
naming numerous individuals as defendants. (R. Doc. 1.) Liberally
construed,

it

appears

that

Plaintiff

alleges

that

Defendants

violated her constitutional rights by not further investigating
either the Newton Bergeron incident or her complaints about the
Tillmans. See (R. Doc. 1; R. Doc. 252.) Plaintiff also appears to
allege

that

Defendants

violated

her

constitutional

rights

by

executing the OPC. (R. Doc. 252.) Finally, Plaintiff argues that
the Defendants discriminated against her because she is a Native
American. (R. Doc. 1 at 10.) On December 14, 2016, Defendants filed
the present Motion for Summary Judgment. (R. Doc. 251.) In short,
Defendants argue that Plaintiff has not produced any evidence that
Defendants violated any of her constitutional rights nor have
Defendants

discriminated

against
5

her.

Id.

Further,

Defendants

argue that as police officers they are entitled to qualified
immunity from Plaintiff’s claims. Id. Defendants also argue that
several of Plaintiff’s “claims” have prescribed. Id. Plaintiff
filed a timely Opposition to Defendants’ motion. (R. Doc. 252.)
Defendants’ motion is now before the Court on the briefs and
without oral argument.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, a court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing

the

evidence.”

Delta

&

Pine

Land

Co.

v.

Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

with

conclusory

allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
6

If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.

7

DISCUSSION
Defendants first argue that any alleged cause of action in
tort or pursuant to 42 U.S.C. § 1983 that pre-dates December 2,
2013, is barred by Louisiana’s one-year prescriptive period. (R.
Doc. 250 at 2.) Plaintiff filed her Complaint on December 2, 2014.
(R. Doc. 1.) Because there is no federal statute of limitations
for § 1983 claims, district courts apply the personal injury claims
limitations period applicable in the forum state. Charles v.
Galliano, No. 10-811, 2010 WL 3430519, at *2-3 (E.D. La. Aug. 26,
2010) (citing Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)).
Pursuant to Louisiana Civil Code article 3492, the prescriptive
period for personal injury or delictual actions is one year. Id.
Accordingly, any alleged cause of action in tort or pursuant to 42
U.S.C.

§

1983

that

pre-dates

December

2,

2013

is

barred

by

Louisiana’s one-year prescriptive period. It appears that there
were three acts that Plaintiff alleges occurred prior to December
2, 2013. On May 17, 2013 Officers Richard Hunter and Jeffery
Jackson responded to complaints made by Plaintiff with regard to
her neighbor, Newton Bergeron, allegedly making threats against
her. On May 19, 2013, Officer Brandon Lovell responded to a
complaint made by Plaintiff with regard to Mr. Bergeron allegedly
stalking her. Plaintiff believes that Newton Bergeron was sent to
kill her by Todd Duplantis. And on July 24, 2013, Plaintiff
appeared before the Terrebonne Parish Council to complain about
8

the Houma Police Department and its officers’ failure to arrest
Newton Bergeron. Plaintiff was referred to Houma Police Detective
Dana Coleman. In all, Plaintiff argues that the police did not
properly investigate her complaints which led her to file this
lawsuit. Even assuming that these are viable claims, they must be
dismissed because these events occurred more than one year prior
to the filing of this lawsuit. Further, Plaintiff has produced no
evidence to substantiate her claim that Todd Duplantis placed a
“hit” on her and no evidence that Defendant Duplantis violated her
constitutional
Plaintiff’s

rights

claims

in

against

any

other

Officers

manner.

Richard

Accordingly,

Hunter,

Jeffery

Jackson, Dana Coleman, and Todd Duplantis are dismissed.
Defendants also argue that they are entitled to the defense
of qualified immunity as to all of Plaintiff’s remaining claims.
(R. Doc. 250-1 at 10.)

A qualified immunity defense “serves to

shield a government official from civil liability for damages based
upon the performance of discretionary functions if the official’s
acts

were

objectively

reasonable

in

light

of

then

clearly

established law.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245,
253 (5th Cir. 2005) (quoting Thompson v. Upshur Cnty., 245 F.3d
447, 456 (5th Cir. 2001)). A qualified immunity defense alters the
usual summary judgment burden of proof. Brown v. Callahan, 623
F.3d 249, 253 (5th Cir. 2010). Once an official pleads the defense,
the burden then shifts to the plaintiff, who must rebut the defense
9

by establishing a genuine fact issue as to whether the official’s
allegedly wrongful conduct violated clearly established law. Id.
The plaintiff bears the burden of negating qualified immunity, but
all inferences are drawn in his favor. Id. The qualified immunity
defense has two prongs: whether an official’s conduct violated a
constitutional right of the plaintiff; and whether the right was
clearly established at the time of the violation. Manis v. Lawson,
585 F.3d 839, 843 (5th Cir. 2009). A court may rely on either prong
of the defense in its analysis. Id.
It appears that Plaintiff is asserting that she was hurt,
physically and emotionally, when Defendant Officers Kurt Wolfertz,
Dawn Celestine and Jerome Deville executed an Order of Protective
Custody and transported her to a medical facility. (R. Doc. 252 at
5.)

Further,

Plaintiff

argues

that

Defendant

Terry

Buquet

fraudulently placed the coroner’s name on the Order of Protective
Custody and failed to investigate the officers in this case. (R.
Doc. 252 at 8.) These Defendants argue that they were acting
pursuant to Louisiana Revised Statute 28:53.2 which permits a
parish coroner or judge to order that a person be taken into
protective custody and transported to a treatment facility for
examination. (R. Doc. 250-1 at 10). Plaintiff has not produced any
evidence that Defendant Buquet fraudulently placed the coroner’s
name on the Order of Protective Custody and has failed to produce
any evidence that these Defendants violated her constitutional
10

rights.

Accordingly,

Plaintiff’s

claims

against

Officers

Kurt

Wolfertz, Dawn Celestine, and Jerome Deville are dismissed.
Plaintiff also argues that Officers Kristina Payne, Kyle
Faulk, and Georgie Jones threatened that if she did not stop
calling

the

police

with

unsubstantiated

claims

against

her

neighbors that she may be cited or arrested. (R. Doc. 252 at 4-5;
R. Doc. 250-1 at 10.) Again, Plaintiff has failed to produce any
evidence that these Defendants violated her constitutional rights.
Accordingly, Plaintiff’s claims against Officers Kristina Payne,
Kyle Faulk, and Georgie Jones are dismissed.
Plaintiff argues that Defendants discriminated against her
because she is a Native American. (R. Doc. 1 at 10.) Again,
Plaintiff has produced no evidence that any actions taken by the
Houma Police Department or any of its officers was the product of
discrimination. Accordingly, this claim is dismissed. Finally,
Defendant has failed to articulate how Defendant Milton Wolf
violated any of her constitutional rights or caused her any harm.
Accordingly, Plaintiff’s claims against Milton Wolf are dismissed.

11

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment (R. Doc. 250) is GRANTED. Plaintiff’s claims against
Former

Chief

of

Police

Todd

Duplantis,

Chief

of

Police

Dana

Coleman, Officer Kyle Faulk, Officer Milton Wolf, Officer Richard
Hunter, Officer Jeffrey Jackson, Officer Christina Payne, Officer
Georgie Jones, Officer Kurt Wolfertz, Officer Jerome Deville,
Officer Dawn Celestine, and Internal Affairs Officer Terry Buquet
are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 4th day of January, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

12