McCoy v. Housing Authority of New Orleans et al

Filing 143

ORDER granting 76 Motion for Summary Judgment by HANO PD and Phipps. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIDGETTE MCCOY

CIVIL ACTION

VERSUS

CASE NO. 15-398

HOUSING AUTHORITY OF NEW ORLEANS, et al.

SECTION: “G”(2)

ORDER
Pending before the Court is Defendants Housing Authority of New Orleans Police
Department and Officer Silas Phipps, Jr.’s (collectively, “HANO PD Defendants”) “Motion for
Summary Judgment.”1 Having considered the motion, the memoranda in support and in
opposition, the applicable law, and the record, the Court will grant the motion.
I. Background
A.

Factual Background
In her complaint, Plaintiff Bridgette McCoy (“McCoy”), originally proceeding pro se,

alleges that she is a public housing resident living in a housing complex owned by the Housing
Authority of New Orleans (“HANO”) and managed by private corporation Interstate Realty
Management Company (“IRMC”).2 She alleges that she was wrongfully evicted from her residence

following her arrest on April 19, 2014 for public intoxication and fighting with another resident.3
Following McCoy’s arrest, IRMC filed a “rule for possession,” or eviction proceeding, against

1

Rec. Doc. 76.

2

Rec. Doc. 1.

3

Id. at 3.

1

McCoy.4 A Louisiana state trial court initially found that she violated the housing complex’s onestrike policy by being involved in a fight on the complex grounds.5 However, on March 18, 2015,
the Louisiana Fourth Circuit Court of Appeal reversed the decision, finding that no proof existed
to show that McCoy engaged in the alleged criminal acts, and noting that the criminal charges
against McCoy had been dismissed by the New Orleans Municipal Court on June 6, 2014.6
B.

Procedural Background
McCoy filed this lawsuit on February 2, 2015.7 On December 17, 2015, the Court granted

in part and denied in part a motion to dismiss filed by Defendants Jeffrey A. Clayman and James
Ryan III & Associates, L.L.C.’s, the attorneys who had represented IRMC in the eviction
proceedings in state court.8 After Plaintiff failed to submit an amended complaint, which the Court
had granted her leave to do, the Court dismissed with prejudice Defendants Clayman and James
Ryan III & Associates.9
HANO PD Defendants filed the instant motion for summary judgment on February 29,
2016.10 McCoy filed an opposition on March 8, 2016.11 On March 10, 2016, HANO PD
Defendants sought leave to file a reply memorandum, which was struck as deficient by the clerk

4

Id. at 4.

5

Estates New Orleans v. McCoy, 2014-0933 (La. App. 4 Cir. 3/18/15); 162 So. 3d 1179, 1181.

6

Id. at 1182–83.

7

Rec. Doc. 1.

8

Rec. Doc. 51.

9

Rec. Doc. 58.

10

Rec. Doc. 76.

11

Rec. Doc. 85.

2

of the Court, and later properly filed and granted on March 14, 2016.12 Also on March 10, 2016,
after HANO PD Defendants submitted their deficient motion for leave to file, McCoy filed a
motion for leave to file an affidavit that she represented had been inadvertently omitted from the
opposition to summary judgment,13 which the Court granted on March 14, 2016.14 With leave of
Court, on March 15, 2016, McCoy filed a sur-reply to the motion for summary judgment.15 HANO
PD Defendants filed a response to the sur-reply on March 16, 2016.16
II. Parties’ Arguments
A.

HANO PD Defendants’ Arguments in Support of Summary Judgment
HANO PD Defendants allege that they are entitled to qualified immunity for arresting

McCoy because probable cause existed at the time of her arrest.17 According to HANO PD
Defendants, McCoy was arrested for disturbing the peace by fighting and public intoxication after
Officer Silas Phipps, Jr. (“Phipps”) determined that she and another resident of The Estates
housing complex, where McCoy resided, had engaged in a public, physical altercation while
intoxicated.18 HANO PD Defendants aver that it is significant that McCoy does not deny she was
involved in a fight or that she consumed alcohol prior to the incident, and argue that her own
testimony contradicts her allegations that Phipps wrongfully arrested McCoy because she was not

12

Rec. Doc. 93.

13

Rec. Doc. 90.

14

Rec. Doc. 94.

15

Rec. Doc. 102.

16

Rec. Doc. 106.

17

Rec. Doc. 76-3 at 1.

18

Id. at 2.

3

the initial aggressor in the fight, he did not perform a DWI test on McCoy, and because he allegedly
falsified his police report regarding the incident.19
HANO PD Defendants assert that on April 19, 2014, McCoy and fellow resident Demetria
Carter (“Carter”) attended a gathering following a funeral, or a repass, in The Estates
neighborhood, at which both Carter and witness Stafford Brady (“Brady”) observed McCoy
consume a large quantity of beer and noted that she appeared drunk.20 HANO PD Defendants
claim that McCoy then got into a verbal altercation with several other residents at the repass, and
Carter attempted to calm McCoy down.21 According to HANO PD Defendants, after the repass,
McCoy began cursing at Brady while Carter and Brady were sitting on Carter’s front porch, and
Carter told McCoy to leave Brady alone.22 HANO PD Defendants aver that McCoy walked away
at first, but later approached Carter while she was speaking to a neighbor, and Brady approached
to intervene to prevent a fight between McCoy and Carter.23 HANO PD Defendants contend that
McCoy then attempted to punch Carter but missed, and Carter then defended herself by punching
McCoy in the face, resulting in a fight that Brady attempted to break up and which drew a large
crowd before police arrived on the scene.24
According to HANO PD Defendants, Willie Patterson (“Patterson”), a member of the
HANO PD, arrived in the 3000 block of Oliver White Ave. (“3000 Block”) at the end of the fight,

19

Id.

20

Id.

21

Id. at 2–3.

22

Id. at 3.

23

Id.

24

Id.

4

but the two women separated upon seeing him and Carter retreated to her residence.25 HANO PD
Defendants state that Patterson then called for assistance, and by the time Phipps arrived, the fight
had ceased, prompting Phipps to conduct an investigation.26 HANO PD Defendants argue that
Phipps first spoke with Patterson, who told him that he had seen Carter and McCoy “going after
each other” and separating once he arrived, at which point Phipps ascertained that a fight had
occurred in violation of Municipal Code Ordinance 54-403.27 According to HANO PD
Defendants, Phipps then separately interviewed both McCoy and Carter in an attempt to determine
the initial aggressor of the fight, but was unable to do so because both stated that the other had
begun the fight, and neither denied being involved in the altercation.28
HANO PD Defendants claim that Carter told Phipps that, preceding that evening’s fight,
the two women had previously argued in the 2900 block of Oliver White Avenue (“2900 Block”),
and that McCoy started the fight in the 3000 Block by approaching Carter and attempting to punch
her, causing Carter to retaliate by punching McCoy in the face while wearing a ring, which resulted
in a cut to McCoy’s face.29 HANO PD Defendants assert that Phipps then interviewed Brady, who
supported Carter’s version of events, but that when he then interviewed McCoy, she claimed that
Carter was the aggressor and approached McCoy from behind while she was bringing her
grandchildren home.30 According to HANO PD Defendants, McCoy claimed that Carter’s

25

Id. at 4.

26

Id.

27

Id.

28

Id.

29

Id. at 5.

30

Id.

5

boyfriend handed her a knife, prompting McCoy to turn around, and that Carter then hit her in the
head with a knife, cutting her.31 HANO PD Defendants aver that Patterson informed Phipps that
he did not observe a weapon when the two women separated, and no weapon was discovered.32
HANO PD Defendants contend that, during his interview with McCoy, Phipps concluded
that McCoy was intoxicated, as she was acting tumultuously, had alcohol on her breath, and spoke
with slurred speech.33 According to HANO PD Defendants, Carter informed Phipps that McCoy
was drunk and always caused problems when drunk, and thus based on his observations and the
totality of the investigation, Phipps determined that McCoy was probably intoxicated.34 HANO
PD Defendants allege that, because Phipps could not determine who was the initial aggressor in
the fight, he issued citations to both McCoy and Carter, and also charged both with public
intoxication.35 HANO PD Defendants aver that the validity of the charges against McCoy and
Carter were never decided by a court of law, as on April 21, 2014, Carter pled no contest to the
charges, and charges against McCoy were nolle prosquied on June 26, 2014.36
According to HANO PD Defendants, although the Louisiana Fourth Circuit Court of
Appeal eventually overturned the trial court’s decision to evict McCoy, after finding insufficient
evidence in the record to determine that a criminal act occurred, the Fourth Circuit did not state

31

Id. at 5–6.

32

Id. at 6.

33

Id.

34

Id.

35

Id.

36

Id. at 7.

6

that McCoy was wrongfully arrested.37 Furthermore, they note, no opposition brief was filed at the
appellate level against McCoy, and no advocate appeared at the Fourth Circuit to support
upholding the lower court decision.38 Thus, HANO PD Defendants aver, because of the “lengthy
string of missing evidence and missing advocacy, the record before that court lacked evidence
available in this litigation.”39 Here, they claim, it is clear that probable cause existed at the time of
the arrest, and McCoy’s claims should be dismissed on the basis of qualified immunity.40
HANO PD Defendants aver that the usual summary judgment standard is altered once a
defense of qualified immunity is raised, which shifts a heavy burden to McCoy to demonstrate the
inapplicability of the defense.41 According to HANO PD, McCoy must satisfy a two-prong test:
first, she must show that the defendants committed a Constitutional violation under the law, and
second, she must show that their actions were objectively unreasonable in light of the law that was
clearly established at the time of the actions complained of.42 Furthermore, HANO PD avers,
qualified immunity may apply even if probable cause did not exist at the time of the arrest, as an
officer may be shielded from liability if his belief that probable cause existed was mistaken, as
long as the belief was reasonable.43 HANO PD Defendants argue that McCoy cannot meet her
burden to prove either her § 1983 claim or her claim for false arrest because there was probable

37

Id.

38

Id.

39

Id.

40

Id.

41

Id. at 9 (citing Club Retro, LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)).

42

Id. (citing Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005)).

43

Id. at 10–11 (citing Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1996)).

7

cause to arrest McCoy, and therefore she was not deprived of her Constitutional right to be free
from unreasonable seizure, nor was she unlawfully detained.44
According to HANO PD Defendants, Phipps had probable cause under Municipal Code
Ordinance § 54-40345 because at the time of the arrest, Phipps had the following information
available to him: (1) McCoy and Carter engaged in a physical altercation in the 3000 Block; (2)
McCoy consumed alcohol at a social gathering prior to the altercation on April 19, 2014; (3) Phipps
interviewed Patterson, Carter, McCoy, and Brady as part of his investigation; (4) McCoy identified
Carter as the initial aggressor of the fight in the 3000 Block; (5) Carter and Brady both identified
McCoy as the initial aggressor in the fight; (6) Carter and McCoy had a previous argument that
evening at a social gathering in the 2900 Block; and (7) Phipps could not determine the initial
aggressor of the physical altercation in the 3000 Block.46 Based on these facts, HANO PD
Defendants contend, Phipps reasonably believed that a public, physical fight had occurred in
violation of Section 54-403, and therefore there was probable cause to arrest McCoy.47
HANO PD Defendants argue that Phipps testified consistently with these facts at McCoy’s
eviction proceeding, and that the appellate court in that case “did not question Officer Phipps’
probable cause” and stated that it found him to be credible.48 HANO PD Defendants assert that
McCoy does not contest the information available to Phipps at the time he made his arrest, and

44

Id.

45
Section 54-403 states, in relevant part, that: “[d]isturbing the peace is the intentional performance of any
of the following acts: . . . (5) To engage in a fistic encounter.” Id. at 11–12.
46

Id. at 12.

47

Id. at 13.

48

Id.

8

that she provided testimony to the trial court that supports the existence of probable cause,
including admitting that she was involved in an altercation involving Carter and that she consumed
alcohol.49 According to HANO PD Defendants, McCoy does not dispute what Phipps knew at the
time of the arrest, but rather is dissatisfied that he decided to arrest both her and Carter rather than
give full deference to her story.50 In addition, HANO PD Defendants claim, the testimony of
Carter, Brady and Patterson was not present in the trial record, but is presented before this Court.51
HANO PD Defendants cite Canady v. Prator, a Western District of Louisiana case, which
they claim concluded that qualified immunity was proper under similar circumstances.52 Based on
the similarities between the cases, HANO PD Defendants argue, this Court should similarly
conclude that based on the information available to Phipps at the time of the arrest, he had
sufficient probable cause to find a violation of § 54-403.53
Next, HANO PD Defendants assert that Phipps also had probable cause to arrest McCoy
for violation of Municipal Code § 54-405, which states that “[i]t is unlawful for any person to
appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not
therapeutically administered, to the degree that he may endanger himself or other persons or
property.”54 According to HANO PD Defendants, Phipps determined that McCoy was intoxicated
“from her slurred speech and tumultuous behavior,” and he was able to “smell alcoholic beverage

49

Id.

50

Id. at 14.

51

Id.

52

Id. (citing No. 13-0923, 2015 WL 507883 (W.D. La. Feb. 6, 2015)).

53

Id. at 15–16.

54

Id. at 16.

9

on her person.”55 HANO PD Defendants assert that Phipps’ interviews of Carter and Brady
supported his conclusions, and McCoy also admitted during the eviction proceeding to consuming
alcohol prior to the physical altercation.56 Therefore, HANO PD Defendants aver, McCoy merely
disputes her level of intoxication, and although she takes issue with the fact that a field sobriety
test was not issued prior to her arrest, probable cause under § 54-405 does not require officers to
administer a field sobriety test, as an officer may base probable cause on his reasonable observation
and past experience.57 HANO PD Defendants claim that Phipps’ DWI certification allowed him
to subjectively determine whether McCoy was intoxicated, which he did based on his observations
and information available to him through his numerous interviews at the scene.58 Moreover,
HANO PD Defendants contend that even if Phipps lacked probable cause, it was reasonable for
him to arrest McCoy after she admitted to her involvement in a physical altercation, and he was
reasonable in determining that her behavior made her arrest for public intoxication proper,
particularly in light of the additional evidence now provided by Patterson, Carter and Brady.59
Next, HANO PD Defendants aver that the Fourth Circuit’s reversal of McCoy’s eviction
is irrelevant to determine qualified immunity, as the Fourth Circuit did not address whether Phipps
had probable cause to arrest McCoy, but rather analyzed whether the evidence presented was
sufficient to determine that the one-strike policy was violated.60 According to HANO PD
55

Id. at 16–17.

56

Id. at 17.

57
Id. (citing State v. Cambrice, 2004-0827 (La. App. 4 Cir. 9/8/04); 884 So. 2d 628, 632; State v. Locure,
2008-1532 (La. App. 4 Cir. 5/27/09), 2009 WL 8688908, at *4; Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995)).
58

Id.

59

Id. at 18.

60

Id. at 18–19.

10

Defendants, the Fourth Circuit did not have the benefit of testimony from Carter or Brady, as they
were not called to testify at the eviction proceeding; however, they claim, information available
today supports not only probable cause to arrest McCoy, but also to ultimately convict her had her
charges not been abandoned for unknown reasons.61 Furthermore, HANO PD Defendants assert,
no opposition brief was filed and no oral argument was presented in opposition to McCoy’s
position before the Fourth Circuit, and therefore the Fourth Circuit’s discussion of McCoy’s arrest
does not bear on whether probable cause existed at that time.62
HANO PD Defendants also argue that contrary to McCoy’s allegations, the police report
from her arrest was not falsified in order to help Odeal Skidmore-Davis (“Skidmore-Davis”) evict
her.63 According to HANO PD Defendants, this allegation is plainly false, and McCoy admits in
her answers to interrogatories that she lacks support for the allegation.64 HANO PD Defendants
allege that they specifically requested all information and documents in discovery relating to
McCoy’s claim of falsification, but that Plaintiff provided no supporting documentation or
information suggesting falsification.65 Therefore, they claim, although Plaintiff states that she will
discover the necessary information to support her allegation through discovery, Plaintiff has no
competent summary judgment evidence and will be unable to meet her burden of proof at trial.66
Next, HANO PD Defendants argue that they are not liable for abuse of process, because

61

Id. at 19.

62

Id.

63

Id.

64

Id.

65

Id. at 20.

66

Id.

11

the regular use of process does not constitute an abuse of process.67 Here, they contend, Plaintiff
does not allege that HANO PD Defendants conducted any illegal, improper, or irregular use of
process, but rather that during a typical arrest, Phipps arrived at the wrong conclusion as to the
proper party to arrest.68 Similarly, HANO PD Defendants argue, they are not liable for malicious
prosecution, as probable cause is an absolute defense to such a claim.69
HANO PD Defendants also assert that they are not liable for negligence under Article 2315,
as McCoy does not contend which actions constituted negligence.70 Furthermore, HANO PD
Defendants argue, “[p]olice officers have the duty of maintaining peace and order, preventing and
detecting crime, and enforcing laws.”71 HANO PD Defendants assert that an officer’s
reasonableness is judged by the totality of the circumstances, and here, the existence of probable
cause to arrest McCoy made Phipps’ actions reasonable, meaning no breach of a duty occurred.72
In addition, HANO PD Defendants assert that they are not liable for a violation of 42 U.S.C. §
1437(f)(o)(18), as they did not evict McCoy and do not operate the federal housing program in
which she was enrolled, and therefore a police force cannot be held liable for alleged violations of
the Federal Fair Housing Act.73 Finally, HANO PD Defendants assert that any remaining claims

67

Id.

68

Id. at 21 (citing Rombach, 2015 WL 9464500, at *5).

69

Id. (citing Brown v. City of Monroe, 48,674 (La. App. 2 Cir. 2/26/14); 135 So. 3d 792, 796).

70

Id. at 22.

71

Id. (quoting Courville on Behalf fo Vincent v. City of Lake Charles, 97-73 (La. App. 3 Cir. 10/28/98); 720
So. 2d 789, 797).
72

Id. (citing Winn v. City of Alexandria, 96-492 (La. App. 3 Cir. 11/20/96); 685 So. 2d 281, 288–89).

73

Id. at 23.

12

are inapplicable as to them, and should be dismissed.74
B.

Plaintiff’s Arguments in Opposition to Summary Judgment
In opposition, Plaintiff argues that HANO PD Defendants’ qualified immunity defense

fails because Phipps disregarded protocol, “grossly neglected obvious objectivity,” and therefore
breached his duty to the public to not act in violation of her constitutional and civil rights.75 In
support, McCoy cites the Louisiana Fourth Circuit Court of Appeal decision in her eviction
proceeding, which she asserts “found that the defendant proved NO set of facts or produced no
evidence which shows that Ms. McCoy committed ANY criminal act.”76 According to Plaintiff,
Phipps relied on “subjective conjecture” in deciding to arrest McCoy, whereas he should have been
alerted that McCoy was in fact the victim of a battery perpetrated by Carter and her “paramour,”
Brady.77 Plaintiff contends that although Phipps was a competent DWI expert trained and certified
in crimes involving intoxication, he elected to deviate from standard procedure.78 McCoy argues
that the “obvious facts” revealed that she was an injured victim “fleeing perpetrators and coconspirators,” but Phipps was “unable to decipher obvious information which should have
triggered his professional competence and expertise but instead decided to act on elected personal
incompetence in violation of Ms. McCoy’s Constitutional Right and Civil Rights, inevitably
leading to the false detainment, arrest and incarceration of Bridgette McCoy.”79

74

Id.

75

Rec. Doc. 85-1 at 2.

76

Id.

77

Id.

78

Id.

79

Id. at 2–3.

13

Furthermore, McCoy alleges, Phipps falsified the police report to state that Patterson
arrived first on the scene and separated the women but did not locate a weapon, when in fact,
Carter fled the scene after becoming aware of the officer, then attempted to escape “from an
alternate exit while Officer Phipps knocked on the front door.”80 According to McCoy, Carter “was
apprehended while attempting to escape,” but none of the officers who arrived “found any exigent
circumstances, requiring a search of the premises of Demetria Carter who was hiding in her unit
despite the fact that the Victim was bleeding from a laceration to her face, which required 16
stitches.”81 Plaintiff also alleges that the police report stipulates that no weapons were located on
the scene, despite Carter’s admission that she was wearing a ring, which she allegedly forgot about
before hitting McCoy.82 McCoy avers that it is unclear whether any effort was expended to locate
any weapon, ring or knife, and that neither Carter nor her “co-conspirator” Brady was charged
“with any crime which reflected the severity of the attack.”83 McCoy also urges the Court to take
judicial notice of the Municipal Court’s nolle prosequi and the Fourth Circuit’s ruling stating that
there was no evidence that McCoy committed the crimes for which she was “illegally detained,
arrested, and evicted from her Public Housing Unit.”84
McCoy avers that “[f]rom the inception of the events until the arrest, imprisonment and
illegal eviction,” she has been subject to a conspiracy motivated by Carter and Brady’s attempt to

80

Id. at 3.

81

Id.

82

Id.

83

Id. at 3–4.

84

Id. at 4.

14

avoid criminal charges.85 Furthermore, Plaintiff contends that it is “ironic[]” that Phipps now seeks
to rely on Carter’s affidavit to establish probable cause because Carter pled guilty in Municipal
Court to the offenses filed against her.86 McCoy argues that she never admitted to being intoxicated
or involved in a fight, and instead, while she was attending a repass, Carter insulted and intimidated
McCoy, causing her to go back to her unit.87 According to McCoy, Carter alleges in her affidavit
that she was not involved in a verbal altercation with McCoy, whereas Brady acknowledges
Carter’s involvement.88 Plaintiff claims that, hours later, McCoy, accompanied by her
grandchildren, went searching for her daughter, and was approached by Carter, who instigated an
argument with her in continuation of the earlier altercation.89 According to McCoy, Carter was
assisted by Brady, who admits that he physically battered McCoy by grabbing her during a verbal
disagreement between the two women, and McCoy again retreated to her unit.90 Plaintiff avers
that, while she was returning home, Carter and Brady followed her, she heard Brady tell Carter to
take his knife, and when McCoy turned around, Carter stabbed her in the face with the knife and
fled the scene with Brady after spotting HANO PD.91
McCoy asserts that Phipps, on the basis of information reported by Patterson and
interviews with McCoy and Carter, was unable to decipher the facts surrounding the events but

85

Id.

86

Id.

87

Id. at 5.

88

Id.

89

Id.

90

Id.

91

Id.

15

nevertheless arrested McCoy for violation of New Orleans Municipal Code Ordinances §§ 54-403
and 54-405, despite no evidence to support criminal charges.92 According to McCoy, she informed
the officers about what happened, but they never searched Carter’s unit for the knife, nor
confiscated the ring that allegedly caused the laceration, and the ring was never tested for DNA.93
Furthermore, McCoy avers, although multiple residents witnessed the events, Phipps did not take
statements from any witnesses, and his sole basis for arresting McCoy was the report of Carter,
who later pled guilty to being drunk and disturbing the peace.94
McCoy argues that summary judgment is premature because genuine issues of material
fact remain, discovery is ongoing, certain depositions have not yet been taken, and Defendants’
responses to initial interrogatories or production of documents have not been tendered.95 She also
argues that the Rooker-Feldman doctrine, which bars federal courts from reviewing the decisions
of state courts on direct appeal, requires this Court to adhere to the findings made by the Fourth
Circuit, which found “no evidence supporting probable cause established to support for [sic]
arresting Ms. McCoy and that the officer’s actions were sub-standard despite his expertise and
certifications in arrest involving DWI.”96 McCoy avers that this Court must take judicial notice
that there was no evidence that McCoy committed any criminal act, that any reasonable person
would have reacted in a manner similar to McCoy after being stabbed in the face, and that the

92

Id.

93

Id. at 7.

94

Id.

95

Id. at 6.

96
Id. at 7–8 (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462 (1983)).

16

arrest and eviction proceeding were executed in violation of her civil and constitutional rights.97
Next, McCoy avers that neither Phipps nor HANO PD is entitled to qualified immunity
because a court has already found that the officer’s actions were substandard, and that he should
have known that his actions violated her civil rights.98 Furthermore, McCoy contends, Phipps
conspired with IRMC d/b/a The Estates New Orleans to illegally evict McCoy from her public
housing unit, despite knowing that doing so would violate her procedural due process rights.99
Therefore, Plaintiff argues, HANO PD Defendants are liable for abuse of process because they
knew or should have known that Phipps’ actions “superseded his authority and preempted the
authority of the Court to obtain an illegal eviction with total disregard to due process
requirements.”100 McCoy avers that both before and on the day of the rule for possession hearing,
the defendants knew that charges against McCoy had been dropped, but proceeded to have McCoy
evicted with the help of Phipps, who testified consistently with his falsified police report.101
In addition, McCoy avers that HANO PD is liable for malicious prosecution because it
arrested her in violation of her constitutional rights and collaborated with IRMC to illegally evict
her and additionally violate her constitutional rights.102 Plaintiff claims that the Fourth Circuit
determined that there was insufficient evidence to establish probable cause to arrest and incarcerate
McCoy, and therefore Phipps’ unjustified arrest “despite overwhelming evidence to the contrary,

97

Id. at 8.

98

Id. at 9.

99

Id.

100

Id. at 10.

101

Id.

102

Id.

17

furthered by his persistence in subsequent hearings to reinforce his substandard actions and
continue to victimize Ms. McCoy attempting to render her homeless,” constitutes malice.103
McCoy contends that even if Phipps’ actions are found to be negligent rather than
intentional, he is still liable for negligence pursuant to Louisiana Civil Code Article 2315, and
HANO PD is vicariously liable for the acts of its employee pursuant to Article 2320.104 Finally,
Plaintiff avers that Louisiana Revised Statute 13:4231 provides that a valid and final judgment is
conclusive between the parties, except on direct review, in any subsequent action between them,
with respect to any issue actually litigated and determined if determination was essential to that
judgment.105 McCoy argues that the Fourth Circuit was required to determine whether McCoy
violated the one-strike policy in order to determine if the rule for possession was valid, and found
that there was no evidence to affirm that McCoy committed any criminal act and that the arresting
officer’s actions were substandard despite his expertise in the field.106 According to Plaintiff,
HANO PD Defendants’ attempts to categorize McCoy as a criminal, in light of the res judicata
principles at issue, constitutes bad faith tactics, and should be sanctioned by this Court.107
C.

HANO PD Defendants’ Arguments in Further Support of Summary Judgment
In reply, HANO PD Defendants assert that Plaintiff failed to provide any legal argument

as to why HANO PD’s qualified immunity motion should be denied.108 According to HANO PD

103

Id.

104

Id. at 11.

105

Id.

106

Id.

107

Id.

108

Rec. Doc. 95 at 1.

18

Defendants, McCoy cites no jurisprudential or statutory authority for why qualified immunity is
inapplicable, but rather repeatedly expresses her view about the arrest, without acknowledging the
affidavits by Patterson, Phipps, Carter and Brady, the April 19, 2014 police report, or substantive
law exhibiting the existence of probable cause to arrest Plaintiff and the propriety of qualified
immunity.109 Similarly, HANO PD Defendants contend, McCoy provided no legal support for her
arguments regarding malicious prosecution, abuse of process, negligence, and conspiracy.110
Moreover, HANO PD Defendants claim, Plaintiff’s complaint does not state a claim for
conspiracy, and therefore her claims regarding a conspiracy are not properly before the Court.111
HANO PD Defendants also aver that Plaintiff’s statement of contested material facts and
factual allegations made therein should be disregarded, as they are conclusory and lack factual
support.112 HANO PD Defendants claim that Plaintiff cites no evidence that contravenes their
arguments.113 Furthermore, HANO PD Defendants aver, Plaintiff’s statements of material fact are
irrelevant to the determination of this motion, with the exception that Plaintiff avers that “Officer
Silas Phipps, Jr. had no evidence of Bridgette McCoy being intoxicated.”114 However, HANO PD
Defendants argue, the statement lacks factual support and must be disregarded, particularly in light

109

Id. at 1–2.

110

Id. at 2.

111

Id. The Court notes that, at the time the reply was filed, Plaintiff had sought leave to amend her complaint
in order to allege a conspiracy and add additional parties. Rec. Doc. 73. However, on March 16, 2016, Plaintiff’s
request was denied. Rec. Doc. 104. Therefore, the operative complaint in this matter is Plaintiff’s original complaint.
See Rec. Doc. 1.
112

Rec. Doc. 95 at 2.

113

Id.

114

Id. (citing Rec. Doc. 85-2 at 1).

19

of HANO PD Defendants’ overwhelming summary judgment evidence to the contrary.115
Next, HANO PD Defendants aver that Plaintiff has misstated the Fourth Circuit’s decision,
which she claims determined that she was arrested without probable cause in violation of her due
process rights.116 HANO PD Defendants argue that this “broad analysis is a clear misapplication
and misinterpretation of the opinion,” which solely concluded that insufficient evidence was
presented at the rule for possession hearing to determine whether McCoy violated the one strike
policy in violation of her lease.117 According to HANO PD Defendants, the Fourth Circuit did not
determine: (1) probable cause; (2) qualified immunity; (3) McCoy’s guilt or innocence; and/or (4)
that the investigation was substandard.118 In fact, HANO PD Defendants argue, there was not even
a brief or argument presented by the defendant at that appeal, and as such, the Fourth Circuit
opinion does not preclude the application of qualified immunity in this case.119
In addition, HANO PD Defendants assert that their motion for summary judgment is not
premature because the case has been pending for some time, and the written discovery deadline in
this matter was March 23, 2016.120 HANO PD Defendants claim that sufficient discovery has been
conducted in this litigation, and furthermore, Plaintiff is required to show why she is unable to
present evidence creating a genuine issue of fact and what evidence would be presented after

115

Id.

116

Id. at 3.

117

Id.

118

Id.

119

Id.

120

Id.

20

further discovery.121 According to HANO PD Defendants, Plaintiff cannot “simply rely on vague
assertions that additional discovery will produce needed, but unspecified, facts in opposition to
summary judgment.”122 HANO PD Defendants assert that Plaintiff has not indicated what, if any,
additional information will be presented that will create a genuine issue of fact, and moreover, a
hearing on qualified immunity, the subject of this motion, may be conducted prior to any
discovery.123 Finally, HANO PD Defendants argue that preclusion is inapplicable because
Plaintiff’s claims are not a re-litigation of any issue before the Fourth Circuit, and issue preclusion
is additionally inapplicable because HANO PD was not a party to the eviction proceedings.124
Similarly, HANO PD Defendants allege, the Rooker-Feldman doctrine is inapplicable because this
Court is not being asked to modify or reverse a state court judgment.125
D.

Plaintiff’s Arguments in Further Opposition to Summary Judgment
In her sur-reply, McCoy argues that Phipps violated clearly established law regarding the

probable cause needed to make an arrest, as reasonable suspicion is not alone enough to justify an
arrest.126 McCoy contends that, when Phipps alleged that he smelled alcohol, he had reasonable
suspicion to justify further investigation to find probable cause of an arrest.127 However, McCoy
claims, Phipps, a certified DWI expert, chose to deviate from the legally imposed standard of

121

Id. (citing Baker v. Am. Airlines, Inc., 430 F.3d 750, 756 (5th Cir. 2005)).

122

Id. (quoting Baker, 430 F.3d at 756).

123

Id. at 4 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

124

Id. (citing Taylor v. Sturgell, 554 U.S. 2161, 2172 (2008)).

125

Id. (citing Exxon Mobil Corp. v. Saudi Basic Indus., Corp., 544 U.S. 280, 284 (2005); Truong v. Bank of
Am., N.A., 717 F.3d 377, 381–82 (5th Cir. 2013)).
126

Rec. Doc. 102 at 3.

127

Id.

21

conducting a field sobriety test or using a breathalyzer in order to arrest McCoy without probable
cause, thereby violating her constitutional rights.128 Plaintiff further contends that summary
judgment is premature because not enough discovery has been completed and the discovery that
has been tendered to her has been “extremely deficient,” requiring her to file motions to compel.129
Next, McCoy argues that she executed a number of verifications, affidavits, and other
documents throughout the discovery process, and that during her deposition, after being shown a
verification, she was asked about an affidavit that she had executed on March 10, 2016, the day
before the deposition.130 McCoy alleges that she answered questions about the place of execution
and time of her affidavit, and under “extreme pressure, humiliation and embarrassment and after
several attempts by defendants to twist her answers and elicit responses in their best interest,”
McCoy did not know that they were referring to an affidavit that had been executed a few days
earlier, on March 8, 2016.131 According to Plaintiff, the defendants also insisted, despite her
attorney’s objections, that McCoy give depositions to each of the defendants in the case, even
though her counsel was only served with a notice of deposition by HANO PD and Phipps.132 Thus,
Plaintiff claims, she was “set up” from the beginning of the deposition, as she was only prepared
to be deposed by HANO PD.133 During the deposition, she claims, the defendants took advantage
of her educational level and lack of knowledge by using words she did not know, asking the same

128

Id.

129

Id. at 4 (citing Maki v. Laakko, 88 F.3d 361 (1996)).

130

Id. at 5.

131

Id.

132

Id.

133

Id.

22

questions repeatedly, accusing her of using crack cocaine, and inflicting severe emotional distress
on her by “making her re-live the tragic events that led up to her son’s death despite having
knowledge that the death occurred outside the scope of discovery.”134 At that time, Plaintiff avers,
the defendants specifically questioned McCoy about an affidavit that she had signed on March
10th with the ulterior motive of creating a circumstance where the defendant could attempt to
throw out her affidavit in order to prevail on their motion for summary judgment, “further
confirming the antics and deceitful manner in which the deposition was conducted.”135
E.

HANO PD Defendants’ Response Addressing the Affidavit
In response to Plaintiff’s allegations regarding her affidavit, HANO PD Defendants assert

that her affidavit was executed after HANO PD filed its motion for leave to file a reply.136
According to HANO PD Defendants, Plaintiff testified during her March 11, 2016 deposition that
her counsel came to her house between 5 and 6 p.m. on March 10, 2016, where she signed the
affidavit with only her counsel present.137 HANO PD Defendants claim that this was just after they
filed their motion for leave to file a reply memorandum, with the proposed reply attached.138
HANO PD Defendants argue that the substance of the reply discussed the lack of competent
summary judgment evidence presented by Plaintiff in her opposition, including affidavits.139
According to HANO PD Defendants, although Plaintiff asserted that the affidavit was

134

Id.

135

Id. at 5–6.

136

Rec. Doc. 106 at 1.

137

Id.

138

Id.

139

Id. at 1–2.

23

inadvertently omitted from the filing, it is unclear how it could have been omitted when it was not
signed until March 10, 2016, two days after her opposition was filed.140
Moreover, HANO PD Defendants claim, the affidavit does not create an issue of fact
because even if it had been attached to the opposition, it would be insufficient in light of the fact
that Plaintiff does not cite to the affidavit in her opposition.141 According to HANO PD
Defendants, a “bare attachment of an exhibit without reference precludes consideration of the
exhibit with respect to the summary judgment.”142 In addition, HANO PD Defendants assert, the
affidavit consist mainly of self-serving testimony and legal conclusions, is not supported by
evidence, and is merely a blanket attempt to counter the probative evidence provided by HANO
PD.143 HANO PD Defendants quote the Fifth Circuit decision in Karinki v. Tarango, stating that
“[w]ithout more, a vague or conclusory affidavit is insufficient to create a genuine issue of material
fact in the face of conflicting probative evidence,” and argue that therefore the affidavit does not
constitute competent summary judgment evidence that would create a genuine issue of fact.144
Finally, HANO PD Defendants argue, the affidavit does not consist of material facts relevant to
the determination of qualified immunity, as the relevant information is that which was available to
Phipps at the time of arrest.145 According to HANO PD Defendants, Plaintiff’s affidavit recites her
version of the facts and ignores the other information available from other individuals, and

140

Id. at 2.

141

Id.

142

Id. (citing Chambers v. Sears Roebuck & Co., 428 F. App’x 400, 408 (5th Cir. 2011)).

143

Id. at 3.

144

Id. (quoting 709 F.3d 495, 505 (5th Cir. 2013)).

145

Id.

24

furthermore her deposition testimony is even at odds with her affidavit regarding how much she
admits to drinking that night.146 Therefore, they argue, summary judgment should be granted.147
III. Law and Analysis
A.

Legal Standard
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”148 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.”149 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”150
If the record, as a whole, could not lead a rational trier of fact to find for the non-moving party,
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.151
On a motion for summary judgment, the moving party bears the initial burden of
identifying those portions of the record that it believes demonstrate the absence of a genuine issue

146

Id.

147

Id.

148
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
149

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

150

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

151

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

25

of material fact.152 Where the non-moving party bears the burden of proof at trial, as here, the party
moving for summary judgment may meet its burden by showing the Court that there is an absence
of evidence to support the non-moving party’s case.153 Thereafter, if the moving party satisfies its
initial burden, the burden shifts to the non-moving party to “identify specific evidence in the
record, and articulate” precisely how that evidence supports her claims.154 In doing so, the nonmoving party may not rest upon mere allegations or denials in her pleadings, but rather must set
forth “specific facts showing the existence of a ‘genuine’ issue concerning every essential
component of its case.”155 The nonmovant’s burden of demonstrating a genuine issue of material
fact is not satisfied merely by creating “some metaphysical doubt as to the material facts,” “by
conclusory allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”156
There is no genuine issue for trial “unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.”157
B.

Analysis
1.

Whether Summary Judgment is Premature

As an initial matter, McCoy argues that summary judgment is premature because genuine
issues of material fact remain, discovery is ongoing, certain depositions have not yet been taken,

152

Celotex, 477 U.S. at 323.

153

Id. at 325.

154

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
155

Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992)); see also Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
156

Little, 37 F.3d at 1075.

157
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 288–89 (1968)).

26

and Defendants’ responses to initial interrogatories or production of documents have not been
tendered.158 Thus, although she does not explicitly do so, it appears that Plaintiff seeks to invoke
the protections of Rule 56(d), which allows the Court to deny a motion for summary judgment or
defer ruling until more discovery is completed. Pursuant to Rule 56(d):
If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may:
(1)

defer considering the motion or deny it;

(2)

allow time to obtain affidavits or declarations or to take discovery; or

(3)

issue any other appropriate order.

In Adams v. Travelers Indemnity Co. of Connecticut, the Fifth Circuit construed Federal Rule of
Civil Procedure 56(f), the predecessor to the present-day Rule 56(d),159 and held that the Rule:
[A]uthorizes a district court to “order a continuance to permit affidavits to be taken
or depositions to be taken or discovery to be had,” if the non-movant files affidavits
showing that he or she “cannot for reasons stated present by affidavit facts
necessary to justify the party’s opposition.” A non-movant seeking relief under
Rule 56(f) must show: (1) why he needs additional discovery and (2) how that
discovery will create a genuine issue of material fact. A party “cannot evade
summary judgment simply by arguing that additional discovery is needed,” and
may not “simply rely on vague assertions that additional discovery will produce
needed, but unspecified, facts.”160
Requests for relief pursuant to Rule 56(d) are “generally favored and should be liberally
granted.”161 Nonetheless, a “plaintiff’s entitlement to discovery before a ruling on a motion for

158

Rec. Doc. 85-1 at 6.

159
See 10B Charles A. Wright, Arthur R. Miller, et al., Federal Practice & Procedure § 2740 (3d ed. 2014)
(“When Rule 56 was rewritten in 2010, the provisions in Rule 56(f) were moved to a new subdivision (d), without any
substantial changes.”).
160

Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 (5th Cir. 2006) (citations omitted).

161

Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001).

27

summary judgment is not unlimited and may be cut off when the record shows that the requested
discovery will not be likely to produce facts he needs to withstand a summary judgment motion.”162
Indeed, “[i]f it appears that further discovery will not produce evidence creating a genuine issue
of material fact, the district court may, in the exercise of its discretion, grant summary
judgment.”163 Furthermore, if the plaintiff “has not diligently pursued discovery . . . [she] is not
entitled to relief” under the Rule.164
Applying these rules here, the Court first notes that Plaintiff did not cite Rule 56(d), and
did not comply with the requirement of filing into the record a declaration stating, for specified
reasons, that she cannot present facts essential to justify her opposition.165 Therefore, the Court
cannot determine what discovery, if any, Plaintiff seeks to uncover that would create a genuine,
disputed issue of material fact. Moreover, in light of the fact that discovery in this matter closed
on March 23, 2016, any delay in order to allow for additional discovery would be unwarranted.166
Although Plaintiff filed numerous motions to compel after the discovery cut-off,167 the magistrate
judge largely denied them, and to the extent they were granted, they did not affect any discovery
concerning HANO PD Defendants.168 The Court is aware that Plaintiff has since lodged objections

162

Krim v. BancTexas Group, Inc., 989 F.2d 1435,1443 (5th Cir. 1993).

163

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274,
305 (5th Cir. 2004).
164

Beattie, 254 F.3d at 606 (declining to consider whether plaintiff has shown why she needs additional
discovery to create a genuine issue of fact, because she had not been diligent.).
165

See Fed. R. Civ. P. 56(d).

166

See Rec. Doc. 50 at 4.

167

Rec. Docs. 113, 114

168

See Rec. Docs. 124, 125, 141.

28

to the magistrate judge’s rulings,169 but regardless of the Court’s rulings on those discovery
disputes, Plaintiff has done no more than make “vague assertions that additional discovery will
produce needed, but unspecified, facts”—which does not satisfy Rule 56(d).170 Although the Court
continued the trial and pre-trial conference dates in this matter on May 6, 2016, the Court did not
extend any deadlines that had already passed by that date, including the deadline for completing
discovery.171
Plaintiff has had an opportunity to supplement her pleadings with additional discovery
since she filed her opposition on March 8, 2016, but has not done so. The complaint in this case
was filed on February 9, 2016,172 and HANO PD Defendants filed the instant motion for summary
judgment more than one full year later, on February 29, 2016.173 Therefore, the Court concludes
sufficient discovery has been completed to allow the Court to consider the instant motion at this
time.
2.

Late-Filed Affidavit

Next, the Court considers the arguments raised by the parties after the Court granted
Plaintiff leave, on March 14, 2016, to file an affidavit that she alleged had been inadvertently
omitted from her opposition to the motion for summary judgment.174 After filing her affidavit,
McCoy filed a sur-reply alleging that HANO PD Defendants had purposefully confused her at a

169

See Rec. Docs. 126, 142.

170

Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 (5th Cir. 2006) (citations omitted).

171

See Rec. Doc. 139.

172

Rec. Doc. 1.

173

Rec. Doc. 76.

174

Rec. Doc. 94.

29

deposition and coerced her into falsely stating that the affidavit relied upon in Plaintiff’s
opposition, which shows an execution date of March 8, 2016, was actually signed on March 10,
2016, in order to respond to HANO PD Defendants’ reply brief, which noted the lack of evidence
to support Plaintiff’s opposition to summary judgment.175 HANO PD Defendants, on the other
hand, appear to allege that Plaintiff is lying to the Court by claiming that her affidavit was signed
two days earlier than it actually was, and urge the Court not to rely on the affidavit because it was
not inadvertently omitted, as claimed by Plaintiff, because it is not cited in any portion of Plaintiff’s
opposition, and because it is nevertheless insufficient to create a genuine issue of material fact.176
The Court notes the serious allegations of impropriety and fraud lodged by both Plaintiff
and HANO PD Defendants regarding Plaintiff’s affidavit and subsequent deposition testimony.
However, no party has moved for any relief from the Court in connection with their allegations,
nor has any party requested a hearing to determine whether Defendants’ counsel harassed Plaintiff
in her deposition, or whether Plaintiff has knowingly misled the Court by misstating the date of
her late-filed affidavit. Therefore, because the Court finds below that, even considering the
statements contained in Plaintiff’s affidavit, there is no genuine, disputed issue of material fact to
preclude summary judgment, the Court need not address herein the admissibility of the affidavit
or the allegations raised by the parties.
3.

Effect of State Court Judgment

Plaintiff in her opposition to summary judgment overwhelmingly relies on the state
appellate court decision in The Estates New Orleans v. McCoy, in which the Louisiana Fourth

175

Rec. Doc. 102 at 5.

176

Rec. Doc. 106 at 1–2.

30

Circuit Court of Appeal found that the trial court was manifestly erroneous in granting the rule for
possession against McCoy because there was “no evidence from which a rational trier of fact could
construe or find that Ms. McCoy committed a criminal act,” and therefore there was no grounds
for finding that she violated The Estates’ one-strike policy.177 In urging the Court to rely on the
appellate court decision in determining whether to grant the instant motion for summary judgment,
Plaintiff relies on three theories, which the Court addresses, in turn, below: (1) judicial notice; (2)
the Rooker-Feldman doctrine; and (3) preclusion.
a.

Judicial Notice

McCoy urges the Court to take judicial notice of the Municipal Court’s nolle prosequi and
the Fourth Circuit’s ruling stating that there was no evidence that McCoy committed the crimes
for which she was “illegally detained, arrested, and evicted from her Public Housing Unit.”178 She
also states that this Court must take judicial notice that there was no evidence that McCoy
committed any criminal act, that any reasonable person would have reacted in a manner similar to
McCoy after being stabbed in the face, and that the arrest and rule for possession/eviction
proceeding was executed in violation of her civil and constitutional rights.179
Setting aside the fact that McCoy overstates the conclusions of the state appellate court,180
the doctrine of judicial notice does not apply to findings of fact made by other courts. Pursuant to

177

2014-0933 (La. App. 4 Cir. 3/18/15); 162 So. 3d 1179, 1183.

178

Rec. Doc. 85-1 at 4.

179

Id. at 8.

180

For example, the Fourth Circuit did not state that McCoy had been stabbed in the face, but only that she
sustained “a laceration above her eye,” and that “[o]f course” McCoy was “very upset at the time,” as she “had just
been attacked and sustained an injury significant enough to be sent to the hospital for treatment.” See McCoy, 162 So.
3d at 1181–82.

31

Federal Rule of Evidence 201, the Court may judicially notice a fact that is not subject to
reasonable dispute either on its own, or if a party requests it and the court is supplied with the
necessary information.181 The Fifth Circuit has explained that although courts may take judicial
notice of documents filed in other courts to establish the fact of such litigation and related filings,
courts generally cannot take notice of facts asserted in those pleadings or orders as they “are
usually disputed and almost always disputable.”182 Therefore, the Court may take judicial notice
of the fact that charges against McCoy were dropped pursuant to a nolle prosequi, and it may take
judicial notice of the existence of state court proceedings regarding the rule for possession filed
against McCoy, but it may not take notice of the facts asserted in the Fourth Circuit’s decision.
b.

Rooker-Feldman Doctrine

Next, Plaintiff argues that the Rooker-Feldman doctrine, which bars federal courts from
reviewing the decisions of state courts on direct appeal, requires this Court to adhere to the findings
made by the Fourth Circuit, which found “no evidence supporting probable cause established to
support for [sic] arresting Ms. McCoy and that the officer’s actions were sub-standard despite his
expertise and certifications in arrest involving DWI.”183 HANO PD Defendants, on the other hand,
respond that the Rooker-Feldman doctrine is inapplicable because this Court is not being asked to
modify or reverse a state court judgment.184
The Rooker-Feldman doctrine denies federal courts subject matter jurisdiction to review

181

Fed. R. Evid. 201(b)-(c).

182

Ferguson v. Extraco Mortg. Co., 264 F. App’x 351, 352 (5th Cir. 2007).

183

Rec. Doc. 85-1 at 7–8 (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983)).
184
Rec. Doc. 95 at 4 (citing Exxon Mobil Corp. v. Saudi Basic Indus., Corp., 544 U.S. 280, 284 (2005);
Truong v. Bank of Am., N.A., 717 F.3d 377, 381–82 (5th Cir. 2013)).

32

or modify the final decisions of state courts unless there is a federal statute that specifically permits
such a review.185 The doctrine prevents federal courts from entertaining “cases brought by statecourt losers complaining of injuries caused by state-court judgments rendered before the federal
district court proceedings commenced and inviting district court review and rejection of those
judgments.”186 Here, HANO PD Defendants are correct that the doctrine is inapplicable, as no
party has asked the Court to overturn the Fourth Circuit’s decision that McCoy could not be evicted
because there was insufficient evidence that she had violated the one-strike policy. Here, McCoy
seeks to use the state court judgment in her favor as evidence that HANO PD Defendants violated
her constitutional rights by arresting her for fighting and for public intoxication. HANO PD
Defendants’ motion for summary judgment on the basis of qualified immunity does not require
this Court, even if it finds in HANO PD Defendants’ favor, to review of modify any final decision
of a state court, and therefore the Rooker-Feldman doctrine is inapplicable.
c.

Preclusion

Finally, McCoy pleads in just one paragraph that Louisiana Revised Statute § 13:4231,
regarding “Res Judicata,” bars HANO PD Defendants’ arguments regarding qualified
immunity.187 It appears that Plaintiff is relying specifically on § 13:4231(3), dealing with issue
preclusion rather than claim preclusion, as she specifically cites the language that preclusion will
attach “with respect to any issue actually litigated and determined if determination was essential

185

Union Planters Bank Nat’l Ass’n, 369 F.3d 457, 462 (5th Cir. 2004).

186

Exxon, 544 U.S. at 284.

187

Rec. Doc. 85-1 at 11.

33

to that judgment.”188 Therefore, the Court need only address whether any of HANO PD
Defendants’ arguments in support of summary judgment are precluded by the Fourth Circuit’s
opinion in Estates New Orleans v. McCoy.
Both parties assume that Louisiana’s state law regarding preclusion governs whether this
Court must give the same preclusive effect to the Louisiana state court’s judgment as a Louisiana
court would give to its own judgment. According to the leading civil procedure treatise, “the
general rule is clearly stated: a state-court judgment commands the same res judicata effects in
federal court that it would have in the court that entered it.”189 Furthermore, for the most part,
“federal civil rights actions are governed by the same full-faith-and-credit requirements as other
federal actions. The preclusion rules of the state that entered the judgment control.”190 The Fifth
Circuit has similarly held that a federal district court must give the same preclusive effect to a
Louisiana state court judgment as would a Louisiana court.191 Therefore, the Court relies on
Louisiana Revised Statute § 13:4231(3), which states that “[a] judgment in favor of either the
plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to
any issue actually litigated and determined if its determination was essential to that judgment.”
Plaintiff argues that issue preclusion should attach in this matter because the Fourth Circuit
was required to determine whether McCoy violated the one-strike policy in order to determine
whether the Rule for Possession was valid. However, Plaintiff does not even address the first

188

Id.

189

18B Charles Alan Wright et al., Federal Practice and Procedure § 4469 (2d ed. 2016).

190

Id. § 4471.

191

St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 436 (5th Cir. 2000).

34

requirement of the Louisiana issue preclusion statute: namely, that “a previous judgment can only
preclude an issue against a party that actually participated in the litigation.”192 “Under Louisiana
law, identity of the parties does not mean that the parties must be the same physical or material
parties, but they must appear in the suit in the same quality or capacity.”193 Here, although it is
clear that McCoy actually participated in the underlying state court proceedings, there is no
allegation that either Phipps or HANO PD Defendants were a party to the state court proceedings.
Furthermore, this Court cannot conclude that HANO PD Defendants appear in this suit “in the
same quality or capacity” as did the Estates New Orleans in the underlying litigation. Although
McCoy alleges a conspiracy between all relevant parties aimed solely at evicting her from her
long-time home, she presents no evidence from which this Court may conclude that HANO PD
Defendants actually participated (as parties) in the state court litigation, except insofar as Phipps
served as a witness.
Having found that the first requirement of issue preclusion, namely identity of the parties,
has not been met, the Court need not consider whether the issues presented in this litigation were
actually litigated or essential to the judgment in the state court litigation. The Court concludes that,
because a Louisiana court would not allow issue preclusion to attach in subsequent litigation
between McCoy and HANO PD Defendants regarding any of the issues litigated in Estates New
Orleans v. McCoy, this Court need not rely on any of the factual determinations or resolution of
any issues contained in the Fourth Circuit judgment in McCoy’s rule for possession dispute.

192

Khammash v. Clark, 2013-1564 (La. 5/7/14); 145 So. 3d 246, 257, reh'g denied (July 1, 2014).

193

St. Paul Mercury Ins. Co., 224 F.3d at 437.

35

4.

Section 1983 Claims

To plead a § 1983 claim, McCoy is required to allege facts demonstrating that: (1) the
defendants violated the Constitution or federal law; and (2) that the defendant were acting under
the color of state law while doing so.194 McCoy claims that HANO PD Defendants violated her
constitutional rights by arresting her without probable cause for allegedly violating New Orleans
Municipal Code Ordinances §§ 54-503 and 54-505.195 As a defense to Plaintiff’s federal claims,
HANO PD Defendants invoke the doctrine of qualified immunity on the basis that Phipps had
probable cause to arrest Plaintiff, and, even if he did not, his actions were reasonable.196
a.

Legal Standard for Qualified Immunity

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.”197 Qualified immunity is an “immunity
from suit rather than a mere defense to liability.”198 Once a defendant invokes the defense of
qualified immunity, the plaintiff carries the burden of demonstrating its inapplicability.199
In Saucier v. Katz, the Supreme Court set forth a two-part framework for analyzing whether
a defendant was entitled to qualified immunity.200 Part one asks the following question: “Taken in

194

See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).

195

Rec. Doc. 85-1 at 5.

196

Rec. Doc. 76-3 at 18.

197

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

198

Pearson v. Callahan, 555 U.S. 223, 237 (2009).

199

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).

200

533 U.S. 194 (2001).

36

the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?”201 Part two inquires into whether the allegedly violated
right is “clearly established” in that “it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”202 The Court does not have to address these two questions
sequentially; it can proceed with either inquiry first.203
“Qualified immunity protects all but the plainly incompetent or those who knowingly
violate the law, and courts will not deny immunity unless existing precedent placed the statutory
or constitutional question beyond debate.”204 “Unless all reasonable officers in the defendants’
circumstance would have known that the conduct in question violated the constitution, the
defendant is entitled to qualified immunity.”205
b.

Analysis

To establish that HANO PD Defendants violated McCoy’s constitutional rights by
arresting her without a warrant in April 2014, McCoy must show that: (1) Phipps violated a
constitutional right; and (2) his actions were objectively unreasonable in light of the law that was
clearly established at the time of the actions complained of. With respect to the first prong of the
qualified-immunity analysis, whether Phipps committed a constitutional violation, “[t]he

201

Id. at 201.

202

Id. at 202.

203

See Pearson, 555 U.S. at 236 (“On reconsidering the procedure required in Saucier, we conclude that,
while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”); see also Cutler
v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).
204

Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013).

205

Batiste v. Theriot, 458 F. App’x 351, 354 (5th Cir. 2012).

37

constitutional claim of false arrest requires a showing of no probable cause.”206 “If there was
probable cause for any of the charges made . . . then the arrest was supported by probable cause,
and the claim for false arrest fails.”207 Therefore, if this Court concludes that Phipps had probable
cause to arrest McCoy on either the charge of disturbing the peace by fighting or public
intoxication, then the Court must conclude that the arrest was not improper, even if Phipps lacked
probable cause to arrest for the other charge.
The Supreme Court has defined probable cause as the “facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution,
in believing, in the circumstances shown, that the suspect has committed, is committing, or is about
to commit an offense.”208 “The police officer’s knowledge must establish that there was a fair
probability that a crime occurred.”209 “[T]he requisite fair probability is something more than a
bare suspicion, but need not reach the fifty percent mark.”210 When considering what a reasonable
person would have concluded, the Court should take into account the expertise and experience of
the law enforcement officials.211 Furthermore, “evidence that the arrestee was innocent of the
crime is not necessarily dispositive of whether the officer had probable cause to conduct the arrest
because ‘probable cause requires only a probability or substantial chance of criminal activity, not

206

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).

207

Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).

208

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).

209

United States v. Nunez–Sanchez, 478 F.3d 663, 666–67 (5th Cir. 2007).

210

United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (internal quotation marks omitted).

211

Id. at 268.

38

an actual showing of such activity.’”212
With respect to the second prong, whether Phipps’ actions were objectively unreasonable
in light of clearly established law, the Fourth Amendment right to be free from an arrest without
probable cause is clearly established.213 However, pursuant to the second prong, “even law
enforcement officials who reasonably but mistakenly conclude that probable cause is present are
entitled to immunity.”214 Accordingly, “as applied to a warrantless arrest, officers are entitled to
qualified immunity unless there was not probable cause for the arrest and a reasonable officer in
their position could not have concluded that there was probable cause for the arrest.”215 Plaintiff
“must clear a significant hurdle to defeat qualified immunity.”216 “There must not even arguably
be probable cause for the . . . arrest for immunity to be lost.”217
Here, McCoy, along with Carter, was arrested for disturbing the peace by fighting under
New Orleans Municipal Code § 54-403 and public intoxication under § 54-405.218 Because the
Court need only find that HANO PD Defendants had probable cause to arrest on the basis of either
ordinance, and not both, the Court begins by examining § 54-403. Section 54-503 states, in relevant
part:
(a)

Whoever commits the act of disturbing the peace shall be guilty of a
misdemeanor . . .

212

Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 244 n.13

213

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009).

214

Id. at 204.

215

Cooper v. City of La Porte Police Dep’t, 608 F. App’x 195, 198 (5th Cir. 2015) (emphasis added).

216

Brown v. Lyford, 243 F.3d 185, 190 (5th Cir. 2001).

217

Id. (internal quotation marks omitted).

218

Rec. Doc. 76-4 at 1.

(1983)).

39

(b)

Disturbing the peace is the intentional performance of any of the following
acts: . . .
(5)

To engage in a fistic encounter.

(6)

To act in a violent or tumultuous manner toward another
whereby any person is placed in fear of safety of his life,
limb or health.

Even on a motion for summary judgment, once a defendant pleads the defense of qualified
immunity, Plaintiff, not HANO PD Defendants, bears the burden of proving that HANO PD
Defendants are not entitled to invoke the defense.219 “The plaintiff bears the burden of negating
the defense and cannot rest on conclusory allegations and assertions but must demonstrate genuine
issues of material fact regarding the reasonableness of the officer’s conduct.”220 Here, the only
evidence cited by Plaintiff in support of her claim that HANO PD Defendants violated clearly
established federal law are: (1) the Louisiana Fourth Circuit’s decision in Estates New Orleans v.
McCoy,221 which this Court has already concluded does not govern the Court’s determinations in
this proceeding; (2) the affidavit of Demetria Carter, who states that “I told the officer who
interviewed me that Ms. McCoy started the altercation, threw the first punch, was scratched by my
ring, and was drunk;”222 (3) the affidavit of Stafford Brady, who states that McCoy swung at Carter
who “hit her back,” and that he told the police the same information when questioned within a few

219
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005) (“[T]he usual summary judgment burden of proof
is altered in the case of a qualified immunity defense.”) (citing Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir.
2001)).
220

Id.

221

2014-0933 (La. App. 4 Cir. 3/18/15); 162 So. 3d 1179.

222

Rec. Doc. 85-1 at 4 (citing Aff. of Demetria Carter, Rec. Doc. 76-7 at 2).

40

minutes of the fight;223 (4) the affidavit of Silas Phipps, Jr., who asserts, in addition to other
observations regarding his investigation, that Carter and McCoy both stated that the other had been
the initial aggressor in their altercation;224 (5) the affidavit of Willie Patterson, who states that he
arrived on the scene during an altercation between McCoy and Carter and that he informed Phipps,
when he arrived, that the two had been “at each other” but separated upon seeing Patterson
arrive;225 and (6) records indicating that Carter pled no contest to the charges against her, and that
the charges against McCoy were dropped.226 Elsewhere in her opposition, McCoy also cites
Phipps’ police report, which states, among other things, that Phipps received conflicting
information regarding who instigated the fight, that he could not locate any independent witnesses,
and that based on his observations and the statements he received, he elected to arrest both parties
for fighting;227 she also cites the transcript from the rule for possession hearing.228 She also later
attached the disputed affidavit, which HANO PD Defendants correctly note is not cited in her
opposition, stating, in relevant part, that “[a]ffiant did not engage in any fight.”229
Almost all of the evidence cited by McCoy—namely the affidavits of Carter, Brady,

223

Id. (citing Aff. of Stafford Brady, Rec. Doc. 76-8 at 2).

224

Id. (citing Aff. of Silas Phipps, Jr., Rec. Doc. 76-9 at 2).

225

Id. (citing Aff. of Willie Patterson, Rec. Doc. 76-10 at 1–2).

226

Id. (citing Rec. Doc. 85-10).

227

Id. (citing Rec. Doc. 76-4). Although Plaintiff alleges that Phipps falsified his police report and that the
Court therefore should not rely on it as evidence on summary judgment, McCoy provides no evidence whatsoever
from which the Court can ascertain that the police report was falsified, even after making all reasonable inferences in
favor of the non-moving party. Therefore, the Court herein considers Phipps’ police report to be competent summary
judgment evidence.
228

Id.at 10 (citing Rec. Doc. 85-9).

229

Rec. Doc. 85-11 at 1.

41

Phipps, and Patterson, as well as the police report—affirm HANO PD Defendants’ contention that
Phipps faced conflicting testimony regarding who instigated the fight when he arrived on the scene,
and therefore chose to arrest both McCoy and Carter for both disturbing the peace and public
intoxication. The only evidence that may contradict HANO PD Defendants’ assertions are the
Fourth Circuit decision, which does not bind this Court, and McCoy’s affidavit, which states that
she simply did not engage in any fight whatsoever. However, as noted by HANO PD Defendants,
this Court need not consider any exhibit that is attached to a motion or opposition but is not
referenced by the party in its memorandum.230 Furthermore, “[a] party’s self-serving and
unsupported statement in an affidavit will not defeat summary judgment where the evidence in the
record is to the contrary.”231 Here, HANO PD Defendants cite extensive evidence, including
McCoy’s own admission before the trial court, albeit begrudging, showing that she did in fact
engage in a fight.232 Therefore, regardless of how either party should wish to categorize the
altercation, the Court need not conclude that there is a genuine, disputed issue of material fact
regarding whether a fight took place solely based on McCoy’s affidavit to the contrary.
Even if the Court were to consider the Fourth Circuit’s decision regarding the facts at issue
in this dispute, the Court notes that, in its opinion, the Fourth Circuit stated that “Officer Phipps
agreed that no evidence exists showing that Ms. McCoy was the instigator of the altercation.”233

230

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (“When evidence exists in the summary judgment
record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence
is not properly before the district court.”).
231

Chambers v. Sears Roebuck & Co., 428 F. App’x 400, 408 (5th Cir. 2011) (citing In re Hinsley, 201 F.3d
638, 643 (5th Cir. 2000)).
232

See Rec. Doc. 76-6 at 14 (“Q. So to answer the question, you were involved in a fight on April 19, 2014?
A. Well, I guess.”).
233

Estates New Orleans v. McCoy, 2014-0933 (La. App. 4 Cir. 3/18/15); 162 So. 3d 1179, 1182.

42

Here, however, HANO PD Defendants have presented evidence that, at the time of arrest, Phipps
had obtained evidence in the form of various statements suggesting that McCoy in fact did instigate
the fight. For example, both Carter and Brady state in their affidavits that they told Phipps when
he arrived shortly after the fight that McCoy was the instigator.234 Phipps also, as acknowledged
by HANO PD Defendants, faced evidence that Carter, not McCoy, was the instigator.235
A police officer faced with conflicting facts and eyewitness testimony does not necessarily
lack probable cause for arrest simply because one party insists that her version of the facts is
correct—even if that party claims at the time that she acted in self-defense. The Fifth Circuit has
expressly declined to address whether evidence of an affirmative defense such as self-defense is
relevant to a determination of probable cause.236 However, “[d]istrict courts within the Fifth
Circuit, as well as other Circuits that have considered this issue have held that an affirmative
defense is relevant to the probable cause inquiry, but that an official is under no duty to investigate
a plaintiff’s claimed defense.”237 In other words, “[a] police officer may not ignore conclusively
established evidence of the existence of an affirmative defense, but the officer has no duty to
investigate the validity of any defense.”238 Here, where Plaintiff provides no evidence from which

234

See Aff. of Demetria Carter, Rec. Doc. 76-7 at 2; Aff. of Stafford Brady, Rec. Doc. 76-8 at 2.

235

See Police Report, Rec. Doc. 76-4 at 4 (stating that McCoy informed Phipps that Carter was given a knife
by her boyfriend and then hit her in the eye); Aff. of Silas Phipps, Jr., Rec. Doc. 76-9 at 2 (stating that McCoy informed
him that Carter had instigated the fight).
236

See Piazza v. Mayne, 217 F.3d 239, 246–47 (5th Cir.2000); see also United States v. Craig, 381 F. App’x
459, 461 (5th Cir. 2010) (“The parties disagree as to whether an arresting officer making a probable cause
determination must consider facts establishing an affirmative defense. We need not resolve this dispute.”).
237
Mabry v. Lee Cty., 100 F. Supp. 3d 568, 573–74 (N.D. Miss. 2015) (citing Dressner v. Crowe, 2013 WL
5236658, at *3 (E.D. La. Sept. 16, 2013), appeal dismissed, 564 F. App’x 86, 87 (5th Cir.2014); Thomas v. City of
Galveston, Tex., 800 F. Supp. 2d 826, 835 (S.D. Tex.2011) (collecting cases)).
238
Thomas, 800 F. Supp. 2d at 835 (quoting Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061
(7th Cir. 2004)).

43

the Court can ascertain that Phipps faced “conclusively established evidence” that McCoy had an
affirmative defense, the Court declines to find that he lacked probable cause for arrest solely based
on McCoy’s uncorroborated testimony that she did not instigate the fight and was solely attempting
to shield herself from an attack.
The lack of independent witnesses and conflicting testimony regarding the origin of the
fight between McCoy and Carter presented Phipps with an admitted difficulty in determining who
was the primary aggressor.239 However, in Cooper v. City of La Porte Police Department, the Fifth
Circuit held that, where the plaintiff, as here, disputed the accounts given by the eyewitnesses, but
did not dispute that they gave these accounts to the police at the scene of the alleged crime, the
police officer could be found to have had probable cause at the time of arrest.240 There, the Court
stated that “[i]t is immaterial to the probable cause determination whether [the
plaintiff] actually [committed a crime]. The determinative issue is whether ‘the totality of facts
and circumstances within [Defendant’s] knowledge at the moment of arrest are sufficient’ to
establish probable cause.”241
Similarly, in Canady v. Prator, a recent Western District of Louisiana case relied upon by
HANO PD Defendants, the district court concluded that an arresting officer had probable cause to
arrest two individuals engaged in a heated argument under an analogous state statute, Louisiana
Revised Statute § 14:103(A)(2), which prohibits disturbing the peace by addressing offensive,
derisive, or annoying words to a person lawfully in any street, or making any noise or exclamation

239

See Rec. Doc. 76-4 at 4.

240

608 F. App’x 195, 200 (5th Cir. 2015)

241

Id. (quoting United States v. Nunez–Sanchez, 478 F.3d 663, 666 (5th Cir. 2007)).

44

in a person’s presence and hearing with the intent to deride, offend, or annoy him.242 In Canady, a
neighbor had called 911 to report an altercation between two individuals, Ronnie Goodman and
the plaintiff, Carolyn Canady.243 The neighbor confirmed upon the arresting officers’ arrival that
she had heard fighting and screaming.244 The officers interviewed the neighbor, Canady,
Goodman, and a fourth, unidentified witness.245 Although the neighbor stated in her interview that
Goodman, and not the plaintiff, appeared to be the primary source of the disturbance, and stated
that Canady had done nothing to alarm her, the officers decided that they had probable cause to
arrest both Canady and Goodman for disturbing the peace.246 The Court concluded that the officers
had probable cause that the plaintiff had made a “noise or exclamation” in the presence of
Goodman with the intent to “deride, offend, or annoy him” on the basis of the neighbor’s call
stating that the two were “fighting and arguing,” despite the neighbor’s later statement that Canady
had not been screaming or disturbing the peace.247
This Court is persuaded by the analysis in Canady. Here, Phipps was informed by Patterson
that he had witnessed both McCoy and Carter “going after each other” when he arrived on the
scene,248 and both Carter and Brady stated during Phipps’ investigation that McCoy was the initial

242

No. 13-0923, 2015 WL 507883, at *5 (W.D. La. Feb. 6, 2015) (James, J.).

243

Id. at *1–2.

244

Id. at *6.

245

Id. at *2.

246

Id.

247

Id. at *6.

248

Rec. Doc. 76-10 at 2.

45

aggressor.249 The Court notes that there is evidence in the record to suggest that Carter and Brady
were not credible witnesses at the time of arrest. For example, Phipps’ police report states that,
when he knocked on the front door of Carter’s residence, prior to interviewing her, she “attempted
to flee out the rear door and was apprehended by [another officer].”250 Phipps also knew that Brady
resided with Carter and was either her “husband” or her “boyfriend.”251 However, Phipps also
relied upon Patterson’s observations from when he arrived on the scene and saw “two females . . .
fighting in the street,” had been told by McCoy, Carter, and Brady that an earlier fight had taken
place in the 2900 Block, and believed that both McCoy and Carter were “obviously intoxicated.”252
Based on the totality of the circumstances, the Court concludes that Phipps had probable
cause to arrest McCoy for violation of New Orleans Municipal Code § 54-403, which bars
intentionally engaging in a fistic encounter, or acting in a violent or tumultuous manner toward
another whereby any person is placed in fear of safety of her life, limb, or health. In the alternative,
the Court concludes that a reasonable officer in Phipps’ position could have concluded that there
was probable cause for arrest, and therefore HANO PD Defendants are entitled to qualified
immunity.253 Here, there is at the very least “arguably . . . probable cause,” which is sufficient to
trigger HANO PD Defendants’ qualified immunity defense, therefore barring Plaintiff’s claims
pursuant to Section 1983.254 Furthermore, having found that Phipps had probable cause to arrest

249

Police Report, Rec. Doc. 76-4 at 4.

250

Id.

251

Id.

252

Id.

253

Cooper v. City of La Porte Police Dep’t, 608 F. App’x 195, 198 (5th Cir. 2015) (emphasis added).

254

Id. (internal quotation marks omitted).

46

McCoy for violation of § 54-403, and in the alternative is entitled to qualified immunity based on
his reasonable belief that he had probable cause, the Court need not consider whether Phipps also
had probable cause to arrest McCoy for violating § 54-405 governing public intoxication.
As a final matter, the Court acknowledges Plaintiff’s numerous arguments disputing the
facts as stated by HANO PD Defendants. However, to the extent that McCoy relies on broad
allegations regarding what she believes happened on the night of April 19, 2014, such allegations
are insufficient to defeat summary judgment, as the non-moving party may not rest upon mere
allegations or denials in her pleadings, but rather must set forth “specific facts showing the
existence of a ‘genuine’ issue concerning every essential component of its case.”255 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”256 Furthermore, although McCoy
relies upon the fact that Carter ultimately pleaded no contest to the charges against her, whereas
the charges against McCoy were dismissed, “subsequent events are irrelevant to the court’s
determination of probable cause, which must confine its analysis to the officers’ knowledge at the
time of the challenged conduct.”257 As such, the Court concludes that Plaintiff has failed to present

255
Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992)); see also Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
256

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

257

Burkes v. Waggoner, No. 06-142, 2008 WL 695254, at *6 (S.D. Miss. Mar. 12, 2008), aff'd, 301 F. App’x
390 (5th Cir. 2008); see also Hightower v. Schaubhut, No. 89-3243, 1990 WL 58129, at *2 (E.D. La. Apr. 26, 1990)
(“Events subsequent to the arrest are irrelevant to determine whether probable cause existed at the time of the arrest,
and the actual guilt or innocence of a plaintiff is neither dispositive nor relevant to the ultimate issue in a claim based
on section 1983—whether the officers believed they had probable cause to arrest the plaintiff.”) (citing Hannah v.
City of Overland, 795 F.2d 1385, 1390 (8th Cir. 1986); Baker v. McCollan, 443 U.S. 137, 145 (1979); Simmons v.
McElveen, 846 F.2d 337, 339 (5th Cir. 1988); Clay v. Conlee, 815 F.2d 1164, 1167 (8th Cir. 1987)).

47

sufficient evidence to override HANO PD Defendants’ defense of qualified immunity.
5.

State Law Claims

In addition to asserting a qualified immunity defense to Plaintiff’s Section 1983 claims,
HANO PD Defendants seek to dismiss McCoy’s remaining state claims on various grounds. The
Court addresses each of McCoy’s remaining claims, in turn, below.
a.

Abuse of Process

McCoy avers that HANO PD Defendants are liable for abuse of process because they knew
or should have known that Phipps’ actions “superseded his authority and preempted the authority
of the Court to obtain an illegal eviction with total disregard to due process requirements.”258
According to McCoy, both before and on the day of the hearing on the rule for possession, the
defendants knew that charges against McCoy had been dropped, but proceeded to have McCoy
evicted from her public housing unit with the collaboration of Phipps, who testified consistently
with his falsified police report.259 HANO PD Defendants, on the other hand, aver that the regular
use of process does not constitute an abuse of process, and here, Plaintiff simply alleges that during
a typical arrest, Phipps arrived at the wrong conclusion as to the proper party to arrest.260
In order to prove an abuse of process claim, a plaintiff must prove: “(1) the existence of
an ulterior purpose; and (2) a willful act in the use of the process not proper in the regular
prosecution of the proceeding.”261 Here, although Plaintiff makes numerous general allegations

258

Rec. Doc. 85-1 at 10.

259

Id.

260

Rec. Doc. 76-3 at 21.

261

Waguespack, Seago and Carmichael v. Lincoln, 1999-2016 (La. App. 1 Cir. 9/22/00); 768 So. 2d 287,

290–91.

48

that HANO PD Defendants conspired with others solely to evict McCoy from her unit, McCoy
presents no evidence from which this Court may infer that HANO PD Defendants had an ulterior
purpose or in any way conspired to evict McCoy. Plaintiff does not aver that HANO PD
Defendants were a party in the rule for possession proceedings; instead, the evidence undisputedly
shows only that Phipps was a witness called to testify regarding his arrest of McCoy. Even if
McCoy were able to prove that HANO or any other party is liable for abuse of process for seeking
to evict her even after the criminal charges against her were dropped, McCoy does not substantiate
any allegation that Phipps arrested McCoy or testified before the state trial court because of an
ulterior motive to coordinate with HANO or any other party in order to evict McCoy. As such,
McCoy’s abuse of process claim against HANO PD Defendants fails.
b.

Malicious Prosecution

In order to prove a claim for malicious prosecution, a plaintiff must show: “(1) the
commencement or continuance of an original criminal or civil proceeding; (2) its legal causation
by the present defendant in the original proceeding; (3) its bona fide termination in favor of the
present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice
therein; and (6) damage conforming to legal standards resulting to plaintiff.”262 Although the
plaintiff ordinarily bears the burden of proof on all the elements of a malicious prosecution claim,
there is a presumption of malice and a lack of probable cause in cases where the prosecuting officer
has dismissed the charges.263 In those cases, the burden shifts to the defendant to show that she

262

Lemoine v. Wolfe, 2014-1546 (La. 3/17/15); 168 So. 3d 362, 367 (quoting Jones v. Soileau, 448 So. 2d
1268, 1271 (La. 1984)).
263
Hope v. City of Shreveport, 37,759 (La. App. 2 Cir. 12/17/03); 862 So. 2d 1139, 1143; see also Keppard
v. AFC Enters., Inc., 2000-2474 (La. App. 4 Cir. 11/28/01); 802 So. 2d 959, 965.

49

acted on probable cause and without malice.264
Here, the Court has already concluded that HANO PD Defendants have met their burden
of showing that they had probable cause to arrest McCoy. Therefore, Plaintiff cannot meet her
burden of proof at trial to show that there was a lack of probable cause for her prosecution, nor
that HANO PD Defendants acted with malice. As such, her claim for malicious prosecution must
be dismissed.
c.

Negligence

McCoy contends that even if Phipps’ actions are found to be negligent rather than
intentional, he is still liable for negligence pursuant to Louisiana Civil Code Article 2315, and
HANO PD is vicariously liable for the acts of its employee pursuant to Article 2320.265 HANO PD
Defendants, however, argue that they are not liable for negligence, as “[p]olice officers have the
duty of maintaining peace and order, preventing and detecting crime, and enforcing laws.”266
HANO PD Defendants assert that an officer’s reasonableness is judged by the totality of the
circumstances, and here, the existence of probable cause to arrest McCoy made Phipps’ actions
reasonable, meaning no breach of a duty occurred.267
McCoy’s negligence claim is subject to Louisiana's “duty/risk analysis, which entails five
separate elements: (1) whether the defendant had a duty to conform his conduct to a specific
standard (the duty element); (2) whether the defendant’s conduct failed to conform to the

264

Keppard, 802 So. 2d at 965.

265

Rec. Doc. 85-1 at 11.

266

Rec. Doc. 76-3 at 22 (quoting Courville on Behalf fo Vincent v. City of Lake Charles, 97-73 (La. App. 3
Cir. 10/28/98); 720 So. 2d 789, 797).
267

Id. (citing Winn v. City of Alexandria, 96-492 (La. App. 3 Cir. 11/20/96); 685 So. 2d 281, 288–89).

50

appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a
cause-in-fact of the plaintiff’s injures (the cause-in-fact element); (4) whether the defendant’s
substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of
protection element); and (5) whether the plaintiff was damaged (the damages element).”268 A
police officer has a duty to act reasonably under the totality of the circumstances.269
As discussed above, there are no genuine, disputed issues of material fact regarding
whether Phipps had probable cause to arrest McCoy, or whether he acted reasonably in doing so
even if he lacked probable cause. Because the Court has already concluded that Phipps had
probable cause to arrest McCoy, the Court cannot conclude that he was nevertheless negligent in
arresting her. Therefore, McCoy’s negligence claim against HANO PD Defendants must be
dismissed.
d.

42 U.S.C. § 1437(f)(o)(18)

HANO PD Defendants assert that they are not liable for a violation of 42 U.S.C. §
1437(f)(o)(18), as they did not evict McCoy and do not operate the federal housing program in
which she was enrolled, and therefore a police force cannot be held liable for alleged violations of
the Federal Fair Housing Act.270 McCoy does not respond to this argument by HANO PD
Defendants and does not appear to assert that she wishes to maintain such a claim against HANO
PD Defendants, and therefore this Court determines that summary judgment should be granted in
favor of HANO PD Defendants on this claim, to the extent it is raised.

268

Hanks v. Entergy Corp., 944 So. 2d 564, 579 (La. 2006).

269

Mathieu v. Imperial Toy Corp., 646 So. 2d 318, 322–23 (La. 1994).

270

Rec. Doc. 76-3 at 23.

51

e.

Conspiracy

Throughout her opposition, Plaintiff alleges that HANO PD Defendants conspired with
Interstate Reality, d/b/a the Estates New Orleans in order to illegally evict McCoy. HANO PD
Defendants argue that Plaintiff’s original complaint in this matter does not allege a conspiracy and
therefore Plaintiff’s conspiracy claims are not properly before the Court.271 However, although the
complaint does not use the term “conspiracy,” it does allege that the defendants “acted in concert
to violate federal statute by filing and continuing eviction proceeding against her.”272 Nevertheless,
bald allegations that a conspiracy existed will be insufficient to overcome a motion for summary
judgment.273 In the Fifth Circuit, “Plaintiffs who assert conspiracy claims under civil rights statutes
must plead the operative facts upon which their claim is based.”274 Although McCoy repeatedly
refers to each of the defendants in this matter as co-conspirators who jointly operated to deprive
McCoy of her civil rights, she does not provide any summary judgment evidence to specifically
support her claim, particularly in light of the Court’s determination, above, that Phipps had
probable cause to arrest McCoy. Therefore, summary judgment in favor of HANO PD Defendants
on McCoy’s conspiracy claim is warranted.

271

Rec. Doc. 95 at 2 n.2.

272

Rec. Doc. 1 at 4.

273

Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991).

274

Lynch v. Cannatella, 810 F.2d 1363, 1369–70 (5th Cir. 1987).

52

IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that HANO PD Defendants’ “Motion for Summary
Judgment”275 is GRANTED.
NEW ORLEANS, LOUISIANA, this 24thday of May, 2016.
___

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

275

Rec. Doc. 76.

53