Derischebourg v. Clark et al

Filing 188

ORDER AND REASONS - IT IS ORDERED that Chris Clark Jr.'s 135 motion for summary judgment is DENIED. IT IS FURTHER ORDERED that the Board of Commissioners of the Port of New Orleans's summary judgment 134 motion is GRANTED IN PART. Der ischebourg's Section 1983 claim against the Port is DISMISSED WITH PREJUDICE. The remainder of the Port's summary judgment motion is DENIED. IT IS FURTHER ORDERED that Lexington Insurance Company's 130 motion for summary judgment is GRANTED and that all claims against Lexington are DISMISSED WITH PREJUDICE. Signed by Judge Lance M Africk on 3/22/2017. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALFRED DERISCHEBOURG

CIVIL ACTION

VERSUS

No. 15-1712

OFFICER CHRIS CLARK ET AL.

SECTION I

ORDER AND REASONS
Before the Court are New Orleans Harbor Police Officer Chris Clark Jr.’s, the
Board of Commissioners of the Port of New Orleans’s, and Lexington Insurance
Company’s motions 1 for summary judgment. For the following reasons, Clark Jr.’s
motion is denied, the Port’s motion is granted in part and denied in part, and
Lexington’s motion is granted.
I.
On the night of Clark Jr.’s graduation from college, his family and friends took
him out to dinner in New Orleans. Clark Jr.’s family and friends took two cars to the
restaurant.
When they went to pay for parking at a parking lot on Poydras Avenue, they
did not notice that the parking machine did not give change. As a result, they
accidently paid more than they intended for a single parking space. But rather than
purchase a parking slip for the other car, they parked both of the cars next to each
other in the lot and left the parking slip on the dashboard of one of the cars. Clark

1

R. Doc. Nos. 130, 134, 135.

Jr. left his Harbor Police ID on the dashboard of the other car. Both of the cars were
booted when they returned.
Plaintiff Alfred Derischebourg was working as the parking lot’s “boot man”
that evening. He booted the cars. Then, when Clark Jr.’s family called to get the
boots removed, Derischebourg was dispatched to address the situation.

After

Derischebourg arrived, he explained the rules to Clark Jr. and Clark Jr.’s mother and
quoted a price for removing the boots. They refused to pay, and Derischebourg left.
The Clark family called Derischebourg back to the parking lot later in the
evening. By that point, more of Clark Jr.’s friends and family had gathered. One of
those individuals was David Cantrelle—a badge-toting deputy constable for the First
City Constable.
Upon arrival, Derischebourg exited his car and began discussing the matter
with Clark Jr.’s mother. During that conversation, Derischebourg got back in his
pickup truck. Clark Jr.’s friends and family—but not Clark Jr.—surrounded the
pickup truck. Clark Jr.’s aunt and uncle stood in front, Clark’s mother and Cantrelle
next to the driver’s door, and Clark Jr.’s father (“Clark Sr.”) behind.
The parties disagree about what happened next.

According to Clark Jr.,

Derischebourg began to back up “a couple of feet – four or five feet, maybe,” in a “fast”
and “erratic” manner, R. Doc. No. 175-3, at 38, forcing Clark Jr. and Cantrelle to
remove him from the car for the safety of everyone there. Clark Jr. claims his
intervention was provoked by seeing Derischebourg’s moving pickup truck hit Chris
Clark Sr. R. Doc. No. 175-3, at 38. Meanwhile, according to Derischebourg, he merely

2

shifted his car from drive to park—causing the reversing lights to temporarily go on—
but his car did not move. (Clark Sr. later reported to police that the car did not strike
him. Instead, Clark Sr. said that that he pushed himself away from the vehicle when
he saw the reversing lights go on. R. Doc. No. 175-5, at 5.)
Nonetheless, all parties agree that Clark Jr.’s aunt screamed and Cantrelle
used force to remove Derischebourg from the car. Clark Jr. ran over to help Cantrelle
restrain Derischebourg. They pinned Derischebourg to the ground and handcuffed
him. Derischebourg also claims that they punched him and held him down while
Derischebourg was assaulted by Clark Jr.’s friends and family. Derischebourg’s body
camera recorded video and audio from the incident, though the video camera fell off
of Derischebourg when he was removed from the car. The camera landed face down,
resulting in there only being an audio recording of the takedown.
New Orleans police arrived on the scene shortly thereafter. They ordered
Derischebourg released. After investigating, the police issued summonses to Clark
Jr., Cantrelle, as well as some of Clark Jr.’s friends and family for simple assault.
Derischebourg filed this civil case which alleges federal and state tort claims
against Clark Jr., the Port of New Orleans (Clark Jr.’s employer), Cantrelle, the First
City Constable (Cantrelle’s employer), and Clark Jr.’s friends and family.
Derischebourg further amended his case to raise a claim against Lexington Insurance
Company (the insurer for Clark Jr.’s aunt and uncle) under the direct action statute.
Derischebourg also filed a criminal complaint against Clark Jr., Cantrelle, and
Clark Jr.’s family and friends. This matter was stayed during the pendency of the

3

criminal proceedings. It was then reopened after all of the defendants were found
not guilty of all charges in municipal court.
Clark Jr., the Port, and Lexington Insurance Co. now move for summary
judgment.
II.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment
need not produce evidence negating the existence of material fact, but need only point
out the absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn
Co., 780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied
by creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a

4

genuine issue of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a
genuine issue. Id. The nonmoving party’s evidence, however, “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id. at 255;
see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
III.
Clark Jr. moves for summary judgment on (1) his claim of qualified immunity
to plaintiff’s federal and state constitutional law claims and (2) his claim of
discretionary immunity to the state law tort claims.

Clark Jr. also moves for

summary judgment on the merits of plaintiff’s tort claims, but he did not comply with
the scheduling order requiring him to discuss all proposed summary judgment issues
at a status conference.
A.
Even though Clark Jr. was off-duty at the time he pinned and cuffed
Derischebourg, he is entitled to qualified immunity insofar as his conduct did not
“violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also
Legrand v. Gillman, 576 F. App’x 334, 335 n.1 (5th Cir. 2014) (off-duty officers may
raise qualified immunity defense). When qualified immunity is properly applied, “it
protects all but the plainly incompetent or those who knowingly violate the law.”

5

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted).
“Once a defendant invokes qualified immunity . . . the burden shifts to the plaintiff
to demonstrate the inapplicability of the defense.” McCreary v. Richardson, 738 F.3d
651, 655 (5th Cir. 2013).
Courts apply a two-part test when determining qualified immunity. First, a
court must decide whether the officer’s conduct violated a constitutional right. See
Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017). Second, the court must decide
whether the constitutional right at issue was clearly established at the time of the
alleged violation.

Id.

Derischebourg claims that Clark Jr. violated the Fourth

Amendment by unlawfully seizing Derischebourg and using excessive force when
doing so.
Neither party disputes the constitutional principles underlying Derischbourg’s
constitutional claims—the Fourth Amendment right to be free from unlawful arrest
and detention as well as the Fourth Amendment right to be free from excessive force
during a seizure. Because neither party disputes the clarity of the underlying Fourth
Amendment rights, both the first and the second prong of the qualified immunity
analysis “necessarily involves a reasonableness inquiry.” Id.
After all, Derischebourg needs to show that Clark Jr. acted unreasonably to
demonstrate a Fourth Amendment violation in the first place. See, e.g., Heien v.
North Carolina, 134 S. Ct. 530, 536 (2014) (“As the text indicates and we have
repeatedly affirmed, the ultimate touchstone of the Fourth Amendment is
reasonableness.” (internal quotation marks omitted)).

6

Then, when determining

whether a constitutional right was clearly established—that is, whether Clark Jr.
could have reasonably believed that his “conduct was not barred by law,” Heaney, 846
F.3d at 801—Derischebourg again has to demonstrate that Clark Jr.’s actions were
unreasonable.
In each instance, the reasonableness inquiry is “an objective one.” Rowland v.
Perry, 41 F.3d 167, 172 (4th Cir. 1994) (Wilkinson, J.); see e.g., Harlow, 457 U.S. at
818 (qualified immunity inquiry examines “objective reasonableness of an official’s
conduct”); McCreary, 738 F.3d at 657 (“Fourth Amendment compliance is, as a
general rule, assessed based on objective reasonableness and not subjective intent.”).
“To gauge objective reasonableness, a court examines only the actions at issue and
measures them against what a reasonable police officer would do under the
circumstances.” Rowland, 41 F.3d at 172. “The relevant question . . . is whether a
reasonable officer could have believed” his actions “to be lawful” under the Fourth
Amendment “in light of clearly established law and the information the . . . officers
possessed.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).
In light of the central role that reasonableness plays in the qualified immunity
inquiry, Clark Jr. focuses on the argument that his reaction was reasonable in light
of the information he had at the time. Clark Jr. suggests that he had a reasonable
belief that Derischebourg’s conduct “posed a threat to the safety of the individuals in
the parking lot unless he was restrained.” R. Doc. No. 135-2, at 4. 2

Focusing on Clark Jr.’s subjective understanding of what happened—as Clark Jr.
seems to suggest at times notwithstanding his quotation of the proper standard—is
the wrong inquiry. Even if Clark Jr. really thought he saw the car move, that fact

2

7

Clark Jr.’s argument requires the Court to credit Clark Jr.’s account that he
saw the car erratically move “four or five feet” and hit his father, R. Doc. No. 175-3,
at 38, rather than Derischebourg’s account that the car did not move, R. Doc. No. 1752, at 163. However, this Court cannot simply find Clark Jr.’s account more credible
than Derischebourg’s on a motion for summary judgment. See, e.g., Payne v. City of
Olive Branch, 130 F. App’x 656, 660-61 (5th Cir. 2005).

And there is such a

significant disparity between Clark Jr.’s account that he observed the car move a
number of feet in an erratic fashion and hit his father, and Derischebourg’s account
that the car did not move at all, that this Court cannot simply treat both versions of
the facts as consistent accounts of the same situation. Cf. id. at 660-61 (explaining
how disputed testimony on a key factual issue related to qualified immunity creates
a fact issue for the jury).
On a summary judgment motion, this Court must credit Derischebourg’s
account that the car did not move when reviewing the paper record. See, e.g., Tolan
v. Cotton, 134 S. Ct. 1861, 1866 (2014) (“Our qualified-immunity cases illustrate the
importance of drawing inferences in favor of the nonmovant . . . .”). Moreover, having

alone does not guarantee him qualified immunity. See, e.g., Arshad ex rel. Arshad v.
Congemi, No. 08-30061, 2009 WL 585633, at *4 (5th Cir. 2009) (“The subjective beliefs
of [the officers] as to what facts they relied upon in forming the probable cause to
arrest ... are irrelevant to the objective reasonableness of their actions.” (alterations
in original)). Rather where, as here, a defendant puts his mental understanding of
the event at issue, the Court must reconstruct the factual record and determine
whether a reasonable officer in Clark Jr.’s position could have perceived a similar
risk justifying a particular seizure or use of force. See Alford v. Cumberland Cnty.,
No. 06-1569, 2007 WL 2985297, at *4 (4th Cir. 2007).
8

reviewed the video and audio footage, 3 the Court concludes that the footage is not
sufficiently clear to permit this Court to disregard Derichebourg’s account of the
incident. See Ramirez v. Martinez, 716 F.3d 369, 374-75 (5th Cir. 2013). Accordingly,
the Court concludes that Derischebourg has demonstrated a genuine dispute of
material fact as to whether Derischebourg’s car moved at all.
That dispute is material insofar as the reasonableness of Clark Jr.’s conduct
turns significantly on whether Derischebourg did, in fact, back up four or five feet in
an erratic fashion. 4 If Derischebourg’s car did not move, then a reasonable fact-finder
could determine that it was manifestly unreasonable for an officer in Clark Jr.’s
position to mistakenly draw the conclusion the car moved four or five feet. Likewise,
if Derischebourg’s car did not move or if Clark Jr. unreasonably determined that the
car moved, then it violated clearly established constitutional law for Cantrelle to pull
him from the car and for Clark Jr. and Cantrelle to wrestle Derischebourg to the
ground and pin him while Derischebourg was attacked by Clark Jr.’s friends and
family.

Clark Jr. objects that Derischebourg’s opposition did not properly authenticate the
video. In response, Derischebourg submitted a sur-reply with an affidavit from
Derischebourg, R. Doc. No. 182-1, that the Court concludes creates a prima facie case
that the “video was a fair and accurate depiction of the events.” United States v.
Cejas, 761 F.3d 717, 724-25 (7th Cir. 2014). Clark Jr. does not raise any arguments
calling into question the accuracy of the video. Accordingly, the Court considers the
body camera footage to be sufficiently authenticated, and considers it for the purpose
of resolving the summary judgment motions. However, the Court also notes that it
would reach the same result regardless of whether it considered the footage.
4 The Court does not hold that the movement of the car is the only relevant question
to the issue of qualified immunity; it is simply a genuine dispute of material fact that
prevents the grant of summary judgment.
3

9

A “warrantless arrest by a law officer is reasonable under the Fourth
Amendment where there is probable cause to believe that a criminal offense has been
or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Shifting gears
from drive to park is neither criminal conduct nor does it create a dangerous
situation. And unlike many of the traffic stop cases, Clark Jr. neither points to any
other laws that Derischebourg violated nor does Clark Jr. establish that
Derischebourg was trying to avoid arrest. If all Derischebourg did was shift his car
from drive to park with his foot on the break, all reasonable officers would know that
it was clearly unconstitutional to remove Derischebourg from the car, pin him to the
ground, handcuff him, and detain him until the police arrived because there would
be no justification for doing so whatsoever.
The same conclusion applies to Derischebourg’s excessive force claim.

To

establish a Fourth Amendment excessive force claim, Derischebourg must show “(1)
an injury that (2) resulted directly and only from the use of force that was excessive
to the need, and that (3) the force used was objectively unreasonable.” Hogan v.
Cunningham, 722 F.3d 725, 734 (5th Cir. 2013). Again, leaving aside that pinning
an arrestee down so that he can be assaulted by the officer’s friends and family is
likely never constitutional, if Derischebourg did not back up his car in an erratic
manner, then every reasonable officer would also know that it clearly
unconstitutional to—as Derischebourg alleges—pin him down, handcuff him, and
choke him while he was punched and kicked by Clark Jr.’s friends and family. See
R. Doc. No. 175-2, at 53-54, 64-66, 68-70, 75, 150, 173-75, 206, 211. If there was not

10

an objectively reasonable justification to arrest Derischebourg, then it largely follows
that it was not objectively reasonable to violently arrest him.
Accordingly, a jury needs to first resolve the relevant disputes of fact before
this Court can resolve the question of qualified immunity. See Heaney, 846 F.3d at
802 n.3 (“[W]hen qualified immunity depends on disputed issues of fact, those issues
must be determined by the jury.”). The Court denies Clark Jr.’s motion for summary
judgment regarding qualified immunity on Derischebourg’s § 1983 claims. Further,
as Clark Jr. concedes that the qualified immunity analysis on Derischebourg’s state
constitutional law claims rises and falls with the qualified immunity analysis on the
§ 1983 claims, R. Doc. No. 135-2, at 6, 20, this Court also denies the motion for
summary judgment regarding qualified immunity on the state constitutional claims.
B.
Clark Jr. next moves for summary judgment with respect to his claim of
discretionary immunity on Derischebourg’s state law tort claims. Clark Jr. bases his
request on La. R.S. 9:2798.1(B), which provides
Liability shall not be imposed on public entities or their officers or employees
based upon the exercise or performance or the failure to exercise or perform
their policymaking or discretionary acts when such acts are within the course
and scope of their lawful powers and duties.
As with the request for qualified immunity, however, the request for discretionary
immunity cannot overcome the summary judgment standard.
In particular, discretionary immunity is not available under Louisiana law for
“acts or omissions which constitute criminal, fraudulent, malicious, intentional,
willful, outrageous, reckless, or flagrant misconduct.” La. R.S. 9:2798.1(C)(2). This

11

Court has to credit Derischebourg’s account of being assaulted and battered without
provocation when considering a summary judgment motion. Regardless of whether
this Court characterizes Clark Jr.’s supposed assault and battery as criminal
behavior or intentionally tortious behavior, discretionary immunity is not available.
See, e.g., Williams v. Champagne, 13 F. Supp. 3d 624, 635 (E.D. La. 2014); Sahota v.
Cobb, No. 14-2722, 2015 WL 6835480, at *4 (W.D. La. 2015). Clark Jr.’s motion for
summary judgment on discretionary immunity is therefore denied.
C.
Finally, Clark Jr. moves for summary judgment on (1) the tort claims because
Clark Jr. acted reasonably and (2) the intentional infliction of emotional distress
claim and the false imprisonment claim because Derischebourg cannot establish each
of the elements of the torts. However, this Court’s scheduling order required the
movant to discuss proposed summary judgment issues with the Court before filing a
motion for summary judgment. R. Doc. No. 82, at 2. This Court has long found
parties to often be more reasonable in person than on paper.

Accordingly, this

Section’s rules require such a conference because they conserve the resources of both
the parties and the Court by (1) decreasing both frivolous motions and frivolous
oppositions; (2) narrowing the relevant issues; and (3) avoiding Rule 56(d) denials.
Clark Jr. did not raise his final issues at the multiple summary judgment
conferences the Court held in this matter. See R. Doc. No. 109 (discussing qualified
immunity); R. Doc. No. 128 (discussing state law immunity). Clark Jr.’s summary

12

judgment motion will therefore be dismissed without prejudice for failure to comply
with the scheduling order. See R. Doc. No. 82, at 2; Fed. R. Civ. P. 16(f). 5
IV.
The Port of New Orleans moves for summary judgment on all of
Derischebourg’s claims against the Port.

The Court determines that summary

judgment is proper on the Section 1983 claims, but denies summary judgment on the
state law claims.
A.
The Port of New Orleans first moves for summary judgment on
Derischebourg’s Section 1983 claims. The Port argues that Derischebourg cannot
establish the prerequisites to a valid Monell claim. 6
In an attempt to avoid Monell, Derischebourg argues that the Port is a state
agency and that the Port therefore cannot raise Monell.

R. Doc. No. 174, at 8

(“[P]laintiff respectfully contends that the Port of New Orleans is not a municipality,
but is rather an agency of the State of Louisiana.”). However, to the extent that
Dersichebourg is right that the Port is a state agency not subject to Monell—i.e., a
state agency that has immunity from suit under the Eleventh Amendment—any such
state agency is not a “person” that can be sued under Section 1983. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 70-71 (1989); see also Lumpkins v. Office of

Clark Jr. may, of course, request relief under Federal Rule of Civil Procedure 50(a)
if warranted.
6 The Court granted permission for the Port’s summary judgment motion at the
October 19, 2016 status conference. See R. Doc. No. 100.
5

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Community Development, 621 F. App’x 264, 268 (5th Cir. 2015) (“State agencies and
state officials acting in their official capacities are not ‘persons’ within the meaning
of the statute.”).
After the Court pointed out to Derischebourg the potential implications of his
argument, Derischebourg withdrew his argument that the claims against the Port of
New Orleans did not have to satisfy Monell.

R. Doc. No 185.

On that point,

Derischebourg is correct. Though the Port of New Orleans is a state agency, see
United States v. Ex-USS Cabot/Dedalo, 297 F.3d 378, 379 (5th Cir. 2002) (observing
that the “Board of Commissioners of the Port of New Orleans” is “a state agency”), it
does not have Eleventh Amendment immunity from suit, see Jacintoport Corp. v.
Greater Baton Rouge Port Comm’n, 762 F.2d 435, 440 (5th Cir. 1985) (“[O]ur holding
was the equivalent of a finding that the Dock Board had no Eleventh Amendment
immunity.”). 7 As such, Will’s holding does not apply, see Will, 491 U.S. at 70 (“[O]ur
holding here . . . applies only to States or governmental entities that are considered
‘arms of the State’ for Eleventh Amendment purposes.”), and Monell governs, see 436
U.S. 658, 690 n.54 (1978) (“Our holding today is, of course, limited to local government
units which are not considered part of the State for Eleventh Amendment purposes.”).
Nonetheless, Derischebourg cannot survive the Port’s motion for summary judgment.
To succeed on his Section 1983 failure-to-train claim, Derischebourg would
need to show “(1) the municipality’s training policy or procedure was inadequate; (2)

But see Pierre v. Bd. Of Comm’r of the Port of New Orleans, No. 92-2607, 1993 WL
54397, at *2 (E.D. La. 1993) (finding “for Eleventh Amendment purposes,” the Board
of Commissioners to be “an arm of the state”).

7

14

the inadequate training policy was a ‘moving force’ in causing violation of the
plaintiff's rights; and (3) the municipality was deliberately indifferent in adopting its
training policy.” Valle v. City of Houston, 613 F.3d 536, 544 (5th Cir. 2010). But, at
best, Derischebourg establishes that Clark Jr. did not understand his training or that
training could perhaps be done more often. See R. Doc. No. 174, at 15-16. That does
not create a genuine dispute of material fact as to whether the Port was deliberately
indifferent in adopting its training program, particularly given that the Port
introduced unrebutted evidence that the Port knew that Clark Jr. had already been
trained as an officer by a certified police academy, R. Doc. No. 174-4, at 12; R. Doc.
No. 174-4, at 20 (noting Gretna Police Academy was certified), and that the Port had
its own supplemental training program, R. Doc. No. 174-4, at 10-14. See Smith v.
Carruth, No. 15-4570, 2017 WL 785345, at *5 (E.D. La. 2017) (“Merely showing that
additional training would have been helpful or that the injury could have been
avoided if the employee had better or more training is insufficient.” (internal
quotation marks omitted)); cf. Connick v. Thompson, 563 U.S. 51, 62 (2011)
(cautioning that “[a] less stringent standard of fault for a failure-to-train claim would
result in de facto respondeat superior liability on municipalities” (internal quotation
marks omitted)). Therefore, the Port’s motion for summary judgment on the Section
1983 failure to train claim will be granted.
Derischebourg’s failure to supervise claim likewise fails. To succeed on a
failure to supervise claim, Derischebourg needs to show “(1) the supervisor failed to
supervise the subordinate official; (2) a causal link exists between the failure to

15

supervise and the violation of the plaintiff’s rights; and (3) the failure to supervise
amounts to deliberate indifference.” Livezey v. City of Malakoff, 657 F. App’x 274,
278 (5th Cir. 2016) (internal quotation marks omitted). “Proof of more than a single
instance of the . . . supervision causing a violation of constitutional rights is normally
required before such lack of . . . supervision constitutes deliberate indifference.” Id.
(internal quotation marks omitted).
Derischebourg does not demonstrate a pattern of misconduct or violations by
Clark Jr. to which the Port was deliberately indifferent. 8 Likewise, Derischebourg
does not establish that Clark Jr. had any known proclivities to recklessness or
violence. See Hobart v. Estrada, 582 F. App’x 348, 358 (5th Cir. 2014) (explaining
“application of the single incident exception requires evidence of the proclivities of
the particular officer involved in the excessive use of force”). Therefore, summary
judgment is proper on the failure to supervise claim. See, e.g., id.; Livezey, 657 F.
App’x at 278

Indeed, though not necessary to the Court’s opinion, the Court observers that
Derischebourg does not even demonstrate a pattern of misconduct by any member of
the Harbor Police. The Port introduced evidence that it had received no other use of
force complaints since at least 2009. See R. Doc. No. 134-4, at 68-69. Derischebourg
offers no competent summary judgment evidence in response.
Instead,
Derischebourg attempts to imply that the Port’s statistics may not be entirely
accurate, R. Doc. 174, at 16-17, but such speculation that there could potentially be
contravening evidence does not create a genuine dispute of material fact, see Am. Gen.
Life Ins. Co. v. Bryan, 538 F. App’x 516, 519 (5th Cir. 2013) (“[M]ere
speculation . . . does not constitute controverting evidence . . . . At the summary
judgment stage, the non-moving party may not rest upon the mere allegations or
denials of his pleading, but rather must set forth specific facts showing that there is
a genuine issue for trial.” (internal quotation marks omitted)).
8

16

B.
The Port also moves to dismiss the state law claims. Under Louisiana law, the
Port may have vicarious liability for actions Clark Jr. takes within the course and
scope of his employment. See La. Civ. Code art. 2320 (“Masters and employers are
answerable for the damage occasioned by their servants and overseers, in the exercise
of the functions in which they are employed.”).
Whether an action is taken within the course and scope of employment is a
mixed question of law and fact. See Russell v. Noullet, 721 So. 2d 868, 871 (La. 1999).
Courts apply a four-factor test when determining whether an action is taken within
the course and scope of employment: “(1) whether the tortious act was primarily
employment rooted; (2) whether the violence was reasonably incidental to the
performance of the employee’s duties; (3) whether the act occurred on the employer’s
premises; and (4) whether it occurred during the hours of employment.” Smith, 2017
WL 785345, at *11. Derischebourg need not establish all four factors to demonstrate
that a tort occurred within Clark Jr.’s course and scope of employment. See BarriosBarrios v. Clipps, 825 F. Supp. 2d 730, 741 (E.D. La. 2011).
Derischebourg can withstand the Port’s motion for summary judgment. In
particular, even though all parties admit that Clark Jr. was formally off-duty when
he detained Derischebourg, the Court concludes that a reasonable fact-finder could
conclude that Clark Jr.’s exercise of his power to arrest occurred within the course
and scope of his employment. As Judge Vance has explained,
[T]he authority to make arrests is an integral police function that
imbues the officer with a public trust. At the same time, this tremendous power

17

carries the concomitant risk of abuse. That risk, in a context where an officer
uses the power and authority of his position as a police officer to . . . subdue a
victim, is a risk of harm that a jury could find attributable to the officer’s
employer, which cloaked him with that apparent authority.
Smith, 2017 WL 785345, at *11. Therefore, the Court will deny the Port’s motion for
summary judgment on the state law claims. 9
V.
The final summary judgment issue concerns Derischebourg’s claim against
Lexington Insurance Co. under the direct action statute. See La. R.S. 22:1269. At
issue is a homeowner’s policy that Lexington issued to Clark Jr.’s aunt and uncle.
The complaint alleges that the aunt and uncle—John Herrin and Kristine Alarcon—
participated in the assault in the parking lot. Derischebourg argues that there is
coverage under the policy for the assault, and therefore that he has a claim under the
direct action statute against Lexington.
Lexington argues that Derischebourg cannot recover under the direct action
statute because the policy at issue contains an applicable coverage exclusion. There
are two intentional acts exclusions in the policy. One version of the intentional acts
exclusion is a narrower, Louisiana specific version of the exclusion; the other is a
broader, special provisions exclusion contained in an endorsement later in the policy.
The Port initially asserted that it was entitled to qualified immunity with respect
to Derischebourg’s state constitutional law claims. R. Doc. No. 134-1, at 13. However,
the Port later abandoned the argument and admitted that “local governments and
political subdivisions are not entitled to invoke qualified immunity.” R. Doc. No. 184,
at 1; see also Roberts v. City of Shreveport, 397 F.3d 287, 296 (5th Cir. 2005)
(“Louisiana applies qualified immunity principles to state constitutional law claims
based on the same factors that compelled the United States Supreme Court to
recognize a qualified good faith immunity for state officers under § 1983.” (internal
alterations and quotation marks omitted)).
9

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The parties dispute which version of the exclusion is controlling. However, the
Court need not resolve that dispute because both versions of the exclusion block
coverage for the intentional acts alleged in the complaint.
The narrower, Louisiana-specific version of the exclusion precludes coverage
for a loss
(1) Which is expected or intended by one or more “insureds” even if the “bodily
injury” or “property damage”:
(i) Is of a different kind, quality, or degree than initially expected or
intended; or
(ii) Is sustained by a different person, entity, real or personal property,
than initially expected or intended.
However, this Exclusion 1.b.(1) does not apply to “bodily injury” resulting from
the use of reasonable force by one or more “insureds” to protect persons or
property.
R. Doc. No. 130-4, at 39 (emphasis added). The broader, special provisions version of
the intentional acts exclusion blocks coverage for more conduct because it does not
include a similar carve-out indicating that the exclusion does not apply to intentional
uses of reasonable force in self-defense to protect persons or property:
Coverages E and F do not apply to the following:
1. Expected or Intended Injury
“Bodily injury” or “property damage” which is reasonably expected or intended
from the standpoint of the “insured” even if the resulting “bodily injury” or
“property damage”:
a. Is of a different kind, quality or degree than initially expected or
intended; or
b. Is sustained by a different person, entity, real or personal property,
than initially expected or intended.
The reasonable person standard applies even if the “insured” lacked the mental
capacity to formulate an intent or expectation.
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R. Doc. No. 130-4, at 64.
Lexington argues that, regardless of which exclusion applies, both preclude
coverage because the complaint seeks to recover for intentionally tortious conduct.
The Court agrees.
Both versions of the exclusion preclude coverage for the injuries allegedly
caused by the claimed intentional assault by Clark Jr.’s aunt and uncle. Accordingly,
even though the complaint has a passing reference to La. Civ. Code art. 2315, which
permits recovery in negligence actions, R. Doc. No. 93, at 13, the exclusion
nonetheless applies. See, e.g., Prestenback v. Badeaux, 865 So. 2d 180, 183 (La. Ct.
App. 5th Cir. 2003) (intentional acts exclusion applies because “the petition filed by
Badeaux against the Prestenbachs clearly alleges intentional, and not negligent acts,
despite the use of the word negligent in the petition”); see also New Orleans Deli &
Dining, LLC v. Continental Cas. Co., No. 10-4642, 2011 WL 4551165, at *4 (E.D. La.
2011) (“The alleged acts . . . were done intentionally, not accidentally nor negligently.
Thus, plaintiffs’ claims do not sound in negligence, but rather the intentional tort,
and intentional acts are excluded by the policy.”).
Derischebourg’s and the Port’s counterargument fail to persuade.
First, Derischebourg points to the claims by the insured (Clark Jr.’s aunt and
uncle) that they acted in self-defense. See R. Doc. No. 131, at 5. Derischebourg
therefore suggests that the narrower version of the intentional acts exclusion would
not preclude coverage if Clark Jr.’s aunt and uncle acted in reasonable self-defense.
That argument is self-defeating.

20

Derischebourg is proceeding against Lexington via the direct action statute.
Therefore, to recover, he must first establish that the insured committed a tort
against him. Cf. R. Doc. No. 171, at 3 (Derischebourg admitting that “it is extremely
unlikely that plaintiff can recover against Lexington if he is unable to impose liability
on” the insured). But if Clark Jr.’s aunt and uncle used reasonable force in selfdefense, they face no tort liability to Derischebourg. See Landry v. Bellanger, 851 So.
2d 943, 954-56 (La. 2003) (self-defense is a “true defense in that it operates as a
privilege to committing the intentional tort”).

Accordingly, Derischebourg cannot

dodge the intentional acts exclusion by arguing that it would not apply if the insured
can establish an affirmative defense to liability.
Second, both the Port and Derischebourg rely on Breland v. Schilling to
suggest that summary judgment is inappropriate because an intentional act may be
accidental if the degree of injury that is caused by the insured’s actions is
unintentionally severe.

See 550 So. 2d 609, 613-14 (La. 1989).

However, the

applicability of Breland’s interpretation of what constitutes an intentional act turns
on the policy language at issue. Thus, the Breland rule is inapplicable when the
insurance policy specifies that the insurer “did not agree to cover any bodily injury
which resulted from the intended or reasonably expected criminal acts of the
tortfeasor/insured, regardless of the degree of injury intended or expected.” King v.
Galloway, 828 So. 2d 49, 53 (La. Ct. App. 4th Cir. 2002).
Here, both versions of the intentional acts exclusion make plain that Lexington
did not agree to cover any intentional acts regardless of whether the resulting injury

21

“is of a different kind, quality, or degree than initially expected or intended.” R. Doc.
No. 130-4, at 39; R. Doc. No. 130-4, at 64.

Therefore, Breland is inapplicable based

on the plain text of the exclusions, and summary judgment is properly granted in
favor of Lexington.
VI.
Accordingly,
IT IS ORDERED that Chris Clark Jr.’s motion for summary judgment is
DENIED.
IT IS FURTHER ORDERED that the Board of Commissioners of the Port of
New Orleans’s summary judgment motion is GRANTED IN PART. Derischebourg’s
Section 1983 claim against the Port is DISMISSED WITH PREJUDICE. The
remainder of the Port’s summary judgment motion is DENIED.
IT IS FURTHER ORDERED that Lexington Insurance Company’s motion
for summary judgment is GRANTED and that all claims against Lexington are
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, March 22, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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