Doney et al v. Hammond City, et al

Filing 134

ORDER AND REASONS granting 105 Motion for Summary Judgment; granting 107 Motion for Summary Judgment; dismissing as moot 108 Motion for Summary Judgment and 109 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOEL M. DONEY, ET AL.

CIVIL ACTION

VERSUS

NO. 15-2113

HAMMOND CITY, ET AL.

SECTION "B"(4)
ORDER AND REASONS

I.

NATURE OF MOTIONS AND RELIEF SOUGHT
Before the Court are Defendants’, John Johnson and Shelter

General Insurance Company, “Motion for Summary Judgement” (Rec.
Doc. 105), Plaintiff’s, Joel M. Doney, “Opposition to Motion for
Summary Judgement” (Rec. Doc. 118), Defendant’s, National Fire &
Marine Insurance Company, “Motion for Summary Judgment under the
Direct Action Statute” (Rec. Doc. 107), and Plaintiff’s, Joel M.
Doney “Response to Motion for Summary Judgment” (Rec. Doc. 119),
and

Defendant’s,

National

Fire

and

Marine

Insurance

Company,

“Motion for Summary Judgment” (Rec. Doc. 108) and Plaintiff’s,
Joel M. Doney, “Response to Motion for Summary Judgement” (Rec.
Doc. 120) and Defendant’s, National Fire and Marine Insurance
Company, “Motion for Partial Summary Judgement” (Rec. Doc. 109)
and Plaintiff’s, Joel M. Doney, “Response to Motion for Partial
Summary Judgment” (Rec. Doc. 121).
For the foregoing reasons, IT IS ORDERED that Defendants’
John Johnson and Shelter General Insurance Company “Motion for

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Summary Judgment” (Rec. Doc. 105) and National Fire and Marine
Insurance Company “Motion for Summary Judgement Under the Direct
Action Statute” (Rec. Doc. 107) be GRANTED. IT IS FURTHER ORDERED
that

Defendant,

National

Fire

and

Marine

Insurance

Company’s

“Motion for Summary Judgement” (Rec. Doc. 108) and “Motion for
Partial Summary Judgment” (Rec. Doc. 109) be DISMISSED AS MOOT.
FACTS AND PROCEDURAL HISTORY
Plaintiffs filed their original Complaint pursuant to 42
U.S.C. § 1981 and § 1983 on June 15, 2015, alleging that the City
of

Hammond,

through

the

Hammond

Police

Department,

illegally

ordered their vehicles be towed on July 4, 2014. (Rec. Doc. 1 at
5). Named Defendants included the City of Hammond, the Police
Department of the City of Hammond, and a multitude of towing
companies

identified

in

their

own

capacity

or

as

John

Doe

defendants. (Rec. Doc. 1 at 3-4). On September 22, 2015, Plaintiffs
amended their Complaint to specify the identity of the John Doe
defendants

and

to

add

as

defendants

the

liability

insurance

carriers of some of the towing companies, including National Fire
and Marine Company (Rec. Doc. 3 at 2-5). 1 Plaintiffs moved to file
a Second Amended Complaint on October 13, 2015, stating that it
would “have all proper parties identified and the claims of the
plaintiffs [would] be clearly set forth.” (Rec. Doc. 9-1 at 2). It

1

On January 29, 2016, Plaintiffs voluntarily dismissed parties that were
incorrectly identified. (Rec. Doc. 58).
2

was filed on October 19, 2015, pursuant to this Court’s Order
granting leave to file (Rec. Doc. 11, 12).
Defendant, City of Hammond, Louisiana filed a motion to
dismiss (Rec. Doc. 92.) This Court Granted the motion in its August
11,

2016

Order

and

Reasons

(Rec.

Doc.

122).

Defendants

John

Johnson, Shelter General Insurance Company and National Fire and
Marine Insurance Company have filed motions for summary judgement.
II.

CONTENTIONS OF MOVANTS
In Defendants’ Motion for Summary Judgment, John Johnson and

Shelter General Insurance Company argue that their actions do not
constitute a cause of action under a section 1983 claim. Defendants
argue that the Plaintiffs cannot establish a causal link between
the

state

action

and

the

alleged

constitutional

violation.

National Fire and Marine Insurance Company adopt this contention
in their motion for Summary Judgment.
III.

CONTENTIONS OF OPPONENT
In response to Defendant’ motion, Plaintiff argues that the

authority regarding section 1983 causality that the Defendants
cite is distinguishable from the facts of the instant matter.
IV.

SUMMARY JUDGEMENT STANDARD
Summary judgment is proper if the pleadings, depositions,

interrogatory

answers,

and

admissions,

together

with

any

affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
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of law.

Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986).
would

allow

nonmovant.
(1986).

a

A genuine issue exists if the evidence

reasonable

jury

to

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

Although the Court must consider the evidence with all

reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.

Webb v. Cardiothoracic

Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The

moving

party

bears

the

initial

responsibility

of

informing the district court of the basis for its motion. Celotex,
477 U.S. at 323. The movant must point to “portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits’ which it believes demonstrate
the absence of a genuine issue of material fact.” Id. (citing Fed.
R. Civ. P. 56). If and when the movant carries this burden, the
nonmovant must then go beyond the pleadings and use affidavits,
depositions,

interrogatory

responses,

evidence to establish a genuine issue.

admissions,

or

other

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“[W]here the non-movant bears the burden of proof at trial,
the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
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warranting trial. . . . Only when ‘there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party’ is a full trial on the merits warranted.” Lindsey v.
Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (citations
omitted). Accordingly, conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment.

Travelers Ins. Co. v.

Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
V.

DISCUSSION
A. John Johnson and Shelter General Insurance Company Motion for
Summary Judgement
Under section 1983 a Plaintiff must allege facts tending to

show that “(1) he was deprived of a federally protected right,
and (2) that the deprivation occurred under color of state law.”
Landry v. A-Able Bonding, 75 F.3d 200, 203 (5th Cir. 1996).
Specifically, “in order to prove the deprivation of a right
protected by the Due Process Clause of the Fourteenth Amendment,
a plaintiff must prove state action. In § 1983 actions alleging
the deprivation of due process rights, the Fourteenth
Amendment's ‘state action’ requirement and § 1983's ‘color of
state law’ requirement collapse into a single inquiry.” Landry
v. A-Able Bonding, 75 F.3d at 203.
In order for the actions of a private party to be considered
state action under section 1983 it must be deemed “fairly

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attributed to the state.” Lugar v. Edmondson Oil Co., 457 U.S.
922, 948-949 (1982). Private action must meet certain
requirements in order for it to be deemed attributed to the
state: (1)” the deprivation must be caused by the exercise of
some right or privilege created by the State or by a rule of
conduct imposed by the State or by a person for whom the State
is responsible” and (2) “the party charged with the deprivation
must be a person who may fairly be said to be a state actor.
This may be because he is a state official, because he has acted
together with or has obtained significant aid from state
officials, or because his conduct is otherwise chargeable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S. at 937.
However, even if a private actor engages in conduct under the
color of state law, there must be a causal link between the
state action and the alleged constitutional violation in order
to have a valid section 1983 claim. Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691-692 (1978).
The parties agree that on July 4, 2014 at approximately
6:30 a.m. the Hammond Police Department Officers gave orders to
tow the Plaintiffs’ vehicles (Rec. Doc 105-3 and Rec. Doc. 1181). The parties also agree that the Hammond Police Department
employed tow trucks in order to execute the tow order (Rec. Doc.
104-3 and Rec. Doc. 118-1). The Defendant, John Johnson was
acting under the color of state law at the time it towed the
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vehicle because its actions were at the request of the City of
Hammond. However, the Defendant’s actions are not causally
related to the constitutional violation under section 1983. In
Mays v. Scranton City Police Dep't, a district court dismissed a
tow truck defendant after it determined that causation did not
exist. 503 F. Supp. 1255, 1264-1265 (M.D. Pa. 1980). The court
explained, “the constitutional violation found here is the
failure to afford a hearing prior to the imposition of the lien
for towing and storage costs. The towing itself is not the
constitutional deprivation; nor can the detention of the vehicle
alone be considered a denial of constitutional rights... the
tower is the interested bystander to the dispute...in sum, the
city police department, not the tower, ‘causes’ the failure to
afford a hearing that denies plaintiff due process.” Mays v.
Scranton City Police Dep't, 503 F. Supp. At 1264-1265.
Similarly, the alleged violation in the instant matter is a
due process issue based on the failure of the government to
provide a post-deprivation hearing. The towing and the
subsequent retention of the Plaintiff’s vehicle is not a
constitutional violation. In this case there is no genuine issue
as to the material fact that John Johnson’s towing of the
Plaintiff’s vehicle gave rise to the instant matter. However,
given the facts of this case, those actions do not create

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causality under a section 1983 constitutional analysis. Summary
judgement is appropriate as to the Plaintiff’s claims.
In the alternative, this court in its August 11, 2016 Order
and Reasons granted the Defendant, City of Hammond, Motion to
dismiss (Rec. Doc. 122). Consequently, given that there is no
longer a state actor, even if Defendant John Johnson’s actions
are deemed to be causally connected a constitutional violation,
the section 1983 claim has failed without a state actor and
summary judgement is still appropriate.
B. National Fire Marine Insurance Company Motion for Summary
Judgement

Under

the

Direct

Action

Standard,

Motion

for

Summary Judgment and Partial Motion for Summary Judgement
Unless certain circumstances exist, under the Louisiana direct
action statute a direct right of action against a liability
insurer can only be brought if the plaintiff possess a
substantive cause of action against the insured.

La. R.S.

22:1269; OXY USA, Inc. v. Quintana Prod. Co., 79 So. 3d 366, 377
(La. App. 1 Cir. 2011). There is no indication that any of the
enumerated exceptions are present in the instant matter. La. R.S.
22:1269. Given that this court has granted summary judgement on
the Defendants, John Johnson and Shelter General Insurance
Company, this court also grants National Fire and Marine
Insurance Company’s motion for summary judgment under the direct
action statute. National Fire and Marine Insurance Company’s
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remaining motions for summary judgement and partial summary
judgement are dismissed as moot.
VI.

CONCLUSION
For

the

reasons

set

forth

above,

IT

IS

ORDERED

that

Defendants’ John Johnson and Shelter General Insurance Company
“Motion for Summary Judgment” (Rec. Doc. 105) and National Fire
and Marine Insurance Company “Motion for Summary Judgement Under
the Direct Action Statute” (Rec. Doc. 107) be GRANTED. IT IS
FURTHER ORDERED that Defendant, National Fire and Marine Insurance
Company’s “Motion for Summary Judgement” (Rec. Doc. 108) and
“Motion for Partial Summary Judgement” (Rec. Doc. 109) be DISMISSED
AS MOOT.

New Orleans, Louisiana, this 19TH day of September, 2016.

___________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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