Marks v. St. Tammany Parish Sheriffs Office, et al

Filing 71

ORDER AND REASONS granting in part and denying in part 46 Motion for Summary Judgment as set forth herein. Signed by Judge Susie Morgan on 3/10/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIFER R. MARKS,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-5454

SHERIFF RANDY SMITH, IN HIS
CAPACITY AS SHERIFF OF THE
PARISH OF ST. TAMMANY, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Defendants.1 The
motion is opposed.2 For the reasons set forth below, the motion is GRANTED IN PART
and DENIED IN PART.
BACKGROUND
This is a case brought under 42 U.S.C. § 1983. On or about October 23, 2014, upon
leaving her employment, Plaintiff, Jennifer Marks, alleges she stopped at Acadia Gas
Station in Slidell, Louisiana to purchase a pack of cigars.3 After leaving the gas station,
Deputy Bryan Steinert conducted a traffic stop of the Plaintiff.4 Deputy Samuel Hyneman
arrived on the scene while Deputy Steinert searched the Plaintiff’s vehicle.5 Deputy
Steinert found drug paraphernalia in the vehicle. Corporal Amore Neck then arrived on
the scene to conduct a search of the Plaintiff’s person. It is at this point that the parties’
accounts of the incident diverge.

R. Doc. 46.
R. Doc. 52.
3 R. Doc. 2 at ¶ 6.
4 Id. at ¶ 5.
5 Id. at ¶ 9.
1

2

1

The Plaintiff alleges Corporal Neck conducted “an illegal and unconstitutional full
body cavity search at the traffic stop which amount to a sexual assault.”6 According to the
Plaintiff, Corporal Neck “forced Ms. Marks to bend over while handcuffed, putting her
hand down Ms. Marks’ pants, and with her fingers, entering Ms. Marks’ vagina and then
separately, her rectum. Deputy Amore then checked Ms. Marks’ feet and mouth without
changing gloves.”7
The Defendants’ accounts, however, differ significantly from the Plaintiff’s. Deputy
Hyneman, who observed the search performed by Corporal Neck, provided testimony that
the search was a “basic pat down” and Corporal Neck did not search the Plaintiff’s body
cavities.8 Corporal Neck testified the search she conducted on the Plaintiff was a usual
pat-down search, which did not include searching any of the Plaintiff’s body cavities. 9
The Plaintiff filed this lawsuit, bringing claims against the St. Tammany Parish
Sheriff’s Office and Sheriff Randy Smith in his official capacity under 42 U.S.C. § 1983
and other state-law causes of action. The Plaintiff also brings claims against Corporal
Amore Neck, Deputy Samuel Hyneman, and Deputy Bryan Steinert in their individual
capacities under section 1983 for violations of her Eighth and Fourteenth Amendment
rights.10
Defendant Corporal Amore Neck filed a counterclaim against Marks, alleging the
allegation in Marks’s complaint are completely false and rise to the level of defamation.

Id. at ¶ 10.
Id. at ¶ 11.
8 R. Doc. 46-4 at 26–27.
9 R. Doc. 46-5 at 15–16.
10 Although the Plaintiff’s Complaint states the officers used excessive force in violation of her Eighth
Amendment rights, she appears to have changed her theory to excessive force under the Fourth Amendment
in her opposition to the motion for summary judgment. The Court will analyze the Plaintiff’s claim as being
brought under the Fourth Amendment.
6
7

2

STANDARD OF LAW
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”11 “An issue is material if its resolution could affect the outcome of the action.” 12
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”13 All reasonable inferences are drawn in favor of the nonmoving party.14
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.15
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 16 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.17

FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
13 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
14 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
15 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
16 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
17 Celotex, 477 U.S. at 322–24 (Brennan, J., dissenting).
11

12

3

If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) affirmatively demonstrating there is no evidence in the record to establish
an essential element of the nonmovant’s claim.18 When proceeding under the first option,
if the nonmoving party cannot muster sufficient evidence to dispute the movant’s
contention that there are no disputed facts, a trial would be useless, and the moving party
is entitled to summary judgment as a matter of law.19 When, however, the movant is
proceeding under the second option and is seeking summary judgment on the ground that
the nonmovant has no evidence to establish an essential element of the claim, the
nonmoving party may defeat a motion for summary judgment by “calling the Court’s
attention to supporting evidence already in the record that was overlooked or ignored by
the moving party.”20 Under either scenario, the burden then shifts back to the movant to
demonstrate the inadequacy of the evidence relied upon by the nonmovant.21 If the
movant meets this burden, “the burden of production shifts [back again] to the
nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving
party’s papers, (2) produce additional evidence showing the existence of a genuine issue
for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f).”22 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after

Id. at 331–32.
First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
20 Celotex, 477 U.S. at 332–33.
21 Id.
22 Celotex, 477 U.S. at 332–33, 333 n.3.
18
19

4

the nonmoving party responds, the court determines that the moving party has met its
ultimate burden of persuading the court that there is no genuine issue of material fact for
trial.”23
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’”24
ANALYSIS
In their motion for summary judgment, Defendants seek dismissal of the
following: (1) causes of action under 42 U.S.C. § 1983 and all negligence claims against
Sheriff Randy Smith; (2) all state-law claims against Sheriff Randy Smith; (3) claim for
lost wages; (4) claims precluded by Heck v. Humphrey; and (5) claims protected by
qualified immunity.25 The Plaintiff “is not opposing dismissal of numbers (1)–(4).”26
Accordingly, summary judgment with respect to those claims is granted. The remaining
claims are against Corporal Amore Neck, Deputy Bryan Steinert, and Deputy Samual
Hyneman in their individual capacities. In their motion for summary judgment, these

Id.; see also First National Bank of Arizona, 391 U.S at 289.
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
25 R. Doc. 46-1 at 1.
26 R. Doc. 52 at 2.
23

24

5

defendants argue Plaintiff’s claims against them in their individual capacities should be
dismissed, because they are protected by qualified immunity.27
“Qualified immunity protects public officials from suit unless their conduct
violates a clearly established constitutional right.”28 As explained by the United States
Supreme Court, “qualified immunity seeks to ensure that defendants reasonably can
anticipate when their conduct may give rise to liability.”29 In essence, qualified immunity
“avoid[s] excessive disruption of government” by permitting officials to exercise their
vested discretion without fear of civil liability.”30
Although qualified immunity is nominally an affirmative defense, “the plaintiff has
the burden to negate the defense once properly raised.”31
The defendant official must initially plead his good faith and establish that
he was acting within the scope of his discretionary authority. Once the
defendant has done so, the burden shifts to the plaintiff to rebut this defense
by establishing that the official’s allegedly wrongful conduct violated clearly
established law.32
In this case, because the Defendants have properly invoked the doctrine of
qualified immunity,33 the burden has shifted to the Plaintiff to show that the Defendants
are not immune from suit in their individual capacities. In resolving questions of qualified
immunity at the summary judgment stage, courts engage in a two-pronged inquiry.34
First, the court must determine whether the plaintiff has “adduced sufficient evidence to

R. Doc. 46-1 at 29.
Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). See also Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008).
29 United States v. Lanier, 520 U.S. 259, 570 (1997) (internal quotation marks and citations omitted).
30 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
31 Brumfield, 551 F.3d at 326. See also Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (citing
Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
32 Id. (quoting Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 866, 872 (5th Cir. 1997) (“We do not require
that an official demonstrate that he did not violate clearly established federal rights; our precedent places
that burden upon plaintiffs.”)).
33 See R. Docs. 13, 46.
34 See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).
27

28

6

raise a genuine issue of material fact” suggesting the defendants violated an actual
constitutional right.35 Second, the court must determine whether the right at issue was
“clearly established” at the time of the defendants’ alleged misconduct. 36 It is within the
Court’s discretion to decide which of the two prongs should be addressed first in light of
the circumstances of the case.37 A state actor is entitled to qualified immunity if his or her
conduct was objectively reasonable in light of the clearly established legal rules that
existed at the time of his or her actions.38 This standard, even on summary judgment,
“gives ample room for mistaken judgments by protecting all but the plainly incompetent
or those who knowingly violate the law.”39
The Court will first determine whether the second prong is met, asking whether
the right that was allegedly violated was clearly established at the time of the incident.
I.

Clearly Established Law

In this case, the Plaintiff alleges that her Fourth Amendment right to be free of the
use of excessive force was violated when officers performed a body cavity search on the
side of the road during a traffic stop.40
The Supreme Court explained “qualified immunity operates to ensure that before
they are subjected to suit, officers are on notice that their conduct is unlawful.”41 The
Court must determine, under the second prong of the qualified immunity test, “whether
the state of the law at the time of the state action gave [defendants] fair warning that their
Brumfield, 551 F.3d at 326 (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en
banc)).
36 See id.; Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (citing Brown v. Strain, 663 F.3d 245,
249 (5th Cir. 2011); Pearson, 555 U.S. at 230–33).
37 Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017).
38 McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).
39 Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (citing Brumfield, 551 F.3d at 326). See
also Malley v. Briggs, 475 U.S. 335, 343 (1986); Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000).
40 See supra note 10.
41 Hope v. Pelzer, 536 U.S. 730, 739 (2002).
35

7

alleged treatment of the plaintiff was unconstitutional.”42 The Supreme Court “does not
require a case directly on point for a right to be clearly established,” but “existing
precedent must have placed the statutory or constitutional question beyond debate.”43
“[C]learly established law should not be defined at a high level of generality” and “must
be particularized to the facts of the case.”44
Defendants argue the Plaintiff presents no binding Supreme Court or Fifth Circuit
precedent to establish that a body cavity search at a traffic stop is unreasonable.45
However, in the absence of controlling authority, the Court considers whether a
“consensus of cases of persuasive authority” exists such that “no reasonable officer could
have believed that his or her actions were lawful.”46 The factual circumstance from which
the pre-existing constitutional right developed does not have to have “fundamentally
similar” to the one before the Court for the purposes of qualified immunity.47 Qualified
immunity can be overcome if “prior decisions gave reasonable warning that the conduct
then at issue violated constitutional rights.”48 Indeed, “officials can still be on notice that
their conduct violates established law even in novel factual circumstances.”49
The incident in this case occurred on October 23, 2014. By that time, in Bell v.
Wolfish, the Supreme Court upheld as reasonable under the Fourth Amendment a federal
detention facilities’ requirement that all pretrial detainees expose their body cavities for
visual inspection as part of a search conducted after visits with people from outside the

Id. at 740.
White v. Pauly, 137 S. Ct. 548, 551 (2017) (internal quotations omitted).
44 Id. (internal quotations omitted).
45 R. Doc. 68 at 5.
46 McClendon, 305 F.3d at 329 (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)).
47 Williams v. Kaufman Cnty., 352 F.3d 994, 1003 (5th Cir. 2003).
48 Id.
49 Id. (quoting Hope, 536 U.S. at 741).
42
43

8

facility.50 The Court, however, noted that its holding does not condone all body-cavity
searches, and the reasonableness of a search requires balancing “the scope of the
particular intrusion, the manner in which it is conducted, the justification of initiating it,
and the place in which it is conducted.”51 The Fifth Circuit had noted that few searches
are more intrusive than a body cavity search,52 and “[t]he more intrusive the search, the
heavier is the government’s burden of proving its reasonableness.”53
Further, ample persuasive authority with respect to the reasonableness of body
cavity searches existed at the time of the incident.54 A district court within this circuit also
considered a strikingly similar factual scenario, and held no reasonable officer would have
found a roadside body cavity search reasonable even if they “reasonably suspected that
Plaintiff was concealing contraband in a body cavity” if “there were no exigent
circumstances requiring the search to be conducted on the public roadside rather than at
a medical facility.”55 In Mary Beth G. v. City of Chicago, the Seventh Circuit described
strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying,
unpleasant, embarrassing, repulsive, signifying degradation and submission’ . . . . In
short, we can think of few exercises of authority by the state that intrude on the citizen’s

441 U.S. 520 (1979).
Id. at 559–60.
52 U.S. v. Caldwell, 750 F.2d 341, 343 n.2 (5th Cir. 1984).
53 U.S. v. York, 578 F.2d 1036, 1041 (5th Cir. 1978). Fifth Circuit precedent “plainly established [that] . . .
[a] strip or body cavity search raises serious Fourth Amendment concerns.” Roe v. Tx. Dept. of Protective
and Regulatory Servs., 299 F.3d 395, 409 (5th Cir. 2002). For additional Fifth Circuit precedent, see, e.g.,
Elliot v. Lynn, 38 F.3d 188 (5th Cir. 1994) (holding visual body cavity searches conducted in the view of
others may be reasonable if there were exigent circumstances); Moore v. Carwell, 168 F.3d 234 (5th Cir.
1999) (holding a strip search of a male prisoner by a female officer in the absence of exigent circumstances
could entitle [the plaintiff] to relief for a Fourth Amendment violation”); Oliver v. Scott, 276 F.3d 736, 745
n.13 (5th Cir. 2002) (recognizing that prisoners have a right to bodily privacy that provides limitations on
the manner in which searches may be carried out). See also Hamilton v. Kindred, 845 F.3d 659, 662 (5th
Cir. 2017) (upholding district court’s finding that plaintiffs had a viable excessive force claim for a body
cavity search that occurred on a public roadway).
54 See, e.g., Martin v. City of San Antonio, 2006 WL 2062283, at *7 (W.D. Tex. July 25, 2006) (collecting
cases).
55 Martin, 2006 WL 2062283, at *6.
50
51

9

privacy and dignity as severely as the visual anal and genital searches practiced here.”56
The Seventh Circuit has also noted “there are several cases which suggest that qualified
immunity would not exist for a strip search conducted in public view.”57 The Tenth Circuit
stated, “There can be no doubt that a strip search is an invasion of personal rights of the
first magnitude.”58
In this case, the alleged body cavity search was performed on the side of a public
road, as opposed to being performed at a medical facility or in a private room. “One of the
critical, and certainly most obvious, elements in the Bell v. Wolfish balancing inquiry into
the reasonableness of a strip search is the place in which it is conducted.”59 Viewing the
evidence in the light most favorable to the Plaintiff, even if the officers reasonably
suspected the Plaintiff was concealing contraband in a body cavity, there were no exigent
circumstances requiring such a search be conducted on a public road.
The Supreme Court’s decision in Bell v. Wolfish, Fifth Circuit precedent, and other
persuasive authority clearly established by October of 2014 that no reasonable officer
would have believed the manner of the alleged search conducted in this case to be
reasonable.
II.

Violation of a Constitutional Right

The Court must now address whether the Plaintiff has “adduced sufficient
evidence” to raise a genuine issue of material fact suggesting the Defendants violated a
constitutional right. In this case, the Plaintiff alleges claims of excessive force against the
Defendants.60

723 F.2d 1263, 1272 (7th Cir. 1983).
Kraushaar v. Flanigan, 45 F.3d 1040, 1054 n.7 (7th Cir. 1995).
58 989 F.2d 393, 395 (10th Cir. 1993).
59 Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981).
60 See R. Doc. 2.
56
57

10

“When a plaintiff alleges excessive force during an investigation or arrest, the
federal right at issue is the Fourth Amendment right against unreasonable seizures.” 61
The inquiry into whether this right was violated requires a balancing of “the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion.” 62 Excessive
force claims are necessarily fact-intensive; whether the force used is “excessive” or
“unreasonable” depends on “the facts and circumstances of each particular case.”63 The
reasonableness of the force used “must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.”64
To prevail on her excessive force claims at trial, the Plaintiff would be required to
establish that she suffered: “(1) an injury; (2) which resulted directly and only from a use
of force that was clearly excessive; and (3) the excessiveness of which was clearly
unreasonable.”65 However, at the summary judgment stage, the Plaintiff must merely
point to facts and evidence that, when considered in the light most favorable to her, raise
a genuine dispute as to whether she was the victim of excessive force.66
The Plaintiff claims there is a genuine issue of material fact as to whether the
Defendants’ actions in this case amount to an excessive and clearly unreasonable use of
force.67 As the Defendants pleaded the defense of qualified immunity in good faith, the
burden has been shifted to the Plaintiff to direct the Court’s attention to competent
Tolan, 134 S. Ct. at 1865 (citing Graham v. Connor, 490 U.S. 386, 394 (1989)).
Id. at 1865–66 (citing Tennessee v. Garner, 471 U.S. 1, 8 (1985); Graham, 490 U.S. at 396).
63 Deville, 567 F.3d at 167 (quoting Graham, 490 U.S. at 396); Brosseau v. Haugen, 543 U.S. 194, 201
(2004)).
64 Graham, 490 U.S. at 396–97. See also Poole, 691 F.3d at 628; Ontiveros v. City of Rosenberg, 564 F.3d
371, 382 (5th Cir. 2009).
65 Ontiveros, 564 F.3d at 382. See also Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam).
66 See Ramirez v. Martinez, 716 F.3d 369, 374 (5th Cir. 2013); Spann v. Rainey, 987 F.2d 1110, 1115 (5th
Cir. 1993).
67 See R. Doc. 52 at 3.
61

62

11

summary judgment evidence sufficient to establish that a genuine issue of material fact
does indeed exist. The Plaintiff presents her deposition, in which she contends Corporal
Neck performed a body cavity search, and placed her hands “[i]n [the Plaintiff’s]
underwear, through [the Plaintiff’s] lips and inside [the Plaintiff’s] body.” 68 The Plaintiff
testified Corporal Neck took the Plaintiff’s shoes and socks “completely off” to check
“between [her] toes” before opening the Plaintiff’s mouth, checking under her tongue, and
feeling around her gums.69 According to the Plaintiff, this body cavity search was
conducted on the side of the road.
The Defendants, on the other hand, present the depositions of Corporal Neck70 and
Deputy Hyneman,71 in which the officers detail a wholly different account of what
occurred during the Plaintiff’s traffic stop. Deputy Hyneman testified the search “was a
basic pat down” during which Corporal Neck “check[ed] the collar, check[ed] the pants,
waist area; pull[ed] the . . . bra up without . . . lifting the shirt . . . because a lot of times
contraband [is] concealed inside of a brassiere; check[ed] the feet’ [and] check[ed] the
shoes.”72 Deputy Hyneman stated “[t]here was no search of the vagina” or “of the
rectum.”73
Corporal Neck testified she performed a usual pat-down search, “start[ing] from
the head and . . . go[ing] down to the feet.”74 Corporal Neck stated that for this pat-down
search, she felt inside the Plaintiff’s hair, and checked her collar, arms, and bra area. 75

R. Doc. 52-2 at 3.
Id. at 4.
70 R. Doc. 46-5.
71 R. Doc. 46-4.
72 R. Doc. 46-4 at 26.
73 Id. at 27.
74 R. Doc. 46-5 at 15.
75 Id.
68
69

12

Corporal Neck “continued down to [Plaintiff’s] waistband, felt around her waistband, felt
down each leg” and required the Plaintiff to remove her socks and shoes.76 Corporal Neck
denied having searched the Plaintiff’s vagina, rectum, or mouth, and confirmed she found
no contraband on the Plaintiff’s person.77
On summary judgment, the Court looks at the evidence in the light most favorable
to the non-moving party to determine whether there exists a genuine issue of material
fact. This Court will not make credibility determinations regarding conflicting evidence
at the summary judgment stage, as such a determination is left to the jury.78 Given the
vast discrepancy between the Plaintiff and Defendants’ accounts of what occurred during
the traffic stop, the Court finds that there are genuine issues of material fact with respect
to whether the Defendants violated the Plaintiff’s Fourth Amendment rights.79 Summary
judgment in qualified immunity cases is appropriate only if “the movant shows that there
is no genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law.”80 Accordingly, the Court denies summary judgment on the issue of
whether the officers are entitled to qualified immunity for the alleged body cavity search
that occurred.81

Id.
Id. at 15–16.
78 Delta & Pipe Land Co., 530 F.3d at 398.
79 To be clear, the Court is not making a determination at this stage that the officers are not entitled to
qualified immunity. The Court’s ruling is only that genuine issues of material fact preclude the Court from
making such a determination.
80 Tolan, 134 S. Ct. at 1866; see also Ougel v. Amite City Police Dept., 352 Fed. Appx. 941, 2009 WL
3698033 (5th Cir. 2009) (fact issue under with respect to qualified immunity precluded summary
judgment); Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999) (reversing a district court’s grant of
qualified immunity on summary judgment when officer’s and plaintiff’s versions of incident differed);
Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir.1994) (affirming denial of summary judgment
based on qualified immunity where facts regarding officer’s conduct were in dispute).
81 The Fifth Circuit has jurisdiction to review a district court’s denial of summary judgment with respect to
qualified immunity “only to the extent that the appeal concerns the purely legal question whether the
defendants are entitled to qualified immunity on the facts that the district court found sufficiently
supported in the summary judgment record.” Hamilton, 845 F.3s at 661 (quoting Kinney v. Weaver, 367
F.3d 337, 347 (5th Cir. 2004)). The Fifth Circuit “lack[s] the power to review the district court’s decision
76
77

13

CONCLUSION
IT IS ORDERED that the motion for summary judgment with respect to
dismissal of Plaintiff’s 42 U.S.C. § 1983 claims against Sheriff Randy Smith in his official
capacity is hereby GRANTED. Plaintiff’s claims pursuant to 42 U.S.C. § 1983 against
Sheriff Smith in his official capacity and former Sheriff Strain are DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that the motion for summary judgment with
respect to dismissal of Plaintiff’s state-law claims against Sheriff Randy Smith in his
official capacity is hereby GRANTED. Plaintiff’s state-law claims against Sheriff Smith
in his official capacity are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion for summary judgment with
respect to Plaintiff’s lost wage and economic damage claims is GRANTED. Plaintiff’s lost
wage and economic damage claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion for summary judgment with
respect to Plaintiff’s claims that are precluded by Heck v. Humphrey is GRANTED. Any
claim attempting to collaterally challenge the Plaintiff’s conviction for possession of
marijuana by contesting the validity of her traffic stop and the search of her vehicle is
DISMISSED WITH PREJUDICE.

that a genuine factual dispute exists and instead consider[s] only whether the district court erred in
assessing the legal significance of conduct that the district court deemed sufficiently supported.” Id.
(internal quotations omitted).

14

IT IS FURTHER ORDERED that the motion for summary judgment with
respect to the qualified immunity of Corporal Amore Neck, Deputy Bryan Steinert, and
Deputy Samuel Hyneman in their individual capacities is DENIED.
New Orleans, Louisiana, this 10th day of March, 2017.
_____________________ _______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

15