Babin et al v. Jefferson Parish et al
ORDER AND REASONS denying 13 Motion for Summary Judgment; denying 15 Motion for Partial Summary Judgment. Signed by Judge Martin L.C. Feldman on 1/11/17. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE PARISH OF JEFFERSON, ET AL.
ORDER AND REASONS
Before the Court are two motions: (1) Jefferson Parish’s
motion for summary judgment; and (2) the plaintiff’s motion for
partial summary judgment. For the reasons that follow, the motions
are DENIED without prejudice.
This lawsuit for declaratory and injunctive relief and money
damages presents a constitutional challenge to a municipal code
provision proscribing animal cruelty.
Because no evidence is
submitted in support of the motions for summary judgment, these
facts are drawn from the allegations of the complaint.
On April 11, 2015, shortly after noon, the temperature was in
the low 70s with overcast skies.
Catheryn Babin was driving with
her two-year-old Catahoula/Labrador mix, Peyton Legion, in her
Mini-Cooper convertible. Ms. Babin stopped at Big Lots on Veterans
Boulevard in Jefferson Parish to buy dog food. Leaving the windows
rolled down and the convertible top pulled back just enough to
expose the front seats, Ms. Babin exited her car, leaving Peyton
Legion to wait in the car.
Meanwhile, at 12:12 p.m., while Ms. Babin was shopping in Big
Lots, a woman named Ashley McMurry called the Jefferson Parish 911
operator to complain that a dog was left unattended for 10 minutes.
Ms. McMurry told the operator that the dog was panting and looked
“uncomfortable,” although she also told the operator that the
windows were down, it was “not that hot,” and that the dog did not
appear to be in distress.
A Jefferson Parish Sheriff’s deputy was
dispatched to the scene.
When Ms. Babin exited Big Lots, Ms. McMurry confronted her,
complaining that the dog was left alone in the car.
showed her that the door was unlocked; as soon as she opened the
car door, Peyton Legion came to Ms. Babin and he was then on-leash
in the parking lot.
Ms. McMurry continued to complain and berate
At about 12:25 p.m., Deputy Micah P. Blange arrived on the
He spoke with Ms. McMurry and another individual.
thereafter, another Jefferson Parish Sheriff’s deputy, Michael
Voltolina, Jr., arrived at Big Lots.
Voltolina examined Ms.
Babin’s car and explained to her that deputies were required to
come to the scene to investigate, but that he did not see cause
for issuing a summons.
After Voltolina left Ms. Babin, Blange
drove over to speak to her.
Blange asked her three questions about
her identity and then asked why she had not left her dog at home.
Ms. Babin explained that she and Peyton Legion were on their way
home from visiting a senior center; Peyton Legion is a trained
service animal who spent the morning working with Alzheimer’s
patients at the center.
Blange told Ms. Babin that he was issuing her a criminal
responded that it was two against one.
Blange released Ms. Babin
after issuing a summons for violation of Jefferson Parish Code
Section 7-126(d), which provides:
Sec. 7-126. - Cruelty in general.
(a) No person shall ill-treat, neglect, abandon, or
cruelly treat an animal. No person shall unnecessarily
or cruelly beat, mutilate, kill, torture, inflict
injury, or abuse, or cause or procure to be cruelly
beaten, mutilated, killed, tortured, injured, or
abused, any animal or commit any act which under any
other law constitutes cruel treatment, or fail to
provide obviously necessary veterinary care.
(b) No animal shall be tethered as a means of
stationary confinement; such stationary confinement by
tethering shall be considered as cruel treatment.
(c) No animal shall be denied access to proper food,
water, shelter, sanitary and safe environment, or
proper veterinary care as is provided in section 7-16
and in Division 6 of Chapter 7.
(d) No domesticated animal shall be transported or
carried in or upon any vehicle in a cruel, inhumane, or
dangerous manner. Any animal transported in the open
bed of a vehicle must be safely and securely located in
a secure crate or carrier that is fastened to the bed
of the vehicle to prevent the animal from jumping out
of such vehicle or otherwise injuring itself. Any other
such transport shall be considered animal neglect. No
animal shall be left inside a vehicle or in a
conditions or the animal is provided proper temperature
control with regular monitoring conditions, including
but not limited to during American Kennel Club
(e) When a person is charged with cruelty to animals,
said person's animal may be seized. Any animal so seized
shall be impounded in the custody of the Jefferson
Parish Animal Shelter or other location approved by the
Director of the Jefferson Parish Animal Shelter.
(f) All charges subject to Division 6 are subject to
the jurisdiction of the bureau of administrative
adjudication and also the Jefferson Parish District
Attorney's Office for criminal prosecution under
relative procedures and law.
Two weeks after issuing the summons, Blange
drafted a report to support the citation.
On May 15, 2015, the Jefferson Parish District Attorney’s
Office filed a bill of information in the First Parish Court for
the Parish of Jefferson, charging Ms. Babin with cruelty to animals
in violation of Code Section 7-126.
Ms. Babin made three separate
court appearances and retained a criminal defense attorney to
defend herself against the charge.
On March 3, 2016, the charges
Shortly thereafter, Ms. Babin filed this civil rights lawsuit
under 42 U.S.C. § 1983, naming as defendants Jefferson Parish,
Micah P. Blange, in his individual capacity, and Newell Normand,
in his official capacity as Sheriff of Jefferson Parish. Ms. Babin
seeks three types of relief.
First, Ms. Babin seeks declaratory
relief; specifically, she alleges that Section 7-126 violates her
unconstitutional; the provision is unconstitutionally vague on its
face, Ms. Babin alleges, because it defines neither “acceptable
weather condition” nor “proper temperature control.”
Babin seeks to enjoin the Parish and Normand from enforcing the
vague provision to prevent future deprivations of Ms. Babin’s and
other parties’ rights to substantive due process.
Babin seeks to recover money damages for the emotional and mental
distress, reputational damage, and attorney’s fees she incurred
defending the criminal charges.
Ms. Babin also alleges that her
Fourth Amendment rights were infringed when Blange unlawfully
seized her without probable cause such that he must answer for
damages and attorney’s fees under Sections 1983 and 1988.
Babin also alleges that Blange’s actions constitute false arrest
and defamation under Louisiana law. 1
Ms. Babin also alleges that
Sheriff Normand is liable under the theory of respondeat superior
for her Louisiana claims because Blange was acting in the course
and scope of his employment.
Jefferson Parish now seeks summary judgment dismissing the
plaintiff’s claims against it, and Ms. Babin seeks partial summary
ordinance are unconstitutionally vague.
Ms. Babin challenges as false and defamatory certain statements
Blange wrote in his report supporting the summons:
That he was “dispatched to . . . Big Lots [to respond to]
several anonymous complaints calling 9-1-1”
That the callers advised that “a dog had been left in a car
with the windows up for approximately 20 minutes”
That when he approached Ms. Babin, he “observed a full size
dog in the front seat”
That “the passenger side window was barley (sic) open and the
window on the driver’s side of the vehicle was not open at
That he spoke “to several complainants, that wished to remain
anonymous, who all advised Babin had been parked at the
location for approximately 20 minutes, if not longer”
That “[o]ne complainant stated that she was scared for the
dog and even tried to open the door to Babin’s vehicle, for
fear the dog was suffering too much, but was unable to due to
the door being locked”
That “[t]he same complainant further stated that the dog was
panting very heavily and appeared to be in some distress”
That the temperature was in “the mid 80’s”
That Peyton Legion was nine years old.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
mere argued existence of a factual dispute does not defeat an
otherwise properly supported motion.
the evidence is merely colorable . . . or is not significantly
probative," summary judgment is appropriate. Id. at 249 (citations
omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of a claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
including but not limited to sworn affidavits and depositions, to
buttress his claims.
See Donaghey v. Ocean Drilling & Exploration
Co., 974 F.2d 646, 649 (5th Cir. 1992).
However, affidavits or
pleadings which contradict earlier deposition testimony cannot
create a genuine issue of material fact sufficient to preclude an
entry of summary judgment.
See S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.3d 489, 495 (5th Cir. 1996); Thurman v. Sears, Roebuck
& Co., 952 F.2d 128, 137 n. 23 (5th Cir. 1992).
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most favorable
to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007)
Although the Court must "resolve factual
controversies in favor of the nonmoving party," it must do so "only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts."
Antoine v. First
Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation
marks and citation omitted).
The Parish seeks summary judgment dismissing the plaintiff’s
claims and the plaintiff seeks partial summary judgment that the
ordinance is void-for-vagueness.
Insofar as the Parish seeks
summary judgment in its favor on what the Parish characterizes as
claims, the motion is denied for the simple reason that the
plaintiff has not advanced such claims. 2
Ms. Babin challenges the animal cruelty ordinance, and here
seeks partial summary judgment that the law is impermissibly vague
in violation of the Due Process Clause of the Fourteenth Amendment;
in particular, she now seeks a declaration that “acceptable weather
The Parish responds with a motion for judgment as a
meanings, should be considered in the context of the ordinance’s
overall purpose to prohibit animal cruelty, and as construed are
The plaintiff concedes as much in her papers, and the Court’s
reading of the complaint confirms that the plaintiff has not
endeavored to allege substantive due process or equal protection
sufficiently clear to give people of ordinary intelligence fair
notice of the proscribed conduct.
Because neither the Parish nor
the plaintiff persuades the Court that the plaintiff may pursue a
submitted any evidence that could serve as a factual predicate to
analyze the plaintiff’s “as applied” challenge, summary judgment
must be denied without prejudice.
An ordinance is unconstitutionally void for vagueness under
the due process clause of the Fourteenth Amendment if its lack of
ordinary intelligence fair notice of the prohibited conduct, or
(2) encourages arbitrary and discriminatory enforcement.
United States v. Williams, 553 U.S. 285, 304 (2008).
“It is well
established that vagueness challenges to statutes which do not
involve First Amendment freedoms must be examined in the light of
the facts of the case at hand.”
See, e.g., United States v.
instructed that the Court, in considering a facial vagueness
should uphold the challenge only if the enactment is
impermissibly vague in all of its applications.
plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law
as applied to the conduct of others.
A court should
therefore examine the complainant’s conduct before
analyzing other hypothetical applications of the law.
See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494-95 (1982); see also Holder v. Humanitarian Law
Project, 561 U.S. 1, 18-19 (2010).
“In evaluating a facial
challenge to a state law, a federal court must, of course, consider
any limiting construction that a state court or enforcement agency
Id. (citing Grayned v. City of Rockford, 408 U.S.
104, 110 (1972)).
entitlement to judgment as a matter of law.
The parties do not
address the threshold issue of whether or not the plaintiff may
pursue a facial challenge to the animal cruelty ordinance.
matters worse, assuming the Court must examine the plaintiff’s
conduct to assess her as-applied challenge (or, otherwise, before
analyzing hypothetical applications of the law), the Parish and
plaintiff’s citation without submitting any evidence to support
their respective factual positions.
Accordingly, Jefferson Parish’s motion for summary judgment
and the plaintiff’s motion for partial summary judgment are both
DENIED without prejudice.
New Orleans, Louisiana, January 11, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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