Jones v. Jefferson Parish Sheriff's Office et al
Filing
27
ORDER granting 23 Motion to Dismiss. IT IS FURTHER ORDERED and that plaintiff's claims are dismissed with prejudice to their being asserted again until the Heck conditions are met. Signed by Magistrate Judge Janis van Meerveld on 12/12/2017. (ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DESMOND COLBY JONES
CIVIL ACTION
VERSUS
NO. 16-14005-JVM
JEFFERSON PARISH SHERIFF’S OFFICE
SERGEANT DONALD CLOGHER, ET AL.
ORDER AND REASONS
Plaintiff, Desmond Colby Jones, a state inmate, filed this federal civil action pursuant to
42 U.S.C. § 1983. He sued the Sergeant Donald Clogher and Deputy Andre Nelson, alleging that
they used excessive force to effect plaintiff’s arrest. 1
1
The Court notes that there appears to be some confusion as to whether Clogher and Nelson are the only defendants.
When the complaint was originally docketed, the Clerk of Court listed the Jefferson Parish Sheriff’s Office as a
defendant on the docket sheet. That appears to be incorrect. The matter was then further complicated by the fact that
subsequent filings by the defendants listed former Jefferson Parish Sheriff Newell Normand as a defendant. That
likewise appears to be incorrect. Because there is no indication that the plaintiff intended to sue either the Sheriff’s
Office or Normand, the Court does not consider either to be a defendant herein. Nevertheless, out of an abundance of
caution, the Court notes that any claims against either the Sheriff’s Office or Normand would also fail in any event.
As to the Jefferson Parish Sheriff’s Office, “a sheriff’s office is not a legal entity capable of being sued ....”
Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 283 (5th Cir. 2002); accord Mitchell v.
Jefferson Parish Correctional Center, Civ. Action No. 13-4963, 2013 WL 6002770, at *3 (E.D. La. Nov. 12, 2013);
Francois v. Jefferson Parish Sheriff’s Office, Civ. Action No. 12-1965, 2013 WL 654640, at *6 (E.D. La. Feb. 21,
2013) (“Louisiana law has not afforded any legal status to parish sheriff’s departments such that they can be sued.”).
As to Normand, plaintiff has not stated a proper claim against Normand in either his official or his individual
capacity for the following reasons.
“Official capacity suits generally represent another way of pleading an action against an entity of which an
officer is an agent.” Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Accordingly, any officialcapacity claim against Normand would in reality be a claim against the local governmental body itself. Weatherspoon
v. Normand, Civ. Action No. 10-060, 2010 WL 724171, at *2 (E.D. La. Feb. 22, 2010). However, as the United States
Fifth Circuit Court of Appeals has explained: “In order to hold a municipality or a local government unit liable under
Section 1983 for the misconduct of one of its employees, a plaintiff must initially allege that an official policy or
custom was a cause in fact of the deprivation of rights inflicted.” Spiller v. City of Texas City, Police Department,
130 F.3d 162, 167 (5th Cir. 1997) (quotation marks omitted). Because plaintiff does not allege that his rights were
violated as a result of a policy or custom, he has failed to state a proper claim against Normand in his official capacity.
Plaintiff likewise has not stated a proper individual-capacity claim against Normand. “Plaintiffs suing
governmental officials in their individual capacities ... must allege specific conduct giving rise to a constitutional
violation. This standard requires more than conclusional assertions: The plaintiff must allege specific facts giving
rise to the constitutional claims.” Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (citation omitted). Moreover,
“[p]ersonal involvement is an essential element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381,
382 (5th Cir. 1983). In this lawsuit, plaintiff does not allege any personal involvement on the part of Normand.
Moreover, although Normand held a supervisory position, “supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.” Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); accord
Oliver, 276 F.3d at 742 (“Section 1983 does not create supervisory or respondeat superior liability.”)
In his complaint, plaintiff states his claim as follows:
On April 27, 2016 at approximately 11:30 p.m. I was leaving Lemieux Bar and
Lounge when I was being stopped by Jefferson Parish police unit at which time I
attempted to elude them by chase accompanied by Corey Dillon. I was going up
Ames. I made a right turn on Acre Road and turned left on Lincoln Avenue at
which time Corey Dillon jumped out while I was driving. I was on the left side of
the road when Sergeant Clogher used his vehicle to ram me on the right side of my
vehicle at which time I attempted to slow down. I attempted to slow down when
he got directly in front of me and stopped on dead break at which time our vehicles
collided and I was knocked temporarily unconscious. I was awakened to him
pulling me out of the vehicle at which time I was slammed on the ground. He place
his knee in my back while yelling “I should kill you.” As he placed my right hand
in a cuff he struck me on the back of my head at which time I began to move around
wildly but he began striking me with more blows to my face and abdominal area at
which time I tried to ball up but I was kicked in my ribs by Deputy Andre Nelson
as he began to kick me repeatedly while Sergeant Clogher removed his flashlight
and began to jam it in my left eye socket repeatedly while he told me “Scream all
you want nobody will help you nigger bastard” as I begged them to stop. Then as
other cops began to appear they began saying “stop resisting.” They eventually
stopped at which time I was cuffed and placed in the back of Deputy Paul Dimitri’s
police vehicle. As I waited for medical personnel to appear on the scene to check
my injuries at which time Sergeant Clogher told me “your getting all types of
charges tonight” through the window. I shook my head. After I waited a few more
moments I was checked out by medical personnel and informed I would be taken
to the hospital. I was treated for numerous injuries received multiple x-rays and
taken to Jefferson Parish Correctional Center where I was booked with multiple
charges and held to face trial. 2
The defendants have filed a motion to dismiss pursuant to Rule 12(c) or, alternatively, for
summary judgment pursuant to Rule 56.3 Because the defendants presented matters outside the
pleadings for the Court’s consideration, the motion must be considered under Rule 56. 4 See Fed.
R. Civ. P. 12(d). Plaintiff was ordered to respond to the defendants’ motion by no later than
2
Rec. Doc. 4, pp. 4-6.
Rec. Doc. 23.
4
Specifically, the defendants submitted evidence showing that, on April 3, 2017, plaintiff pleaded guilty to, among
other crimes, two counts of resisting a police officer with force or violence pursuant to Louisiana Revised Statutes §
14:108.2. Because that evidence did not conclusively show whether those convictions concerned the same incident
on which plaintiff’s excessive force claims are based, the defendants were ordered to supplement their motion with
additional records from the state criminal proceedings. Rec. Doc. 25. Defendants have complied with that order.
Rec. Doc. 26.
3
2
November 30, 2017; 5 however, no opposition was ever filed. For the following reasons, the Court
finds that the defendants are entitled to judgment as a matter of law and, therefore, the unopposed
motion is granted. 6
In reviewing a motion for summary judgment, the Court may grant the motion when no
genuine issue of material fact exists and the mover is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). There is no “genuine issue” when the record taken as a whole could not lead a
rational trier of fact to find for the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
“Procedurally, the party moving for summary judgment bears the initial burden 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.” Taita Chemical
Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001) (quotation marks and
brackets omitted). The party opposing summary judgment must then “go beyond the pleadings
and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted); accord Provident Life and
Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). The Court has no duty to search the
record for evidence to support a party’s opposition to summary judgment; rather, “[t]he party
opposing summary judgment is required to identify specific evidence in the record and to articulate
the precise manner in which the evidence supports his or her claim.” Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
5
Conclusory statements, speculation, and
Rec. Doc. 25, p. 2.
The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 42
U.S.C. § 636(c). Rec. Doc. 16.
6
3
unsubstantiated assertions are not competent summary judgment evidence and will not suffice to
defeat a properly supported motion for summary judgment. Id.; Douglass v. United Services Auto.
Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).
As noted, plaintiff claims that the defendants used excessive force to effect his arrest.
However, in a bill of information filed in the Louisiana Twenty-Fourth Judicial District Court on
May 23, 2016, plaintiff was charged with numerous crimes including resisting Sergeant Donald
Clogher and Deputy Andre Nelson with force or violence on April 27, 2016, in violation of
Louisiana Revised Statutes § 14:108.2. 7 On April 3, 2017, plaintiff pleaded guilty to those
charges. 8
In light of plaintiff’s convictions pursuant to § 14:108.2, the defendants argue that
plaintiff’s excessive force claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck,
the United States Supreme Court explained that a prisoner may not bring a federal civil rights
claim if a finding in his favor on that claim would necessarily imply the invalidity of an outstanding
criminal conviction or sentence. The Court stated:
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated is not cognizable under §
1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.
7
Rec. Doc. 26-1, pp. 1-2 and 10-13. He was also charged with aggravated flight pursuant to § 14:108.1(C), aggravated
assault with a motor vehicle upon a peace officer pursuant to § 14:37.6, and aggravated criminal damage to property
pursuant to § 14:55.
8
Id. at pp. 3-4.
4
Id. at 486-87 (footnote omitted).
Where, as here, a plaintiff has outstanding convictions for resisting police officers with
force or violence pursuant to Louisiana Revised Statutes § 14:108.2, Heck normally bars him from
asserting an excessive force claim against those officers based on the same incident. See Idel v.
New Orleans Police Department, Civ. Action No. 11-1078, 2012 WL 860380, at *3-4 (E.D. La.
Mar. 13, 2012) (“Because plaintiff’s excessive force claim is founded on an allegation that he did
not attempt to kick [the arresting officer] and was instead simply attacked without provocation,
that claim squarely challenges and is inherently inconsistent with the factual basis of plaintiff’s
guilty plea to the charge of resisting [the officer] with force or violence [pursuant to § 14:108.2].
Therefore, a finding by this Court in plaintiff’s favor on the claim would necessarily imply the
invalidity of the conviction resulting from that plea, and the Heck bar applies.”); see also Walker
v. Munsell, 281 Fed. App’x 388, 390 (5th Cir. 2008) (“[Appellant’s] claim is based solely on his
assertions that he did not resist arrest, did nothing wrong, and was attacked by the Appellee officers
for no reason. Thus, Appellant’s suit squarely challenges the factual determination that underlies
his conviction for resisting an officer, and if he prevails, he will have established that his criminal
conviction lacks any basis. This type of excessive force claim is, therefore, the type of claim that
is barred by Heck in our circuit.” (quotation marks and citations omitted)); DeLeon v. City of
Corpus Christi, 488 F.3d 649, 656-57 (5th Cir. 2007); Arnold v. Town of Slaughter, 100 Fed.
App’x 321, 324-25 (5th Cir. 2004).
Accordingly,
IT IS ORDERED that defendants’ unopposed motion for summary judgment is
GRANTED.
5
IT IS FURTHER ORDERED and that plaintiff’s claims are dismissed with prejudice to
their being asserted again until the Heck conditions are met. 9
New Orleans, Louisiana, this twelfth day of December, 2017.
__________________________________________
JANIS VAN MEERVELD
UNITED STATES MAGISTRATE JUDGE
9
See DeLeon v. City of Corpus Christi, 488 F.3d 649, 657 (5th Cir.2007) (“A preferred order of dismissal in Heck
cases decrees, ‘Plaintiff[’]s claims are dismissed with prejudice to their being asserted again until the Heck conditions
are met.’”).
6
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