Weisler, III v. Jefferson Parish Sheriff's Office, et al

Filing 38

ORDER: IT IS HEREBY ORDERED that Defendants' 24 Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 is GRANTED. Signed by Judge Nannette Jolivette Brown on 11/9/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT WEISLER, III

CIVIL ACTION

VERSUS

CASE NO. 16-14582

JEFFERSON PARISH SHERIFF’S OFFICE, et al.

SECTION: “G”(4)

ORDER
Pending before the Court is “Defendants’ Motion to Dismiss Plaintiff’s Complaint
Pursuant to F.R.C.P. 12(c) or, alternatively, for Summary Judgment Pursuant to F.R.C.P. 56 and
to Dismiss as Frivolous Pursuant to 28 U.S.C. § 1915(e).”1 Plaintiff, Robert Weisler, claims that
he was falsely arrested on September 8, 2015, by Defendants David Michel2 and Travis Enclard
of the Jefferson Parish Sheriff’s Office. Plaintiff also claims that he was then held in the Jefferson
Parish Correctional Center for 36 hours without being allowed to take his medications, in violation
of his Eighth Amendment rights. Plaintiff also names as defendants, in their individual and official
capacities: Newell Normand, who served as Jefferson Parish Sheriff at all pertinent times; and
Julio Alvarado, Mike Leyva, Russell Varmall, and Blake Hollifield, who each served as an officer
for the Jefferson Parish Sheriff’s Office at all pertinent times. Having reviewed the motion, the
memoranda in support and in opposition, the record, and the applicable law, the Court will grant
Defendants’ motion for summary judgment.
I. Background
According to the instant motion, Detective David Michel and Deputy Travis Enclard of the
Jefferson Parish Sheriff’s Office pulled Plaintiff over on September 8, 2015, as Plaintiff was

1

Rec. Doc. 24.
With regret, the Court notes that Detective Michel was killed in an unrelated line-of-duty incident. Although
named in Plaintiff’s Complaint, he has not been served with the instant suit.
2

1

driving his white Ford Crown Victoria.3 Defendants state that Plaintiff was pulled over for
operating his vehicle with “extremely dark window tint.”4 According to Defendants, Plaintiff was
asked to roll down his rear passenger window, so Detective Michel could observe the vehicle.5
Plaintiff alleges that he was asked whether he was a police officer, and he answered affirmatively.6
Plaintiff avers that he then explained that he was retired, and he was placed under arrest for false
personation under La. R.S. 14:112.7 Upon arrest, Detective Michel conducted a search incidental
to arrest of Weisler and recovered a bottle full of prescription medicine in Weisler’s pocket.8
Plaintiff alleges that he was held in the Jefferson Parish Correctional Center for 36 hours.9 Plaintiff
avers that he signed and paid for the citation regarding the tinted windows, and all other charges
were dismissed.10
Defendants filed the instant motion on August 29, 2017.11
II. Parties’ Arguments
A. Defendants’ Argument in Support of the Motion to Dismiss
a. There Was No False Arrest Because Plaintiff Pleaded Guilty to the Underlying
Cause of the Stop
Defendants assert that Plaintiff brings this action pursuant to Section 1983, challenging the
manner of his arrest and his alleged conviction.12 Defendants aver that Plaintiff’s claim “is not
cognizable,” since Plaintiff was “convicted in the underlying criminal prosecution.”13 Defendants

3

Rec. Doc. 24-1 at 3.
Id.
5
Id.
6
Rec. Doc. 27 at 2.
7
Id.
8
Rec. Doc. 27 at 2.
9
Rec. Doc. 1 at 4.
10
Rec. Doc. 27 at 2.
11
Rec. Doc. 24.
12
Id. at 8.
13
Id. at 9. (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994))
4

2

also argue that Plaintiff’s false arrest claim pursuant to Louisiana law is “barred for the same reason
as Plaintiff’s federal claim.”14 Defendants further state that Louisiana “does not allow state law
claims to withstand summary judgment if the claims challenge the validity of the underlying
criminal conviction.”15
Defendants aver that “the cause for Plaintiff’s initial stop was that his window tint was in
violation of La. R.S. 32:361.1,” and, according to Defendant, “Plaintiff pleaded guilty to this
offense.”16 Thus, Defendants state, Plaintiff’s claims under any theory of false arrest ought to be
dismissed.
b. Plaintiff Admits Probable Cause Existed for His Arrest
Defendants state, “The existence of probable cause for an arrest is a bar to a § 1983 Fourth
Amendment claim for unlawful arrest and false imprisonment.”17 Defendants argue that Plaintiff
does not challenge that probable cause existed for the stop based on his window tint.18 Instead,
Defendants assert, Plaintiff argues that there was no probable cause for false personation, and
Plaintiff would have been free to go if not for that charge.19 Defendants argue that Plaintiff is
incorrect that he necessarily would have been free to go.20
First, Defendants assert that, according to the United States Supreme Court, an officer may
arrest a potential offender without violating the Fourth Amendment if the officer has probable
cause to believe that the individual committed even a minor crime.21 Thus, Defendants aver, the

14

Id. at 10.
Id. (citing Sheppard v. City of Alexandria, No. 10-1396, 2012 WL 3961820, at *2 (W.D. La. Sept. 10, 2012)).
16
Id. at 11.
17
Id. (citing Pfannstiel v. Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)).
18
Id. The Court notes that Defendants state, “Plaintiff does challenge the probable cause that the Deputies had to
make the traffic stop based on Plaintiff’s illegal window tint in his Complaint and Amended Complaint, or in his
deposition.” However, based on the context of the sentence and the argument, it is clear that Defendants meant that
Plaintiff does not challenge the probable cause regarding the window tint.
19
Id. at 12.
20
Id.
21
Id. (citing Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)).
15

3

arrest did not violate a constitutional right, since Defendants had probable cause to believe that
Plaintiff was driving with illegally tinted windows.22
Second, Defendants argue that there is no Fourth Amendment violation if the arresting
officer has probable cause to arrest an individual for any crime.23 Defendants assert that Plaintiff
admits that he had illegally tinted windows, and that Plaintiff also admits that he had a single
prescription bottle with multiple prescription medications without prescriptions for the
medications.24 Thus, Defendants argue, “[I]t is irrelevant whether probable cause existed to arrest
Plaintiff for impersonation of a peace officer.”25
Third, Defendants aver, it is irrelevant that charges were later dropped; the court evaluates
the reasonableness of the officers’ actions “in light of the cause that existed at the time of arrest.”26
Defendants state that probable cause may be evaluated by “[p]ractical common sense.”27
Defendants then argue that “under the totality of the circumstances and the prescribed
reasonableness test it is clear that the Defendants had probable cause to believe that Plaintiff was
committing or had committed an offense.”28 Thus, Defendants contend that a false arrest or false
imprisonment did not occur.
c. There is No Cognizable Cause of Action Under the Eighteenth Amendment
Defendants state that the Eighteenth Amendment, a violation of which was alleged in
“Plaintiff’s First Amended Complaint,”29 became inoperative upon the ratification of the
Twenty-First Amendment.30 Thus, Defendants aver, Plaintiff’s Eighteenth Amendment claim

22

Id. at 13.
Id. (citing United States v. Bain, 135 Fed.Appx 695, 697 (5th Cir. 2005)).
24
Id.
25
Id.
26
Id. at 14 (citing Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000)).
27
Id.
28
Id.
29
Rec. Doc. 3 at 9.
30
Rec. Doc. 24-1 at 15. The Court notes that Plaintiff’s argument is actually referring to the Eighth Amendment, as
23

4

ought to be dismissed.31
d. There is No Cause of Action Against Sheriff Normand in His Individual or
Official Capacity
Defendants state that there is a heightened pleading standard to state a Section 1983 claim
against Sheriff Normand in his individual capacity that requires alleging “specific conduct and
actions giving rise to constitutional violations.”32 Quoting Ashcroft v. Iqbal, Defendants provide,
“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions has violated the
Constitution.”33 Moreover, Defendants assert, there is no underlying tort in the present case, so
there is no cause of action for which Sheriff Normand could be liable.34
Defendants further contend that “[a] suit against a government official in his official
capacity is treated as a suit against the entity.”35 Moreover, Defendants aver, “plaintiff has the
burden of proving that there was a constitutional deprivation and that municipal policy was the
driving force behind the constitutional deprivation.”36 However, Defendants state, if a Plaintiff
fails to prove an underlying constitutional violation arising out of her arrest, then it is irrelevant
whether there was a municipal policy that would have authorized such conduct.37 Defendants
argue that Plaintiff failed to allege or show an underlying constitutional violation arising out of

Plaintiff states, “The acts or omissions of Defendants, under color of state law, in denying the Plaintiff necessary
medication with deliberate indifference to Plaintiff’s medical needs and pre-existing medical conditions violated his
Constitutional Rights as guaranteed by the Eighteenth Amendment of the U.S. Constitution, which grants Plaintiff
the right to be free from cruel and unusual punishment.” Rec. Doc. 3 at 10 (emphasis added). Although Plaintiff
indicated the Eighteenth Amendment, the Eighth Amendment grants the right to be free from cruel and unusual
punishment.
31
Id.
32
Id. at 16 (citing Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2003)).
33
Id. (Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
34
Id. at 17.
35
Id. (citing Lee v. Morial, No. 99-2952, 2000 WL 726882, at *2 (E.D. La. June 2, 2000)).
36
Id. (citing Monell v. Department of Social Services, 436 U.S. 658, 694 (1978)).
37
Id. at 17-18 (citing City of Los Angeles v. Heller, 475 U.S. 797, 811 (1986)).

5

his arrest, so Plaintiff’s claims against Sheriff Normand in his official capacity ought to be
dismissed.38
e. Plaintiff’s Complaint Ought to Be Dismissed as Frivolous Pursuant to 28
U.S.C. § 1915(e)
Defendants state that a federal court may dismiss a claim if it determines that it is “frivolous
or malicious.”39 “A complaint is frivolous ‘if it lacks any arguable basis in law or fact.’”40
Defendants assert that Plaintiff’s complaint lacks an arguable basis in law because “Plaintiff had
pleaded guilty to a charge for which he was cited prior to filing suit, [and] Plaintiff’s claims for
false arrest were barred as a matter of law at the time that he filed the instant action.”41 Moreover,
Defendants argue, “Plaintiff’s claims should be dismissed as factually frivolous because he admits
that there existed probable cause,” to the extent he admitted to having a single prescription pill
bottle with multiple medications and having illegally tinted windows.42
B. Plaintiff’s Arguments in Opposition to Defendants’ Motion
a. 12(c) Does Not Allow Defendants to Reach Beyond the Pleadings
Plaintiff acknowledges that “12(c) allows a party to request an action be dismissed on the
face of the pleadings.” However, Plaintiff argues that “Defendants have simultaneously reached
beyond the pleadings by submitting discovery, a deposition, and attaching myriad related exhibits
to their motion.”43
b. Plaintiff Claims He Was Arrested for False Personation Without Probable
Cause, Which is a Genuine Issue of Material Fact

38

Id. at 18.
Id. at 19 (citing Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)).
40
Id. (citing Moore, 30 F.3d at 620).
41
Id. at 20-21 (citing Mahogany v. Muwwakkil, 259 F. App’x 681, 682 (5th Cir. 2007)).
42
Id. at 21.
43
Rec. Doc. 27 at 2-3.
39

6

Plaintiff then states that his charges for false personation were dismissed, so his situation
is not analogous to Heck v. Humphrey, which is cited by Defendants.44 Plaintiff argues that false
personation was the sole charge for which he was arrested, and it was dismissed.45 Thus, Plaintiff
asserts that Defendants are incorrect in that they “attempt to confuse Mr. Weisler’s arrest for false
personation with his citation for tinted windows.”46 Plaintiff provides a sample of Deputy
Enclard’s deposition where the Deputy states that window tint is “not an arrestable offense” in
order to substantiate this argument.47
Moreover, Plaintiff argues that there is a genuine issue of material fact regarding whether
Defendants had probable cause to arrest Plaintiff for false personation.48 Although Plaintiff
concedes that probable cause for the window tint did exist, he argues that dismissing his claim of
wrongful arrest for false personation because of the window tint “would create the absurd result
that any traffic stop for tinted windows could then be turned into an arrest for any unrelated crime
without the existence of probable cause.”49
Plaintiff asserts that Defendants have failed to present evidence to show that Plaintiff’s
actions would meet any element of false personation.50 Plaintiff argues that he stated that he was
a retired police officer before the officers’ decision to arrest him, and that there is no evidence that
he sought any sort of advantage from being a retired police officer.51
Plaintiff also asserts that his medications are immaterial to whether probable cause existed
for false personation because “[a]t the moment of arrest . . . the medications were not at issue.”52

44

Id. at 3.
Id.
46
Id.
47
Id. at 4.
48
Id.
49
Id. at 5.
50
Id.
51
Id. at 5-6.
52
Id. at 6.
45

7

Plaintiff avers that probable cause is determined at the moment of arrest, so the proper inquiry is
whether there was probable cause for false personation.53
c. There Remains a Genuine Issue of Material Fact Regarding the Qualified
Immunity Defense
Moreover, Plaintiff argues that “a fact issue exists as to whether the officers’ arrest of
Plaintiff was tortious.”54 Plaintiff argues that Defendants’ assertion that Weisler has “failed to
create a fact issue” regarding an underlying constitutional violation “is inapt to the facts and
procedural posture of the case.”55 Plaintiff asserts that there is a genuine issue of material fact as
to whether Sheriff Normand and JPSO’s conduct meets the burden of the qualified immunity
defense.56 After stating the qualified immunity standard in Harlow v. Fitzgerald,57 Plaintiff argues,
“Seargeant Alvarado’s testimony as to why the officers had probable cause to arrest Mr. Weisler
for false personation demonstrates a profound misunderstanding of the statute.”58 Thus, Plaintiff
asserts that there is a genuine issue of material fact “as to whether JPSO and Newell Normand
sufficiently and effectively trained and supervised its officers.”59
Finally, Plaintiff argues that “[t]he officers’ own testimony and police report demonstrate
the merit of Mr. Weisler’s claims.”60 Thus, the standards for a frivolous claim do not apply in the
present case, according to Plaintiff.61
III. Legal Standard
A. Legal Standard for Federal Rules of Civil Procedure 12(c) and 56

53

Id. at 6-7.
Id. at 7.
55
Id.
56
Id. at 7-8.
57
457 U.S. 800, 818 (1982).
58
Rec. Doc. 27 at 8.
59
Id.
60
Id.
61
Id.
54

8

Federal Rule of Civil Procedure 12(c) provides, “After the pleadings are closed – but early
enough not to delay trial – a party may move for judgment on the pleadings.”62 Rule 12(d) further
provides, “If on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56. All parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.”63
Pursuant to Rule 56, summary judgment is appropriate when the pleadings, the discovery,
and any affidavits show that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”64 When assessing whether a dispute as to any material
fact exists, a court considers “all of the evidence in the record but refrains from making credibility
determinations or weighing the evidence.”65 All reasonable inferences are drawn in favor of the
nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory
facts and conclusions of law’ are insufficient to either support or defeat a motion for summary
judgment.”66 If the record, as a whole, could not lead a rational trier of fact to find for the nonmoving party, then no genuine issue of fact exists, and the moving party is entitled to judgment as
a matter of law.67
On a motion for summary judgment, the moving party bears the initial burden of
identifying those portions of the record that it believes demonstrate the absence of a genuine issue
of material fact.68 Where the non-moving party bears the burden of proof at trial, as here, the party

62

FED. R. CIV. P. 12(c).
FED. R. CIV. P. 12(d).
64
FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994).
65
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
66
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
67
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
68
Celotex, 477 U.S. at 323.
63

9

moving for summary judgment may meet its burden by showing the Court that there is an absence
of evidence to support the non-moving party’s case.69 Thereafter, if the moving party satisfies its
initial burden, the burden shifts to the non-moving party to “identify specific evidence in the
record, and articulate” precisely how that evidence supports his claims.70 In doing so, the nonmoving party may not rest upon mere allegations or denials in his pleadings, but rather must set
forth “specific facts showing the existence of a ‘genuine’ issue concerning every essential
component of its case.”71 A party seeking to establish that a fact is genuinely disputed must support
such an assertion by reference to “materials in the record, including depositions, documents . . .
affidavits or declarations . . . admissions, interrogatory answers, or other materials.”72 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”73 There is no genuine issue for
trial “unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict
for that party.”74
B. Legal Standard for Qualified Immunity
The doctrine of qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”75 Qualified immunity is an “immunity

69

Id. at 325.
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
71
Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992)); see also Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
72
FED. R. CIV. P. (c)(1).
73
Little, 37 F.3d at 1075.
74
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 288–89 (1968)).
75
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
70

10

from suit rather than a mere defense to liability.”76 Once a defendant invokes the defense of
qualified immunity, the plaintiff carries the burden of demonstrating its inapplicability.77
In Saucier v. Katz, the Supreme Court set forth a two-part framework for analyzing whether
a defendant was entitled to qualified immunity.78 Part one asks the following question: “Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?”79 Part two inquires whether the allegedly violated right is
“clearly established” in that “it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.”80 The Court does not have to address these two questions
sequentially; it can proceed with either inquiry first.81
C. Applicable Law on Section 1983
“To state a claim under § 1983, a plaintiff must show: (1) he or she was deprived of a
federal constitutional or statutory right or interest; (2) this deprivation occurred under the color of
state law; and (3) the defendant was either personally involved in this deprivation or committed
wrongful conduct that is causally connected to it.”82
D. Probable Cause Pursuant to the 4th, 5th, and 14th Amendments
The Fourth Amendment establishes the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.”83 Moreover, La. Const.
Art. I, § 5 also prohibits unreasonable searches and seizures, and its “test of whether and when an

76

Pearson v. Callahan, 555 U.S. 223, 237 (2009).
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
78
533 U.S. 194 (2001).
79
Id. at 201.
80
Id. at 202.
81
See Pearson, 555 U.S. at 236 (“On reconsidering the procedure required in Saucier, we conclude that, while the
sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”); see also Cutler v.
Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).
82
Thomas v. Pohlmann, 681 Fed.Appx. 401, 406 (5th Cir. 2017).
83
U.S. Const. amend. IV.
77

11

intrusion on privacy rights occurs as a matter of the Louisiana Constitution is identical to the Fourth
Amendment standard.”84 “[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.”85 Moreover, “[w]hether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”86
However, an officer’s “subjective reason for making the arrest need not be the criminal offense as
to which the known facts provide probable cause.”87 “If an officer has probable cause to believe
that an individual has committed even a very minor criminal offense in his presence, he may,
without violating the Fourth Amendment, arrest the offender.”88 The Fifth Circuit has stated, “To
ultimately prevail on [] section 1983 false arrest claims, [plaintiff] must show that [defendants] did
not have probable cause to arrest [him].”89
The Fifth Amendment provides, “No person shall . . . be deprived of life, liberty or
property, without due process of law.”90 The Fourteenth Amendment also provides that no State
shall “deprive any person of life, liberty or property, without due process of law.”91 Similarly,
Article 1, Section 2 of the Louisiana Constitution provides, “No person shall be deprived of life,
liberty, or property, except by due process of law.”92
E. Applicable Law of the Eighth Amendment
The Eighth Amendment protects the right to be free from cruel and unusual punishment.93

84

State v. Moultrie, 2015-2144 (La. 6/29/17); 224 So.3d 349, 352.
Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
86
Id. (citing Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
87
Id.
88
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
89
Johnson v. Norcross, 565 Fed.Appx. 287, 289 (5th Cir. 2014) (citing Haggerty v. Tex. S. Univ., 391 F.3d 653, 655
(5th Cir. 2004)).
90
U.S. Const. Amend. V.
91
U.S. Const. Amend XIV.
92
La. Const. Art. I, § 2.
93
U.S. Const. Amend. VIII.
85

12

“The Cruel and Unusual Punishment Clause allows an inmate to obtain relief after being denied
medical care if he provides there was a ‘deliberate indifference to his serious medical needs.’”94
“Deliberate indifference is an extremely high standard to meet.”95 “Deliberate indifference
requires that the official have subjective knowledge of the risk of harm.”96 “To show subjective
deliberate indifference, a plaintiff must present evidence: (i) that each defendant had subjective
knowledge of facts from which an inference of substantial risk of serious harm could be drawn;
(ii) that each defendant actually drew that inference; and (iii) that each defendant’s response to the
risk indicates that the defendant subjectively intended that harm to occur.”97
IV. Analysis
A. Whether Plaintiff’s Claims are Barred on the Face of the Complaint
Defendants first argue that Plaintiff’s claims are barred on the face of the complaint because
Plaintiff pleaded guilty to improperly tinted windows.98 Thus, Defendants assert that they are
entitled to judgment under Federal Rule of Civil Procedure 12(c).99 Defendants quote Heck v.
Humphrey in asserting,
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. 2254.100
Defendants argue that Plaintiff’s initial stop was for his excessively dark window tint, and he

94

Bias v. Woods, 288 F. App’x 158, 162 (2008) (citing Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995);
Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
95
Blank v. Eavenson, 530 F. App’x 364, 368 (5th Cir. 2013) (citing Domino v. Tex. Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001)).
96
Id.
97
Id. (citing Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009)).
98
Rec. Doc. 24-1 at 8.
99
Id
100
Id. at 9 (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)).

13

pleaded guilty to this offense.101 Therefore, Defendants aver, “Plaintiff is procedurally foreclosed
from suing under any theory of false arrest under federal or state law.”102
In Walter v. Horseshoe Entertainment, the Fifth Circuit applied the Heck principle for a
false arrest claim.103 The Fifth Circuit stated that the principle applied, since “the plaintiffs were
arrested for crimes of which they were ultimately convicted.”104 Here, unlike Walter, Plaintiff was
arrested for a different crime than his ultimate conviction. Plaintiff was arrested for false
personation under Louisiana Revised Statute 14:112,105 but was convicted for unlawfully tinted
windows.106 Defendants present no authority, and the Court finds none, that suggests bootstrapping
Plaintiff’s conviction of illegally tinted windows to Plaintiff’s arrest of false personation when
applying Heck is permitted. Thus, Plaintiff’s claims cannot be dismissed on the face of the
complaint pursuant to Rule 12(c).
B. Whether Defendants are Entitled to Summary Judgment as a Matter of Law
Pursuant to Rule 56, summary judgment is appropriate when the pleadings, the discovery,
and any affidavits show that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”107
Defendants argue that Plaintiff admits there was probable cause for the deputies to arrest
him, since he admits that his windows were improperly tinted.108 However, Plaintiff reiterates that
he was arrested for false personation and only cited for tinted windows.109 Plaintiff points to

101

Id.
Id. at 11.
103
483 F. App’x. 884, 887 (5th Cir. 2017).
104
Id.
105
See Rec. Doc. 27-4 at 20.
106
Rec. Doc. 24-1 at 11.
107
FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994).
108
Id.
109
Id. at 3.
102

14

Deputy Enclard’s deposition testimony, where he stated that improper window tinting is not
probable cause for an arrest.110 Thus, Plaintiff argues, “There exists a genuine issue of material
fact as to whether Defendants had probable cause to arrest Mr. Weisler for false personation.”111
As explained by the U.S. Supreme Court, an officer’s “subjective reason for making the
arrest need not be the criminal offense as to which the known facts provide probable cause.”112
The Court reasoned that “[t]he Fourth Amendment’s concern with reasonableness allows certain
actions to be taken in certain circumstances, whatever the subjective intent.”113 Thus, the fact that
officers may not have had probable cause to arrest Plaintiff for false personation is immaterial if
probable cause existed for another offense. In his opposition, Plaintiff “concedes that probable
cause for the window tint certainly did exist, and he has taken full responsibility for this
violation.”114
Here, rather than disputing probable cause for improper window tint, Plaintiff asserts that
a window tint violation is “not an offense for which an arrest may be conducted.”115 However, the
Supreme Court has expressly rejected a distinction between “jailable” and “fine-only” offenses.116
In Atwater, where the plaintiff had violated a Texas seatbelt requirement, the Supreme Court held
that “[i]f an officer has probable cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest
the offender.”117 Here, a “window tint” violation is certainly a “very minor criminal offense”
similar to failing to wear a seatbelt.118 Nevertheless, as recognized by the Supreme Court, it is

110

Rec. Doc. 27 at 4.
Id. at 4.
112
Devenpeck, 543 U.S. at 153.
113
Id.
114
Rec. Doc. 27 at 4.
115
Rec. Doc. 3 at 5.
116
Atwater, 532 U.S. at 348.
117
Id. at 354.
118
See id.
111

15

within police officer authority to arrest an individual for such a violation.
Plaintiff argues that such a determination “would create the absurd result that any traffic
stop for tinted windows could then be turned into an arrest for any unrelated crime without the
existence of probable cause.”119 However, responding to a similar argument in Atwater, the
Supreme Court stated that “just as surely the country is not confronting anything like an epidemic
of unnecessary minor-offense arrests.”120
Consequently, the arresting officers had probable cause to arrest Plaintiff for his window
tint violation. As stated above, the Fifth Circuit has stated, “To ultimately prevail on [] section
1983 false arrest claims, [plaintiff] must show that [defendants] did not have probable cause to
arrest [him].”121 Thus, Plaintiff’s Section 1983 false arrest claims, which include claims regarding
the Fourth, Fifth, and Fourteenth Amendments, must be dismissed as a matter of law.
Additionally, Plaintiff’s right to privacy claim based on Art. I, § 5 of the Louisiana
Constitution must be dismissed, since the “test of whether and when an intrusion on privacy rights
occurs as a matter of the Louisiana Constitution is identical to the Fourth Amendment standard.”122
Plaintiff’s due process claim based on Art. I, § 2 of the Louisiana Constitution must also be
dismissed, since its due process guarantee “does not vary from the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.”123 Alternatively, Defendants assert the
defense of qualified immunity.124 Considering Defendants had probable cause to arrest Plaintiff,
Defendants did not violate a constitutional right of Plaintiff, and Defendants were acting
reasonably and entitled to qualified immunity.

119

Rec. Doc. 27 at 5.
Atwater, 532 U.S. at 353.
121
Johnson, 565 Fed.Appx. at 289 (citing Haggerty, 391 F.3d at 655).
122
Moultrie, 224 So.3d at 352.
123
Progressive Sec. Ins., 711 So.2d at 688.
124
Rec. Doc. 7 at 2-3.
120

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In his amended complaint, Plaintiff also alleges a Section 1983 claim based on an alleged
violation of the Eighth Amendment, asserting that Defendants denied Plaintiff necessary medical
treatment.125 As noted above, Plaintiff’s amended complaint states that it is alleging a violation of
the Eighteenth Amendment.126 In its motion to dismiss, Defendants assert that there is no cause of
action cognizable under the Eighteenth Amendment.127 Despite Plaintiff’s typographical error, the
claim asserted is clearly an Eighth Amendment violation, as Plaintiff states that his claim is based
on the amendment that “grants Plaintiff the right to be free from cruel and unusual punishment.”128
Defendants do not address whether Plaintiff has a cause of action cognizable under the Eighth
Amendment.
However, in Defendants’ answer, they affirmatively plead qualified immunity to all of
Plaintiff’s claims.129 As stated above, the doctrine of qualified immunity protects government
officials “from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”130
As defendants have invoked the defense of qualified immunity, Plaintiff carries the burden of
demonstrating its inapplicability.131
Moreover, in Saucier v. Katz, the Supreme Court set forth a two-part framework for
analyzing whether a defendant was entitled to qualified immunity.132 Part one asks the following
question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right?”133 Part two inquires whether the

125

Rec. Doc. 3 at 9–10.
Id. at 9.
127
Rec. Doc. 24-1 at 15.
128
Id. at 10.
129
Rec. Doc. 7 at 2.
130
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
131
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
132
533 U.S. 194 (2001).
133
Id. at 201.
126

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allegedly violated right is “clearly established” in that “it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”134 The Court does not have to address
these two questions sequentially; it can proceed with either inquiry first.135
“The Cruel and Unusual Punishment Clause allows an inmate to obtain relief after being
denied medical care if he provides there was a ‘deliberate indifference to his serious medical
needs.’”136 “Deliberate indifference is an extremely high standard to meet.”137 “Deliberate
indifference requires that the official have subjective knowledge of the risk of harm.”138 “To show
subjective deliberate indifference, a plaintiff must present evidence: (i) that each defendant had
subjective knowledge of facts from which an inference of substantial risk of serious harm could
be drawn; (ii) that each defendant actually drew that inference; and (iii) that each defendant’s
response to the risk indicates that the defendant subjectively intended that harm to occur.”139
In Lawson v. Dallas County, the Fifth Circuit held that the plaintiff alleged enough facts to
determine that the defendants acted with deliberate indifference to plaintiff’s serious medical
need.140 The Fifth Circuit agreed with the district court’s finding that “it is common medical
knowledge that a paraplegic who is not properly cared for is at substantial risk of developing
serious, even life-threatening, decubitus ulcers.”141 Moreover, stating that “each individual’s
subjective deliberate indifference must be examined separately,”142 the Fifth Circuit held that the

134

Id. at 202.
See Pearson, 555 U.S. at 236 (“On reconsidering the procedure required in Saucier, we conclude that, while the
sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”); see also Cutler v.
Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).
136
Bias v. Woods, 288 F. App’x 158, 162 (2008) (citing Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995);
Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
137
Blank v. Eavenson, 530 F. App’x 364, 368 (5th Cir. 2013) (citing Domino v. Tex. Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001)).
138
Id.
139
Id. (citing Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009)).
140
Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir. 2002). The defendants were the Dallas County Sheriff in
his official capacity and the Dallas County Chief Medical Officer in his official capacity.
141
Id. at 262.
142
Id. (citing Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999)).
135

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plaintiff proved that all the nurses who primarily treated the plaintiff “had actual knowledge of the
risk posed by the development and worsening of [plaintiff’s] ulcers.”143 The court reasoned that
the nurses changed plaintiff’s dressings on several occasions, so they observed the large holes
developing in plaintiff’s skin.144 The court further reasoned that “the jail medical staff were aware
of pressure sores on Lawson’s back as early as November 6, 1993,” and the jail received notice of
its inadequate care each time the plaintiff had to be sent to the hospital.145 Finally, the court held
that plaintiff proved deliberate indifference by showing that the jail medical staff, who had actual
knowledge as mentioned above, disobeyed specific mandatory orders from doctors regarding
plaintiff’s care.146
In contrast with Lawson, the Fifth Circuit in Oliver v. Kanan determined that the plaintiff
did “not state an Eighth Amendment deliberate-indifference claim.”147 Plaintiff alleged that the
“medical staff improperly withheld medication for his eyes, that he had a reaction to an unspecified
medication, that medical staff failed to provide him with soft sole shoes, and that Physician’s
Assistant . . . stated that he had no ‘wonder drug’ for [plaintiff].”148 The Fifth Circuit determined
that these allegations “fail[] to state the harm suffered and fail[] to show that medical staff knew
of, and disregarded, a substantial risk of serious harm.”149 Plaintiff further alleged that doctors
failed to treat his diarrhea and bloody stool, despite knowing his conditions. The court stated that
plaintiff’s statements “show[ed] no duration to his conditions and admit[ted] that doctors had
performed tests to determine the cause (the results of which had not all been returned),” so the

143

Id.
Id.
145
Id.
146
Id. at 263. The court stated, “Doctors at Tri-City and Parkland sent specific mandatory orders to the jail medical
staff to turn Lawson every one or two hours, provide Lawson with a foam mattress, and conduct hydrotherapy. The
jail nurses did not follow these instructions, despite their actual knowledge of the seriousness of Lawson’s condition.
147
Oliver v. Kanan, 428 F. App’x 481, 482 (5th Cir. 2011).
148
Id.
149
Id.
144

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court held that plaintiff made “no showing of conscious disregard of a substantial risk of serious
harm by the medical staff.”150 Finally, plaintiff alleged that the “prison medical staff did not treat
his complaint” for breast pain and a swollen right arm.151 However, the court held that these
allegations were not sufficient to state a medical-indifference claim, as plaintiff did not allege that
the staff consciously disregarded a risk of serious harm.152
In the amended complaint, Plaintiff states that “officers refused to allow [him] to take his
medications, causing him physical and mental discomfort.”153 Unlike in Lawson, where there was
common medical knowledge about proper care of a paraplegic, Plaintiff alleges no facts in support
nor does he submit any evidence that Defendants had a “subjective knowledge of facts from which
an inference of substantial risk of serious harm could be drawn.”154 Moreover, Plaintiff does not
examine the subjective deliberate indifference of each individual separately, per the Fifth Circuit’s
requirement in Lawson.155 Plaintiff points to no evidence that Defendants actually drew any
inference regarding a substantial risk of serious harm to Plaintiff.156 Additionally, as stated in
Oliver, failure to treat Plaintiff’s medical complaint does not mandate the conclusion that
Defendants intended any harm to occur.157 As a result, Plaintiff fails to cite to, or provide any
materials in the record that support the assertion that Defendants acted with deliberate indifference.
Plaintiff also does not submit any facts or authority as to whether his claim constitutes a
“serious medical need.” Plaintiff states generally that he suffered from mental and physical

150

Id.
Id.
152
Id.
153
Rec. Doc. 3 at 6.
154
Blank, 530 F. App’x at 368 (citing Tamez, 589 F.3d at 770).
155
Lawson, 286 F.3d at 263.
156
Id. (stating that the defendants had actual knowledge, since, as stated above, “[t]he nurses changed [plaintiff’s]
dressings on several occasions and must have observed first-hand the large holes developing in [plaintiff’s] skin.”)
157
Oliver, 428 F. App’x at 482.
151

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discomfort from not taking his medicine.158 The Fifth Circuit has not provided a definition of what
constitutes a “serious medical need,” but the Court finds no authority where such a broad allegation
is sufficient to plead “serious medical needs.” In Farinaro v. Coughlin, a court in the Southern
District of New York, stated that discomfort could constitute a serious medical need.159 However,
the court stated that a plaintiff has to allege a “specific showing of pain, discomfort, or risk to
health.”160 Here, since Plaintiff has not alleged any facts regarding even discomfort, he has not
made a “specific showing.” Regardless, it is unnecessary to determine whether Plaintiff’s
discomfort constitutes a serious medical need, since Plaintiff has failed to support the claim that
Defendants acted with deliberate indifference.
Moreover, qualified immunity requires that “it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.”161 Neither Plaintiff nor Defendants have
argued whether it was reasonable to deny Plaintiff his prescription medicine based on the
circumstances of finding it. Although Defendants argue that “probable cause existed for Plaintiff’s
arrest for illegal possession of prescription narcotics,” they do not assert that it was reasonable to
deny Plaintiff his medication based on this probable cause. Regardless, since Plaintiff carries the
burden of proving the inapplicability of qualified immunity, Plaintiff must prove that Defendants’
actions were objectively unreasonable. As Plaintiff alleges no facts in support of nor submits any
evidence that Defendants were unreasonable in denying Plaintiff’s request for his medication,
Plaintiff does not meet this burden. Nevertheless, as above, it is unnecessary to determine if
Defendants’ actions were objectively reasonable, since Plaintiff has failed to cite to, or provide,
any materials in the record that support the claim that Defendants acted with deliberate

158

Rec. Doc. 3 at 6.
Farinaro v. Coughlin, 642 F.Supp. 276, 279 (S.D.N.Y 1986).
160
Id.
161
Saucier, 533 U.S. at 202.
159

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indifference.
Although Plaintiff had a constitutional right to medical care, he fails to allege facts in
support, nor does he submit any evidence, that the Defendants acted with deliberate indifference.
Consequently, Plaintiff has failed to support the claim that there was a constitutional violation, and
Defendants are entitled to qualified immunity.
Based on the foregoing, the Court finds that Defendants are entitled to summary judgment
on Plaintiff’s false arrest and cruel and unusual punishment claims. Since the Court has determined
that Defendants are entitled to summary judgment pursuant to Rule 56, it is unnecessary for the
Court to evaluate whether Plaintiff’s complaint ought to be dismissed as frivolous pursuant to 28
U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment Pursuant
to Federal Rule of Civil Procedure 56 is GRANTED.

9th
NEW ORLEANS, LOUISIANA, this ______ day of November, 2017.
________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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