Rodgers, et al v. Gusman, et al

Filing 252

ORDER: IT IS ORDERED that City Defendant's 189 Motion for Judgment on the Pleadings and for Summary Judgment is GRANTED. Signed by Chief Judge Nannette Jolivette Brown on July 23, 2019. (mp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATASHA RODGERS

CIVIL ACTION

VERSUS

CASE NO. 16-16303

MARLIN GUSMAN, et al.

SECTION: “G” (3)

ORDER AND REASONS
In this litigation, Plaintiff Latasha Rodgers, Tutrix (“Plaintiff”), on behalf of her minor
child CJTJ, alleges that Defendants Orleans Parish Prison, Orleans Parish Sheriff Marlin Gusman
(“Gusman”), the City of New Orleans (the “City”), Mayor LaToya Cantrell, the New Orleans City
Council, Correct Care Solutions, LLC and certain unidentified parties acting under the authority
of the Orleans Parish Prison, subjected CJTJ’s father (“Decedent”), a pretrial detainee at the
Orleans Parish Prison, to excessive force, assaulted and battered Decedent, and acted with
deliberate indifference to his medical needs, resulting in Decedent’s death, in violation of his and
Plaintiff’s constitutional rights under the Fourth, Eighth, and Fourteenth Amendments, and
Louisiana law.1 Pending before the Court is Defendants the City, Mayor LaToya Cantrell, and the
New Orleans City Council’s (collectively, “City Defendants”) “Motion for Judgment on the
Pleadings and for Summary Judgment.”2 Having considered the motion, the memoranda in support
and opposition, the record, and the applicable law, the Court will grant the motion.

1

Rec. Doc. 45 at 1–4.

2

Rec. Doc. 189.

1

I. Background
A.

Factual Background
In the complaint, Plaintiff avers that on September 24, 2015, Decedent was a pretrial

detainee at the Orleans Parish Prison (the “Prison”). Plaintiff additionally avers that Decedent had
been diagnosed with Sickle Cell Disease and Hepatitis C, which was “verified by OPP 3 medical
intake form.”4 Plaintiff alleges that since October 2015, Decedent had experienced leg pain and
medical complications in the chest and abdomen.5 According to Plaintiff, however, OPP failed to
provide him with his medication or take him to the hospital.6 In addition, Plaintiff alleges that on
October 3, 2015, Decedent was attacked and stabbed in the arm by an inmate, and on another
occasion, Decedent was choked by a security guard.7 Plaintiff avers that on neither occasion was
Defendant taken to the hospital.8
On November 11, 2015, according to Plaintiff, Decedent experienced a severe sickle cell
pain crisis in his abdomen and lower extremity, chest, back, and left leg, but was not taken to the
hospital until the next day on November 12, 2015.9 While Decedent was at University Medical
Center, Plaintiff avers, his condition worsened—he became diaphoretic and unresponsive, had

3

Although Plaintiff does not define “OPP,” the Court assumes OPP refers to Orleans Parish Prison.

4

Rec. Doc. 1 at 4.

5

Id.

6

Id.

7

Id.

8

Id.

9

Id.

2

problems breathing, and on November 15, 2016, died.10 Plaintiff alleges that Defendants’ conduct
demonstrates a “wanton disregard” for Decedent’s “serious medical needs.”11
Plaintiff alleges that Defendants, acting as decisionmakers, maintained, enforced, tolerated,
permitted, acquiesced in, and applied policies, practices, or customs and usages that violated the
constitutional rights of Decedent and Plaintiff.12 Specifically, Plaintiff alleges that Defendants
violated the Constitution by (1) allowing their deputies to abandon their obligations to protect the
people in their direct custody from harm; (2) having a policy, practice, or custom of intentionally
suspending, or failing to provide, medication to Decedent; (3) ignoring Decedent’s complaint for
medical assistance, thereby allowing his severe medical crises to worsen; (4) having deficient
staffing, security policies and practices, and inadequate medical treatment; (5) subjecting inmates
to unreasonable uses of force against their persons; (6) selecting, retaining, and assigning
employees with demonstrable propensities for excess force, violence, and negligence, and other
misconduct; (7) failing to train and supervise employees in how to properly administer medication
and care for the people in their custody; and (8) condoning and encouraging officers in the belief
that they can violate the rights of persons such as Decedent with impunity, and that such conduct
will not adversely affect their opportunities for promotion and other employment benefits.13
Plaintiff alleges that Defendants’ conduct constitutes a pattern of constitutional violations
based on either a deliberate plan by Defendants, or Defendants’ deliberate indifference, gross

10

Id.

11

Id.

12

Id.

13

Id. at 5.

3

negligence, or reckless disregard for the safety, security, and rights of Plaintiff and Decedent.14
Plaintiff claims that as a result of Defendants’ conduct, CJTJ lost Decedent’s love, comfort,
society, consortium, care, affection, support, and enjoyment of life, and has sustained emotional
distress.15
B.

Procedural Background
Plaintiff filed a complaint on November 10, 2016.16 On December 12, 2016, Defendant

Marlin Gusman filed an answer to the complaint.17 On February 6, 2017, the Court granted
Defendant Orleans Parish Sheriff Office’s motion to dismiss.18 On March 27, 2017, Defendants
Mayor Mitch Landrieu and the New Orleans City Council filed a motion to dismiss.19 On October
16, 2017, the Court denied the motion to dismiss without prejudice and granted Plaintiff leave to
amend the complaint to address the deficiencies noted therein.20
On November 17, 2017, Plaintiff filed an amended complaint. 21 On July 18, 2018, the
Court denied CCS’ motion to dismiss without prejudice and granted Plaintiff leave to amend the
complaint to address the deficiencies noted therein.22 On July 18, 2018, the Court also denied
Gusman’s motion for judgment on the pleadings without prejudice and granted Plaintiff leave to

14

Id. at 5–6.

15

Id. at 6.

16

Rec. Doc. 1.

17

Rec. Doc. 4.

18

Rec. Doc. 5.

19

Rec. Doc. 12.

20

Rec. Doc. 31.

21

Rec. Doc. 45.

22

Rec. Doc. 110.

4

amend the complaint to address the deficiencies noted therein.23 Also on July 18, 2018, the Court
dismissed both CCS and Gusman’s motions for summary judgment without prejudice, with leave
to refile if necessary.24
On December 26, 2018, Plaintiff filed a second amended complaint.25 In the second
amended complaint, Plaintiff brings the following claims: (1) a wrongful death claim under 42
U.S.C. § 1983; (2) a survival claim under 42 U.S.C. § 1983; (3) a claim for deliberate indifference
under 42 U.S.C. § 1983; (4) a negligence claim under Louisiana law; and (5) an assault and battery
claim under Louisiana law.26
On January 9, 2019, CCS filed a motion to dismiss the second amended complaint.27 On
April 29, 2019, the Court granted the motion in part and dismissed the Section 1983 claims pending
against CCS.28 The Court denied the motion to the extent it sought dismissal of Plaintiff’s
negligence claims pending against CCS.29
On May 7, 2019, Gusman filed a second motion for judgment on the pleadings.30 On June
17, 2019, the Court denied the motion and granted Plaintiff leave to file an amended complaint to
include allegations regarding alleged aggravated assault and battery, which were raised in

23

Rec. Doc. 111.

24

Rec. Doc. 112.

25

Rec. Doc. 143.

26

Id. at 11–16.

27

Rec. Doc. 146.

28

Rec. Doc. 163 at 23.

29

Id.

30

Rec. Doc. 165.

5

opposition to the motion for judgment on the pleadings but not in the pleadings, and would not be
barred by the statute of limitations.31 On June 24, 2019, Plaintiff filed a third amended complaint.32
On June 4, 2019, City Defendants filed the instant motion for judgment on the pleadings
and for summary judgment.33 On June 7, 2019, Plaintiff filed an opposition to the motion.34 On
June 21, 2019, with leave of Court, City Defendants filed a reply brief in further support of the
motion.35
II. Parties’ Arguments
A.

City Defendants’ Arguments in Support of the Motion
In support of the motion to dismiss, Defendants argue that Plaintiff’s asserted claims against

City Defendants are based solely on the allegation that the City’s failure to properly fund the
Sherriff’s operation of OPP caused the Sheriff and CCS to hire the employees who allegedly
violated Decedent’s constitutional rights and caused his death.36 However, City Defendants assert
that these allegations do not state a plausible claim under 42 U.S.C. § 1983 or state tort law.37
Therefore, City Defendants assert that all of the claims pending against them should be
dismissed.38

31

Rec. Doc. 201.

32

Rec. Doc. 210.

33

Rec. Doc. 189.

34

Rec. Doc. 198.

35

Rec. Doc. 209.

36

Rec. Doc. 189-1 at 4.

37

Id.

38

Id.

6

First, City Defendants argue that Plaintiff has failed to state a claim under 42 U.S.C. § 1983
because Plaintiff has not identified a particular policy or custom of City Defendants that caused
the alleged constitutional deprivations.39 City Defendants assert that Plaintiff has not alleged when
the purported policy of underfunding went into effect or how long it lasted.40
Additionally, City Defendants contend that Plaintiff failed to adequately plead facts to
show a causal link between the City’s funding policies and the alleged violation of Decedent’s
constitutional rights.41 City Defendants argue that Plaintiff’s assertion that additional funding
would have led the Orleans Parish Sheriff’s Office (“OPSO”) and CCS to employ “more
competent personnel who would not have committed the acts alleged in th[e] complaint” is
speculative.42 City Defendants point out that Plaintiff alleges that the conduct at issue was
intentional, not that the incompetency of OPSO and CCS personnel was the reason for Decedent’s
allegedly inadequate treatment.43 Therefore, City Defendants argue that “Plaintiff has not plausibly
alleged that an unspecified amount of additional funding would have prevented the constitutional
violations allegedly committed by OPSO and CCS personnel.”44
Next, City Defendants argue that Plaintiff does not allege facts that establish deliberate
indifference by any City Defendant.45 City Defendants assert that Plaintiff has not made allegations

39

Id. at 8–9 (citing Monell v. Dept’t of Soc. Servs., 436 U.S. 658, 690–91 (1978)).

40

Id. at 8.

41

Id. at 9.

42

Id. at 10.

43

Id.

44

Id. at 11.

45

Id.

7

concerning the City Defendants’ awareness of particular risks of harm related to the funding of
OPP operations, and Plaintiff does not allege any facts which could have put the City, the City
Council, or Mayor Landrieu on notice of the risk associated with its alleged funding policy.46
Indeed, City Defendants point out that Plaintiff does not even allege facts showing that the City
Defendants knew the City’s funding was inadequate.47 Therefore, City Defendants argue that
Plaintiff’s conclusory allegation of deliberate indifference by all defendants is wholly insufficient
to state a claim against any one of the City Defendants.48 Accordingly, City Defendants assert that
the Section 1983 claims pending against them should be dismissed because Plaintiff has failed to
plead facts establishing any of the elements of a Section 1983 claim.49
Finally, City Defendants contend that Plaintiff has not stated a valid state law claim against
any of the City Defendants.50 City Defendants assert that the claims based on the alleged battery
are prescribed.51 Additionally, City Defendants argue that their duty to fund the jail is owed to the
Sheriff, not inmates, and Plaintiff has not alleged facts demonstrating that an alleged breach of a
duty caused Plaintiff damages.52
In the alternative, City Defendants assert that the Court should grant summary judgment
dismissing all claims pending against them.53 City Defendants argue that Plaintiff cannot present

46

Id. at 12.

47

Id.

48

Id.

49

Id.

50

Id.

51

Id.

52

Id.

53

Id. at 14.

8

any evidence establishing an element of her Section 1983 and state law negligence claims based
on the City’s alleged underfunding of OPP operations.54 In fact, City Defendants assert that from
2010 through 2016 the yearly funds provided to the Sheriff more than doubled from $23,013,071
to $51,102,831.55 Moreover, City Defendants argue that Plaintiff has not produced any evidence
that the funding was insufficient to support the operation of OPP.56 Accordingly, City Defendants
argue that they are entitled to summary judgment on all claims pending against them.57
B.

Plaintiff’s Arguments in Opposition to City Defendants’ Motion
In response to City Defendants’ motion, Plaintiff argues that the “complaint adequately

alleges the City Defendants’ liability due to underfunding jail operations.”58 Plaintiff asserts that
discovery has revealed that the Sheriff bills the City for operations, and the annual billing amounts
vary.59 Plaintiffs contends that “[i]t is entirely possible that the Sheriff ‘underbills’ for operations
because he knows what the City will and will not pay for.”60 Plaintiff argues that City Defendants
have not refuted this claim.61
Next, Plaintiff refutes City Defendants’ assertion that any claims related to the alleged
assault and battery have prescribed.62 Plaintiff asserts that the cause of the injury was continuous,

54

Id.

55

Id.

56

Id.

57

Id. at 15.

58

Rec. Doc. 198-1 at 3.

59

Id.

60

Id.

61

Id.

62

Id. at 4.

9

and the prescriptive period did not begin to run until the conduct causing the damages abated.63
Therefore, Plaintiff asserts that these claims have not prescribed.64
Finally, Plaintiff “objects to the summary judgment request that is attached to the Rule
12(c) motion.”65 Plaintiff argues that City Defendants “have not filed a separate document, have
not included a statement of undisputed facts or otherwise complied with Rule 56 or the local rules
relating to summary judgment.”66 Accordingly, Plaintiff asserts that the motion should be denied.67
C.

City Defendants’ Arguments in Further Support of the Motion
In reply, City Defendants argue that Plaintiff’s speculative claim that it is possible that the

Sheriff underbills for operations because he knows what the City will pay for cannot satisfy
Plaintiff’s obligation to plead a plausible basis for liability against the City Defendants. 68 City
Defendants assert that Plaintiff cannot survive judgment on the pleadings by asserting a mere
possibility, and Plaintiff has not alleged facts to show that City Defendants underfunded operations
of OPP.69 Additionally, City Defendants contend that Plaintiff has not alleged facts creating a
reasonable inference that Decedent’s alleged battery and lack of medical care was in any way
related to underfunding.70 Finally, City Defendants argue that Plaintiff has not presented any law
or argument to contravene City Defendants’ argument that Plaintiff cannot state a claim against

63

Id. at 4–5 (citing South Central Bell Telephone Co. v. Texaco Inc., 418 So. 2d 531, 533 (La. 1982)).

64

Id. at 5.

65

Id.

66

Id. at 5–6.

67

Id. at 6.

68

Rec. Doc. 209 at 1.

69

Id. at 2.

70

Id.

10

City Defendants because the state law obligating the City to fund OPP was not imposed to benefit
inmates.71 Accordingly, City Defendants argue that they are entitled to judgment on the
pleadings.72
Alternatively, City Defendants argue that they are entitled to summary judgment and have
properly asserted this motion in the same document as the motion for judgment on the pleadings.73
City Defendants note that they did file a statement of uncontested facts and complied with all of
requirements of Rule 56 of the Federal Rules of Civil Procedure.74 On the other hand, City
Defendants contend that Plaintiff has not opposed the motion for summary judgment, or submitted
a statement of facts.75 Furthermore, City Defendants assert that Plaintiff has not produced any
evidence to support her claims against City Defendants.76 Accordingly, City Defendants argue that
they are entitled to summary judgment dismissing all of Plaintiff’s claims pending against them.77
III. Legal Standard
A.

Legal Standard for Dismissal Under Federal Rule of Civil Procedure 12(c)
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.”78 “A motion
brought pursuant to [Rule] 12(c) is designed to dispose of cases where the material facts are not in

71

Id. at 2–3.

72

Id. at 3.

73

Id.

74

Id.

75

Id.

76

Id. at 4.

77

Id.

78

Fed. R. Civ. P. 12(c).

11

dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings
and any judicially noticed facts.”79 “The central issue is whether, in the light most favorable to the
plaintiff, the complaint states a valid claim for relief.”80 On a 12(c) motion, “[p]leadings should be
construed liberally,” and judgment is “appropriate only if there are no disputed issues of fact and
only questions of law remain.”81 Moreover, the Court “may dismiss a claim when it is clear that
the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”82 In
lieu of dismissal on a motion for judgement on the pleadings, a district court may grant a plaintiff
leave to amend the complaint.83 If, on a motion under Rule 12(b)(6) or Rule 12(c), matters outside
the pleadings are presented to and not excluded by the court, the motion should be treated as one
for summary judgment under Rule 56 and all parties must be given an opportunity to present all
the material that is pertinent to the motion.84
B.

Legal Standard for Summary Judgment Under Federal Rule of Civil Procedure 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.”85 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
79

Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (internal
citations omitted).
80

Id. (internal citations omitted).

81

Id. (internal citations omitted).

82

Id.

83

Dueling v. Devon Energy Corp., 623 F. App'x 127 (5th Cir. 2015).

84

Fed. R. Civ. P. 12(d).

85

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).

12

weighing the evidence.”86 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.”87
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of
law.88 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.89
The party seeking summary judgment always bears the initial responsibility of informing
the court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.90 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.91 To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts.92 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

86

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

87

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

88

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

89

See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

90

Celotex, 477 U.S. at 323.

91

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994).

92

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248–49 (1996)).

13

“unsubstantiated assertions,” or “by only a scintilla of evidence.”93 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence presented by the nonmovant is
sufficient to permit a reasonable trier of fact to find for the nonmoving party. 94
Further, a court “resolve[s] factual controversies in favor of the nonmoving party, but only
when there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.”95 Hearsay evidence and unsworn documents that cannot be presented in a
form that would be admissible in evidence at trial do not qualify as competent opposing evidence.96
Ultimately, summary judgment is appropriate in any case “where critical evidence is so weak or
tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.”97
C.

Municipal Liability Under Section 1983
42 U.S.C. § 1983 provides that every “person” who, under color of any statute, ordinance,

regulation, custom, or usage of any State subjects, or “causes to be subjected,” any person to the
deprivation of any federally protected rights, privileges, or immunities shall be civilly liable to the
injured party. With respect to a Section 1983 claim against an entity, no liability exists for
governmental entities based on vicarious liability or respondeat superior.98 However, the United
States Supreme Court held in Monell v. Department of Social Services of City of New York that
“when execution of a government’s policy or custom, whether made by its lawmakers or by those

93

Little, 37 F.3d at 1075.

94

Anderson, 477 U.S. at 248.

95

Little, 37 F.3d at 1075.

96

Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

97

Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993).

98

Monell, 436 U.S. at 694.

14

whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . the
government as an entity is responsible under § 1983.”99 Moreover, “[a] § 1983 plaintiff . . . may
be able to recover from a municipality without adducing evidence of an affirmative decision by
policymakers if able to prove that the challenged action was pursuant to a state ‘custom or
usage.’”100 In order to establish a Section 1983 claim against a municipality, the official policy
must be the cause and moving force of the constitutional violation.101 Additionally, the
“policymaker must have either actual or constructive knowledge of the alleged policy.”102
A pattern can be considered tantamount to an official policy if the pattern is “so common
and well-settled as to constitute a custom that fairly represents municipal policy.”103 The incidents
relied upon must have occurred prior to the alleged misconduct and “must have occurred for so
long or so frequently that the course of conduct warrants the attribution to the governing body of
knowledge that the objectionable conduct is the expected, accepted practice of city employees.”104
The prior incidents must point to the specific violation alleged in the case at bar.105
Finally, liability may also exist where the action of the policymaker violated a
constitutional right or the policymaker failed to act to control its agents when it was “so obvious,

99

436 U.S. 658, 694 (1978).

100

Pembaur v. City of Cincinnati, 475 U.S. 469, 484 (1986).

101

Monell, 436 U.S. at 694.

102

Cox v. City of Dallas, 430 F.3d 734, 748–49 (5th Cir. 2005) (citing Piotrowski v. City of Houston, 237
F.3d 567, 579 (5th Cir. 2001)).
103

Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009) (quoting Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
104

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc).

105

Peterson, 588 F.3d at 851 (citing Estate of Davis ex rel. McCully v. City of North Richland Hills, 406
F.3d 375, 383 (5th Cir.2005)).

15

and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights,
that the policymake[r] . . . can reasonably be said to have been deliberately indifferent to the
need.”106 Deliberate indifference of this sort is a stringent test, and “a showing of simple or even
heightened negligence will not suffice” to prove municipal culpability.107 The single incident
exception is a very narrow one that the Fifth Circuit has been reluctant to expand.108
D.

Negligence Under Louisiana Law
Plaintiff also asserts that City Defendants were negligent under Louisiana law. Article 2315

states, “Every act whatever of man that causes damage to another obliges him by whose fault it
happened to repair it,” and that “[d]amages may include loss of consortium, service, and society,
and shall be recoverable by the same respective categories of persons who would have had a cause
of action for wrongful death of an injured person.” Louisiana courts use the duty-risk analysis to
determine recovery under Article 2315.109 “For liability to attach under the duty-risk analysis, the
plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm or
damages, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the
defendant, and the risk of harm was within the scope of protection afforded by the duty
breached.”110

106

Piotrowski v. City of Houston, 237 F.3d 567, 571 (5th Cir. 2001) citing Bennett v. City of Slidell, 728
F.2d 762, 768 n. 3 (5th Cir. 1984).
107

Id. (citing Bryan County, 520 U.S. at 407).

108

See Pineda v. City of Houston, 291 F.3d 325, 334–35 (5th Cir. 2002) ("Charged to administer a regime
without respondeat superior, we necessarily have been wary of finding municipal liability on the basis of [the singleincident] exception for a failure to train claim.").
109

Brown v. City of Monroe, 48,764 (La. App. 2 Cir. 2/26/14); 135 So. 3d 792, 796 (citing Barrino v. East
Baton Rouge Parish School Bd., 96–1824 (La. App. 1 Cir. 06/20/97); 697 So. 2d 27)).
110

Dennis v. Wiley, 09–236 (La. App. 2 Cir. 9/11/09); 22 So. 2d 189 Hardy v. Bowie, 98–2821 (La. 9/8/99),
744 So.2d 606, 613.

16

E.

Assault and Battery Under Louisiana Law
The Louisiana Supreme Court has stated, “A harmful or offensive contact with a person,

resulting from an act intended to cause the plaintiff to suffer such a contact, is a battery.” 111 An
actor is subject to liability to another for assault if the actor intends to cause and does cause the
other to anticipate an imminent, and harmful or offensive contact with his or her person, and the
other does not effectively consent to the otherwise tortious conduct of the actor.112 Furthermore,
Louisiana courts have held that “a municipality is not liable for damages sustained by a third person
because of the torts committed by its police officers while discharging their official duties.”113
Specifically, in Brown v. City of Shreveport, the Second Circuit Court of Appeal of Louisiana held
that the City of Shreveport was not liable for a battery that took place against the plaintiff while
being held in the city jail allegedly caused in part by the negligence of the jailor and police
officers.114
IV. Analysis
Here, City Defendants have filed a motion to dismiss under 12(c), or in the alternative, a
motion for summary judgment.115 Plaintiff argues that City Defendants have not properly moved
for summary judgment because City Defendants “have not filed a separate document, have not
included a statement of undisputed facts or otherwise complied with Rule 56 or the local rules

111

Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987).

112

Restatement (Third) Torts: Inten. Torts To Persons § 105 (Am. Law. Inst. 2015).

113

Brown v. City of Shreveport, 129 So. 2d 540, 541 (La. Ct. App. 1961) (citing Martin v. Magee, 179 La.
913 (La. 1934); Rush v. Town of Farmerville, 156 La. 857 (La. 1924); Joliff v. City of Shreveport, 144 La. 62 (La.
1918); *542 Jones v. City of New Orleans, 143 La. 1073 (La. 1918); Taulli v. Gregory, 223 La. 195 (1953).
114

Id.

115

Rec. Doc. 52.

17

relating to summary judgment.”116 However, Plaintiff’s assertion is incorrect because City
Defendants did attach a statement of undisputed facts to the motion.117 Additionally, there is no
requirement that a motion for summary judgment be filed in a separate document from a motion
for judgment on the pleadings. City Defendants have presented evidence outside the pleadings,
namely the City’s 2018 Annual Operating Budget.118 Whenever the parties present evidence
outside the pleadings and treat a motion to dismiss as a motion for summary judgment, the
nonmovant is entitled to the procedural safeguards of Rule 56.119 Accordingly, the Court will treat
City Defendants’ motion as a motion for summary judgment under Rule 56.
All of Plaintiff’s claims against City Defendants arise out of their alleged underfunding of
OPP. Plaintiff claims that the City Defendants “owed the decedent a duty of care not to underfund
the jail.”120 Plaintiff alleges that if OPP had been adequately funded, “there would have been more
competent personnel who would not have committed the acts alleged in this complaint, to wit:
deputies subjecting inmates to unreasonable use of force, selecting, retaining and assigning
employees with demonstrated propensities toward physical force, violence and negligence, and
deputies assaulting and battering the decedent.”121

116

Rec. Doc. 198-1 at 5–6.

117

Rec. Doc. 189-2.

118

Rec. Doc. 189-3.

119

See Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990) (citing Isquith v. Middle South
Utilities, Inc., 847 F.2d 186, 195 (5th Cir. 1988), cert. denied, 488 U.S. 926 (1988) (procedural safeguards sufficient
where district court accepted for consideration matters outside the pleadings and the parties knew that the district court
could treat the motion to dismiss as a motion for summary judgment)).
120

Rec. Doc. 210 at 13.

121

Id.

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In the instant motion, City Defendants argue that Plaintiff cannot present any evidence
establishing that the City provided the Sheriff with inadequate funding to operate OPP, that the
funding policy caused any mistreatment to Decedent, or that City Defendants acted with deliberate
indifference to Decedent.122 In response, Plaintiff asserts that discovery has revealed that the
Sheriff bills the City for operations, and the annual billing amounts vary.123 Plaintiffs contends that
“[i]t is entirely possible that the Sheriff ‘underbills’ for operations because he knows what the City
will and will not pay for.”124
The undisputed evidence in the record establishes that from 2010 through 2016 the yearly
funds the City provided to the Sheriff more than doubled from $23,013,071 to $51,102,831.125
Decedent was housed in OPP from September 2015 through November 2015. Plaintiff has not
presented any evidence to show that OPP was in fact underfunded during that period. In fact,
Plaintiff does not even allege the amount of funding that she claims would have been sufficient.
Additionally, Plaintiff has not presented any evidence to show that any funding policy by a City
Defendant caused OPSO or CCS employees to mistreat Decedent or that City Defendants should
have known that its funding policy was likely to result in mistreatment of inmates.
With respect to the Section 1983 claims, Plaintiff asserts that City Defendants acted with
reckless disregard to the constitutional rights of Decedent and acted with deliberate indifference
to Decedent’s serious medical needs.126 However, City Defendants are a municipality and local

122

Rec. Doc. 189-1 at 14.

123

Rec. Doc. 198-1 at 3.

124

Id.

125

Rec. Doc. 189-3 at 71.

126

Rec. Doc. 210 at 9–11.

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government officials. Plaintiff does not present any evidence that City Defendants were personally
involved in the alleged deprivation of Decedent and Plaintiff’s constitutional rights. Additionally,
Plaintiff does not point to any evidence showing that any policies, practices, or customs of City
Defendants resulted in a violation of Decedent’s constitutional rights, or how any such policies,
practices, or customs constituted the “moving force” of the violation. Therefore, there are no issues
of material fact in dispute and City Defendants are entitled to judgment as a matter of law on
Plaintiff’s Section 1983 claims.
As to the state law negligence claim, Plaintiff asserts that City Defendants “breached their
duty of care by not providing adequate medical assistance to [Decedent’s] severe chronic medical
problem.”127 Even assuming that City Defendants owed Decedent and Plaintiff a duty to
adequately fund OPP, Plaintiff has not presented any evidence showing that OPP was in fact
underfunded or that any alleged underfunding caused Plaintiff damages. Therefore, there are no
issues of material fact in dispute and City Defendants are entitled to judgment as a matter of law
on Plaintiff’s negligence claim.
Last, Plaintiff asserts that Defendants are liable for assault and battery against Decedent.
Plaintiff does not present any evidence to show that any of the City Defendants made harmful or
offensive contact with Decedent or intended and caused Decedent to anticipate harmful or
offensive contact. Additionally, Plaintiff has not presented any evidence to show that underfunding
of the jail caused the alleged assault and battery. Therefore, there are no issues of material fact in
dispute and City Defendants are entitled to judgment as a matter of law on Plaintiff’s assault and
battery claim.

127

Rec. Doc. 143 at 15.

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V. Conclusion
Based on the foregoing, the Court finds that there are no genuine issues of material fact in
dispute and City Defendants are entitled to judgment as a matter of law. Accordingly,
IT IS HEREBY ORDERED that City Defendant’s “Motion for Judgment on the
Pleadings and for Summary Judgment”128 is GRANTED.
NEW ORLEANS, LOUISIANA, this 23rd day of July, 2019.
____

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT JUDGE

128

Rec. Doc. 189.

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