Badeaux v. Hurricane Hole Management, LLC, et al

Filing 70

ORDER: IT IS ORDERED that the 60 motion for summary judgment is GRANTED and plaintiff's claims against defendants Town of Grand Isle, Grand Isle Police Department, and Euris Dubois be dismissed. IT IS FURTHER ORDERED that plaintiff's claims against Officer John Doe 1 and Officer John Doe 2 are DISMISSED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 12/10/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RALPH BADEAUX

CIVIL ACTION

VERSUS

NO. 17-4984

HURRICANE HOLE MANAGEMENT, LLC, ET AL.

SECTION “B”(5)

ORDER
NATURE OF THE MOTION AND RELIEF SOUGHT
Defendants Town of Grand Isle, Grand Isle Police Department,
and Euris Dubois filed a motion for summary judgment in their favor
and the dismissal of plaintiff’s claims against them.1 Rec. Doc.
60. Plaintiff filed an untimely partial response. Rec. Doc. 64.
For the reasons discussed below,
IT

IS

ORDERED

that

the

motion

for

summary

judgment

is

GRANTED and plaintiff’s claims against defendants Town of Grand
Isle,

Grand

Isle

Police

Department,

and

Euris

Dubois

be

dismissed.
IT IS FURTHER ORDERED that plaintiff’s claims against Officer
John Doe 1 and Officer John Doe 2 are DISMISSED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed a complaint against defendants, alleging
excessive

force

in

violation

of

the

Fourth

and

Fourteenth

amendments. Rec. Doc. 1. Plaintiff alleges that he was attacked
and beaten by the Superintendent of the Hurricane Hole and a group
Defendant Hurricane Hole Management, LLC filed a separate motion for summary
judgment (Rec. Doc. 61), which is considered in a separate order.
1

1

of five unidentified males, outside of the Hurricane Hole in Grand
Isle, Louisiana where he was conducting a waste pickup for his
employer, Pelican Waste Disposal on May 18, 2016. Rec. Doc. 1 at
4. Plaintiff asserts two police officers then arrived and joined
in on the assault, and that Officer John Doe 1 pointed a firearm
at

him

during

the

assault.

Id.

at

6.

Plaintiff

claims

that

defendants were acting pursuant to the custom and practice of the
Defendant

City,

Defendant

Chief

and

police

department

in

permitting officers to use excessive force against individuals.
Id. at 8. Plaintiff asserts that defendants violated 42 U.S.C. §
1983 by depriving him of his Fourth and Fourteenth amendment rights
under color of law. Id. at 9. Defendants filed an answer denying
plaintiff’s claims and providing affirmative defenses. Rec. Docs.
28, 39.
Defendants

filed

the

instant

summary

judgment

motion

asserting that plaintiff failed to state a claim for which relief
may be granted because plaintiff cannot identify an individual who
has caused him actionable harm. Rec. Doc. 60 at 1. Defendants also
argue that plaintiff has failed to establish a valid Monell claim
for municipal liability and that Euris Dubois is entitled to the
protections of qualified immunity. Id. Plaintiff filed an untimely
partial

response

opposing

the

portion

of

defendants’

summary

judgment motion that seeks relief on behalf of the Officer John
Doe defendants, stating that defendants do not represent the Doe
2

defendants and therefore a summary judgment motion is not the
proper procedure to seek relief on their behalf. Rec. Doc. 64.
PARTIES’ CONTENTIONS
Defendants Town of Grand Isle, Grand Isle Police Department,
and Euris Dubois assert that plaintiff cannot prove that they are
liable to him for any violations of his constitutional rights as
there is no evidence that a fight took place on the day identified
by plaintiff, that plaintiff was injured on that day, or that Euris
Dubois or any employee of Grand Isle participated in any fight
with plaintiff. Rec. Doc. 60-1 at 3. Defendants also state that
the Grand Isle Police Department is not a legal entity capable of
being sued and therefore claims against it are impossible as a
matter of law and should be dismissed. Id. at 4. Additionally,
defendant Euris Dubois, chief of the Grand Isle police department,
asserts that he is entitled to the protections of qualified
immunity and claims against him must be dismissed. Id. at 5.
Plaintiff’s untimely partial response opposes the portion of
defendants’ motion that seeks to dismiss claims on behalf of the
John Doe officers. Plaintiff argues that defendants have no right
to seek relief on behalf of the Doe defendants and that the naming
of

fictitious

defendants

is

jurisprudence. Rec. Doc. 64.
LAW AND ANALYSIS

3

not

sanctioned

by

federal

Summary

judgment

is

appropriate

when

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When

the

movant

bears

the

burden

of

proof,

it

must

“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
The Fifth Circuit has held that it is not a district court’s
duty to sift through the record and find evidence to support a
party’s opposition to summary judgment. “A failure on the part of
the nonmoving party to offer proof concerning an essential element
4

of its case necessarily renders all other facts immaterial and
mandates a finding that no genuine issue of fact exists.” Adams v.
Travelers Indem. Co. of Connecticut, 465 F.3d 156, 164 (5th Cir.
2006).

Therefore,

when

a

plaintiff

fails

to

respond

to

a

defendant’s motion for summary judgment, “the inquiry must be
whether the facts presented by the defendants create an appropriate
basis to enter summary judgment against plaintiff.” Id.
A. Grand Isle Police Department is not a juridical entity
capable of being sued
Under Louisiana law, police departments are not juridical
entities capable of suing or being sued. See La. R.S. 33:361;
Winding v. City of New Orleans, No. 14-2460, 2015 WL 222365, at *5
(E.D. La. Jan. 14, 2015); Burns v. Westwego Police Dep't, No. 142242, 2014 WL 7185449, at *2 (E.D. La. Dec. 16, 2014); Martin v.
Davis, No. 06-1770, 2007 WL 763653, at *2 (E.D. La. Mar. 8, 2007).
Therefore, as defendants note, plaintiff’s claims against the
Grand Isle Police Department must be dismissed.
B. Fictitious

defendants

have

not

been

identified

and

therefore are dismissed
Plaintiff

has

not

identified

and

served

the

fictitious

defendants, therefore claims against them should be dismissed.
Defendants argue that there is no provision in the federal statutes
or federal rules of civil procedure for use of fictitious parties.
However,

as

plaintiff’s

correctly
5

note,

the

cases

defendants

primarily
considering

rely
a

on

concern

fictitious

specifically

parties’

the

citizenship

prohibition
in

on

determining

whether diversity jurisdiction exist and are not applicable here.
Fictitious defendants “are routinely used as stand-ins for real
parties until discovery permits the intended defendants to be
installed.” Richard v. City of Harahan, 6 F. Supp. 2d 565, 575
(E.D. La. 1998) (quoting Scheetz v. Morning Call, Inc., 130 F.R.D.
34, 36 (E.D.Pa.1990), aff'd, 946 F.2d 202 (3d Cir.1991)); see also,
Jones v. St. Tammany Par. Jail, 4 F. Supp. 2d 606, 610 (E.D. La.
1998). However, if, after discovery, the plaintiff is still unable
to name the fictitious defendant the claims should be dismissed.
Id. This case was filed in May 2017, and after over a year and a
half plaintiff has still not named the fictitious defendants.
Plaintiff’s assert that a summary judgment motion is not the
correct vehicle for bringing claims on behalf of a fictitious
defendant. However, Fed. R. Civ. P. Rule 4(m) allows the court to
dismiss a party which has not been served within 120 days of filing
the complaint. Additionally, Rule 21 of the Federal Rules of Civil
Procedure allows the court to drop parties on “its own initiative
at any stage of the action and on such terms as are just,” and
courts in this district have used this rule to dismiss claims
against

fictitious

defendants

who

have

not

been

named

after

discovery was conducted. See Richard v. City of Harahan, 6 F. Supp.
2d 565 (E.D. La. 1998); Jones v. St. Tammany Par. Jail, 4 F. Supp.
6

2d 606 (E.D. La. 1998). The court-ordered discovery deadline passed
on November 21, 2018 (Rec. Doc. 43) and plaintiff has still not
identified

the

fictitious

defendants.

Therefore,

the

claims

against fictitious defendants Officer John Doe 1 and Officer John
Doe 2 are dismissed.
C. Plaintiff provides no evidence in support of his claims
Plaintiff provides no evidence in support of his claim that
defendants

assaulted

him

and

caused

him

to

sustain

physical

injuries or to support a viable Monell claim. Plaintiff bears the
burden of proof at trial, and therefore, as noted above, defendants
“may merely point to an absence of evidence.” Lindsey v. Sears
Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Plaintiff must
show by “competent summary judgment evidence” that there is a
genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618. In this case, plaintiff has provided no evidence to
show that there is a genuine issue of material fact. His untimely
partial response to the instant motion only discusses whether
fictitious defendants may be dismissed in a summary judgment motion
but provides no evidence in support of his claims. Rec. Doc. 64.
Plaintiff

provides

no

affidavits,

depositions,

or

any

other

summary judgment evidence in support of his claims or to dispute
defendants’ assertions. Furthermore, Local Rule 56.2 states that
“all material facts in the moving party’s statement will be deemed
7

admitted, for the purposes of the motion, unless controverted in
the opponent’s statement.” Plaintiff has not disputed the material
facts in defendants’ motion and therefore they are deemed admitted.
Defendants

statement

of

material

facts

states

that

plaintiff

cannot identify anyone involved in the fight who caused him harm
or any employee of Grand Isle who was present and took part in the
beating. Rec. Doc. 60-2 at 2-3. Additionally, as defendants note,
to

hold

a

municipality

liable,

plaintiff

must

prove

that

a

municipal officer or employee of Grand Isle violated plaintiff’s
constitutional rights and that these acts were an official policy
of the city. Rec. Doc. 60-1 at 10-11 (citing Monell v. New York
City Depart. of Social Services, 436 U.S. 658 (1978)). To defeat
defendant’s summary judgment motion, plaintiff “must go beyond the
pleadings and designate specific facts that prove that a genuine
issue of material fact exists.” Peterson v. Brookshire Grocery
Co., 2018 WL 5920410, at *2 (5th Cir. 2018). Plaintiff has provided
no specific facts in support of his assertion that defendants were
involved in a fight with him, that his constitutional rights were
violated

by

a

municipal

employee,

or

that

the

alleged

constitutional violations are an official policy of the city.
Therefore, plaintiff has not met his burden of showing that there
is a genuine issue of material fact. Since the discovery deadline
set by the Court has passed (Rec. Doc. 43), summary judgment in
favor of defendants is proper. Because this Court finds that
8

defendants have met their burden for summary judgment, it is not
necessary to consider Euris Dubois’ qualified immunity claim.
D. Plaintiff does not prove the necessary element of damages
Plaintiff has not provided evidence that he sustained damages
attributable to defendants. Defendants provide medical records
showing that plaintiff informed his doctors that the pain in his
neck was caused by a fall in the tub. Rec. Doc. 60-1 at 12.
Defendant Euris Dubois’ affidavit and Laine Landry’s affidavit
further show that no report of a fight was ever made to the Grand
Isle Police Department. Rec. Docs. 60-3, 60-4. Plaintiff provides
no alternative evidence to demonstrate that his injuries may be
attributable to defendants. Therefore, the evidence would not
allow a reasonable jury to return a verdict for plaintiff and
summary judgment in favor of defendants is proper. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
New Orleans, Louisiana, this 10th day of December, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

9