Terrell v. Pichon et al

Filing 87

ORDER AND REASONS GRANTING 29 Motion for Summary Judgment. Signed by Judge Wendy B Vitter on 9/11/2019. (jeg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ZACHARY TERRELL

CIVIL ACTION

VERSUS

NO. 18-5787

TROY PICHON, IN HIS INDIVIDUAL
CAPACITY, ET AL.

SECTION D(5)

ORDER AND REASONS
Before the Court is Defendants’ Motion for Summary Judgment (R. Doc. 29),
Plaintiff’s Response in Opposition (R. Doc. 50), and Defendants’ Reply (R. Doc. 53).
After careful consideration of the parties’ memoranda and the applicable law, the
Court GRANTS Defendant’s Motion (R. Doc. 29) and DISMISSES WITH
PREJUDICE all of Plaintiff’s claims.
Background
This is an excessive force case. On the evening of June 17, 2017, Zachary
Terrell allegedly interacted with a friend, standing outside on St. Peter Street
between Burgundy and Dauphine in French Quarter.1 Terrell states that he and his
friend were making plans for the evening, which included Terrell briefly borrowing a

1

R. Doc. 7, p. 4, ¶ 14.

bicycle from his friend to stop by his brother’s house in the nearby Sixth Ward before
getting drinks together at the house when he returned.2 Terrell states that he placed
earphones in his ears and started to bicycle up St. Peter toward Burgundy.3 That
night, Louisiana State Police Troopers Pichon and Roach were on duty. 4 After
observing the interaction between Plaintiff Terrell and his friend, Trooper Pichon
believed he was witnessing a hand-to-hand narcotics transaction.5 The State
Troopers circled the block in their vehicle and approached the two individuals.6
Terrell submits that Trooper Pichon stated in an arrest report that as the State
Troopers approached in the vehicle the second time, Terrell began to ride the bicycle
up the street and that Trooper Pichon gave an order to stop.7 Terrell states that “on
his bicycle with his earphones on in the French Quarter on a Saturday night, [he] did
not hear any order to stop.”8 Trooper Pichon chased after Terrell and tased Terrell in
his lower back.9 Terrell subsequently fell off the bicycle.10 Terrell states that
After he was taken off the bicycle, TERRELL was incapacitated and
lying on the ground. Despite this lack of resistance, PICHON kicked
TERRELL in the head and stomped TERRELL in the face. PICHON
kneed TERRELL in the back while the latter was on the ground. After
TERRELL was handcuffed, PICHON dragged TERRELL across the
asphalt to the sidewalk of Burgundy Street.

Id.
Id. at ¶ 15.
4 R. Doc. 7, p. 5, ¶ 16.
5 Id. at ¶ 19.
6 Id. at ¶ 20.
7 R. Doc. 7, pp. 5-6, ¶¶ 22-23.
8 R. Doc. 7, p. 6, ¶ 24.
9 Id. at ¶¶ 28-29.
10 Id. at ¶ 30.
2
3

R. Doc. 7, p. 7, ¶ 35. Terrell contends that he received extensive injuries as a result
of the arrest encounter, such that he required transport from the scene to the
University Medical Center via ambulance.11 Trooper Pichon alleges that Terrell saw
Trooper Pichon running after him, attempted to ride his bicycle faster, and ignored
Trooper Pichon’s commands to stop the bicycle.12 The case report submitted by
Trooper Pichon shows that a search incident to arrest revealed that Terrell was in
possession of seventeen (17) individually wrapped bags of heroin, twenty-one (21)
Tramadol pills, and $113 in currency.13 Terrell was arraigned in the Orleans Parish
Criminal District Court on July 21, 201914 and subsequently pled guilty to one count
of possession of heroin in violation of LA. REV. STAT. §40:966(C)(1); one count of
possession with intent to distribute Tramadol in violation of LA. REV. STAT. §
40:969(B); and one count of resisting an officer in violation of LA. REV. STAT. §
14:108.15
After the event, Terrell alleges that he experienced anxiety, sleeplessness,
nightmares, intrusive negative thoughts, and an increased distrust of law
enforcement and custody staff.16 Terrell filed suit against Troopers Pichon and Roach,
the two arresting State Troopers, as well as Lieutenant Derrell Williams and Captain
Darrin Naquin, State Trooper supervisors. In his Amended Complaint, Terrell alleges
claims for constitutional violations, including excessive force; supervisory liability of

R. Doc. 7, pp. 7-8, ¶¶ 39-40.
R. Doc. 29-1, p. 4, citing R. Doc. 29-2, pp. 39, 43.
13 See R. Doc. 29-4.
14 R. Doc. 29-6, p. 4.
15 R. Doc. 29-6, pp. 4, 6.
16 R. Doc. 7, p. 8, ¶ 42.
11
12

Lieutenant Derrell Williams and Captain Darrin Naquin over subordinates, namely
Troopers Pichon and Roach; claims against Trooper Roach for failing to intervene;
and state law claims against all defendants.17 Terrell later dismissed with prejudice
all claims against Trooper Roach.18
Legal Standard
Summary judgment is proper if a party shows that there is no genuine dispute
as to any material fact and that he is entitled to judgment as a matter of law.19 If the
movant shows the absence of a dispute material fact, non-movant “must go beyond
the pleadings and designate specific facts showing that there is a genuine issue for
trial.”20 The Court views facts and draws reasonable inferences in the non-movant’s
favor.21 The Court neither assesses credibility nor weighs evidence at the summary
judgment stage.22
42 U.S.C. § 1983 provides a remedy for plaintiffs who have suffered abuses at
the hand of an official acting under the color of law.23 It is an alternative method of
protection in federal court when an administrator of state law fails to provide the
protections granted by the Fourteenth Amendment.24

See R. Doc. 7.
See R. Doc. 34.
19 FED. R. CIV. P. 56(a).
20 McCarthy v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017).
21 Vann v. City of Southaven, Miss., 884 F.3d 307, 309 (5th Cir. 2018).
22 Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012).
23 Singleton v. Champagne, 2019 WL 917728, at *3 (E.D. La. Feb. 25, 2019) (internal citation omitted).
24 Id.
17
18

Analysis
Defendants contend that Heck v. Humphrey, 512 U.S. 477 (1994), bars Terrell’s
§ 1983 claims. In Heck, an inmate brought a § 1983 action against county prosecutors
and a state police investigator, alleging that his conviction violated his constitutional
rights.25 In Heck, the Supreme Court held that to recover damages for an 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.26
In Arnold v. Town of Slaughter, the Fifth Circuit states that Heck does not act
as a bar to all excessive force claims.27
By proving an excessive force claim, a plaintiff will not invariably
invalidate his conviction. See Hudson v. Hughes, 98 F.3d 868, 873 (5th
Cir. 1996). Other circuits have emphasized the conceptual difference
between an excessive force claim and a challenge to a conviction. Both
the Ninth and Third Circuits have indicated that an excessive force
claim would not necessarily challenge a plaintiff's conviction for assault
during a stop. Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997);
Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996).

512 U.S. 477 (1994).
Id. at 486-87.
27 100 Fed. App’x 321, 323 (5th Cir. 2004).
25
26

Id. The court went on to discuss how certain convictions prevent a plaintiff from
bringing an excessive force claim and provided aggravated assault on a police officer
as an example.28 Whether Heck bars a § 1983 plaintiff from bringing a claim “depends
on the nature of the offense and of the claim.”29
In Arnold, the Fifth Circuit found that the Plaintiff Arnold’s excessive force
claim violated Heck.30 Sidney Arnold (“Arnold”) was convicted of resisting an officer.31
However, Arnold contended that he did nothing wrong to provoke the officer’s
actions.32 Arnold’s complaint did not state that he made any threats or initiated any
physical confrontation.33 During his deposition, he testified that he never attempted
to strike any of the officers, never threatened any of them and, in fact, never resisted
their attempts to arrest him:34
Thus, Arnold's claims are not that the police used excessive force after
he stopped resisting arrest or even that the officers used excessive and
unreasonable force to stop his resistance. Instead, Arnold claims that he
did nothing wrong, but was viciously attacked for no reason. He provides
no alternative pleading or theory of recovery.
Id. If a finding of liability would necessarily imply the invalidity of a plaintiff’s
criminal conviction for resisting arrest, his § 1983 claim is barred by Heck.

Id., citing Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000); Sapping v. Bartee, 195 F.3d 234,
237 (5th Cir. 1999).
29 Arnold, 100 Fed. App’x at 323.
30 Id. at 325.
31 Id. at 324.
32 Id.
33 Id.
34 Id.
28

In the case at hand, Terrell pled guilty35 to resisting an officer in violation of
LA. REV. STAT. § 14:108, which provides that
A. Resisting an officer is the intentional interference with, opposition
or resistance to, or obstruction of an individual acting in his official
capacity and authorized by law to make a lawful arrest, lawful
detention, or seizure of property or to serve any lawful process or court
order when the offender knows or has reason to know that the person
arresting, detaining, seizing property, or serving process is acting in his
official capacity.
B. (1) The phrase “obstruction of” as used herein shall, in addition to its
common meaning, signification, and connotation mean the following:
(a) Flight by one sought to be arrested before the arresting officer can
restrain him and after notice is given that he is under arrest.
(b) Any violence toward or any resistance or opposition to the
arresting officer after the arrested party is actually placed under arrest
and before he is incarcerated in jail.

Id. Further, in his deposition, Terrell states that he did not see a State Police vehicle
drive past him, he didn’t see a State Police vehicle behind him when he was biking,
he didn’t hear anyone behind him telling him to stop, and he didn’t hear anyone
running behind him.36 He states,
I don’t know what I did to resist. How can I know I’m resisting if I’m not
aware that they’re behind me, you know what I mean? So I don’t know
what my action – you know, what I did to constitute as resisting if I’m
not aware I’m being chased, you know what I mean?

35
36

R. Doc. 29-6, pp. 4, 6.
See R. Doc. 29-7, pp. 31-32.

R. Doc. 29-7, p. 60. In his Amended Complaint, Terrell states that Trooper Roach
observed that Terrell was not resisting Trooper Pichon.37 He also alleges that he “was
offering no resistance to any stop or arrest.”38 Terrell clearly and repeatedly denies
resisting arrest, contradicting his criminal conviction of resisting arrest.39
Defendants contend that Terrell’s allegations and testimony challenge every
factual element of the crime of resisting arrest: “Terrell denies ever even seeing a
police officer until after Pichon deployed his Taser. Success on the merits of his claims
will depend on the jury finding facts which contradict his conviction.”40 Terrell argues
that “the simple fact of resisting an officer does not foreclose the excessive force
analysis or require the establishment of a fact that is inherently inconsistent with
the underlying criminal conviction.”41 He argues that a jury can find excessive force
in this case without disturbing any element of the underlying criminal conviction.42
However, the plaintiff’s broad claims of innocence as to the entire encounter
contradict that contention. The Court finds that the case at hand is factually similar
to Arnold in that respect.
In Diagre v. City of Waveland, Miss., the Fifth Circuit reviewed the district
court’s conclusion that the plaintiff’s excessive force claim was barred under Heck
“because it was not separable from the facts resulting in her conviction for resisting

See R. Doc. 7, p. 7, ¶ 36.
R. Doc. 7, p. 21, ¶ 84.
39 See R. Doc. 29-7, pp. 31-32; R. Doc. 7, p. 21, ¶ 84; R. Doc. 7, p. 7, ¶ 36.
40 R. Doc. 29-1, p. 10.
41 R. Doc. 50, p. 8.
42 R. Doc. 50, p. 9.
37
38

arrest.”43 The court concluded that Plaintiff Dawn Daigre’s excessive force claim was
barred because she maintained her innocence, thus contradicting her criminal
conviction for resisting arrest.44 The court cited as support its decision in DeLeon v.
City of Corpus Christi, 488 F.3d 649 (5th Cir. 2007), in which the Fifth Circuit held
that the plaintiff’s excessive force claims were barred by Heck because the complaint
described a single violent encounter in which the plaintiff claimed he was an innocent
participant and necessarily challenged his aggravated-assault conviction.45
Terrell cites Bush v. Strain, 513 F.3d 492 (5th Cir. 2008), as support for the
argument that “no material allegation in Terrell’s excessive force claim is ‘necessarily
inconsistent with the validity of the conviction.’”46 In Bush, the Fifth Circuit found
that Plaintiff Holly Bush’s excessive force claims were not barred because although
her complaint stated that she did not resist arrest, “when the phrase was read in
context, it was clear that she was referring to conduct that occurred after she was
restrained.”47 The court held that Plaintiff Holly Bush’s excessive force claim was
conceptually distinct from the facts underlying her criminal conviction and thus not
barred by Heck.48 It is true that Heck does not bar all claims for excessive force,
however, in the case before us, Terrell maintains a position of innocence from
resisting arrest both before his arrest as well as after his arrest in his complaint and

549 Fed. App’x 283, 285 (5th Cir. 2013).
Daigre, 549 Fed. App’x at 286.
45 Id.
46 R. Doc. 50, p. 9.
47 Daigre, 549 Fed. App’x at 286 (discussing Bush v. Strain, 513 F.3d 492, 499 (5th Cir. 2008)).
48 Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008).
43
44

deposition testimony.49 Terrell’s claims are not that the police used excessive force
after he stopped resisting arrest or even that the officers used excessive and
unreasonable force to stop his resistance.50 Instead, Terrell makes broad claims of
innocence relating to the entire arrest encounter and not merely a discrete part of
it.51 Therefore, Terrell’s excessive force claims are Heck-barred.
A. Failure to Train and Supervise
Terrell alleges that Defendants Darrin Naquin and Derrell Williams failed to
supervise and train Trooper Pichon.52 In order for failure to supervise and train
claims to survive summary judgment, the “plaintiff is required to create a dispute of
fact that (1) the supervisor either failed to supervise or train the subordinate officer;
(2) a causal link exists between the failure to train or supervise and the violation of
the plaintiff’s rights[;] and (3) the failure to train or supervise amounts to deliberate
indifference.”53 In the case at hand, Terrell is unable to survive summary judgment
on his excessive force claim. Therefore, Terrell cannot establish a violation of his
constitutional rights. It logically follows that he cannot show a causal link between
State Trooper Supervisors’ failure to supervise or train and a violation of Terrell’s
rights, as described in the second prong. Thus, Terrell’s supervisory liability claims
against necessarily fail without an underlying constitutional violation.54

See R. Doc. 29-7, pp. 31-32; R. Doc. 7, p. 21, ¶ 84; R. Doc. 7, p. 7, ¶ 36.
Arnold v. Town of Slaughter, 100 Fed. App’x 321, 324 (5th Cir. 2004). See R. Doc. 7.
51 See Daigre v. City of Waveland, Miss., 549 Fed. App’x 283, 287 (5th Cir. 2013) (citing Bush v. Strain,
513 F.3d 499 (5th Cir. 2008); R. Doc. 29-7, pp. 31-32; R. Doc. 7, p. 21, ¶ 84; R. Doc. 7, p. 7, ¶ 36.
52 R. Doc. 7, pp. 20-21.
53 Davidson v. City of Stafford, Tex., 848 F.3d 384, 397 (5th Cir. 2017).
54 Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013).
49
50

B. Qualified Immunity
The Court finds it unnecessary to decide the issue of qualified immunity as it finds
that Plaintiff’s claims are barred by Heck and its progeny. The Court notes,
however, that “'use of excessive force' is an area of law in which the result depends
on the facts of each case, and the police officers are entitled to qualified immunity
unless existing precedent “squarely governs” the specific facts of the case."55
C. State Law Claims
Terrell alleges that “Defendant PICHON, assisted by ROACH, assaulted and
battered TERRELL without cause or justification.”56 Under Louisiana law, a battery
is “harmful or offensive conduct with a person, resulting from an act intended to cause
the plaintiff to suffer such a contact.”57 Assault is the imminent threat of a battery.58
Excessive force transforms ordinarily protected force into an actionable battery. 59
Defendants contend that in the absence of any viable use of excessive force by Trooper
Pichon under § 1983, the Louisiana tort claims for assault and battery must also be
dismissed. The Court agrees. Terrell also claims that Trooper Pichon acted
intentionally, maliciously, recklessly, and/or negligently toward Terrell. For the
reasons stated above, the Court dismisses Terrell’s state law claims against Trooper
Pichon.

Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018).
R. Doc. 7, p. 22, ¶ 88.
57 Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987).
58 Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1135 (5th Cir. 2014) (internal citation omitted).
59 Id.
55
56

Regarding respondeat superior and negligent retention claims for any torts
committed by Trooper Pichon, as asserted by Terrell,60 these claims are also
dismissed as they necessarily rely on underlying state law claims against Trooper
Pichon. Further, in order for Darrin Naquin or Derrell Williams to be liable under
the doctrine of respondeat superior, they must be “masters” or “employers.”61
Negligent retention as a theory of liability is generally alleged against employers.62
Terrell contends that in assessing pendant state law claims, the Fifth Circuit holds
that if officers use unreasonable or excessive force, they and their employer are liable
for any injuries that result.63 Defendants state that the “employer” of Trooper Pichon
is the State of Louisiana and the Louisiana State Police.64 Defendants maintain that
neither Darrin Naquin nor Derrell Williams is an “employer” such that liability may
be vicariously imputed to either of them.65 The Court finds merit in that argument.

R. Doc. 7, p. 23, ¶¶ 91-92. For law on these claims, see LA. CIV. CODE art. 2320; Cote v. City of
Shreveport, 73 So. 3d 435 (La. App. 2 Cir. 2011); Kelley v. Dyson, 10 So. 3d 283 (5th Cir. 2009); Olmeda
v. Cameron Intern. Corp., 139 F. Supp. 3d 816 (E.D. La. 2015); Griffin v. Kmart Corp., 776 So. 2d 1226
(5th Cir. 2000).
61 LA. CIV. CODE art. 2320 (“Masters and employers are answerable for the damage occasioned by their
servants and overseers, in the exercise of the functions in which they are employed. Teachers and
artisans are answerable for the damage caused by their scholars or apprentices, while under their
superintendence. In the above cases, responsibility only attaches, when the masters or employers,
teachers and artisans, might have prevented the act which caused the damage, and have not done it.
The master is answerable for the offenses and quasi-offenses committed by his servants, according to
the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.”).
62 See e.g. Cote v. City of Shreveport, 73 So. 3d 435 (La. App. 2 Cir. 2011); Kelley v. Dyson, 10 So. 3d
283 (5th Cir. 2009); Olmeda v. Cameron Intern. Corp., 139 F. Supp. 3d 816 (E.D. La. 2015); Griffin v.
Kmart Corp., 776 So. 2d 1226 (5th Cir. 2000).
63 R. Doc. 50, p. 34.
64 R. Doc. 29-1, p. 22.
65 Id.
60

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment
(R. Doc. 29) is GRANTED. A Final Judgment dismissing with prejudice Plaintiff’s
claims will follow.
New Orleans, Louisiana, this the 11th day of September, 2019.
______________________________________
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE