Chrissoverges v. New Orleans City et al

Filing 62

ORDER AND REASONS:IT IS ORDERED that the 39 motion for judgment on the pleadings and 39 motion for summary judgment are DENIED without prejudice to reurge, as set forth herein. Signed by Judge Ivan L.R. Lemelle on 6/3/2021. (pp)

UNITED STATES DISTRICT
COURT EASTERN DISTRICT OF
LOUISIANA
MARK CHRISSOVERGES

CIVIL ACTION

VERSUS

NO. 20-1489

CITY OF NEW ORLEANS

SECTION “B” (3)
ORDER AND REASONS

Before the Court are defendant City of New Orleans’s motion
for judgment on the pleadings and motion for summary judgment,
Rec. Doc. 39, plaintiff Mark Chrissoverges’s opposition, Rec. Doc.
44, and defendant’s reply, Rec. Doc. 48.
For the reasons discussed below,
IT IS ORDERED that the motion for judgment on the pleadings
and motion for summary judgment are DENIED without prejudice to
reurge.
I.

FACTS AND PROCEDURAL HISTORY
The New Orleans Public Safety Explorer program “give youth

between the ages of 12-18 an opportunity to explore the fields
of law enforcement” through hands-on experience. Policy 1048
Public Safety Explorers, New Orleans Police Department Policy
Manual at 610. Plaintiff Mark Chrissoverges was sixteen years
old when he joined the Explorers in 1982. Rec. Doc. 20 at 6. Lt.
Donald Moore, now deceased, was in charge of the Explorers
program at that time. Id. Plaintiff alleges he suffered from
1

dissociative amnesia stemming from Moore’s sexual abuse while he
was in the Explorers program. Id. at 9. His recollection of
memories was triggered in July of 2019 after seeing an image of
defendant Stanley Burkhardt, a former NOPD detective who
interviewed plaintiff during the criminal investigation of
Moore, appear on his television screen. Id. NOPD opened an
investigation into Moore after plaintiff told a friend about his
abuse and the friend reported it to the police. Id. at 10.
Burkhardt has since been convicted of several crimes
related to possession of child pornography and child molestation
and has been in and out of prison since 1987. It appears from a
review of court records and the Federal Bureau of Prisons Inmate
Locator that Burkhardt most recently failed to comply with the
conditions of his conditional release and is currently
imprisoned at FCI Butner Medium I in Butner, North Carolina. See
United States v. Burkhardt, No. 07-2125 (E.D.N.C.); United
States v. Burkhardt, No. 98-96 (E.D. La.).
Plaintiff recalls that another former NOPD officer, Laird
Munsch, participated in the Explorers program and traveled with
the Explorers and Moore to a camp in Mississippi. Rec. Doc. 20
at 9. While there, Munsch provided alcohol to plaintiffs and
other Explorers. Id. However, Burkhardt failed to investigate
Munsch and a second unnamed officer who allegedly had knowledge
of Moore’s crimes. Id. at 9-11.
2

Following the NOPD investigation, Moore was charged and
pleaded guilty to three counts of indecent behavior with a
juvenile and three counts of contributing to the delinquency of
a juvenile. Id. at 10. The investigation revealed Moore
victimized at least ten boys between 1983-1984. Rec. Doc. 44 at
9. His crimes occurred across Louisiana, Mississippi, and
Florida, including in NOPD police cars and vans. Id. Moore
received five years’ probation and a $1,000 fine in 1985. He
died in August 2014. 1
Plaintiff filed his initial complaint against Moore,
Burkhardt, and the City of New Orleans in May 20, 2020. He
subsequently filed his first amended complaint on June 2, 2020,
Rec. Doc. 6, and his first amended supplemental complaint on
December 11, 2020. Rec. Doc. 20. In his complaint, plaintiff
alleges that the City of New Orleans, its agents, detectives,
and employees, while acting under color of law and scope of
their employment, violated plaintiff’s civil rights under 42
U.S.C. §§ 1983, 1985, and 1988, rights of due process under the
Fifth and Fourteenth Amendments, and right to be free of
unreasonable search and seizures and use of excessive force
under the Fourth Amendment. Rec. Doc. 20 at 19-20. Plaintiff
also brings state law claims against defendants pursuant to

1

Defendant Moore was dismissed without prejudice for plaintiff’s failure to
prosecute. Rec. Doc. 36.
3

supplemental jurisdiction under 28 U.S.C. § 1367 and diversity
jurisdiction under 28 U.S.C. § 1332. Further, plaintiff asserts
the City of New Orleans is vicariously liable for the acts of
its employees under the doctrine of respondeat superior. Rec.
Doc. 20 at 25.
The City of New Orleans moved for judgment on the pleadings
for failure to state a claim and for summary judgment regarding
prescription on April 26, 2021. Rec. Doc. 39. Plaintiff filed an
opposition, Rec. Doc. 44, and the city filed a reply. Rec. Doc.
48.
II.

PARTIES’ CONTENTIONS
A. Defendant’s Contentions
The City of New Orleans argues that plaintiff’s complaint

failed to state against the city under § 1983 and must be dismissed
Rec. Doc. 39-1 at 6. Defendant asserts that the complaint fails to
state a § 1983 claim against the city for three reasons: 1) the
city may not be held liable pursuant to a theory of respondeat
superior or vicarious liability under § 1983 under current Supreme
Court

precedent;

2)

plaintiff

fails to

identify any

specific

municipal policy, custom, or practice which was the driving force
behind Moore’s alleged sexual assault of the plaintiff as a minor
back in 1982-1984; 3) plaintiff has not alleged any specific
“policy of inadequate training” of NOPD officers or any specific
failure

to

train

officers.

Rec.
4

Doc.

39-1

at

7.

Plaintiffs

allegations of “failure to train” are insufficient to state a claim
because they are premised on the city’s failure to train its
officers “not to pursue and sexually abuse minors.” Id. at 8. The
city contends this “merely demonstrates reasonable reliance by the
City upon the common sense and shared moral sense of adults not to
sexually abuse minors” and not deliberate indifference. Id.
Moreover, the City of New Orleans argues the affirmative
defense that the plaintiff’s claims are barred by prescription and
there is no genuine issue as to any material fact since the
complaint on its face shows that prescription has run. Rec. Doc.
39-1 at 14. The city asserts that it is entitled to judgment as a
matter of law because all actions which plaintiff may have against
the city are barred by the applicable prescription of one year
under Louisiana Civil Code Article 3492. Id. Plaintiff should be
barred from invoking the doctrine of contra non valentem because
it only suspends the running of prescription and cannot revive
prescribed claims—like those of plaintiff’s in this matter.
B. Plaintiff’s Contentions
Plaintiff is adamant that he has adequately pled a § 1983
claim against the City of New Orleans. Rec. Doc. 44 at 1. First,
plaintiff argues that the official policy of the New Orleans Police
Department was to “recruit young boys to join the police department
when they came of age” and to minimize juvenile crime. Id. Further,
an innocuous policy such as this requires only that the plaintiff
5

establish that such a policy was “promulgated with deliberate
indifference
constitutional

to

the

‘known

violations

or

would

obvious

result.”

consequences’
Id.

at

4.

that

Plaintiff

argues that such a policy lacking “the most elementary safeguards
for their safety from sexual abuse by adults” is sufficient to
establish a deliberate indifference to their rights and welfare.
Id.

Moreover,

plaintiff

asserts

that

evidence

produced

and

discovered supports the allegations that the city had …
deliberate indifference to the safety of Plaintiff and others
with the knowledge of the potential danger that shocks the
conscience … failed[ed] to take obvious steps to avoid or
address the known danger over a protracted period of
opportunity … negligent[ly] hir[ed] … fail[ed] to supervise,
creating a situation involving substantial risk of harm and
failing to have sufficient policies and procedures to prevent
abuse of minors by their agents and/or employees, especially
those engaged in the Explorers program.
Rec. Doc. 44 at 8. This evidence includes NOPD’s failure to
institute safeguards such as preventing isolation of a minor with
an

adult

Explorers

police
and

officer

police

or

forbidding

officers

off

interactions

premises

or

between

outside

group

activities. Id. at 12.
Further, plaintiff argues that his father’s awareness of his
abuse three months before plaintiff reached the age of majority is
immaterial to the issue of prescription. Rec. Doc. 44 at 16. Once
plaintiff turned eighteen years old, his father could no longer
file a suit on his behalf. Id. Indeed, plaintiff argues that the
doctrine of contra non valentum is applicable in this case in that
6

his memories were repressed as a teenager and he filed the instant
matter

well

within

the

one-year

prescriptive

period

of

his

recollection of memories triggered by seeing Burkhardt’s photo on
the news. Id. at 18. Plaintiff argues the issue of prescription
depends whether he can prove that his memories of the alleged abuse
by Moore were true repressed memories. Id. at 19.
III. LAW AND ANALYSIS
A. Judgment on the Pleadings Standard
The standard for deciding a Rule 12(c) motion for judgment
on the pleadings is the same as a Rule 12(b)(6) motion to
dismiss. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007). The Court “accepts all well-pleaded facts as
true, viewing them in the light most favorable to the
plaintiff.” Id. (internal quotations omitted). The plaintiff
must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 1974, 167 L.Ed. 2d 929 (2007). “Factual
allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Id. at 1965.
“The court may grant judgment on the pleadings ... where it is
beyond doubt that the nonmovant can prove no set of facts in
supports of his claim that would entitle him to relief....”

7

Caletka v. State Farm Mut. Auto. Ins. Co., 936 F.Supp. 380, 381
(W.D. La. 1996).
The scope of liability of municipalities under § 1983 does
not extend beyond “their own illegal acts” and the city may not
be held vicariously liable for their employees’ actions.
Pembauer v. Cincinnati, 475 U.S. 469, 479, 691 (1986) (citing
Monell v. N.Y.C. Dep’t of Soc. Svcs., 436 U.S. 658, 665-683
(1978)). To hold the city liable under § 1983—a Monell claim—
plaintiff must prove that the “action pursuant to official
municipal policy” caused their injury. Monell, 436 U.S. at 691.
The city’s failure to train its employees in a relevant respect
must amount to “deliberate indifference to the rights of persons
with whom the [untrained employees] come into contact.” Connick
v. Thompson, 563 U.S. 51, 60 (2011) (quoting Canton, 498 U.S. at
388). Only then “can such a shortcoming be properly thought of
as a city ‘policy or custom’ that is actionable under § 1983.
Id.
Defendants argue that plaintiff’s complaint fails to state
a § 1983 claim against the City of New Orleans because he has
not alleged any “specific policy of inadequate training” and
cannot rely on a claim for inadequate training as the driving
force behind sexual abuse of a minor. Rec. Doc. 39-1 at 7.
Plaintiff contends that the city distorts his allegations of
inadequate training. Rec. Doc. 44 at 7. This court agrees.
8

The New Orleans Police Department oversaw the Explorers
program and recruited youth to participate to learn about the
law and prevent juvenile crime. The sexual abuse of children was
such a well-known issue even in the early 1980s that NOPD had a
Juvenile Sex Crimes Unit— in fact, Stanley Burkhardt was a
former commander. Yet, NOPD failed to institute even the most
basic safeguards for minor participants in its Explorers
program, such as preventing isolation of a minor with an adult
police officer or forbidding interactions between Explorers and
police officers off premises or outside group activities. NOPD
should not have to specifically train their officers to not
commit crimes, but it does have the responsibility to protect
the children within their care via the Explorers program. In
hindsight, the number of substantiated allegations against
multiple NOPD officers during this time is arguable proof that a
basic policy may have been necessary then, but certainly so as a
post-remedial measure yet inadmissible as such at trial under
the federal rules.
B. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

when

interrogatories,

“the
and

pleadings,

admissions

on

depositions,
file,

answers

together

with

to
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
9

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). 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). The
court

should

view

all

facts

and

evidence

in

the

light

most

favorable to the non-moving party. United Fire & Cas. Co. v. Hixson
Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory
allegations are insufficient to defeat summary judgment. Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
The

movant

must

point

to

“portions

of

‘the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together

with

the

affidavits,

if

any,’

which

it

believes

demonstrate the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. If and when the movant carries this
burden, the non-movant must then go beyond the pleadings and
present other evidence to establish a genuine issue. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). However, “where the non-movant bears the burden of proof
at trial, the movant may merely point to an absence of evidence,
thus shifting to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material
fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d
10

616, 618 (5th Cir. 1994). “This court will not assume in the
absence of any proof that the nonmoving party could or would prove
the necessary facts, and will grant summary judgment 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 [non-movant].”
McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).
There

is

no

statute of

limitations

contained within

the

language of 42 U.S.C. § 1983. The Supreme Court has directed that
42 U.S.C. § 1988 “requires courts to borrow and apply to all §
1983 claims the one most analogous state statute of limitations.”
Owens v. Okure, 488 U.S. 235, 240 (1989). The Louisiana statute of
limitations applicable for actions under § 1983 is Louisiana Civil
Code article 3492, which provides a prescription of one year. LA.
CIV. CODE ANN. art. 3492.
The parties agree that prescription on plaintiff’s claim
commenced to run when he was a minor on April 26, 1984—the day
NOPD interviewed plaintiff regarding the abuse allegations. It was
plaintiff’s parents’ responsibility to bring suit until he reached
the age of majority on July 27, 1984 and then the responsibility
would be his. Plaintiffs claims would have prescribed on April 26,
1985, but he did not file his complaint in this court until thirtyfive years later on May 20, 2020.
However,

the

parties

disagree

on

whether

the

Louisiana

jurisprudential exception of contra non valentem is applicable in
11

this

case.

This

exception

provides

that

limitations

or

prescriptive period does not begin to run, inter alia, where the
cause

of

action

plaintiff,

even

is

not

thought

known
the

or

reasonably

ignorance

is

knowable

not

by

the

induced

by

the

defendant. It enables courts to weigh the equitable nature of the
circumstances

in

each

individual

case

to

determine

whether

prescription will be tolled. See Carter v. Haygood, 892 So. 2d
1261 (La. 2005). Prescription should be suspended when a plaintiff
is effectually prevented from enforcing his rights for reasons
external to own will. Wimberly v. Gatch, 93-2361, p. 8 (La. App.
4 Cir. 4/11/94), 635 So. 2d 206, 211.
Whether plaintiff can invoke the exception of contra non
valentem depends on whether plaintiff’s memories of his sexual
abuse

were

truly

repressed,

and

if

so,

when

this

repression

occurred. The city points to parts of plaintiff’s deposition that
he “made the conscious decision to put the matter out of his mind,”
but plaintiff’s expert supports a diagnosis of repression.

This

raises a genuine issue of material fact which renders a summary
judgment

inappropriate

at

this

time,

but

subject

reconsideration.
New Orleans, Louisiana this 3rd day of June, 2021

___________________________________
Senior United States District Judge
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