Lou et al v. Lopinto et al
Filing
211
ORDER AND REASONS: Based on the foregoing findings, IT IS HEREBY ORDERED that the 49 Partial Motion to Dismiss the Federal Claims Against Sheriff Lopinto in His Individual Capacity Pursuant to Fed. R. Civ. P. 12(c) or, Alternatively, for Summary Judgment Pursuant to Fed. R. Civ. P. 56 is DENIED. Signed by Judge Wendy B Vitter on 5/19/2023. (mmv)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONNA LOU, ET AL.
CIVIL ACTION
VERSUS
NO. 21-80
SHERIFF JOSEPH P. LOPINTO, III, ET AL.
SECTION: D (2)
ORDER AND REASONS
Before the Court is Partial Motion to Dismiss the Federal Claims Against
Sheriff Lopinto in His Individual Capacity Pursuant to Fed. R. Civ. P. 12(c) or,
Alternatively, for Summary Judgment Pursuant to Fed. R. Civ. P. 56, filed by
defendant Sheriff Joseph P. Lopinto, III (“Sheriff Lopinto”).1 Plaintiffs oppose the
Motion2 and Sheriff Lopinto has filed a Reply.3 After careful consideration of the
parties’ memoranda and the applicable law, the motion is DENIED.
I.
FACTUAL AND PROCEDURAL BACKGROUND4
In the instant Motion, Sheriff Lopinto seeks partial judgment, either on the
pleadings or on summary judgment, dismissing as a matter of law Plaintiffs’ federal
claims asserted against him in his individual capacity.5 Sheriff Lopinto contends that
it is well settled that supervisory officials cannot be held vicariously liable for their
subordinates’ actions under § 1983 unless they either affirmatively participate in acts
that cause the constitutional deprivation or implement unconstitutional polices that
R. Doc. 49.
R. Doc. 51.
3 R. Doc. 67.
4 The Court set forth the facts of this case in great detail in its May 18, 2023 Order and Reasons (R.
Doc. 208) and, for the sake of brevity, they will not be repeated here.
5 R. Doc. 49.
1
2
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causally result in the plaintiff’s injury.6 Sheriff Lopinto asserts that Plaintiffs’ claims
against him in his individual capacity should be dismissed because Plaintiffs fail to
allege or provide evidence demonstrating that he participated directly in the events
giving rise to this litigation. Sheriff Lopinto does not seek dismissal or summary
judgment based on qualified immunity in this Motion.
Plaintiffs assert that Sheriff Lopinto’s argument is premised upon an error of
law, and that a supervisor like Sheriff Lopinto need not be at the scene or participate
directly in physical actions to be liable for a constitutional claim.7 Plaintiffs assert
that supervisors may be liable for failures of training, policy, and supervision that
cause constitutional injuries, and that Sheriff Lopinto concedes as much in his
Motion.8 Plaintiffs point out that they are not suing Sheriff Lopinto for his presence
or actions on the scene at the time of the injury, but for the actions and omissions he
personally took in his role as a supervisor and policymaker. 9 Plaintiffs contend that
their Complaint specifically articulates that the theory of liability against Sheriff
Lopinto individually is based upon his failures regarding policy, hiring, training,
discipline, and supervision, and not his individual participation in the underlying
actions of the deputies.10 Plaintiffs claim that, “The allegations are bolstered by
factual detail and agency history, ensuring that they satisfy the Iqbal/Twobly [sic]
R. Doc. 49-1 at p. 6 (quoting Mouille v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992))
(internal quotation marks omitted). The Court notes that Sheriff Lopinto’s citation to a Louisiana
Fifth Circuit Court of Appeals case by the same name appears to be in error.
7 R. Doc. 51 at pp. 1 & 2.
8 R. Doc. 51 at p. 1 (citing R. Doc. 49-1 at p. 6).
9 R. Doc. 51 at p. 3 (citing R. Doc. 1 at ¶ 6).
10 R. Doc. 51 at p. 3 (citing R. Doc. 1 at ¶¶ 408-29).
6
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plausibility standard.”11
Plaintiffs assert that, because Sheriff Lopinto wrongly
assumes that he must have been physically present or participating directly to be
liable, his Motion should be denied.
In response, Sheriff Lopinto submits that Plaintiffs have now clarified that
their individual capacity claims are policy-related and, as such, they are duplicative
of Plaintiffs’ claims asserted against him in his official capacity.12 As “acknowledged
in his original brief,” Sheriff Lopinto recognizes that the Fifth Circuit has held that a
sheriff not personally involved in acts that deprived the plaintiff of his constitutional
rights is liable under § 1983 if the sheriff failed to train or supervise the officers
involved, there is a causal connection between the alleged failure to supervise or train
and the alleged violation of rights, and the failure to train or supervise constituted
deliberate indifference to the plaintiff’s constitutional rights.13
Sheriff Lopinto
asserts, however, that Plaintiffs cannot defeat his Motion because they failed to argue
or provide any summary judgment evidence indicating that he had knowledge of, was
deliberately indifferent to an obvious need to train the defendant deputies regarding
the specific issues in this case, or that his deliberate indifference caused the
constitutional deprivation.14
R. Doc. 51 at p. 3 (citing R. Doc. 1 at ¶ 29, et al. and ¶ 290, et al.).
R. Doc. 67 at pp. 1-2 & 2.
13 R. Doc. 67 at p. 3 (quoting Cozzo v. Tangipahoa Parish Council -- President Gov’t, 279 F.3d 273, 286
(5th Cir. 2002)) (internal quotation marks omitted).
14 R. Doc. 67 at pp. 3-5.
11
12
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II.
LEGAL STANDARD
A. Rule 12(c) Motion for Judgment on the Pleadings.
Federal Rule of Civil Procedure 12(c) permits any party to move for a judgment
on the pleadings after the pleadings are closed, provided that the motion is made
early enough to avoid delaying trial. Such motions are “designed to dispose of cases
where the material facts are not in dispute and a judgment on the merits can be
rendered by looking to the substance of the pleadings and any judicially noticed
facts.”15 Rule 12(c) motions are subject to the same standard as motions to dismiss
filed under Fed. R. Civ. P. 12(b)(6).16 In ruling on a Rule 12(b)(6) motion to dismiss,
the Court accepts all well-pleaded facts as true and views those facts in the light most
favorable to the plaintiff.17 Additionally, on a Rule 12(b)(6) motion to dismiss, the
Court is generally prohibited from considering information outside the pleadings, but
may consider documents outside of the complaint when they are: (1) attached to the
motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.18 The
Court can also take judicial notice of matters that are of public record, including
pleadings that have been filed in a federal or state court. 19 The Fifth Circuit has
instructed that when reviewing a Rule 12(c) motion, pleadings should be “construed
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F3d 305, 312 (5th Cir. 2002)
(quoting Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990)) (internal
quotation marks omitted). See, Addy’s Burger, LLC v. Paradigm Investment Group, LLC, Civ. A. No.
17-2400, 2018 WL 2569928, at *2 (E.D. La. June 4, 2018) (North, M.J.) (citing Great Plains, supra).
16 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citing Great Plains, 313 F.3d
at 313 n.8).
17 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
18 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).
19 In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.
Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004)).
15
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liberally.”20 In this Circuit, a Rule 12(b)(6) motion to dismiss “is viewed with disfavor
and is rarely granted.”21
B. Rule 56 Motion for Summary Judgment.
Summary judgment is appropriate where there is no genuine disputed issue as
to any material fact, and the moving party is entitled to judgment as a matter of
law.22 A party moving for summary judgment must inform the Court of the basis for
the motion and identify those portions of the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, that show that
there is no such genuine issue of material fact.23 If the moving party carries its
burden of proof under Rule 56, the opposing party must direct the Court’s attention
to specific evidence in the record which demonstrates that the non-moving party can
satisfy a reasonable jury that it is entitled to a verdict in its favor. 24 This burden is
not satisfied by some metaphysical doubt as to alleged material facts, by unsworn
and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of
evidence.25 Rather, Rule 56 mandates that summary judgment be entered against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case and on which that party will bear the burden of proof at
Great Plains, 313 F.3d at 312 (quotation and internal quotation marks omitted).
Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (citation omitted).
22 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986).
23 Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
24 Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
25 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
20
21
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trial.26 In resolving a motion for summary judgment, the Court must review the facts
and inferences in the light most favorable to the non-moving party, and the Court
may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual
disputes.27
C. Individual Capacity Claims Brought Under 42 U.S.C. § 1983.
The Fifth Circuit has held that, “An official cannot be held liable in his
individual capacity merely because a subordinate committed some constitutional
violation; ‘[s]ection 1983 does not impose vicarious liability or respondeat-superior
liability.’”28
“Instead, a defendant must either be ‘personally involved in the
constitutional violation’ or commit ‘acts [that] are causally connected to the
constitutional violation alleged.”29
Stated another way, a “supervisor is not
personally liable for his subordinate’s actions in which he had no involvement.” 30
Further, a supervisor not personally involved in the acts that deprive a plaintiff of
his constitutional rights can be held liable under § 1983 if he “implements
unconstitutional policies that causally result in the constitutional injury.”31
According to the Fifth Circuit, this “policy-focused inquiry is akin to the standard for
Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
28 Magnolia Island Plantation, L.L.C. v. Whittington, 29 F.4th 246, 251 (5th Cir. 2022) (quoting Bigford
v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988)) (reversing district court’s denial of qualified immunity
where plaintiff failed to allege any personal involvement of the sheriff in the purported wrongdoing).
29 Magnolia Island Plantation, 29 F.4th at 251 (quoting Anderson v. Pasadena Indep. Sch. Dist., 184
F.3d 439, 443 (5th Cir. 1999)).
30 Magnolia Island Plantation, 29 F.4th at 251 (quoting James v. Tex. Collin Cnty., 535 F.3d 365, 373
(5th Cir. 2008)) (internal quotation marks omitted).
31 Romero v. Brown, 937 F.3d 514, 523 (5th Cir. 2019) (citing Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)).
26
27
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municipal liability.”32 “That is, for a supervisor to act with ‘deliberate indifference,’
she must usually know about a ‘pattern of similar violations.’”33
Individual capacity claims are usually anchored to a supervisory official’s
failure to train or to the supervisory official’s implementation of “a policy so deficient
that the policy itself is a repudiation of constitutional rights and is the moving force
of the constitutional violation.”34 When individual capacity liability is tied to a
supervisor’s failure to train, the plaintiff must allege and prove the following: (1) that
the supervisor failed to train or supervise the employees directly involved in the
constitutional violation; (2) that there is a causal connection between the alleged
failure to train or supervise and the alleged constitutional violation; and (3) that the
failure to train or supervise constituted deliberate indifference to the plaintiff’s
constitutional rights.35 “Proof of a single instance, rather than a pattern of similar
violations, normally will not sustain a plaintiff’s claim that such a lack of training or
supervision caused a violation of her constitutional rights.”36 The Fifth Circuit has
further held that the training’s inadequacy “must be obvious and obviously likely to
result in a constitutional violation.”37
In contrast, when an individual capacity claim is anchored to a supervisor’s
official policy, the plaintiff first must identify an official policy implemented by the
Romero, 937 F.3d at 523 (citing Rios v. City of Del Rio, Tex., 444 F.3d 417, 426 (5th Cir. 2006)).
Romero, 937 F.3d at 523 (quoting Rios, 444 F.3d at 427).
34 Cozzo v. Tangipahoa Parish Council -- President Gov’t, 279 F.3d 273, 286, 289 (5th Cir. 2002)
(quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)) (internal quotation marks omitted).
35 Cozzo, 279 F.3d at 286 (quoting Thompson v. Upshur County, Tex., 245 F.3d 447,459 (5th Cir. 2001))
(internal quotation marks omitted).
36 Cozzo, 279 F.3d at 286-87 (citing Thompson, 245 F.3d at 459).
37 Cozzo, 279 F.3d at 287 (quoting Thompson, 245 F.3d at 459).
32
33
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supervisor. The Fifth Circuit has explained that an “official policy” is, “A policy
statement, ordinance, regulation, or decision that is officially adopted and
promulgated by the [government entity] . . . or by an official to whom the [entity] ha[s]
delegated policy-making authority,” or, “A persistent, widespread practice of . . .
officials or employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute a custom that fairly
represents [the entity’s] policy.”38 A plaintiff can also establish a custom or policy
“based on an isolated decision made in the context of a particular situation if the
decision was made by an authorized policymaker in whom final authority rested
regarding the action ordered.”39 In addition to identifying the existence of an official
policy or custom, the plaintiff must allege and show that the supervisory official
implemented the policy or custom and that it was “so deficient that the policy itself
is a repudiation of constitutional rights and is the moving force of the constitutional
violation.”40
III.
ANALYSIS
In the instant Motion, Sheriff Lopinto does not seek qualified immunity, nor
does he challenge the allegations or evidentiary basis predicating Plaintiffs’ claims
against him in his official capacity. Instead, Sheriff Lopinto asserts that his Motion
should be granted because Plaintiffs “failed to allege or establish that he participated
Cozzo, 279 F.3d at 289 (quoting Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)) (internal quotation
marks omitted).
39 Cozzo, 279 F.3d at 289 (citing authority).
40 Cozzo, 279 F.3d at 289 (quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)) (internal
quotation marks omitted) (holding that the district court erred in concluding that the sheriff did not
enjoy qualified immunity against the plaintiff’s failure to train and official policy claims).
38
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directly in any of the alleged dilatory conduct and, therefore, ha[ve] failed to establish
a federal claim against him in his individual capacity.”41 Sheriff Lopinto claims that
it is uncontested that he “was not on scene [sic] during any of the relevant events,”
that he “did not participate in any of the subject events,” and that he “did not direct
any of the actions of the Defendant Deputies.”42 Sheriff Lopinto then concludes the
Motion by asserting that, “Plaintiffs do not allege and cannot show, nor is there any
evidence in the record from which the Court could possibly infer that Sheriff Lopinto
participated directly in any of the subject events,” and that, “Plaintiffs do not even all
[sic] allege that the Sheriff was at the scene.”43 Plaintiffs assert that Sheriff Lopinto’s
argument is premised upon a legal error, since a supervisor may be liable for
implementing unconstitutional policies that causally result in a plaintiff’s
constitutional violation, and that Sheriff Lopinto “concedes as much” in his Motion.44
In support, Plaintiffs point to numerous paragraphs in their Complaint in which they
allege that Sheriff Lopinto is liable in his individual capacity for his role in the
policies, procedures, training, assignments, supervision, and discipline of JPSO
deputies, which contributed to E.P.’s death.45 Sheriff Lopinto fails to address these
arguments in his Reply brief and seems to abandon his request for a Rule 12(c)
judgment on the pleadings, asserting instead that “undue discovery” in this matter
has been “abusive, harassing, and wholly unnecessary” and that summary judgment
R. Doc. 49 at p. 1; R. Doc. 49-1 at p. 1.
R. Doc. 49-1 at p. 3 (citing R. Doc. 1).
43 R. Doc. 49-1 at p. 7.
44 R. Doc. 51 at pp. 1 & 2-4.
45 Id. at pp. 3-4 (citing R. Doc. 1 at ¶¶ 16, 29, 298-322, & 408-429).
41
42
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must be granted because Plaintiffs fail to offer “a scintilla of evidence” of Sheriff
Lopinto’s deliberate indifference.46
A. Sheriff Lopinto Is Not Entitled to Judgment on the Pleadings
Under Rule 12(c).
To the extent Sheriff Lopinto seeks judgment on the pleadings as to Plaintiffs’
individual capacity claims, the Motion is denied.
While Sheriff Lopinto seeks
dismissal based solely on his lack of direct involvement in the events that occurred
on January 19, 2020 that led to E.P.’s death, he completely ignores that a supervisor
can be held liable under § 1983 if “(1) [s]he affirmatively participates in the acts that
cause the constitutional deprivation, or (2) [s]he implements unconstitutional policies
that causally result in the constitutional injury.”47 The Court finds this striking,
since Sheriff Lopinto acknowledges in his own Motion that supervisory officials can
be held liable under § 1983 “only if: (i) they affirmatively participate in acts that cause
constitutional deprivation; or (ii) implement unconstitutional policies that causally
result in plaintiff’s injury.”48 As Plaintiffs correctly point out in their Opposition
brief,49 the Fifth Circuit has held that supervisors can also be held liable under § 1983
for failure to adopt policies50 and for failure to supervise or train subordinates.51 The
R. Doc. 67 at pp. 2-5.
Romero v. Brown, 937 F.3d 514, 523 (5th Cir. 2019) (quoting Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)) (internal quotation marks omitted).
48 R. Doc. 49-1 at p. 6 (quoting Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992))
(internal quotation marks omitted) (emphasis added).
49 R. Doc. 51 at p. 3.
50 Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Rhyne v. Henderson Cnty., 973 F.2d 386,
392 (5th Cir. 1992)) (internal quotation marks omitted).
51 Cozzo v. Tangipahoa Parish Council -- President Gov’t, 279 F.3d 273, 286-87 (5th Cir. 2002) (quoting
Thompson v. Upshur County, TX, 245 F.3d 447, 459 (5th Cir. 2001)).
46
47
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Fifth Circuit has further clarified that, “In order to establish supervisor liability for
constitutional violations committed by subordinate employees, plaintiffs must show
that the supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations
of others’ constitutional rights committed by their subordinates.”52
In the Complaint, Plaintiffs allege that Sheriff Lopinto “is the final policy
maker,” and that he “is responsible for the staffing, supervision, administration,
policies, practices, procedures, and customs of the JPSO.”53 Plaintiffs also allege that
Sheriff Lopinto “is responsible for the hiring, training, supervision, discipline, and
control of the JPSO staff, supervisors, and deputies.”54 Plaintiffs further allege that
JPSO
policies,
including
those
regarding
the
use
of
force,
restraints,
positional/compression asphyxia, and encounters and interactions with persons with
developmental disabilities, are contrary to law,55 and that Sheriff Lopinto is liable for
the actions of his deputies due to certain policies, procedures, rules, practices,
customs and/or usages of JPSO that were in effect at the time of, and contributed to,
E.P.’s death, and Plaintiffs proceed to list those policies.56 Plaintiffs also allege that
Sheriff Lopinto’s policies, practices and/or customs demonstrated a deliberate
indifference to the constitutional rights of the public, including E.P. and Plaintiffs,
Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Gates v Texas Dep’t of Port. & Reg. Servs.,
537 F.3d 404, 435 (5th Cir. 2008)) (internal quotation marks omitted) (emphasis in original).
53 R. Doc. 1 at ¶ 16.
54 Id.
55 Id. at ¶ 306. See, Id. at ¶¶ 290-322.
56 Id. at ¶ 417. See, Id. at ¶¶ 417-429.
52
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and that they were the proximate cause of their injuries and damages.57 Sheriff
Lopinto does not address, much less contest, these allegations in his Reply brief.
Accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to Plaintiffs, as the Court is bound to do,58 the Court finds that
Plaintiffs have alleged sufficient facts to state a § 1983 claim against Sheriff Lopinto
in his individual capacity based upon his alleged failure to train the defendant
deputies and his alleged implementation of unconstitutional policies that violated the
constitutional rights of Plaintiffs and E.P. and contributed to E.P.’s death.
Accordingly, the Motion is denied to the extent that Sheriff Lopinto seeks a Rule 12(c)
judgment on the pleadings as to Plaintiffs’ individual capacity claims.
B. Sheriff Lopinto Is Not Entitled To Summary Judgment Under Rule
56.
Sheriff Lopinto fares no better under Fed. R. Civ. P. 56, as he has failed to
carry his burden of demonstrating how the summary judgment record discloses no
genuine dispute regarding any material fact as to Plaintiffs’ individual capacity
claims. Sheriff Lopinto’s Motion fails to brief the applicable law and, in so doing, fails
to even identify any relevant (let alone material) facts about which there are no
genuine dispute. In his Statement of Uncontested Material Facts, filed in support of
the Motion, Sheriff Lopinto merely regurgitates the factual allegations made in his
57
58
Id. at ¶¶ 421-429.
Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
Case 2:21-cv-00080-WBV-DPC Document 211 Filed 05/19/23 Page 13 of 15
Motion.59 The only “undisputed facts” that are marginally pertinent to the instant
Motion include the following:
6. It is uncontested that Sheriff Lopinto was not on scene [sic] during
any of the relevant events; Plaintiffs do not allege otherwise. R. Doc. 1.
7. It is uncontested that Sheriff Lopinto did not participate in any of the
subject events; Plaintiffs do not allege otherwise. Id.
8. It is uncontested that Sheriff Lopinto did not direct any of the actions
of the Defendant Deputies; Plaintiffs do not allege otherwise. Id.60
As explained above, however, these undisputed facts are not relevant to the
individual capacity claims, where Plaintiffs seek to hold Sheriff Lopinto liable for his
implementation of unconstitutional policies that violated the constitutional rights of
Plaintiffs and E.P. and for his failure to train and supervise the JPSO Deputy
Defendants and the JPSO John Doe Deputy Defendants. Sheriff Lopinto’s Motion
fails to raise any dispute of material fact as to these claims. As such, Sheriff Lopinto
has failed to show that he is entitled to summary judgment.
In his Reply brief, Sheriff Lopinto asserts for the first time that he is entitled
to summary judgment because Plaintiffs have failed to offer any competent summary
judgment evidence or argument to establish that he had knowledge of, was
deliberately indifferent to an obvious need to train the defendant-deputies regarding
the specific issues in this case, and that his deliberate indifference caused the alleged
harm.61 Both the Fifth Circuit and other Sections of this Court have held that,
Compare R. Doc. 49-3 to R. Doc. 49-1 at pp. 2-3.
R. Doc. 49-3 at p. 2.
61 R. Doc. 67 at pp. 4-5.
59
60
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“Arguments raised for the first time in a reply brief are generally waived.”62 As
explained by one of our sister courts, “it is improper for the movant to sandbag and
raise wholly new issues in a reply memorandum. The scope of the reply should be
limited to addressing the arguments raised by the memorandum in opposition.”63
This Court agrees. Here, Sheriff Lopinto clearly abandoned the arguments raised in
his Motion after reading Plaintiffs’ Opposition brief by raising entirely new
arguments regarding deliberate indifference in his Reply brief. The Court will not
entertain such tactics and, therefore, will not consider the arguments raised by
Sheriff Lopinto for the first time in his Reply brief.
At this juncture and on this briefing, Sheriff Lopinto has failed to persuade the
Court that he is entitled to summary judgment dismissing Plaintiff’s § 1983 claims
against him in his individual capacity.
Sheriff Lopinto’s sparse Statement of
Uncontested Material Facts does not support entry of judgment as a matter of law on
Plaintiffs’ § 1983 individual capacity claims, as it contains only the undisputed fact
that Sheriff Lopinto was not physically present on the scene on the day of E.P.’s death.
Additionally, Sheriff Lopinto does not dispute that Plaintiffs make multiple
allegations in their 80-page Complaint concerning his failure-to-train and officialpolicy theories of individual capacity liability. Reviewing the facts and inferences in
Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010) (citing United States v. Jackson, 426 F.3d 301, 304
n.2 (5th Cir. 2005); Iteld, Bernstein & Associates, LLC v. Hanover Ins. Group, Civ. A. No. 06-3418, 2009
WL 2496552, at *4 (E.D. La. Aug. 12, 2009) (Vance, J.) (“[A]rguments raised for the first time in a
Reply brief are waived.”). See, Little Tchefuncte River Association v. Artesian Utility Company, Inc.,
155 F. Supp. 3d 637, 657 (E.D. La. 2015) (“[A]rguments cannot be raised for the first time in a reply
brief.”) (quoting Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329 (5th Cir. 2008)).
63 Weems v. Hodnett, Civ. A. No. 10-CV-1452, 2011 WL 2731263, at *1 (W.D. La. July 13, 2011)
(Hornsby, M.J.) (citation omitted).
62
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the light most favorable to Plaintiffs, who are the non-moving parties,64 the Court
finds that Sheriff Lopinto has failed to show that he is entitled to summary judgment
and dismissal of Plaintiffs’ § 1983 claims asserted against him in his individual
capacity.
IV.
CONCLUSION
Based on the foregoing findings, IT IS HEREBY ORDERED that the Partial
Motion to Dismiss the Federal Claims Against Sheriff Lopinto in His Individual
Capacity Pursuant to Fed. R. Civ. P. 12(c) or, Alternatively, for Summary Judgment
Pursuant to Fed. R. Civ. P. 5665 is DENIED.
New Orleans, Louisiana, May 19, 2023.
____________________________________
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE
64
65
International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
R. Doc. 49.
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