Buck v. East Baton Rouge Sherriff's Office et al

Filing 36

RULING granting 31 Motion for Summary Judgment. All claims against Defendants, Deputy William "Tanner" Jenkins and Deputy Cleve Johnson, are DISMISSED. Signed by Judge James J. Brady on 6/10/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
COREY WAYNE BUCK
CIVIL ACTION
VERSUS
10-741-JJB-RLB
EAST BATON ROUGE SHERIFF’S
OFFICE, ET AL
RULING ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion (doc. 31) for Summary Judgment brought by
Defendants, Deputy William “Tanner” Jenkins (“Deputy Jenkins”) and Deputy Cleve Johnson
(“Deputy Johnson”) in their individual capacities. Plaintiff, Corey Wayne Buck (“Buck”), has
filed an opposition (doc. 34).1 Oral argument is unnecessary. The Court’s jurisdiction exists
pursuant to 28 U.S.C. § 1331. For the reasons stated herein, the Defendants’ Motion (doc. 31)
for Summary Judgment is GRANTED.
I.

Background
The evidence submitted on summary judgment establishes that on October 28, 2009,

Buck was walking from his home to the Circle K convenient store located at the corner of
Floynell Drive and Jefferson Highway in Baton Rouge, Louisiana with the intention of
purchasing a money order.

Buck brought exactly $25.00 to purchase the money order.

However, when he arrived at the Circle K, he learned that there was a service fee of ninety-nine
cents. He exited the store with the aim of walking home to retrieve the ninety-nine cents to pay
the service fee.
While walking home, Buck was approached by a man driving a silver BMW. Buck states
that the man pulled over next to him and identified himself as a person who was standing behind

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Though the Plaintiff has caption his motion as a “Motion to Stay,” the Court will treat the submission as an
opposition to the Defendants’ motion for summary judgment.

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him in line at the Circle K. Buck Depo, Doc. 31-3, 22:7-15. The man saw that he needed
additional money to pay the service fee and handed him a dollar to pay for the additional fee. Id.
The man in the silver BMW left and Buck turned around to return to the Circle K.
At this time, Deputy Johnson exited his unmarked vehicle, which was parked in a nearby
parking lot. Both Defendants had observed the interaction between Buck and the man in the
silver BMW and believed that they had witnessed a drug transaction. Defendants ordered Buck
to place his hands on his head. Buck thought that he was being ordered to place his hands on the
vehicle and so he walked over towards the vehicle to comply with this order. Defendants
believed that Buck was attempting to flee on foot. Deputy Jenkins was able to gain control of
Buck’s left arm and place him against the side of Deputy Johnson’s vehicle. Buck requested that
the Defendants present their badges, which Deputy Jenkins did. Defendants allege that at this
time, Buck delivered an elbow strike to Deputy Jenkins’s chest and reached towards his front
pocket. Fearing that Buck was reaching for a weapon or trying to get rid of evidence, Deputy
Johnson delivered a palm heel strike to Buck’s face causing Buck to suffer a bloody nose. He
then took Buck to the ground and restrained him with handcuffs. A search subsequent to the
arrest revealed several items in Buck’s front pockets including three address books and an iPod.
As a result of the arrest, Buck was issued a misdemeanor summons for violation of La. Rev. Stat.
Ann. § 14:108, Resisting an Officer, and La. Rev. Stat. Ann. § 14:34.2, Battery of a Police
Officer. Buck entered into a Pretrial Intervention Program, which he completed around March
2010, in exchange for the dismissal of these charges. Buck Depo, Doc. 31-3, 53:3-11; 54:11-24.
Buck filed this action asserting several claims against the East Baton Rouge Parish
Sheriff’s Office, Deputy Jenkins, and Deputy Tanner. (Doc. 1). The Court dismissed claims
asserted against the East Baton Rouge Parish Sheriff’s Office finding that it was not a legal entity

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which may be sued. (Doc. 14). Subsequently, the Defendants filed a motion to dismiss. (Doc.
11). The Court dismissed claims for false arrest and failure to train but found that Buck had
stated a claim for excessive force. (Doc. 19). The Court declined to make a determination on
the claim for malicious prosecution. Id. The Defendants now bring the present motion arguing
that they are entitled to summary judgment on Buck’s remaining claims.
II.

Summary Judgment Standard
Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact.” FED. R. CIV. P. 56(a). The party seeking summary judgment
carries the burden of demonstrating that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the burden at
trial rests on the non-moving party, the moving party need only demonstrate that the record lacks
sufficient evidentiary support for the non-moving party’s case. Id. The moving party may do
this by showing that the evidence is insufficient to prove the existence of one or more essential
elements of the non-moving party’s case. Id. A party must support its summary judgment
position by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute.” FED. R. CIV. P. 56(c)(1).
Although the Court considers evidence in a light most favorable to the non-moving party,
the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). Conclusory allegations and unsubstantiated assertions
will not satisfy the non-moving party’s burden. Grimes v. Tex. Dep’t of Mental Health, 102 F.3d
137, 139–40 (5th Cir. 1996). Similarly, “[u]nsworn pleadings, memoranda or the like are not, of
course, competent summary judgment evidence.” Larry v. White, 929 F.2d 206, 211 n.12 (5th
Cir. 1991). If, once the non-moving party has been given the opportunity to raise a genuine fact

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issue, no reasonable juror could find for the non-moving party, summary judgment will be
granted for the moving party. Celotex, 477 U.S. at 322-23.
III.

Discussion
Buck’s remaining § 1983 claims are for excessive force and malicious prosecution. The

Defendants argue that Buck’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In
Heck, the Supreme Court held that to establish a cognizable claim for damages under § 1983 that
would call into question or otherwise invalidate a conviction or sentence, a 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.” Id. at 486-87. Courts refer to
this requirement as the “favorable termination rule.” Ballard v. Burton, 444 F.3d 391, 396 (5th
Cir. 2006). The Supreme Court explained that if the plaintiff’s claim sought to invalidate the
underlying conviction or sentence, such claim must be dismissed unless the plaintiff could show
that the conviction or sentence had already been invalidated. Heck, 512 U.S. at 487.
Defendants argue that Buck’s remaining claims are barred by Heck because he entered
into a Pretrial Intervention Program in exchange for the dismissal of the misdemeanor charges
levied against him. Under Heck, courts have held that the plaintiff’s voluntary participation in a
pretrial diversion program is a conviction. See Bates v. McKenna, Civil Action No. 11-1395,
2012 WL 3309381, *5 (W.D. La. Aug. 13, 2012); see also Taylor v. Gregg, 36 F.3d 453, 455-56
(5th Cir. 1994) (finding that entering into pretrial diversion program is not a favorable
termination under Heck). There is no evidence that this conviction was invalidated by any of the
means set forth in Heck. Therefore, in order for Buck to state a cognizable § 1983, he must show
that a ruling in his favor will not call into question the validity of his convictions.

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After reviewing the parties’ submissions and the case law provided in support thereof, the
Court finds that Buck’s claims are barred by Heck. Courts have held that a claim for excessive
force cannot coexist with a conviction for offenses such as resisting an officer and/or battery of
an officer when the plaintiff maintains that he did nothing wrong to warrant the force used
against him as such claims “squarely challenge[] the factual determination that underlies his
conviction.” Arnold v. Town of Slaughter, 100 F. App’x 321, 324-225 (5th Cir. 2004); see also
Bates, 2012 WL 3309381, at *5; Pratt v. Giroir, Civil Action No. 07-1529, 2008 WL 975052, *5
(E.D. La. Apr. 8, 2008) (“Fifth Circuit precedent is clear that whether the plaintiff alleges
excessive force during or simultaneous with an arrest versus after an arrest results in distinct
consequences under Heck.”). Here, Buck alleges that he was fully compliant during the arrest
and at no time resisted the officers. Complaint, Doc. 1, at ¶5. He also denies using any physical
force against either of the Defendants. Buck Depo, Doc. 31-3, 32:10-21. If the Court took these
statements and allegations as true, it would squarely call into question the validity of his
underlying conviction. Accordingly, Buck’s excessive force claim is barred by Heck.
As to the malicious prosecution claim, Defendants correctly assert that Heck precludes to
a finding that Buck has stated a cognizable claim.

To establish a claim for malicious

prosecution, the plaintiff must prove: (1) the commencement or continuance of an original
criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the
original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence
of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage
conforming to legal standards resulting to plaintiff. Jones v. Soileau, 448 So. 2d 1268, 1271 (La.
1984). Courts have held that when the plaintiff has entered into a pretrial diversion program, he
cannot prove the third element of the malicious prosecution claim, i.e. that the criminal

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prosecution terminated in his favor. Taylor, 36 F.3d at 455-56. Courts reason that, “[b]y
entering these agreements, criminal defendants are effectively foregoing their potential malicious
prosecution suit in exchange for conditional dismissal of their criminal charges.” Id. at 456.
Here, Buck entered and completed the District Attorney’s Pretrial Intervention Program.
Therefore, in light of binding case law, this claim must be dismissed.
IV.

Conclusion
For the reasons stated herein, the Defendants’ Motion (doc. 31) for Summary Judgment is

GRANTED. All claims against Defendants, Deputy William “Tanner” Jenkins and Deputy
Cleve Johnson, are DISMISSED.
Signed in Baton Rouge, Louisiana, on June 10, 2014.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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