Clayton v. Columbia Casualty Company et al

Filing 90

ORDER AND REASONS granting 43 MOTION for Partial Summary Judgment filed by Willie Graves, and 42 MOTION for Partial Summary Judgment filed by David Johnson. Plaintiffs' 1983 claims against all defendants are DISMISSED WITH PREJUDICE. FURTHER ORDERED that plaintiffs' remaining state law claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge Lance M. Africk on 11/16/2012. (BLG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DEIDRA CLAYTON, ET AL.

CIVIL ACTION

VERSUS

No. 11-845

COLUMBIA CASUALTY COMPANY, ET
AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion1 for summary judgment filed by defendant, Deputy David
Johnson, and a motion2 for summary judgment filed by defendant, Sheriff Willie Graves.
Plaintiffs, Deidra Clayton and Angela Burke, oppose the motions.3 For the following reasons,
the motions for summary judgment are GRANTED.
BACKGROUND
Plaintiffs allege that David Johnson, a Livingston Parish sheriff’s deputy, shot and killed
Jonathan Clayton (“Clayton”) on April 4, 2011, without justification, while responding to a 9-1-1
telephone call reporting a domestic dispute between Clayton and his girlfriend, Krystyna
Westmoreland (“Westmoreland”).4 The disturbance was reported by Clayton’s sister, Angela
Burke (“Burke”), after Clayton beat Westmoreland with a metal object on the porch of the trailer
located behind Burke’s house.5 Burke reported to the police that Westmoreland was twenty years

1

R. Doc. No. 42

2

R. Doc. No. 43.

3

R. Doc. Nos. 53, 55.

4

R. Doc. No. 1.

5

R. Doc. No. 42, Exhibit B-1.

1

old, pregnant, and that she was “profusely bleeding out of her head.”6 Burke further reported
that they were taking refuge in her home waiting for the ambulance to arrive, armed with a gun,
and that she would shoot Clayton if she had to defend herself.7 As they waited for police and an
ambulance, Burke reported that Clayton had a knife and that he had broken the windows on
Westmoreland’s black Honda Civic and slashed the tires.8
When Deputy Johnson arrived on the scene, Burke signaled to him that Clayton was in
the back of the property by the trailer.9 Deputy Johnson could see Clayton peering out of the
open door to the trailer.10 Clayton retreated inside the trailer as Deputy Johnson drove down the
driveway to the trailer and parked behind Westmoreland’s damaged vehicle.11 Deputy Johnson
stepped out of his unit, drew his gun, and walked up the porch steps to the trailer.12
Deputy Johnson approached the trailer door and ordered Clayton to come out.13 Deputy
Johnson recalls that Clayton responded that he had a gun and that he threatened to shoot the
officer.14 Deputy Johnson stated that Clayton eventually emerged from the trailer with one hand

6

Id. at 00:40-1:00; Id. at 2:10-4:00. Burke later testified that Westmoreland had been lying about being pregnant.
Burke testified that she did not know Westmoreland was lying when she reported that fact to the police. R. Doc. No.
88-1, p. 35.
7

R. Doc. No. 42, Exhibit B-1, at 11:30-12:15.

8

Id. at 14:30-16:30.

9

R. Doc. No. 42-9, ¶ 5.

10

Id. at ¶ 6.

11

Id.; R. Doc. No. 88-1, pp 88-89.

12

R. Doc. No. 88-1, p. 89.

13

Id.

14

R. Doc. No. 87, p. 47-49; R. Doc. No. 53-8, at 8:30-9:00. Officers can be heard on the 9-1-1 recording advising
that Clayton was threatening to shoot. R. Doc. No. 42, Exhibit B-1, at 18:55.

2

behind his back.15 Deputy Johnson claims that he believed Clayton was holding a gun behind his
back until Clayton turned away and headed back towards the trailer.16 Deputy Johnson could
see, at that time, that Clayton was holding a knife behind his back, not a gun, as Clayton walked
back to the trailer door.17
When Deputy Johnson ordered Clayton to come back down from the porch, Clayton
began cutting himself with the knife.18 Deputy Johnson watched as Clayton pulled the knife
blade across his neck, attempting to cut his own throat, while yelling at the officer, “You see
what you’re doing?”19 Deputy Johnson claims that he responded, “As soon as you come back
out, I’ll back down off the porch, man. Put the knife down. Put the knife down.”20
Clayton then began to approach the officer in a hostile manner, throwing his hands in the
air, and yelling at the officer to shoot him.21 Deputy Johnson walked backwards off the porch,
down the steps, and away from the trailer with his gun drawn.22 Clayton left the porch and
continued to ignore commands to get on the ground as he came towards the officer.23 Although
the parties vigorously dispute whether Clayton still had the knife at this point, it is undisputed
that Clayton kept walking towards Deputy Johnson, refusing to obey his commands, hollering

15

R. Doc. No. 87, pp. 47-49; R. Doc. No. 53-8, at 8:30-9:35.

16

R. Doc. No. 87, p. 49; R. Doc. No. 53-8, at 8:30-9:35.

17

R. Doc. No. 87, p. 49; R. Doc. No. 53-8, at 8:30-9:35.

18

R. Doc. No. 87, pp. 49-50; R. Doc. No. 53-8, at 9:30-10:20.

19

R. Doc. No. 87, pp. 49-50; R. Doc. No. 53-8, at 9:30-10:20.

20

R. Doc. No. 53-8, at 9:30-10:20.

21

R. Doc. No. 88-1, pp. 93-95.

22

R. Doc. No. 53-6, at ¶¶ 16-17.

23

Id.; R. Doc. No. 88-1, pp. 93-95; R. Doc. No. 42-1, at ¶¶ 10-13.

3

profanities, and throwing his arms up in the air.24 Fearing for his own safety and the safety of
others in the vicinity, Deputy Johnson fired one shot from a distance of approximately five to ten
feet.25 The bullet struck Clayton in the middle of his chest, stopped him in his tracks, and killed
him.26
Matt Fiske, a Livingston Parish sheriff’s department officer, arrived on the scene within
30 seconds of the moment that “shots fired” was announced over the radio.27 The dashboard
video camera on Deputy Fiske’s unit shows that he pulled into Burke’s driveway and drove past
her house towards the back of the property where Deputy Johnson was parked by the trailer.28
As Deputy Fiske’s unit approached the trailer, the video shows Deputy Johnson circling around
Clayton’s body, gun drawn, possibly kicking an object away from Clayton, and placing Clayton
in handcuffs.29 Deputy Fiske can be heard asking Deputy Johnson, “where’s the weapon?”
Deputy Johnson responds, “Right there,” pointing to an object on the ground near Clayton’s
body, which defendants contend was a knife.30 Deputy Fiske can then be observed securing the
crime scene and summoning medical help.31
The only two surviving witnesses to the actual shooting are Burke and Deputy Johnson.
Both gave detailed recorded statements concerning the shooting shortly after the incident. On
24

R. Doc. No. 53-6, at ¶¶ 16-17; R. Doc. No. 88-1, pp. 93-95; R. Doc. No. 42-1, at ¶¶ 10-13.

25

R. Doc. No. 42-9, ¶ 18; R. Doc. No. 42, Exhibit C-1, at 3:25-35; R. Doc. No. 53-8, at 12:00-12:15. Deputy
Johnson attests that he immediately announced “shots fired” over the radio after he discharged his weapon. R. Doc.
No. 42-9, at ¶ 19.

26

R. Doc. No. 88-1, p. 95.

27

R. Doc. No. 42, Exhibit A-1 at 4:00-5:30.

28

Id.

29

Id.

30

Id.

31

Id.

4

April 4, 2011, approximately one hour after the shooting, Burke gave the following statement, in
relevant part, to police officers:32
Burke: At 7:00 in the morning, I witnessed my brother on their
back porch beating Krystyna.
Question: Ok. Now you’re saying your brother. Could you say
his name?
Burke: His name is Jonathan Clayton.
Question: Ok.
Burke: I saw him beating her.
Question: You call her “Krystyna.” What’s her last name?
Burke: I’m sorry, Krystyna Westmoreland. I saw him hitting her
on the porch and throwing her around. I came in, called 9-1-1,
and then made her—Krystyna—come into my house until the
police got here. When the police did get here, Jonathan would not
cooperate.
Question: Ok. Let’s back up just a minute. Was she injured when
she got here?
Burke: She was bleeding profusely out of her head.
Question: Ok. So she comes in. You lock the door. Where is he
at, at that time?
Burke: He’s back there at the trailer.
Question: Did he ever come up here?
Burke: He came up here with a knife.
Question: About how long was the knife? How big was the knife?
Burke: The blade of it was probably 7 inches long. It looked like
a filet knife. A long filet knife.
Question: Ok. What was he saying?
32

R. Doc. No. 42, Exhibit C-1. The following recorded conversations were loosely transcribed by the Court directly
from the recordings submitted in connection with this motion. The transcriptions liberally omit “ands,” “uhs,” and
other non-communicative and/or immaterial words heard on the recordings.

5

Burke: He didn’t say anything. He was just walking up here with
it.
Question: Ok. What got your attention? You told us earlier it was
the dog barking on the back porch, correct?
Burke: Yes.
Question: So when you’re watching him come here you’re on
your back porch or looking out the window?
Burke: I’m looking out. Because my backdoor has full glass. The
whole door. So I’m watching him in case he does come up and I
have to defend myself.
Question: Ok. Alright. So he’s coming up here and he turns
around?
Burke: He turns around I guess because he heard all the sirens
coming in the background. He went back to the trailer and I saw
him stabbing her tires with the knife he had been holding. And
then the police came in. I told the police where to go. Back there
in the back. The police tried to, you know, get him to surrender.
Get down on his belly or whatever. First, he tried to get him out
the house. Then, when he came out the house, then he was trying
to tell him to “get down, get down.”
Question: When your brother came out of the house what did he
have in his hands, anything?
Burke: I don’t know.
Question: Could you see anything?
Burke: I didn’t see anything.
Question: Ok. Was your brother saying anything?
Burke: But he was walking real ugly-like, scary-like, towards the
cop, screaming, “Shoot me! Shoot me!” and calling the police
officer names and stuff like that.
Question: What was he calling him?
Burke: “Pussy.” Because he wouldn’t shoot him, and stuff like
that.
Question: Ok. Then what happened?

6

Burke: Jonathan kept coming. He got within about 5 feet or so of
the police and he shot him.
Question: Can you tell me anything you heard the deputy say? I
know you said he was telling him things. Can you tell anything
specifically what he said? What he was telling Jonathan?
Burke: Well, first, he was telling him to “get out of the house.
Come out of the house.”
Question: Ok. And then what.
Burke: To “get on the ground.” Was telling him to “stop. Stop
where you’re at.” And he wouldn’t stop. He just kept walking
towards him.
Question: Aggressively walking?
Burke: Aggressively walking towards him.
Question: Ok.
Burke: Screaming. Hollering. Throwing his hands up in the air.
Question: Ok. Did you ever see anything in his hands?
Burke: Not at that time.
Question: Ok.
Burke: I saw that knife earlier.
Question: Ok. I understand your brother has had some emotional
problems in the past?
Burke: Yes. Emotional and he’s a drug addict.
Question: Ok. What kind of drugs?
Burke: Anything to shoot up in your vein. Heroin. Morphine. I
don’t know what he does. I don’t know.
Question: You said he’s been in a mental institution before, huh?
Burke: Several times.
Question: Several times? When’s the last time?
Burke: About a month ago.
7

Question: Ok. How long has he and Krystyna been together?
Burke: This time probably about four months. They had been
together before a few years ago.
Question: Ok. Was it a violent relationship then? Or do you
know?
Burke: He’s never hit a female until this date that I know of.
Question: Ok.
Burke: But, as far as arguing, yea. But he’s never hit a female
before.
Question: Are you scared of him?
Burke: I’ve always been scared of him. I’m deathly afraid of him.
Question: Why?
Burke: Because I’m scared he’s going to hurt me or my kids.
Question: Ok.
Burke: When he walks up to my house I watch his hands and
everything—to make sure he’s not—and pockets and everything.
I’ve been living in fear for years.
Question: Has he ever hurt you?
Burke: No. He’s never hurt me.
Question: Has he ever threatened you?
Burke: No. He’s mentally unstable though and you know it. You
know what I mean? He has hurt other people, though. Just not
me. I’m his sister. He hasn’t crossed that line. He hasn’t ever
hurt me or my mom.
Question: Your mom is who actually lives in that trailer? That’s
her trailer?
Burke: Yes, ma’am. She’s in Colorado on vacation.
Question: Has he ever hurt her?

8

Burke: No. But he hurt her boyfriend. He threw a big rock
ashtray and it— pow!—hit him in the face, knocked his teeth out.
He’s been in and out of jail.
Question: So he has a volatile personality.
Burke: He got put in jail for cutting somebody in Baton Rouge
before. I mean, I have reason to be scared of the guy. Even
though it was never towards me -Question: Has he ever attempted suicide before?
Burke: Yes, ma’am.
Question: How did he do that?
Burke: He ran out in front of a cop coming down the road one
time. He’s OD’d and had to go to the hospital on drugs. He’s a
cutter.
Question: You talking about cutting himself, right?
Burke: Yes. He’s crazy, you know what I mean? He does weird
things and acts strange that made me fear him.
Question: Ok. Can you give us an example of that? What makes
you uncomfortable?
Burke: Well first of all, he’s into all of this devil worshipping kind
of music. And he gets this evil look in his eyes. He talks this
crazy nonsense, you know, listens to sick twisted music. And like
I said, he’s gotten in several altercations with different people and
hurt them.
Question: Does he work?
Burke: Well he just got suspended from work like two days ago.
Question: Where was he working at?
Burke: Baton Rouge Country Club. Dishwashing. They pulled up
his background and saw where—he hadn’t been convicted of it
yet—but he’s charged with this big heroin thing in Baton Rouge.
So they put him on suspension.
Question: Alright. Is there anything else we need to know about
the incident? Did she say anything to you when she got up here?

9

Burke: She was just scared he was going to come up here and kill
her.
Question: Did she say anything what started this or anything?
Burke: She said he wouldn’t let her have her car.
Question: So she was wanting to leave? So she was trying to
leave when he—
Burke: Beat her.
Question: Ok. Did she say why she was wanting to leave?
Burke: I think she said that they were arguing because she’s
supposed to get some money from her mom today and Jonathan
wanted to spend it on drugs and she didn’t. That’s what started the
fight.
Question: Ok. What else did she say?
Burke: That’s really about it. “I’m dying. I think I’m going to die.
Please don’t let him come up here. He’s going to kill me. He’s
going to kill me.” I just kept making her sit on the couch, sit on
the couch.
Question: Ok. You saw him hit her?
Burke: Oh yea.
Question: And she said she thought he was going to kill her?
Burke: Yea.
On April 14, 2011, ten days after the shooting, Deputy Johnson gave his own account of
the incident in the following statement to police officers:33
Deputy Johnson: I’m sitting on a perimeter off of Sunset Lane.
Off of Walker South Road. I was back in the cul-de-sac just
standing outside the vehicle just waiting for, I guess, to [inaudible]
the perimeter or not. I heard a domestic disturbance come in. My
supervisor Warren Saxton told me—or actually told dispatch to
give it to me—so she called me, told me I need to get you en route
over there. Apparently there was a male that hit a female with a
pipe and weapons, possibly still on the scene.
33

R. Doc. No. 53-8.

10

So I headed that way, was trying to get information over the
radio—Is he still there? Suspect still there? Description?—and they
said he had a prior warrant or he had a warrant. I bumped it up to
Code 2 trying to get on over there. They said he was still on the
scene and now there’s a knife and he done cut the tires beat the
windshield out and windows out the car.
Question: Let me stop you for a minute. Why don’t you clarify on
the tape what’s the difference between Code 1, Code 2, and Code 3
here at the Livingston Parish sheriff’s department.
Deputy Johnson: Code 1 is just normal travel. Code 2 is lights
and siren when needed, through intersections what have you. Code
3 is lights and sirens steady. Being as the suspect was still on the
scene, I bumped it up to Code 2—lights siren only when needed—
just to get a little—cause I was a little ways out—I was at Walker
South Road and it was way up north on North Corbin Avenue,
north of Walker.
So I’m heading down to North Corbin avenue en route. I cut the
lights and sirens and everything off. You know, I didn’t want to
spook the guy or anything like that. I end up passing the house up.
Seen the fire department in the driveway. I just assumed that’s
where they was. I come to find out they were staging.
So I put it in reverse. I seen a woman flag me down. I pulled into
a drive. There’s a woman wearing a bathrobe. I’m not sure what
the color was. I asked if I was at the right spot. I seen the mailbox.
Wasn’t sure it was the residence because there was a trailer out
back and a house in the front. I was going about the residence
where I was called to. 3-0-600 or something like that.
So I pulled in the drive. Started talking to her, “Who is he?”
“Where’s he at?” I seen a gentlemen in the back trailer with his
head and shoulder out the door, just looking. She said, “Yea that’s
my brother down there. He needs to go to jail. He just beat his
wife,” what have you. I just shut the door. Quit talking to her.
Didn’t say anymore. Just headed down the driveway.
Soon as I pulled up behind the car I noticed it was all damaged,
back window busted out. I got out. Draw my gun. He jumps back
inside and shuts the door. I hear the tires deflate. Apparently, he
had just got finished slicing the tires. I get up there to the door. I
was at a fast pace—trying—I seen him go in. I’m trying to get
inside. Try to take control of the situation. The door’s locked.
“Hey you need to come out, you need to come outside now.”
11

Question: Let me ask you a question.
Deputy Johnson: Yes, sir.
Question: When you pulled up to the woman in the front, did you
ever see the girl that had been beaten?
Deputy Johnson: I didn’t. I didn’t see her until after the incident.
Question: Ok. Alright. Continue on. You’re at the front door?
Deputy Johnson: I was at the front door, beating on the door. He
won’t come out. I seen him poke his head out. I had the gun right
there at the front door. He backs off says, “Hey I’m gonna shoot
you.” So at that time I said, “Crap, he’s got a gun.” So I started
backing up a little bit off the porch.
He said, “Get back you motherfucker. I’m gonna shoot you. Get
back you motherfucker. I’m telling you right now I’m crazy.”
So I’m backing up off the porch, “Hey, you need to come outside,
come outside,” before he opens up the front door. And he has his
hand—his right hand—behind his back the whole time. And I’m
like, “Hey, put the gun down, put the gun down.” Telling
Livingston the whole time over the radio that he’s possibly got a
gun or what have you. I don’t know the exact words.
So he comes out the front door, starts walking down the steps
while I’m backing up the whole time. “I don’t want to shoot you, I
don’t want to shoot you.” I said, “Put the gun down. Put the gun
down.”
“You fucking pussy. You want to shoot me?
motherfucker. Shoot me.”

I’m crazy

I said, “I don’t want to shoot you. I don’t want to shoot you.”
“I want the police to shoot me motherfucker.”
And I said, “man, you better put the gun down.”
Well then he kind of turned a little bit and I seen a blade sticking
out. He don’t have a gun. “Livingston, he’s got a knife.”
So he goes back up the steps. Goes back in the house. I’ve still
got my gun on him. I follow him back up the steps a little bit.
12

And he says, “Yea, you’re doing this to me.”
And I said, “I ain’t doing nothing to you. You know you got your
kids.”
“I ain’t got no fucking kids.”
I said, “Well I got kids. Let’s try to control this. Put the knife
down.”
“You want to see what you’re doing to me?” And he gets the knife
and starts cutting on his arm.
And I said, “Hey. That’s you man. That’s not me. You don’t
need to be doing that.” I said “we got Acadian up there,” and what
have you.
He said, “You see what you’re doing?” And he grabs the knife and
pulls it across his throat with his right hand. It bleeds a little bit.
Apparently it was a dull knife or whatever.
He comes back out the door. “As soon as you come back out, I’ll
back down off the porch, man. Put the knife down. Put the knife
down.” He still has it up in his left hand sitting there coming at
me. I said, “Man, put the knife down.”
“Shoot me motherfucking pussy. You a pussy ain’t you. Fucking
shoot me. I want the cops to kill me.”
“Livingston,” I said. “He wants to be killed by a cop.”
[inaudible]
I’m sitting there saying, hey. I mean my legs were shaking. I’m
scared half to death. He’s got this knife coming at me. I don’t
want to shoot him. I tell him, “Hey, put the knife down” one more
time. He said, “Fuck you motherfucker.” He starts walking a little
faster to me and that’s when I took a shot off. Thought to myself,
“Crap.”
I looked around. I seen Matt Fiske driving into the driveway. Had
to get back to my senses. What’s going on. I kicked the knife out.
Disarmed him. Put him in ‘cuffs. And that was it.

13

After that Matt Fiske came up: “Hey, I’m taking control,” or
whatever. Well I go get my CSI kit out that we just went to school
for.
“No, you can’t do this crime scene. This ain’t got nothing to do
with you no more.”
“Ok, yea.” I’m just thinking they’re trying to do the crime scene.
Question: Well I’m sure there’s a lot going through your head at
that time. He was inside the house and inside the trailer and then
he was outside on the porch, correct?
Deputy Johnson: That happened twice.
Question: Yea. As he would do that you would back down off the
porch?
Deputy Johnson: Correct.
Question: So you were back on the ground itself?
Deputy Johnson: Correct.
Question: Where in that process did he actually cut his throat and
what was the distance?
Deputy Johnson: He cut his throat behind the screen door inside
the house.
Question: Inside the trailer?
Deputy Johnson: Looking at me from the outside or from the
inside out.
Question: Ok. And you were on the porch at that time, correct?
Deputy Johnson: I was on the steps.
Question: What kind of distance are we talking, like approximate
footage. 10 foot, maybe? 5 foot?
Deputy Johnson: I guess . . . 10 maybe. I don’t know how far it is
from the edge of the steps to the front door.
Question:
correct?

But you were in close proximity with the subject,

14

Deputy Johnson: Yes.
Question: Pretty much the entire time?
Deputy Johnson: Yep.
Question: Ok. As he comes out that trailer towards you, you’re
off the porch?
Deputy Johnson: Correct.
Question: He exits off the porch. About how close are y’all then.
Same thing? About 5-10 foot? You’re in close proximity?
Deputy Johnson: Same distance the whole time.
Question: Ok. So as you’re backing up he’s coming toward you
with that knife.
Deputy Johnson: I just drew a line that he wasn’t going to get past
my car because I knew the female was back behind me. And if we
got in the open area, or whatever, then anything could go.
Question: You weren’t actually protecting yourself. You were
actually protecting anybody else who was on that property?
Deputy Johnson: Correct. Because I knew the woman was back
there behind me. I didn’t actually see her, but I heard somebody
back there talking to somebody while I’m trying to focus on him.
Question: And the knife’s in what hand? Which hand?
Deputy Johnson: Left hand.
Question: Left hand? Ok.
Deputy Johnson: When he went down he hit his chest with it.
And when he laid down he laid on the side. I kicked the knife out
his left hand. He cut with his left hand also. I think he cut with his
right hand when he cut across his neck.
Question: Ok. So he switched hands?
Deputy Johnson: Correct.

15

Question: To clarify—you only fired your duty weapon once,
correct?
Deputy Johnson: Correct.
* * *
Question: I know earlier you stated that you feared for your life
and for the others on the property. So you felt when he came
towards you that you were going to sustain either great bodily
harm or you could be killed due to his actions, correct?
Deputy Johnson: Oh yea.
Question: You felt that he was willing to use that knife against
you?
Deputy Johnson: Yea. He already said he was suicidal. He told
me he was suicidal. And he wanted me to shoot him. And if he
didn’t want me to shoot him, he wanted me to come at him. One
way or another.
Question: Right. And as you being a commissioned officer it’s
your job not only to protect your life but others lives as well,
correct?
Deputy Johnson: That’s correct.
Question: And you feared for those people that had already been
injured or on that property.
Deputy Johnson: I did. I heard it was pretty bad. I assumed that
he still had the pipe. That’s the way I was there until I seen the
knife. And when he told me he was going to shoot me I thought he
had a gun at that time.
Question: So you didn’t know what kind of weapon he had until
you visually saw him?
Deputy Johnson: Correct. There was three that was presented, but
I only seen one.
Question: Until you saw the knife in his hand?
Deputy Johnson: Correct. The knife is the only thing I ever seen.
I never seen the pipe that he used on the victims.
* * *

16

Question: David, did you have anything that you want to add or
take away from this statement?
Deputy Johnson: I wished everything could have been different.
Question: You’ve been on the job five years full time, correct?
Deputy Johnson: Correct.
Question: You’ve had a lot of different situations that you’ve been
involved in, correct?
Deputy Johnson: This is my second officer involved shooting
incident.
Question: Were you the officer that actually shot the last time.
Deputy Johnson: Negative.
Question: You were just at that location?
Deputy Johnson: I was standing right next to him.
Question: When it occurred?
Deputy Johnson: In front of the suspect.
Question: Ok. But you’ve come through a lot in five years. You
deal with a lot?
Deputy Johnson: Correct.
Question: Alright. And in this one instance, you definitely felt
that your life and everybody else’s life was in danger?
Deputy Johnson: I did.
Question: So you did what you had to do to protect yourself and
others?
Deputy Johnson: I believe I did.
Question: Under the umbrella of your commission, correct?
Deputy Johnson: Yes, sir.
Question: As a deputy of the Livingston Parish sheriff’s office,
correct?
Deputy Johnson: Yes, sir.
17

The statements of Burke and Deputy Johnson are largely consistent with their testimony
made in response to formal discovery. Burke testified, in relevant part, during her deposition on
May 10, 2012, as follows:34
Question: Okay. Did your brother, when your brother first came
out, when the deputy arrived, did you ever see your brother go
back into -Burke: He never went in once he came out.
Question: Okay. And then what happened after that? The officer
– your brother comes off the porch; what happens next?
Burke: He rounds the banister, and the officer is telling him to get
on – hollering at him to get on the ground. Get on the ground, get
on the ground, get on the ground.
Question: Was your brother complying?
Burke: No.
Question: Did your brother approach the officer in a threatening
manner?
Burke: He was walking towards him.
Question: Was he flailing his arms around as-Burke: He was hollering, and his arms were going up in the air
every time he hollered.
Question: All right.
Burke: Like any coon-ass hollers.
Question: It’s fair to say that he was not obeying the officer’s
commands, correct?
Burke: Right.
Question: And he was approaching him in a threatening manner,
correct?
Burke: He was holler - -- yes. He was hollering at him.
34

R. Doc. No. 88-1, pp. 93-103.

18

Question: Approaching him in a threatening manner, correct?
Counsel: Let me object.
argumentative.

It’s asked and answered, and it’s

Burke: I just said he was hollering at him.
* * *
Question: All right. So what happens next? Your brother is
yelling at the officer; do you remember what he’s yelling at him?
Burke: To shoot him.
Question: All right. And he’s flailing his arms?
Burke: Uh-huh.
Question: Yes?
Burke: Yes.
Question: And what happens next?
Burke: The cop shot him in the heart. He was in mid-step.
* * *
Question: Did you ever see a knife in the area?
Burke: Never.
Question: Never saw a knife in close proximity to where your
brother fell when he was shot; is that your testimony?
Burke: That’s my testimony.
Question: Do you know if a knife was found in close proximity to
where your brother was shot?
Burke: I know that they’re saying that there was a knife there.
Question: Right.
Burke: That’s what they’re saying.
Question: Right. What’s your position on that?
Burke: My position is there was no knife there.
19

Question: Because if there was one, you would have seen it?
Burke: I would have seen it in his hand. There was plenty time for
me, with him flailing his arms, to see the giant knife in his hand.
Question: And even after the shooting, shortly after the shooting,
you were watching, and if there was a knife in close proximity to
where your brother fell, you would have seen that as well, correct?
Burke: That’s right.
* * *
Question: And you listened to [your] statement before your
deposition today, right?
Burke: I did.
Question: And everything in that statement that you said is true
and accurate?
Burke: To the best of my knowledge that day, yea. I was pretty
shook up. But it was pretty – pretty much it.
On September 18, 2012, Deputy Johnson testified during his deposition that, consistent
with his previous statement, Clayton was approaching him in a threatening manner while holding
a knife.35 Deputy Johnson testified, in relevant part, as follows:
We talked, you know, both hollering and screaming back and
forth. I said, “You don’t need to do this.” Well, he comes on out
the door. He starts in an aggressive manner, you know, just really
fast coming at me. I said, “Man, you need to stop. Lay the
weapon down. Lay the weapon down.” He has got the knife up in
his hand and he is coming at me. He said, “I am going to make
you shoot me you fucking pussy. Shoot me motherfucker. You
are going to shoot me you pussy.” I said, “I don’t want to shoot
you. I don’t want to shoot you. Let’s do this. Let’s get out of this
right now. He said, “I am going to make you fucking shoot me.”
He come up with the knife, and that’s when I shot him.

35

R. Doc. No. 87, p. 52.

20

On May 10, 2012, Westmoreland testified during her deposition that she did not see the
actual shooting, but that she observed at least part of the confrontation between Deputy Johnson
and Clayton.36 Westmoreland testified, in relevant part, as follows:
Question: Did you -- were you able to hear the police officer
and/or Jonathan engaging in any communication -Westmoreland: Yes, sir.
Question: Tell me what you were -Westmoreland: The officer yelling at him to stop and things like
that. And Angela at one point in time told him, “Jonathan, stop.”
Then there was a period of silence. And then the yelling started
again and then there was the gunshot. I was not able to see the gun
shot. I was -- I don’t remember if I was in the house or in the front
of the house when that happened.
Question: Okay. Are you able to estimate for me about how long
a period of time elapsed from when the officer first arrived on
scene until the shooting occurred?
Westmoreland: I would think about ten, fifteen minutes.
Question: So it was a matter of minutes, it wasn’t immediately?
Westmoreland: No, it was not immediately.
Question: Okay. But you were sitting at the front of the house, so
you weren’t able to really see what was going on a lot between the
officer -Westmoreland: No, sir. I believe I saw, at one point in time -- I
don’t remember if I was in the house or if I came around -- I think
I came around to kind of where the police officer had originally
stopped, and looked down the driveway, and I saw Jonathan
walking towards the officer and throwing his hands out, yelling at
the officer, and the officer had his gun drawn and was telling
Jonathan to stop. But then I walked back around to the front of the
house.
Question: Okay. At that point in time were you able to tell if
Jonathan had anything in his hands?
36

R. Doc. No. 88-2, pp. 36-41.

21

Westmoreland: I didn’t see anything in his hands.
Question: Is it possible he did and you just didn’t see it, or you’re
telling me he definitely didn’t have anything in there?
Westmoreland: I’m pretty sure he didn’t have anything in his
hands at that point in time.
Question: Okay. And then you went back into the house?
Westmoreland: I went back around to the front of the house,
because the paramedics were trying to treat me and I kept getting
up and moving around.
Question: Now, when you first saw Jonathan, were the first
responders to you yet?
Westmoreland: Yes, sir, they were to me, and they were trying to
get me to sit down and be still, and I kept moving around and
freaking out.
Question: Okay. And when you saw Jonathan when you peeked
around the house, were you located about where you’ve drawn that
X on Exhibit 11?
Westmoreland: Around that area, yes, sir.
Question: And where was Jonathan?
Westmoreland: He was coming around from his house. He was at
the end, kind of in the gravel part of the driveway, I believe,
walking, and the officer was backing up, kind of – like, the
driveway was like this, and he kind of was backing up this way
with his gun drawn, telling him to stop.
Question: Okay. Where was Jonathan in relation to the trailer
when you first saw him?
Westmoreland: He wasn’t on the porch of the trailer, he was kind
of like in the driveway part that’s in front of the trailer. He was
kind of walking that direction, like towards the bushes and things
that are growing on the side.
Question: He was near -- he was near the porch when you saw
him?
Westmoreland: He wasn’t near the porch anymore. He had come
off the porch and he was kind of walking like in the driveway, kind
of, like, I guess catty-corner, would be the word.
22

* * *
Question: Okay. And what was the officer doing?
Westmoreland: He had his gun drawn and he was backing away
from Jonathan and telling Jonathan to stop.
Question: Which direction was he backing up?
Westmoreland: The right -- he was backing away on the right.
Jonathan was walking in, like, the right direction, and the officer
was backing away from him. I don’t know what direction it is, I
don’t -Question: If you don’t know, that’s fine. I’m just, I’m wondering
if he was backing up towards the house -Westmoreland: He was backing up towards the bushes. Jonathan
was coming this way, and the officer was backing up towards the
bushes.
Question: All right. And then you went back to resume getting
treatment?
Westmoreland: Yes, sir.
Question: And then, how many minutes was it, you think, after
that that the shooting happened?
Westmoreland: I really don’t know. I guess maybe five minutes.
Around five minutes or so.
Question: Again, it wasn’t instantaneous, some -Westmoreland: No, sir. Some time had passed.
Question: After you -- we just got through a discussion when you
peeked down there and you drew on Exhibit 12 where you saw
them. You never looked down there again, correct?
Westmoreland: No, sir. I sat down and was treated.
Question: Did you hear anything else between Jonathan and the
officer though, while you were being treated?
Westmoreland: I heard the “stop,” and I believe I heard him
telling him to lay down. And then there was silence, there was a
period of silence where everybody quit yelling, and then I don’t
remember if I heard the officer yell first or if I heard Angela yell
23

first, somebody yelled, “Jonathan, stop.” And probably less than a
minute after that there was gunfire.
Question: Okay. Did you see Angela – do you know where
Angela was when the gun was fired?
Westmoreland: I believe she was around in the driveway to the
side of her house.
Question: Did you see her?
Westmoreland: No, sir. She was out of my eyesight at that point
in time.
On September 25, 2012, Deputy Johnson filed his motion for summary judgment with
respect to all federal and state claims asserted against him. Deputy Johnson contends that
Burke’s testimony is inconsistent and cannot overcome the evidence showing that Clayton had a
knife when he was shot. Deputy Johnson contends that his testimony, combined with the
dashboard recording captured from Deputy Fiske’s unit, show that Clayton was holding a knife
when he was shot, and that Deputy Johnson can be seen kicking it away from Clayton’s body
before placing him in handcuffs. Deputy Johnson also contends that his decision to use deadly
force would have been reasonable under the circumstances even if Clayton did not have a knife
when he was shot. Deputy Johnson contends that a reasonable officer in his position would have
reason to believe that Clayton posed a serious threat to himself and others even if he was
unarmed at the moment Deputy Johnson pulled the trigger. Finally, Deputy Johnson argues that
there is no evidence supporting any claims premised on a failure to provide adequate or timely
medical attention.
Sheriff Graves also filed a motion for summary judgment with respect to all federal and
state claims asserted against him in his individual and official capacities.

Sheriff Graves

contends that any claims against him are rendered moot if the motion for summary judgment is
granted in favor of Deputy Johnson. Sheriff Graves contends that even if that motion is denied,
24

plaintiffs have failed to come forward with evidence supporting their claims premised on
inadequate hiring and/or screening. Sheriff Graves further contends that plaintiffs have failed to
come forward with evidence sufficient to establish liability against him based on a theory of a
failure to train or supervise.
On October 5, 2012, plaintiffs filed their opposition to Deputy Johnson’s motion arguing
that disputed issues of material fact preclude summary judgment. First, plaintiffs contend that
Deputy Johnson, from the moment he arrived on the scene, acted recklessly by failing to call the
Sheriff’s Special Response Team (“SRT”) to handle the situation. Second, plaintiffs argue that
genuine issues of material fact exist with respect to whether Clayton was holding a knife when
he was killed, and whether a knife was planted on the scene after the shooting. Plaintiffs contend
that Deputy Fiske’s dashboard camera recording does not show that Deputy Johnson
immediately kicked a knife out of Clayton’s hand after shooting him, but rather that no object
can be seen flying, skidding, or moving away from Clayton’s body after the kicking motions
were made. Plaintiffs also note that Deputy Johnson can be seen in the area where the knife was
located before making any kicking motions. Plaintiffs contend that their testimony that Clayton
was not holding a knife when he was shot is neither inconsistent, nor capable of being
disregarded, in light of the video recording. Finally, plaintiffs contend that, without a knife,
Clayton did not pose a serious threat of harm to Deputy Johnson or others such that deadly force
could be used to seize him.
Plaintiffs also oppose Sheriff Graves’s motion for summary judgment. Plaintiffs contend
that Clayton’s death was the result of Sheriff Graves’s deliberate indifference with respect to the
training or supervision of Deputy Johnson. Plaintiffs contend that Deputy Johnson was not
trained to adhere to police procedures requiring the SRT to handle situations involving
individuals threatening suicide while armed. Plaintiffs further contend that Deputy Johnson was
25

not reprimanded as a result of another incident (which is still pending) in which another patrol
deputy disregarded such procedures and tactically engaged a man threatening suicide while
armed. Plaintiffs contend that Sheriff Graves was deliberately indifferent with respect to the
need to train and equip Deputy Johnson with less-than-lethal methods of restraint and the
handling of situations involving suicidal suspects. Finally, plaintiffs contend that Sheriff Graves
ratified Deputy Johnson’s conduct by failing to consider the possibility that Deputy Johnson lied
about the circumstances of the shooting.
STANDARD OF LAW
Summary judgment is proper when, after reviewing “the pleadings, the discovery and
disclosure materials on file, and any affidavits,” the court determines there is no genuine issue of
material fact. Fed. R. Civ. P. 56(c). The party seeking summary judgment always bears the initial
responsibility of informing the court of the basis for its motion and identifying those portions of
the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not
produce evidence negating the existence of material fact, but need only point out the absence of
evidence supporting the other party’s case. Celotex, 477 U.S. at 323; Fontenot v. Upjohn Co.,
780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule 56(c), the
other party must come forward with specific facts showing that there is a genuine issue of
material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as
to the material facts,’ by ‘conclusory allegations,’ ‘unsubstantiated assertions,’ or by only a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations
omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a
26

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not
rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The
nonmoving party’s evidence, however, “is to be believed, and all justifiable inferences are to be
drawn in [the nonmoving party’s] favor.” Id. at 255; see Hunt v. Cromartie, 526 U.S. 541, 552
(1999) (internal quotation and citation omitted) (alteration in original).
DISCUSSION
I. Excessive Force Claims
A. Primary Issue
The primary issue raised in this motion for summary judgment is whether Deputy
Johnson would be entitled to qualified immunity even if Clayton was not holding a knife when
Deputy Johnson pulled the trigger. The parties vigorously dispute whether Clayton was, in fact,
still holding a knife when he was shot, and the Court agrees with plaintiffs that this fact is
genuinely in dispute. Deputy Johnson’s testimony that Clayton was coming at him with a knife
conflicts with Burke’s testimony with respect to that issue. Plaintiffs’ version of the facts is
neither “absurd” nor “plainly contradicted” by the video captured by Deputy Fiske’s dashboard
camera such that Burke’s testimony may be disregarded for purposes of summary judgment.
Poole v. City of Shreveport, 691 F.3d 624, 630-32 (5th Cir. 2012) (citing Scott v. Harris, 550
U.S. 372, 381, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007)). At this juncture, the Court must view
the evidence in a light most favorable to plaintiffs by assuming that Clayton was not holding a
knife for the purposes of this motion.
B. Qualified Immunity
In Harlow v. Fitzgerald, the United States Supreme Court established the principle that
“government officials performing discretionary functions generally are shielded from liability for
27

civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” 457 U.S. 800, 818, 102
S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). A claim of qualified immunity requires the Court to
engage in the well-established two-step analysis developed by the Supreme Court in Saucier v.
Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), overruled in part by Pearson v.
Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). See Lytle v. Bexar County,
Tex., 560 F.3d 404, 409-10 (5th Cir. 2009). As stated by the Fifth Circuit in the context of a
motion for summary judgment:
First, we determine whether, viewing the summary judgment
evidence in the light most favorable to the plaintiff, the defendant
violated the plaintiff's constitutional rights. See, e.g., Tarver v. City
of Edna, 410 F.3d 745, 750 (5th Cir. 2005); McClendon v. City of
Columbia, 305 F.3d 314, 322-23 (5th Cir. 2002) (en banc); Glenn
v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). If not, our
analysis ends. If so, we next consider whether the defendant's
actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question. See, e.g.,
Tarver, 410 F.3d at 750; Glenn, 242 F.3d at 312. To make this
determination, the court applies an objective standard based on the
viewpoint of a reasonable official in light of the information then
available to the defendant and the law that was clearly established
at the time of the defendant's actions. See Glenn, 242 F.3d at 312;
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000); see also Tarver, 410 F.3d at 750 (“If officers of reasonable
competence could disagree as to whether the plaintiff’s rights were
violated, the officer's qualified immunity remains intact.”).
Freeman v. Gore, 483 F.3d 404, 410-11 (5th Cir. 2007).
The Court must “make two ‘overlapping objective reasonableness inquiries’ ” when
conducting the qualified immunity analysis in excessive force cases. Sanchez v. Fraley, No. 0950821, 2010 WL 1752123, at *2, (5th Cir. Apr. 30, 2010) (unpublished) (quoting Lytle, 560
F.3d at 410). As stated by the Fifth Circuit,
Allegations that an officer used excessive force in conducting a
seizure complicates the Saucier inquiry. This complexity stems
28

from having to make two “overlapping objective reasonableness
inquir[ies].” Id. at 210, 121 S. Ct. 2151 (Ginsburg, J., concurring in
the judgment). We must first answer the constitutional violation
question by determining whether the officer’s conduct met the
Fourth Amendment's reasonableness requirement, as discussed
below. If we find that the officer’s conduct was not reasonable
under the Fourth Amendment, we must then answer the qualified
immunity question by determining whether the law was
sufficiently clear that a reasonable officer would have known that
his conduct violated the constitution. In other words, at this second
step, we must ask the somewhat convoluted question of whether
the law lacked such clarity that it would be reasonable for an
officer to erroneously believe that his conduct was reasonable.
Despite any seeming similarity between these two questions, they
are distinct inquiries under Saucier, and we must conduct them
both.
Lytle, 560 F.3d at 410.
When a defendant invokes qualified immunity, the burden is on the plaintiff to
demonstrate the inapplicability of the defense. See McClendon v. City of Columbia, 305 F.3d
314, 323 (5th Cir. 2002) (en banc) (citing Bazan ex rel. Bazan v. Hidalgo Cnty, 246 F.3d 481,
489 (5th Cir. 2001)). When faced with a motion for summary judgment, “the plaintiff can no
longer rest on the pleadings . . . and the court looks to the evidence before it (in the light most
favorable to the plaintiff) when conducting the Harlow inquiry.” McClendon, 305 F.3d at 323
(quoting Behrens v. Pelletier, 516 U.S. 299, 309, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996))
(omission in original). While viewing all facts in a light most favorable to plaintiffs, the burden
remains on plaintiffs “to negate the [qualified immunity] defense once properly raised.” Poole,
691 F.3d at 627 (quoting Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008)). Even on
summary judgment, this Court cannot ignore that qualified immunity “gives ample room for
mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate
the law.” Poole, 691 F.3d at 627 (quoting Brumfield, 551 F.3d at 326).
C. Whether Deputy Johnson’s Conduct Violated the Fourth Amendment

29

The Court must first determine whether Deputy Johnson’s conduct violated the Fourth
Amendment which guarantees citizens the right to be free from unreasonable searches and
seizures. U.S. Const. Amend. IV. To state an excessive force claim, the plaintiff must establish
that he suffered “(1) an injury that (2) resulted directly and only from the use of force that was
excessive to the need and that (3) the force used was objectively unreasonable.” Ballard v.
Burton, 444 F.3d 391, 402 (5th Cir. 2006) (citing Flores v. City of Palacios, 381 F.3d 391, 396
(5th Cir. 2004)). “Assessing the reasonableness of a police officer’s use of force involves ‘a
careful balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.’ ” Lytle, 560
F.3d at 411 (quoting Graham, 490 U.S. at 396) (internal quotation omitted). Some of the factors
the Court considers are “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
(quoting Graham, 490 U.S. at 396). “[W]e must balance the amount of force used against the
need for force,” paying “careful attention to the facts and circumstances of each particular case.”
Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (quoting Flores, 381 F.3d at 399)
(internal quotation marks and citations omitted).
The Supreme Court has made clear that an officer’s actions are judged under an objective
standard that does not take into account an officer’s subjective intent. Graham, 490 U.S. at 397.
Government officers are also entitled to deference:
The “reasonableness” of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight . . . . The calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly evolving-about
the amount of force that is necessary in a particular situation.
30

Id. at 397. However, the “objective reasonableness” balancing test is “constrained” when an
officer uses deadly force. Sanchez, 2010 WL 1752123, at *2 (quoting Flores, 381 F.3d at 399).
Deadly force may only be used where “an officer would have reason to believe that the suspect
poses a threat of serious harm to the officer or others.” Ramirez v. Knoulton, 542 F.3d 124,
129 (5th Cir. 2008) (quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)). The
threat of harm must also be immediate. Reyes v. Bridgwater, 2010 WL 271422, at *4 (5th Cir.
Jan. 22, 2010) (citing Garner, 471 U.S. at 11) (“Where the suspect poses no immediate threat to
the officer and no threat to others, the harm resulting from failing to apprehend him does not
justify the use of deadly force to do so . . . . A police officer may not seize an unarmed,
nondangerous suspect by shooting him dead.”). “[T]he focus of the inquiry is ‘the act that led the
officer to discharge his weapon.’” Reyes, 2010 WL 271422, at *3 (quoting Manis v. Lawson, 585
F.3d 839, 845 (5th Cir. 2009) (alteration omitted)).
Turning to the undisputed facts of this case, it is clear that Deputy Johnson knew he was
responding to a dangerous crime scene where the suspect was reported to have attacked a female
with a weapon. The 9-1-1 dispatcher advised Deputy Johnson that the suspect was still on the
scene of an alleged battery in which a 20-year old female sustained injuries after a male hit her in
the head with a pipe.37 The 9-1-1 dispatcher also advised Deputy Johnson that the suspect’s sister
was threatening to shoot the suspect to defend herself.38 When he arrived, Deputy Johnson could
see that Clayton had recently broken the windows and slashed the tires of Westmoreland’s
vehicle. When Deputy Johnson knocked on the door of the trailer and ordered Clayton to come

37

R. Doc. No. 42, Exhibit B-1, at 6:00 – 7:00.

38

Id. at 12:45.

31

out, Clayton threatened to shoot the officer,39 and he refused to show his hands such that Deputy
Johnson believed he had a gun.
The confrontation rapidly escalated to the point where Deputy Johnson clearly had reason
to believe that Clayton did, in fact, pose a serious threat to the officer or others, even though he
could see that Clayton did not have a gun.

Deputy Johnson watched as Clayton became

increasingly agitated and attempted to cut his own throat with a knife. Clayton then repeatedly
refused to follow commands to come out of the trailer, stop walking towards the officer, and to
get on the ground. Although Deputy Johnson did not know Clayton’s mental health and criminal
history at the time,40 the objective facts indicated that he was being confronted by a suicidal and
non-compliant suspect with dangerous and violent propensities that presented “a heightened
possibility of threat to the officers or others.” Btesh v. City of Maitland, Fla, No. 10-71, 2011
WL 3269647, at *20 (M.D. Fla. July 29, 2011) (quoting Fernandez v. City of Cooper City, 207
F. Supp. 2d 1371, 1378 (S.D. Fla. 2002)). The danger was enhanced by the facts that Deputy
Johnson had drawn his service weapon and that he was in close proximity as Clayton continued
to come towards him and ignore his commands. Btesh, 2011 WL 3269647, at *20.
The threat of Clayton approaching from a distance of approximately five to ten feet
presented an immediate risk of serious harm to Deputy Johnson and others. Deputy Johnson did
not pull the trigger until Clayton had backed him up to the open area between the trailer and the
house where first responders were treating Westmoreland. Deputy Johnson testified that he
could hear people talking behind him. Clayton was coming at Deputy Johnson, throwing his

39

Id. at 18:55.

40

The analysis turns on an “objective standard based on the viewpoint of a reasonable official in light of the
information then available to the defendant.” See Freeman, 483 F.3d at 410-11. To the extent that information
unknown to Deputy Johnson has been presented in this order and reasons, it is intended only for purposes of general
background information.

32

hands in the air, and yelling, “I am going to make you shoot me you fucking pussy. Shoot me
motherfucker. You are going to shoot me you pussy.” Clayton was not deterred by the fact that
Deputy Johnson was aiming a gun directly at him and ordering him to get on the ground.41
Deputy Johnson’s Glock .40 caliber handgun was fully-loaded and it had a bullet in the
chamber.42 Deputy Johnson stated that he was concerned for his own safety and the safety of
others on the property because “anything could go” if he allowed Clayton to enter the open
area.43 A reasonable officer in this situation would have reason to believe that Clayton was only
steps away from being in a position to wrestle the gun from the officer and to hurt or kill others
on the premises.
Moreover, with Clayton coming towards the officer in close proximity, throwing his
hands in the air and yelling, “I’m going to make you shoot me motherfucker,” Deputy Johnson
was not facing a mere “latent threat” that had yet to “materialize[] into a risk of harm.” Reyes,
2010 WL 271422, at *4. Clayton was actively resisting and threatening imminent harm when
Deputy Johnson made a split-second decision during a situation that was “tense, uncertain, and
rapidly evolving.” Ramirez, 542 F.3d at 130 (quoting Graham, 490 U.S. at 397). Faced with this
immediate threat of serious harm, Deputy Johnson was not required to wait until Clayton was on
top of him and attempting to physically overcome him before taking action to protect himself
and others. As the U.S. Court of Appeals for the Fifth Circuit has recognized,
The Fourth Amendment does not require police officers to wait
until a suspect shoots to confirm that a serious threat of harm
41

Plaintiffs’ argument that Deputy Johnson did not give a warning before using deadly force is meritless. Clayton
repeatedly yelled at Deputy Johnson, who was pointing a gun at him, to shoot him as he continued to advance on
him and ignore his commands to get on the ground. See, e.g., Btesh, 2011 WL 3269647, at *20 (“Although Officer
Denicola did not verbally warn Btesh that she would shoot before firing upon him, she and Officer Payne provided
unspoken warnings by maintaining their guns drawn while commanding Btesh to stop and show his hands.”).
42

R. Doc. No. 53-8, at 13:20-13:50.

43

Id. at 12:30-13:00.

33

exists. The court’s comment that officers could have [utilized a
different tactic] is, unfortunately, a suggestion more reflective of
the ‘peace of a judge’s chambers’ than of a dangerous and
threatening situation on the street.
Ramirez, 542 F.3d at 130 (quoting Elliot v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996)). Deputy
Johnson believed that Clayton posed an imminent threat and this Court will not “second guess
the timing of that realization” by failing to take into account the reasonable beliefs of an officer
standing steps away from a defiant, disturbed, and obviously dangerous man. See Ramirez, 542
F.3d at 130.
Finally, the Court notes that plaintiffs have attempted to “inject impermissible hindsight
into the analysis” by suggesting that Deputy Johnson could have (possibly) prevented Clayton’s
death by waiting for the SRT team to handle the situation, or relying on less-than-lethal methods
of restraint.

See Btesh, 2011 WL 3269647, at *23. As to the argument that Clayton failed to

follow proper police protocol by pursuing Clayton without the SRT team, the Fifth Circuit has
consistently recognized that “[e]ven where an officer acts negligently and contrary to police
procedure, this court has failed to recognize a constitutional claim where an officer used deadly
force in response to a reasonable belief that an individual posed a threat of serious harm.”
Ramirez, 542 F.3d at 129-30 (citing Young v. City of Killeen, 775 F.2d 1349, 1350-53 (5th Cir.
1985)); see also Mace, 333 F.3d at 625 (“Although, in retrospect, there may have been
alternative courses of action for [the officer] to take, we will not use ‘the 20–20 vision of
hindsight’ to judge the reasonableness of [an officer’s] use of force.”). The analysis turns,
instead, on whether the use of force was objectively reasonably in response to the acts that led
the officer to discharge his weapon. See id. Because this Court finds that Deputy Johnson’s use
of force was justified by the presence of an immediate threat of serious harm or death to himself

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or others, the Court does not find that Deputy Johnson’s conduct violated the Fourth
Amendment.
D. Whether The Law Was Sufficiently Clear That A Reasonable Officer Would
Have Known That Shooting Clayton Violated The Constitution
The Court further finds that even if Deputy Johnson’s conduct violated the Fourth
Amendment, a reasonable officer in his position would not have known that using deadly force
was unlawful in light of clearly established law. Federal courts have long recognized that “[i]t is
clearly established that use of deadly force is unreasonable unless an officer has ‘probable cause
to believe that the suspect pose[es] a threat of serious harm to the officer or to others.’ ” Ramirez,
542 F.3d at 129 (quoting Mace, 333 F.3d at 624; Garner, 471 U.S. at 11). However, with respect
to the second step of the qualified immunity analysis, “the central concept is that of fair
warning.” Lytle, 560 F.3d at 417 (quoting Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004)
(en banc) (internal quotations omitted)). “Thus, while the right to be free from excessive force is
clearly established in a general sense, the right to be free from the degree of force employed in a
particular situation may not have been clear to a reasonable officer at the scene.” Lytle, 560 F.3d
at 417 (quoting Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)). “The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Lytle, 560 F.3d
at 409 (quoting Saucier, 533 U.S. at 202)). For the reasons previously stated, it would not have
been clear to a reasonable officer that using deadly force would violate the law in the particular
circumstances of this case involving an imminent threat from a dangerous suspect, albeit
unarmed for purposes of this motion. Accordingly, Deputy Johnson is entitled to qualified
immunity and summary judgment as to the claims of excessive force.
II. Remaining Claims

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A. Federal Claims Based on Failure to Provide Adequate or Timely Medical
Attention
Defendants contend that plaintiffs cannot establish a constitutional violation with respect
to their claim that Deputy Johnson and/or Sheriff Graves failed to provide Clayton with adequate
or timely medical attention. “The constitutional right of a pretrial detainee to medical care arises
from the due process guarantees of the Fourteenth Amendment.” Mace, 333 F.3d at 625 (citing
Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000)). “That right is violated if an officer acts
with deliberate indifference to a substantial risk of serious medical harm and resulting injuries.”
Id. “Deliberate indifference requires that the official have subjective knowledge of the risk of
harm.” Id. at 625-26. “Mere negligence or a failure to act reasonably is not enough.” Id at 626.
“The officer must have the subjective intent to cause harm.” Id.
Plaintiffs did not oppose the motion for summary judgment with respect to their claim
that Deputy Johnson and/or Sheriff Graves failed to provide adequate or timely medical
attention.44 The dashboard camera on Deputy Fiske’s unit clearly shows that first responders
were on the scene at the time of the shooting. Deputy Fiske summoned the first responders
within one minute of “shots fired” being reported, and within approximately twelve seconds of
the time Clayton was secured in handcuffs. Plaintiffs offer no evidence demonstrating that
defendants were deliberately indifferent with respect to Clayton’s medical needs. Accordingly,
defendants are entitled to summary judgment with respect to their claim that Deputy Johnson
and/or Sheriff Graves were deliberately indifferent with respect to the need to provide adequate
or timely medical attention.
B. Federal Claims Against Sheriff Graves Based on Failure to Train and/or
Supervise

44

The Court notes that there is no evidence that Sheriff Graves was present at the scene of the shooting.

36

Defendants contend that any remaining claims against Sheriff Graves are rendered moot
if the motion for summary judgment is granted in favor of Deputy Johnson.45 The Fifth Circuit
has held that “[a] sheriff not personally involved in the acts that deprived the plaintiff of his
constitutional rights is liable under section 1983 if: 1) the sheriff failed to train or supervise the
officers involved; 2) there is a causal connection between the alleged failure to supervise or train
and the alleged violation of the plaintiff's rights; and 3) the failure to train or supervise
constituted deliberate indifference to the plaintiff’s constitutional rights.”

Brumfield v.

Hollins, 551 F.3d 322, 329 (5th Cir. 2008) (quoting Thompson v. Upshur County, 245 F.3d 447,
459 (5th Cir. 2001)). Because this Court has already found that Deputy Johnson did not violate
Clayton’s constitutional right to be free from excessive force, plaintiffs cannot establish that
Sheriff Graves was responsible for a violations of Clayton’s rights. See City of Los Angeles v.
Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (holding that a municipality
may not be held liable under § 1983 where no constitutional deprivation has occurred); Elizondo
v. Green, 671 F.3d 506, 510-11 (5th Cir. 2012); Foster v. Carroll Cnty., No. 11-60726, 2012 WL
5398190, at *2 (5th Cir. Nov. 6, 2012) (unpublished); see also Rios v. City of Del Rio, Tex., 444
F.3d 417, 426 (5th Cir. 2006) (“We have held that we ‘use the same standard in assessing an
individual supervisor’s liability under § 1983’ as that used ‘in assessing a municipality’s
liability’ thereunder.”) (quoting Doe v. Taylor ISD, 15 F.3d 443, 453 (5th Cir. 1994) (en banc)).
Accordingly, Sheriff Graves is entitled to summary judgment with respect to the claims against
him in both his individual and official capacity.
C. State Claims
Having determined that plaintiffs’ federal claims must be dismissed, the Court declines to
45

Plaintiffs concede that that they have discovered no facts indicating that Sheriff Graves’ hiring and preemployment screening played a role in this case and that they do not oppose summary judgment with respect to such
claim. R. Doc. No. 55, p.5, n.18.

37

exercise supplemental jurisdiction over their remaining state law claims. See 28 U.S.C. §
1367(c)(3) (“The district court may decline to exercise supplemental jurisdiction over a claim . . .
if . . . the district court has dismissed all claims over which it has original jurisdiction.”). “When
a court dismisses all federal claims before trial, the general rule is to dismiss any [supplemental]
claims.” Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999) (emphasis in original).
Moreover, “the Supreme Court has counseled that the dismissal of all federal claims weighs
heavily in favor of declining jurisdiction.” McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir.
1998), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433 (5th Cir.
2003)). “Needless decisions of state law should be avoided both as a matter of comity and to
promote justice between the parties, by procuring for them a surer-footed reading of applicable
law.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218
(1966). “However, the dismissal of the [supplemental] claims should expressly be without
prejudice so that the plaintiff may refile his claims in the appropriate state court.” Bass v.
Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999) (emphasis in original).

Balancing

considerations of judicial economy, convenience, fairness to litigants, and comity, the Court
declines to exercise supplemental jurisdiction over plaintiffs’ remaining state law claims. See
Gibbs, 383 U.S. at 726.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motions for summary judgment are GRANTED. Plaintiffs' §
1983 claims against all defendants are DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that plaintiffs’ remaining state law claims are
DISMISSED WITHOUT PREJUDICE.

New Orleans, Louisiana, November 16, 2012.

____________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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