Cook v. Perkins et al

Filing 32

RULING regarding 17 Motion for Summary Judgment on Behalf of Former Sheriff Willie Graves and Sheriff Jason Ard: The motion is granted in part, dismissing the plaintiffs claims brought under 42 U.S.C. §1983 and all state law claims against defendant Sheriff Ard, except for the state law vicarious liability claim. As to this state law claim the motion is denied. Signed by Magistrate Judge Stephen C. Riedlinger on 9/24/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

STEPHEN P. COOK
CIVIL ACTION
VERSUS
NUMBER 12-258-SCR
LIVINGSTON PARISH DEPUTY
DENNY PERKINS, ET AL
RULING ON MOTION FOR SUMMARY JUDGMENT
Before the court is a Motion for Summary Judgment on Behalf of
Former Sheriff Willie Graves and Sheriff Jason Ard, the former and
current sheriff, respectively, of Livingston Parish.1
document number 17.

Record

The motion is opposed.2

Plaintiff Stephen P. Cook filed this action in state court
against defendants Livingston Parish Willie Graves and Dy. Sheriff
Denny Perkins.

Defendants removed the case to this court based on

federal question jurisdiction for claims made under 42 U.S.C.§
1983.
In

his

state

court

Petition

for

Damages,3

the

plaintiff

brought several claims under based on a search and arrest that

1

Although Ard was not named in the plaintiff’s petition, he
became sheriff in July 2012.
Therefore, under Rule 25(d),
Fed.R.Civ.P., Ard was substituted for Graves as to claims alleged
against Graves in his official capacity as sheriff.
2

Record document number 22.
The court treated the
plaintiff’s Motion to Strike as his opposition to the defendants’
summary judgment motion. Record document number 24.
3

Record document number 1-2.

occurred in April 2011.

Plaintiff alleged that he was detained,

searched and arrested without probable cause, and that during the
course of these allegedly wrongful acts, defendant Perkins used
excessive force against him that resulted in severe bodily injury.
Plaintiff alleged further that defendant Perkins and other deputies
involved in the events were acting within the course and scope of
their employment with the Livingston Parish Sheriff’s Office.
Therefore, plaintiff asserted, the Sheriff in his official capacity
was vicariously liable for their actions, as well as liable for his
failure to properly supervise and train his deputies with regard to
proper way to make arrests.
Defendants Graves and Ard now move for summary as to all
federal and state law claims against them, in both their official
and personal capacities.

With regard to the claims under § 1983,

the defendants argued for dismissal on the following grounds: (1)
no liability can be imposed based on allegations that the Sheriff
is vicariously liable for the wrongful actions of his deputies; (2)
no facts or evidence in the record show that the Sheriff was
present

at

the

scene

or

personally

involved

in

the

events

underlying the plaintiff’s claims for false arrest and excessive
force; and, (3) no facts or evidence show that the Sheriff failed
to

train

or

supervise

the

deputies,

or

was

responsible

for

promulgating and/or implementing an unconstitutional policy or
custom that was the moving force behind the alleged constitutional

2

violations.

With regard to the state law tort claims under

Louisiana Civil Code Article 2315, the defendants argued that: (1)
any claims of vicarious liability fail because there is no evidence
to support the claims against defendant Dy. Perkins; (2) like the
claims alleged under § 1983, there are no factual allegations or
evidence that the Sheriff was personally involved, failed to
train/supervise

the

deputies,

or

established/implemented

some

policy that resulted in injury and damages to the plaintiff; and,
(3) under state law, specifically LSA-R.S. § 9:2798.1, the Sheriff
has immunity from liability based on allegations of negligent
training/supervision of Dy. Perkins.
In

support

of

their

motion,

defendants

Graves

and

Ard

submitted a statement of undisputed material facts,4 the affidavit
of Dy. Perkins,5 with attached copies of the search warrant,
affidavit and search warrant return for the residence where the
plaintiff

was

detained

and

questioned,

and

probable cause for the arrest of the plaintiff.6

the

affidavit

of

Excerpts from the

deposition of Dy. Perkins and the plaintiff were also submitted.7
Review of the record in light of the applicable law and the

4

Record document number 17-1.

5

Record document number 17-4, Exhibit A.

6

Record document numbers 17-5, 17-6, 17-7, Exhibits A-1, A-2,
and A-3.
7

Record document numbers 17-8 and 17-9, Exhibits B and C.
3

analysis set forth below demonstrates that, as to the claims
alleged against them, defendants former Sheriff Graves and Sheriff
Ard are entitled to summary judgment as a matter of law on all
claims against them except the plaintiff’s state law vicarious
liability claim against Sheriff Ard.
Applicable Law
Summary judgment is only proper when the moving party, in a
properly supported motion, demonstrates that there is no genuine
issue of material fact and that the party is entitled to judgment
as a matter of law.

Rule 56©, Fed.R.Civ.P.; Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986).

If

the moving party carries its burden under Rule 56©, the opposing
party must direct the court’s attention to specific evidence in the
record which demonstrates that it can satisfy a reasonable jury
that it is entitled to verdict in its favor.
252, 106 S.Ct. at 2512.
metaphysical

doubt

as

Anderson, 477 U.S. at

This burden is not satisfied by some
to

the

material

facts,

conclusory

allegations, unsubstantiated assertions or only a scintilla of
evidence.
1994).

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

In resolving the motion the court must review all the

evidence and the record taken as a whole in the light most
favorable to the party opposing the motion, and draw all reasonable
inferences in that party’s favor.
S.Ct. at 2513.

Anderson, 477 U.S. at 255, 106

The court may not make credibility findings, weigh
4

the evidence or resolve factual disputes.

Id.; International

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir.
1991), cert. denied, 502 U.S. 1059, 112 S. Ct. 936 (1992).
The

substantive

law

dictates

which

facts

are

material.

Littlefield v. Forney Independent School Dist., 268 F.3d 275, 282
(5th Cir. 2001). In this case the applicable law is that governing
supervisory liability under § 1983, qualified immunity, Fourth
Amendment

claims

imprisonment,

for

and

excessive

state

law

force,
claims

false
of

arrest

battery,

and
false

arrest/imprisonment and malicious prosecution.
A supervisory official such as a sheriff may not be held
liable under § 1983 based on a theory of vicarious liability for
the acts or omissions of his deputies.
298 (5th Cir. 1987).
under § 1983,

Thompkins v. Belt, 828 F.2d

To establish the liability of a supervisor

the plaintiff must prove either that the supervisor

was personally involved in the acts causing the constitutional
deprivation, or that there is a sufficient causal connection
between

the

deprivation.

supervisor’s

conduct

and

the

constitutional

Lozano v. Smith, 718 F.2d 757 (5th Cir. 1983).

If a party alleges a supervisor is liable for a failure to
train or supervise subordinates, the supervisor may be held liable
if the supervisor failed to supervise or train, a causal connection
exists between the failure to supervise or train and the violation
of the plaintiff's rights, and the failure to supervise or train

5

amounted

to

deliberate

constitutional rights.

indifference

to

the

plaintiff's

Roberts v. City of Shreveport, 397 F.3d

287, 292 (5th Cir. 2005); Thompson v. Upshur Cnty., TX, 245 F.3d
447, 459 (5th Cir. 2001).

A claim for failure to train or

supervise still requires overt personal participation, in that the
supervisor must have overtly failed to train or supervise the
subordinate, even if it was the subordinate who directly acted to
inflict the constitutional deprivation.

Mesa v. Prejean, 543 F.3d

264, 274 (5th Cir. 2008).
Supervisory
participation

in

liability
the

may

exist

offensive

act

without
if

overt

supervisory

personal
officials

implement a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the
constitutional violation.

Cozzo v. Tangipahoa Parish Council, 279

F.3d 273, 289 (5th Cir. 2002). The existence of a constitutionally
deficient policy cannot ordinarily be inferred from a single
wrongful act.

Thompson, supra; Piotrowski v. City of Houston, 237

F.3d 567, 581 (5th Cir. 2001).
Under Louisiana law, “[m]asters and employers are answerable
for the damage occasioned by their servants ..., in the exercise of
the functions in which they are employed.” Louisiana Civil Code
Article 2320. It is well established that under Louisiana law this
article imposes liability on a sheriff as the employer of his
deputy, in his official capacity, but not his personal capacity,

6

for the deputy's torts committed in the course and scope of
employment. See, Jenkins v. Jefferson Parish Sheriff's Office, 402
So.2d 669, 669 (La.1981); Burge v. Parish of St. Tammany, 187 F.3d
452, 470 (5th Cir.1999); Hall v. St. Helena Parish Sheriff’s Dept.,
668 F.Supp. 535, 540 (M.D. La. 1987), aff’d, 862 F.2d 872 (5th
1988).
Analysis
Defendants Dy. Perkins, former Sheriff Graves and Sheriff Ard
filed a Motion to Strike some of the exhibits the plaintiff
submitted to oppose their motions for summary judgment.8
to

decide

the

defendants’

summary

resolve

Motion

the

judgment
to

Strike

motion,
filed

In order
it
by

is

unnecessary

to

the

defendants.

For the purpose of ruling of this motion all of the

plaintiff’s evidence was considered. Considering all the evidence,
there is no genuine dispute for trial as to the claims alleged
against defendants former Sheriff Graves and Sheriff Ard.
As a matter of law the plaintiff cannot establish liability
under § 1983 against the defendants on the theory that they are
vicariously liable for the unconstitutional actions of defendant
Dy. Perkins.

See, Lozano, supra.

Plaintiff did not provide any

evidence that either defendant was directly or personally involved
8

Record document number 27.
Defendants moved to strike
Exhibits A-1, A-2, A-3, B-2 and C-1, on grounds that the exhibits
are not proper summary judgment evidence because the documents are
either uncertified/unauthenticated and/or contain inadmissible
hearsay.
7

in the incidents giving rise to his claims for false arrest and
excessive force.9

Nor did the plaintiff submit any evidence of

actions taken by the defendants which show they failed to supervise
and/or properly train the deputies, and that this resulted in the
deprivation of the plaintiff’s rights.
of

any

evidence

to

support

a

The record is also devoid

claim

that

these

defendants

implemented some official policy which caused the violation of the
plaintiff’s constitutional right to be free from false arrest and
excessive force.
Plaintiff appeared to argue in his Rule 56.2 Statement of
Material Facts as to Which Movant Contends There is a Genuine Issue
to Be Tried10 that information contained in Plaintiff Exhibits A-1
and A-2 support his claim that these defendants failed to properly
supervise

and/or

train

unconstitutional policy.

deputies,

or

were

responsible

for

an

Even considering this evidence, it does

not prevent summary judgment.

Assuming defendant former Sheriff

Graves and Sheriff Ard had knowledge of the information contained

9

Defendants’ stated in their Rule 56.1 Statement of Material
Facts that Graves was the Sheriff at the time of the incident and
that he was not present or personally involved in the plaintiff’s
arrest. Record document number 17-1. Neither the plaintiff’s Rule
56.2 Statement of Material Facts, record document number 22-2,
pages 1 and 2, nor any other exhibits contain information to
dispute these facts.
10

Record document number 22-2, page 2, ¶ 5.
8

in the Workforce Med Center, LLC report,11 the fact that in 2002
Perkins was hired as a deputy and given a positive reference by
Sheriff Ard is insufficient to create a genuine dispute for trial.
Under the applicable law, this one instance is not enough evidence
to support a reasonable inference that the either defendant failed
to train and supervise his deputies, or implemented a policy that
caused the violation of the plaintiff’s constitutional rights
during his arrest by defendant Dy. Perkins in 2011.

Moreover, the

information in the report in no way can reasonably be taken as any
indicator that Dy. Perkins

was a risk to make false arrests or use

excessive force during a arrest.
The lack of any evidence in the record to support the § 1983
claims alleged against former Sheriff Graves and Sheriff Ard, also
means that the state law claims based on the same allegations are
not supported by any evidence and must be dismissed. However, this
finding does not apply to the plaintiff’s claim that defendant
Sheriff Ard is vicariously liable under state law in his official
capacity

for

any

arrest/imprisonment

state
or

defendant Dt. Perkins.

law

malicious

claims

of

prosecution

battery,
brought

false
against

See, Jenkins, supra; Burge, supra.

11

This

Although the plaintiff did not cite the specific part of the
April 15, 2002 document he was relying on, presumably the plaintiff
is referring to the statement that Perkins “is a High Risk,” and
admitted to some instances of stealing that occurred more than
three years before the date of the report. Record document number
22-4, Exhibit A-1.
9

claim against defendant Sheriff Ard cannot be resolved until the
court rules on the Motion to Strike and the Motion for Summary
Judgment filed by defendant Dy. Perkins.
Therefore, with the exception of the state law vicarious
liability claim against defendant Sheriff Ard, summary judgment is
granted as to all § 1983 federal claims and state law claims
alleged against defendants former Sheriff Graves and Sheriff Ard.
Accordingly, the Motion for Summary Judgment on Behalf of
Former Sheriff Willie Graves and Sheriff Jason Ard is granted in
part, dismissing the plaintiff’s claims brought under 42 U.S.C.
§1983 and all state law claims against defendant Sheriff Ard,
except for the state law vicarious liability claim.

As to this

state law claim the motion is denied.
Baton Rouge, Louisiana, September 24, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

10