Cook v. Perkins et al
Filing
62
RULING granting in part and denying in part 18 Motion for Summary Judgment. Signed by Magistrate Judge Stephen C. Riedlinger on 10/21/2013. (NLT)
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 filed by
defendant Dy. Denny Perkins.
Record document number 18.
The
motion is opposed.1
Plaintiff Stephen P. Cook filed this action in state court
against
the
former
Livingston
Parish
sheriff,
Willie
Graves,
current Sheriff Jason Ard, and Livingston Parish Dy. Denny Perkins.
Defendants removed the case to this court based on federal question
jurisdiction given the plaintiff’s claims alleged under 42 U.S.C.§
1983.
In
his
state
court
Petition
for
Damages,2
the
plaintiff
brought several claims under § 1983 and state tort law based on a
search and arrest that occurred in April 2011.
Plaintiff alleged
that he was arrested without probable cause, and during the course
of the event, the defendant Dy. Perkins (hereafter, “defendant”)
1
Record document number 22.
The court treated the
plaintiff’s Motion to Strike as his opposition to the summary
judgment motion. Record document number 24.
2
Record document number 1-2.
used excessive force against him that resulted in severe bodily
injury. Plaintiff alleged further that the defendant and the other
deputies involved in the event were acting within the course and
scope of their employment with the Livingston Parish Sheriff’s
Office.
Therefore, plaintiff alleged, the Sheriff in his official
capacity is vicariously liable for their actions.
Defendant moved for summary judgment as to all claims alleged
in the plaintiff’s Petition for Damages.
In the context of his
qualified immunity defense under § 1983, the defendant argued that
the plaintiff has no evidence to support the elements of his claim
for the use of excessive force.
Defendant argued that: (1) there
is no evidence that he hit the plaintiff right after he and the
other
officers
entered
the
residence
to
execute
the
search
warrant;3 (2) there is no evidence that later in the bedroom of the
apartment, he punched and slapped the plaintiff from the rear and
rendered the plaintiff unconscious; and, (3) even if there is
evidence that force was used against the plaintiff, the plaintiff
has no evidence that the force used was excessive, that it resulted
in any injury, or that it was objectively unreasonable under the
circumstances.
Defendant also argued that the plaintiff has no evidence to
3
The search warrant the officers were executing was dated
April 6, 2011 and authorized the search of the residence of Dustin
Blocker and Kelli Martrain, 8275 Vincent Road, Denham Springs,
Louisiana. Record document number 18-5, Exhibit A-1.
2
support the § 1983 claim for false arrest/imprisonment because he
has no evidence to show that probable cause for his arrest was
lacking or arguably lacking.
Defendant argued that the absence of
evidence to support these federal claims also demonstrates that
summary judgment is appropriate as to the plaintiff’s state law
intentional tort claims for battery, false arrest/imprisonment and
malicious prosecution.4
Finally, the defendant argued that the plaintiff has no
evidence to support the claim that he lost income as a result of
the wrongful acts he alleged.
Therefore, any claim for this type
of damages should be dismissed.
In support of his motion, the defendant submitted a statement
of undisputed material facts,5 and excerpts from his own deposition
and the depositions of the plaintiff, Steven Lovett and Kelli
Blocker.6
Defendant
attachments
which
also
supported
relied
on
the
the
motion
same
for
affidavit
summary
filed
and
by
4
Plaintiff did not specifically allege what state law claims
he was pursuing under Louisiana Civil Code Article 2315. For the
purposes of this motion the court assumes that the plaintiff
alleged the state law intentional tort claims that parallel the
federal claims he brought under § 1983.
5
Record document number 18-1, Statement of Material Facts to
Which Movants Contend There Is No Genuine Issue.
6
Record document numbers 18-8, 18-9, 18-10, 18-12, Exhibits
B, C, D and F, respectively.
3
defendants Graves and Ard.7 Defendant’s remaining exhibits are the
expert report of Dr. Stanley Peters, Jr., and a copy of Defendants’
Requests for Production of Documents and the plaintiff’s responses
to the document requests.8
Review of the record in light of the applicable law and
analysis
set
forth
below
demonstrates
that
the
defendant
is
entitled to summary judgment on the following claims: (1) for
excessive force and battery under § 1983 and state law related to
the alleged excessive force that occurred when the officers first
entered the residence; (2) for false arrest and imprisonment under
§ 1983 and state law; and, (3) for malicious prosecution under
state law.
However, as to the use of excessive force and battery claims
under § 1983 and state law related to what allegedly occurred in
the bedroom during the execution of the search warrant, there is a
genuine dispute for trial.
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
7
Record document numbers 18-4 through 18-7, Exhibits A and A1 through A-3, respectively.
8
Record document numbers 18-11, 18-13, 18-14, Exhibits E, G
and H, respectively.
4
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
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).
On summary judgment, evidence may only be considered to the
extent not based on hearsay or other information excludable at
trial.
Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995); Martin
v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987).
As a general rule, inadmissible evidence cannot be relied
upon to create an issue of material fact for the purpose of
5
defeating a motion for summary judgment. Travland v. Ector county,
Texas, 39 F.3d 319 (5th Cir. 1994).
Likewise, arguments and
statements in a memorandum are not competent summary evidence and
cannot be considered in determining whether there is a genuine
dispute for trial.
Johnston v. City of Houston, 14 F.3d 1056, 1060
(5th Cir. 1994).
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
qualified immunity, Fourth Amendment claims for excessive force,
false arrest and imprisonment, and state law claims of battery,
false arrest/imprisonment and malicious prosecution.
Federal Claims Under § 1983:
Qualified Immunity
A state official sued in his individual capacity for damages
may assert a qualified immunity defense.
This doctrine protects
government officials from liability from civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
2738 (1982); Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir. 2011).
When a defendant properly invokes qualified immunity, the
plaintiff bears the burden of rebutting its applicability.
To do
so a plaintiff must show: (1) the official's conduct violated a
constitutional or statutory right; and, (2) the official's actions
6
were objectively unreasonable in the light of clearly established
law at the time of the conduct in question. Tolan v. Cotton, 713
F.3d 299, 304-305 (5th Cir. 2013).
For the second prong, on a
motion for summary judgment stage the plaintiff must show that
there is a genuine dispute of material fact for two distinct, but
intertwined, elements: whether allegedly violated constitutional
rights were clearly established at the time of the incident, and if
so, whether the defendant’s conduct was objectively unreasonable in
the light of that clearly established law.
defendant’s
conduct
actually
violates
Id.
the
Even if a
plaintiff’s
constitutional right, the defendant is still entitled to qualified
immunity if the conduct was objectively reasonable. Zarnow v. City
of Wichita Falls, Tex., 500 F.3d 401, 408 (5th Cir. 2007).
Excessive Use of Force
A claim that an officer used excessive force is analyzed under
the Fourth Amendment.
Plaintiff must prove all of the following:
(1) an injury; (2) that resulted directly and only from the use of
force
that
was
clearly
excessive
to
the
need;
and,
excessiveness of which was objectively unreasonable.
Blair,
101
F.3d
reasonableness
of
430,
433-34
(5th
Cir.
the
force
used
depends
circumstances of the particular case.
1996).
on
The
the
(3)
the
Ikerd v.
objective
facts
and
The court should consider
“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
7
arrest by flight.”
Hogan v. Cunningham,
722 F.3d 725, 734 (5th
Cir. 2013), citing, Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct.
1865 (1989).
Although a showing of significant injury is not required to
establish an excessive force claim, the plaintiff must show that he
suffered at least some form of injury.
The injury must be more
than a de minimis injury and must be evaluated in the context in
which the force was used.
Glenn v. City of Tyler, 242 F.3d 307,
314 (5th Cir. 2001); Lockett v. New Orleans City, 607 F.3d 992 (5th
Cir. 2010); Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).
The amount of injury necessary to satisfy the requirement of some
injury and establish a constitutional violation is directly related
to the amount of force that is constitutionally permissible under
the circumstances.
Therefore, what constitutes an injury in an
excessive force claim determined by the context in which the injury
arises.
Williams, 180 F.3d at 704.
False Arrest and Imprisonment
A claim of false arrest and imprisonment under the Fourth
Amendment requires a showing of no probable cause.
Brown v.
Lyford, 243 F.3d 185, 189 (5th Cir. 2001).
The Supreme Court has defined probable cause as the facts
and circumstances within the officer's knowledge that are
sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or
is about to commit an offense. The facts must be known
to the officer at the time of the arrest; post-hoc
justifications based on facts later learned cannot
support an earlier arrest.
The facts must be
8
particularized to the arrestee. We apply an objective
standard, which means that we will find that probable
cause existed if the officer was aware of facts
justifying a reasonable belief that an offense was being
committed, whether or not the officer charged the
arrestee with that specific offense.
Club Retro, LLC v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).
An officer is entitled to qualified immunity if a reasonable
officer in his position could have believed that, in light of the
totality of the facts and circumstances of which the officer was
aware,
there
was
a
fair
probability
that
the
plaintiff
had
committed or was committing an offense. Haggerty v. Texas Southern
University, 391 F.3d 653, 656 (5th Cir. 2004). Thus, if an officer
reasonably, but mistakenly, believes that probable cause exists he
is entitled to qualified immunity.
Id.; Ramirez v. Martinez,
716
F.3d 369, 375 (5th Cir. 2013).
If the facts supporting an arrest are placed before an
independent intermediary, the intermediary’s decision breaks the
chain of causation for false arrest, insulating the initiating
party.
In these circumstances the plaintiff cannot prevail unless
he can establish that the defendant knowingly provided false
information or gave false information in reckless disregard of the
truth, and that the deliberations of the independent intermediary
were in some way tainted by the actions of the defendants.
v. Gregg, 36 F.3d 453, 456-57 (5th Cir. 1994).
9
Taylor
State Law Claims Under Article 2315:
Battery
Louisiana’s excessive force / battery tort mirrors its federal
constitutional counterpart.
The use of reasonable force when
necessary to make an arrest is a legitimate police function.
But
an officer’s use of excessive force transforms the ordinarily
protected use of force into an actionable battery, rendering the
defendant officer and his employer liable for damages. Whether the
force used is reasonable depends upon the totality of the facts and
circumstances in each case, and factors to consider are: (1) the
known character of the arrestee; (2) the risks and dangers faced by
the officers; (3) the nature of the offense involved; (4) the
chance of the arrestee's escape if the particular means are not
employed; (5) the existence of alternative methods of arrest; (6)
the physical size, strength, and weaponry of the officers compared
to the arrestee; and, (7) the exigencies of the moment.
Id., at
172-73; Penn v. St. Tammany Parish Sheriff’s Office, 843 So.2d
1157, 1161 (La.App. 1 Cir. 2003).
Under Louisiana law if the
arrest is unlawful then all force used to effectuate the arrest is
excessive and constitutes a battery.
Deville, 567 F.3d at 173, n.
9, citing, Ross v. Sheriff of Lafourche Parish, 479 So.2d 506, 510
(La.App. 1 Cir. 2003).
False Arrest and Imprisonment
Under Louisiana law false arrest and imprisonment occur when
one arrests and restrains another against his will without a
10
warrant or other statutory authority. Simply stated, it is a
restraint without the color of legal authority.
When an arrest is
made without a warrant, the plaintiff must prove the officer lacked
probable cause for the arrest. Reese v. City of Baton Rouge, 644
So.2d 674 (La.App. 1 Cir. 1994).
A facially valid arrest warrant
immunizes the officers from false arrest and imprisonment claims.
Deville v. Marcantel, 567 F.3d 156, 172 (5th Cir. 2009).
Malicious Prosecution
Unlike federal law, Louisiana recognizes a cause of action for
malicious prosecution.
Deville, 567 F.3d at 173,9 citing, Jones v.
Soileau, 448 So.2d 1268, 1271 (La.1984). The elements of the cause
of action are: (1) the commencement or continuation of an original
criminal or civil 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.
Id.
9
The United States Constitution does not include a
freestanding right to be free from malicious prosecution. Instead,
the plaintiff must show that the official violated a specific
constitutional right in connection with an alleged malicious
prosecution, such as the initiation of criminal charges without
probable cause in violation of the Fourth Amendment. Deville, 567
F.3d at 169, citing, Castellano v. Fragozo, 352 F.3d 939, 945 (5th
Cir. 2003).
11
Analysis
§ 1983 Excessive Use of Force and State Law Battery Claims
Defendant
presented
uncontradicted
evidence10
that
the
plaintiff does not know and cannot identify him or any other
officer that allegedly used excessive force when the officers first
entered the residence.11
Because the plaintiff failed to come
forward with any evidence that the defendant was the officer who he
now asserts gave him a “severe blow to the head” on first entering
to execute the search warrant, the defendant is entitled to summary
judgment on the claim of excessive force insofar as it rests on
this allegation.12
With regard to the later incident during the search that
occurred in the one of the bedrooms of the residence, the defendant
argued that summary judgment should also be granted.
Defendant
primarily relied on his own deposition testimony in which he
10
Record document number 18-9, Exhibit C, depo., pp. 72, 77-
78.
11
Defendant also pointed out that the plaintiff did not allege
in his Petition for Damages that the defendant, or any other
specific officer, struck the plaintiff on the head at this time.
Record document number 1-2, ¶ 3.
12
Plaintiff argued in his opposition memorandum that the
defendant admitted that he was the first officer through the door,
and that this is also seen in the supplemental arrest report.
Plaintiff did not submit the supplemental arrest report to support
his argument.
As explained above, arguments and statements in a memorandum
are not competent summary evidence and cannot be considered in
determining whether there is a genuine dispute for trial.
Therefore, the plaintiff’s arguments, without any competent summary
judgment evidence to support them, cannot create a factual dispute
for trial.
12
testified
that:
(1)
during
the
search,
according
to
common
practice, the plaintiff was handcuffed and placed on the couch; (2)
the plaintiff kept asking to see the search warrant and was also
using inappropriate language in front of a child that was present;
and, (3) after asking the plaintiff several times to stop his
actions, the defendant put his hands on the back of the plaintiff’s
neck and back and escorted the plaintiff into the master bedroom.13
In his deposition testimony, the defendant stated that he
brought the plaintiff into the room to tell him “he needed to quit
cussing in front of that kid.”
According to the defendant, they
were in the bedroom for a minute or less, and he did not strike the
plaintiff on the head or any other part of his body, and did not
put a pen to the plaintiff’s throat and tell him that he needed to
give
him
something.14
Defendant
also
offered
the
deposition
testimony of Dy. Steven Lovett, who was in the same bedroom to
catalog the evidence of the search, and in close proximity when the
defendant
brought
the
plaintiff
into
the
room.
Dy.
Lovett
testified that the plaintiff and the defendant had a conversation,
but while they were in the room he did not see the defendant hit or
put his hands on the plaintiff at any time.15
In opposition, the plaintiff relied on other testimony from
the defendant’s deposition.
Plaintiff came forward with evidence
13
Record document number 18-8, Exhibit B, depo., pp. 24-26.
14
Id. at 26.
15
Record document number 18-10, Exhibit D, depo., pp. 10-11.
13
of the defendant’s admission that he was angry when he took the
plaintiff into the bedroom and closed the door, because he wanted
the plaintiff to “shut up,” and wanted “to be able to tell him a
little more stern” that he (the plaintiff) needed to shut up.16
Furthermore, according to sworn facts given by the plaintiff in his
state court pleadings, he was taken into the bedroom with his hands
cuffed behind him, and was beaten by the defendant, who punched and
slapped until he was nearly unconscious.17
On summary judgment the court cannot resolve factual disputes
or decide who to believe.
the
light
most
Viewing the above evidence as a whole in
favorable
to
the
plaintiff,
and
drawing
all
reasonable inferences in his favor, as the court must do at this
point, a reasonable trier of fact could find that the defendant
used force against the plaintiff that was clearly excessive to the
need, and that the plaintiff suffered at least some form of injury
as a result.
This same evidence, when viewed as required on
summary judgment, could support a reasonable conclusion that the
force used by the defendant was objectively unreasonable. Stated
another way, a reasonable officer would have known that it was an
unconstitutionally excessive use of force to take a suspect with
his hands cuffed behind him into a room and punch/slap him until he
was nearly unconscious, just for the purpose of getting him to stop
16
Record document number 22-4, Exhibit B-3, depo., pp. 36-37.
17
Record document number 22-4, Exhibit A-3, Motion to Suppress
Evidence, p. 10.
14
cursing and be quiet during the execution of a search warrant.
Relying on evidence from a medical expert, the defendant also
argued that even if there is a factual dispute as to whether he
struck the plaintiff, the plaintiff cannot prove a claim of
excessive force because he has no evidence that the alleged use of
force caused his hearing loss and/or tinnitus.
This evidence,
however, does not demonstrate the absence of a genuine dispute for
trial on the injury element of the plaintiff’s excessive force
claim.
The legal standard for a Fourth Amendment excessive force
claim is a showing of at least some form of injury.
The amount of
injury required to establish a constitutional violation must be
viewed in the context of the amount of force constitutionally
permissible under the circumstances.
Considering the plaintiff’s
account of what happened in the bedroom, and the evidence showing
the plaintiff sought and received medical treatment soon after the
incident, a reasonable trier of fact could conclude that the
plaintiff
suffered
some
form
of
injury
as
a
result
of
the
defendant’s use of force to quiet him during the search of the
residence.
In summary, the record demonstrates that there is a genuine
dispute for trial as to the plaintiff’s excessive force and battery
claims under § 1983 and state law, and summary judgment must be
denied as to these claims.
Since the plaintiff is not represented by counsel the court
emphasizes that although a jury reasonably could find that the
15
defendant used excessive force and the plaintiff sustained an
injury from the use of excessive force, this conclusion must not be
understood to mean that the jury probably would do so, or may do
so, or that the court believes that the jury should do so.
The
jury’s decision will take into account its determination of the
credibility of all the witnesses, as well as the weight it chooses
to give to all of the evidence presented.
Section 1983 Claim for False Arrest/Imprisonment and State Law
Claims for False Arrest/Imprisonment and Malicious Prosecution
The
critical
issue
on
the
claims
for
false
arrest
and
imprisonment and for malicious prosecution is whether there was
probable cause to arrest and charge the plaintiff with possession
of marijuana and possession of drug paraphernalia.
With regard to
these claims, the plaintiff bears the burden of proving that his
arrest was without probable cause and negating the defendant’s
qualified immunity defense.
Therefore, to defeat the defendant’s
motion the plaintiff must come forward with sufficient evidence to
create a genuine dispute for trial on the existence of probable
cause.
The summary judgment record contains the following undisputed
facts relevant to these claims and the central issue of the
existence of probable cause.
On the evening of April 7, 2011 the defendant and other
officers
were executing a search warrant for a residence that had
16
been under surveillance for illegal drug activity.18
Approximately
ten minutes before executing the warrant the plaintiff was seen
entering the residence.19
After the officers entered the residence
the plaintiff was handcuffed. The search resulted in the discovery
of
drugs
and
drug-related
items
in
the
residence
where
the
plaintiff was present. Plaintiff’s cell phone was one of the items
seized, and the defendant’s examination of the phone revealed text
messages about the plaintiff’s involvement in buying and selling
marijuana and the drug Roxicodone.
The time of the text messages
related to Roxicodone was shortly before the plaintiff entered the
residence.
Based on the information from the phone, the defendant
questioned the plaintiff about marijuana, and the plaintiff stated
that he smoked marijuana, had some at his house, and told the
defendant where it was located.
Plaintiff was arrested for
possession of drug paraphernalia and taken to the Livingston Parish
Jail. Plaintiff’s house was searched and high grade marijuana buds
and rolling papers were found there.
Defendant called the deputy
that had taken the plaintiff to jail and informed him that he
(defendant) found marijuana and told the deputy he (deputy) could
also charge the plaintiff with marijuana possession. Based on this
information the plaintiff was officially charged with possession of
18
Record document number 18-4, Exhibit A, Defendant affidavit
and Exhibit A-1, Search Warrant; record document number 18-8,
Exhibit B, depo. pp. 11-12, 17.
19
Record document number 18-8, Exhibit B, depo. pp. 17-18.
17
marijuana and drug paraphernalia,20 and a state district court judge
on April 8, 2011 determined that there was probable cause to
continue to hold the plaintiff on these two charges.21
In his opposition memorandum the plaintiff’s primary argument
seems to be that the search warrant being executed by the defendant
and the other officers was invalid, because under state law the
court
that
issued
it
did
not
have
the
authority
jurisdiction to issue a felony search warrant.
and
lacked
Therefore,
plaintiff argued, this court should not consider the search warrant
or any document that makes reference to it.
Plaintiff also seems
to argue that his admission about possession of marijuana and the
consent to search his parents’ residence were not valid.22
Neither
of
these
arguments,
nor
any
of
the
plaintiff’s
competent summary judgment evidence, contradict the relevant facts
recounted above - the facts of which the defendant and the officers
were
aware
20
at
the
time
they
arrested
and
later
charged
the
LSA-R.S. 40:966; LSA-R.S. 40:1023.
21
Record document number 18-7, Exhibit A, Perkins affidavit
and Exhibits A-2, A-3; record document number 18-8, Exhibit B,
Perkins depo., pp. 27-30; record document number 18-9, Exhibit C,
Plaintiff depo., p. 72.
See also record document number 18-1,
defendant’s statement of uncontested material facts, numbers 1-3
and 7-11.
22
Plaintiff may have made these arguments in his efforts to
suppress evidence obtained against him in his criminal case.
However, they are not relevant to the elements of his federal and
state law claims for false arrest and imprisonment and malicious
prosecution.
18
plaintiff.23
Viewing these undisputed facts in the light most
favorable to the plaintiff, and considering the totality of the
circumstances within the defendant’s knowledge, no reasonable trier
of fact could conclude that the defendant was not justified in
believing that the plaintiff had committed, was committing or about
to commit the offenses for which he was arrested and charged.24
Furthermore, after the plaintiff was in custody and taken to
the jail, a determination of probable cause for the arrest and
charges brought against the plaintiff was made by a state district
court judge.
Under the applicable law, this determination of
probable cause by an independent intermediary breaks the chain of
causation
and
insulates
the
initiating
party.
Where
the
determination by an independent intermediary is involved, the
plaintiff must establish that the officer knowingly presented to
the intermediary false information or gave false information in
23
Record document numbers 22-4, pp. 4 and 6, plaintiff’s
Exhibits A-1 and A-2, are two of the defendant’s 2002 preemployment documents - one from Workforce Med Center, LLC and the
other entitled “Character References. ” Neither contradict the
facts known to the defendant at the time of the arrest, nor do they
otherwise create a genuine dispute for trial.
The fact that in 2002 Sheriff Ard gave the defendant a positive
reference, and that the letter from Workforce included a statement
that the defendant is a “High Risk,” are neither relevant nor
sufficient to support a reasonable inference that when he arrested
the plaintiff in 2011, the defendant was not justified in having a
reasonable belief that the plaintiff had committed an offense.
24
Plaintiff’s evidence which shows that in 2012 the charges
against him were dismissed could establish an element of the
plaintiff’s malicious prosecution claim. Record document number
22-4, Exhibit A-3, pp. 18, 20. But it is not evidence that creates
a genuine dispute for trial on the issue of probable cause.
19
reckless disregard of the truth.
There is no summary judgment
evidence indicating that the defendant knowingly presented any
false information to the state court judge that tainted the judge’s
determination of probable cause.
In summary, to establish his claims against the defendant for
false arrest and imprisonment under § 1983 and state law, and
malicious prosecution under state law, the plaintiff must prove
that there was no probable cause - it is an essential element of
each of these federal and state law claims.
Plaintiff has not
identified any competent summary judgment evidence to support his
claim that there was no probable cause for his arrest and the
charges brought against him for possession of marijuana and drug
paraphernalia.
Therefore, the undisputed facts demonstrate that
the defendant is entitled to summary judgment as to the plaintiff’s
§ 1983 false arrest and imprisonment claim, and the plaintiff’s
state law claims for false arrest and imprisonment and malicious
prosecution.
Claim for Loss of Income and Loss of Future Income
Defendant argued that plaintiff’s claim for damages for loss
income and/or loss of future income should be dismissed. Defendant
pointed out that despite numerous discovery requests the plaintiff
never provided any evidence showing that he had lost income as a
result of the incident.
Plaintiff responded in his memorandum that he has in fact lost
20
income as a result of the defendant’ use of excessive force.25
However, the plaintiff did not come forward with any competent
summary judgment evidence to support his claim for this type of
damages.
Plaintiff’s failure to do so requires that summary
judgment be granted dismissing any claim that he alleged for loss
of income or loss of future income.26
Conclusion
Accordingly,
the
Motion
for
Summary
Judgment
filed
by
defendant Denny Perkins is granted in part and denied in part.
The Motion for Summary Judgment is granted, dismissing the
following claims under § 1983: (1) plaintiff’s claim under § 1983
related to the alleged excessive use of force that occurred when
the defendant first entered the residence; and, (2) plaintiff’s
claim under § 1983 for false arrest and imprisonment.
The Motion for Summary Judgment is granted, dismissing the
following state law tort claims: (1) plaintiff’s claim under state
law for battery related to the alleged excessive use of force that
occurred when the defendant first entered the residence; (2)
plaintiff’s
claim
under
state
law
for
false
arrest
and
imprisonment; and, (3) plaintiff’s claim under state law for
malicious prosecution.
The Motion for Summary judgment is granted, dismissing the
25
Record document number 22-1, opposition memorandum, p. 26.
26
Record document number 1-2, Petition for Damages, ¶ 8.6.
21
plaintiff’s claim for damages for loss of income and loss of future
income.
The
Motion
for
Summary
Judgment
is
denied
as
to
the
plaintiff’s § 1983 claim for excessive use of force and state law
claim of battery, based on the events that occurred in the bedroom
of the residence being searched.
As to the state law claim of
battery, defendant Sheriff Jason Ard remains a defendant in his
official capacity.
Baton Rouge, Louisiana, October 21, 2013.
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
22
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