Whaley v. City of Port Allen et al

Filing 67

RULING granting 36 Motion for Partial Summary Judgment. Signed by Judge Shelly D. Dick on 08/25/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BRANDON WHALEY

CIVIL ACTION

VERSUS
NO. 12-00347-SDD-SCR
CITY OF PORT ALLEN AND
JASMIONE CLARK IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY

RULING ON PARTIAL SUMMARY JUDGMENT
This matter is before the Court on a Motion for Partial Summary Judgment1 filed
by Defendant, City of Port Allen. Plaintiff, Brandon Whaley, has filed an Opposition and
Supplemental Memorandum in Opposition to the motion, to which the City of Port Allen
has filed a Reply.2 For the following reasons, City of Port Allen’s Motion for Partial
Summary Judgment is GRANTED.
I.

STATEMENT OF MATERIAL FACTS
As an initial matter, the Court finds that while certain facts are in dispute, those

facts submitted in the City of Port Allen’s Statement of Uncontested Material Facts are
deemed to be admitted for the purposes of this motion due to Plaintiff’s failure to
controvert them as required by Local Rule 56.2. Local Rule 56.2 requires the nonmoving party to submit disputed facts as to which there is a genuine issue to be tried.
As this Court recently explained, “wherever Plaintiff fails to direct the Court to specific
evidence in the record to controvert the supporting evidence set forth by the Defendant

1

Rec. Doc. 36.
Rec. Doc. 43, Rec. Doc. 52, and Rec. Doc. 55 respectively. Plaintiff has also filed a Supplemental
Statement of Facts (Rec. Doc. 53).

2

1

... the fact is deemed admitted for purposes of LR 56.2.”3 Specifically, in his Statement
of Material Facts,1 Plaintiff offers no support for the facts he contends are contested.
Furthermore, Plaintiff’s Statement of Contested Facts D through M are not material for
the purpose of this summary judgment motion. The remaining facts offered by the
Plaintiff call for legal conclusions and are not, in and of themselves, facts (Statement of
Material Facts A through C). Accordingly, the Court finds, Plaintiff has failed to carry his
burden of establishing a genuine issue of material fact by controverting the City of Port
Allen’s facts and supporting evidence. Therefore, the facts in Movant’s Statement of
Uncontested Material Facts are deemed admitted.
II.

BRIEF OVERVEIW OF FACTS AND PROCEDURAL HISTORY
The claims in this case arise out of a routine traffic stop that occurred on

September 24, 2011 in Port Allen, Louisiana, when Plaintiff was pulled over for
speeding by Defendant Jasmione Clark, an Officer with the Port Allen Police
Department.

Upon exiting his vehicle, Plaintiff informed Officer Clark that he did not

have a license because it had been suspended since 2005. When asked, Plaintiff
explained that he did have registration and proof of insurance in his vehicle. Officer
Clark then informed Plaintiff that, as a safety measure, he would be performing a pat
down of Plaintiff’s person in search of weapons before allowing him to retrieve the
registration and proof of insurance from his vehicle. At this point, Plaintiff consented to
a pat down search of his person.

However, during the pat down, trouble ensued.

Plaintiff became combative when Officer Clark tried to pat down his left side pocket
area. Officer Clark then attempted to detain Plaintiff, but was met with resistance.

3

Ahumada v. Belcher Management, LLC, 2014 WL 2832674, at *2 (M.D.La. June 23, 2014).
2

As to the factual account of the physical altercation, the parties are at polar ends
of the spectrum. Plaintiff contends that Officer Clark handcuffed him and then slammed
him into the ground, where Officer Clark continued to “punch, beat, and strangle” him.
In contrast, Officer Clark claims to have performed a take-down, “dead-weight” move in
order to bring Plaintiff to the ground. According to Officer Clark, Plaintiff continued to
fight; therefore, Clark, using a police tactic, applied pressure to Plaintiff’s pressure point,
or TW17. Officer Clark contends that, once subdued, he handcuffed Whaley, read him
his Miranda rights, and conducted a search incident to arrest.4
There is no dispute between the parties that Plaintiff was arrested and booked on
numerous charges, including violation of La. R.S. 40:966 (possession of marijuana,
second offense); La. R.S. 40:981.3 (possession in a drug free zone); La. R.S. 14:108.2
(resisting with force or violence); La. R.S. 32:63 (speeding), La. R.S. 32:415 (driving
with a suspended license); and La. R.S. 32:300 (open container law).

It is also

undisputed that, at the time of the arrest made the subject of this suit, Plaintiff was on
parole for prior offenses.5 Plaintiff voluntarily waived his right to a parole revocation
hearing under La. R.S. 15:574.9(A).6 After serving the remainder of his parole sentence,
Plaintiff bonded out of jail on the charges associated with his arrest by Officer Clark.7
On June 11, 2012, Plaintiff filed this federal lawsuit asserting 42 U.S.C. § 1983
claims against Officer Clark in his official and individual capacities alleging constitutional
violations. From a review of the Plaintiff’s Complaint, the Court discerns the following
4

Rec. Doc. 47-2, p. 19.
Rec. Doc. 36-3, pp. 32-33.
6
Rec. Doc. 36-3, p. 34. (“I went to jail again. I violated my own parole because I knew it was going to be
a while because they had a hold on me, so I just violated my own parole to get it out of the way….So I
just violated myself because I only had 11 months left, and being on parole, you can’t bond out. I knew I
was going to be sitting there around the time that I had to serve left on parole, so I just violated my own
self to get it out of the way and go ahead and make bond on the charge, the new charges.”)
7
Rec. Doc. 36-3, pp. 34-35.
5

3

claims: Fourth Amendment violation for unlawful arrest, unlawful detention, and unlawful
seizure (Counts 1 and 4); Fourth Amendment violation for the use of excessive force
(Counts 2-3, 5-6); and state law claims for assault and battery (Count 7). Plaintiff further
alleges violations of his rights under Article 2, 13, and 25 of the Louisiana Constitution.
The Plaintiff’s state constitution claims are unclear inasmuch as there is no Article 25 in
the Louisiana Constitution.
Plaintiff has also sued the City of Port Allen (“City”) for deprivation of rights
secured under the Fifth and Fourteenth Amendments.8

Plaintiff alleges that the City

“failed to act pursuant to a policy of [the] City of Port Allen, to properly train, supervise,
and control members of the [Port Allen Police Department].”9 Plaintiff claims that he has
sustained numerous injuries, including, knee, neck, and back pain, oral injuries,
depression, and anxiety, for which he seeks to recover monetary and punitive damages.
The City moves for partial summary judgment.
III.

LAW AND ANALYSIS
A. Summary Judgment Standard
Summary judgment is appropriate if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”10 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or
weighing the evidence.”11 A party moving for summary judgment “must ‘demonstrate

8

Rec. Doc. 1, p. 7, ¶47.
Rec. Doc. 1, p. 7, ¶44.
10
Fed.R.Civ.P. 56(a)(West 2014).
11
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir.
2008)(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000)).
9

4

the absence of a genuine issue of material fact,’ but need not negate the elements of
the nonmovant’s case.”12 If the moving party satisfies its burden, “the non-moving
party must show that summary judgment is inappropriate by setting ‘forth specific facts
showing the existence of a genuine issue concerning every essential component of its
case.’”13

However, the non-moving party’s burden “is not satisfied with some

metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.”14
“A genuine issue of material fact exists, ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’”15 All reasonable factual inferences
must be resolved in favor of the nonmoving party.16 Nevertheless, “[t]he Court has no
duty to search the record for material fact issues.

Rather, the party opposing the

summary judgment is required to identify specific evidence in the record and to
articulate precisely how this evidence supports his claim.”17 “Conclusory allegations
unsupported by specific facts, however, will not prevent the award of summary
judgment; ‘the plaintiff [can]not rest on his allegations … to get to a jury without any

12

Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (5th Cir. 2003)(quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, at 323-25, 106 S.Ct. at 2552).
13
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)(internal quotations omitted)).
14
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(internal citations omitted)).
15
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). See also,
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (“If a
rational trier could not find for the nonmoving party based on the evidence presented, there is no genuine
issue for trial.”).
16
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
17
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010)(citing Ragas v. Tenn. Gas
Pipeline, Co., 136 F.3d 455, 458 (5th Cir. 1998)).
5

“significant probative evidence tending to support the complaint.”’”18 Ultimately “[t]he
substantive law dictates which facts are material.”19
B. Municipal Liability and the Theory of Respondeat Superior
“Title 42 U.S.C. § 1983 provides a vehicle by which a plaintiff may seek redress
for constitutional injuries.”20

However, it is well-established that the doctrine of

respondeat superior is not a vehicle by which a municipality can be held liable under
§1983. A municipality may not be held vicariously liable for constitutional torts allegedly
committed by its employees.21 In order for a party to prevail against a municipality
under 42 U.S.C. § 1983, a plaintiff must show that the municipality itself, through the
execution of the government’s policy or custom, caused the constitutional violation at
issue.22 Stated differently, “[t]o establish municipal liability under § 1983, a plaintiff must
show the deprivation of a federally protected right caused by action taken ‘pursuant to
an official municipal policy.’”23 After reviewing the summary judgment memoranda, the
Court finds that the parties do not dispute the law on this point. Nevertheless, the City
seeks a legal finding from this Court that it may not be held vicariously liable under 42
U.S.C. § 1983 solely on the theory of respondeat superior for the alleged actions of
Officer Clark. There is no dispute on this point of law, and the Court declines to issue an
advisory opinion.

18

Nat’l. Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
19
Canady v. Bossier Parish School Bd., 240 F.3d 437, 439 (5th Cir. 2001).
20
World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752 (5th Cir. 2009).
21
Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 694 (1978); see also, City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989)(“Respondeat superior or vicarious liability will not attach under § 1983.”).
22
Id.
23
Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010)(quoting Monell, 436 U.S. at 691)).
6

C. Recovery of Punitive Damages from the City
Plaintiff seeks to recover punitive damages from the City as well as Officer Clark.
In City of Newport v. Fact Concerts, Inc., the United States Supreme Court squarely
held that “a municipality is immune from punitive damages under 42 U.S.C. § 1983.”24
Similarly, this Court has also recognized that “punitive damages cannot be recovered
against government entities for § 1983 claims.”25 The City is immune from punitive
damages for such claims. Accordingly, the Court finds that, as a matter of law, Plaintiff
has no right to recover punitive damages from the City for claims brought pursuant to 42
U.S.C. § 1983.
D. False Imprisonment Claims
The City argues that Plaintiff has failed to plead a claim of false imprisonment. In
the alternative, the City contends that it is entitled to summary judgment as to any
claims of false imprisonment related to the arrest by Officer Clark. Plaintiff fails to brief
any claims of faIse imprisonment. In his opposition memorandum, Plaintiff essentially
concedes that he is not making a claim of false imprisonment by stating: “On June 11,
2012, Plaintiff Brandon Whaley, filed a Complaint in the Middle District of Louisiana
pursuant to 42 U.S.C. § 1983 alleging both constitutional violations (excessive force and
illegal search and seizure) and state law violations (assault and battery) by Officer
Jasmione Clark and the Port Allen Police Department resulting from a traffic stop and
subsequent arrest.”26
After reviewing Plaintiff’s Complaint, the Court finds that Plaintiff has neither pled
any facts nor alleged that his incarceration following his September 24, 2011 arrest
24

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).
Pemberton v. West Feliciana Parish School Bd., 2010 WL 431572, at *7 (M.D.La. Feb. 3, 2010).
26
Rec. Doc. 52, p. 20.
25

7

amounted to false imprisonment.

The Court’s finding is further supported by the

Plaintiff’s indication, in the Uniform Pretrial Order filed on June 13, 2014, of his intention
to file an Amended Complaint to solidify and add claims of false imprisonment against
the City.27 A review of the record indicates that the Plaintiff has never requested the
opportunity to amend to make such a claim.28 Because the Court finds that Plaintiff has
failed to state a claim of false imprisonment, it will not address the City’s alternative
summary judgment argument on this claim.
IV.

CONCLUSION
Accordingly for the foregoing reasons, the City of Port Allen’s Motion for Partial

Summary Judgment is hereby GRANTED.29
Signed in Baton Rouge, Louisiana, on August 25, 2014.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

27

Rec. Doc. 40, p. 2.
The Court further notes that it is not inclined to grant such a request to amend at this juncture,
considering we are now approximately one month away from trial.
29
Rec. Doc. 36.
28

8