King v. Herbert et al

Filing 66

RULING granting 54 Motion for Summary Judgment. The claims against the defendants are dismissed with prejudice. Signed by Chief Judge Shelly D. Dick on 5/12/2020. (KMW) (Main Document 66 replaced on 5/12/2020 to remove jury routing) (KMW).

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 1 of 21

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

WANDA KING
CIVIL ACTION
VERSUS

17-406-SDD-EWD

TRAVIS JAMES HERBERT, et al
RULING
Before the Court is the Motion for Summary Judgment1 filed by Defendants,
Louisiana State Police (“LSP”) Trooper Burnell Thompson, II (“Trooper Thompson”), LSP
Sergeant Douglas Thompson (“Sgt. Douglas Thompson”), LSP Sergeant Daryl Davis
(“Sgt. Davis”), and LSP Lieutenant Lanny Bergeron (“Lt. Bergeron”) (collectively, “the LSP
Defendants” or “Defendants”). Plaintiff Wanda King (“King”) filed an Opposition,2 to which
Defendants filed a Reply.3 For the reasons that follow, the Court finds that the Motion
should be GRANTED.
I.

FACTUAL AND PROCEDURAL BACKGROUND
After dark on July 23, 2016, Plaintiff Wanda King stood in the middle of LA 1 in

Iberville Parish, Louisiana, attempting to cross the highway to visit the Jubilee
convenience store, where she planned to get a cup of ice.4 Iberville Parish Sheriff’s
Deputy Travis Hebert (“Deputy Hebert”)5 struck King with his vehicle. The lower half of
King’s “right leg was severed upon impact with the police vehicle, and she also suffered

1

Rec. Doc. No. 54.
Rec. Doc. No. 57.
3
Rec, Doc. No. 60.
4
Rec. Doc. No. 54-3 (Deposition of Wanda King) at p. 15, ll. 9-10; 18-19; 24-25.
5
Although the caption in this case names Defendant as Travis “Herbert,” subsequent pleadings reflect that
“Hebert” is the correct spelling. The Court will refer to him as Deputy Hebert.
2

60154 
Page 1 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 2 of 21

a right wrist fracture and right ring finger fracture.”6 Acadian Ambulance transported King
to Our Lady of the Lake Hospital (“OLOL”) in Baton Rouge, where she underwent surgical
amputation of her right leg. King’s claims against Deputy Hebert (the driver of the vehicle
that struck her) and Sheriff Brett Stassi of the Iberville Sheriff’s Department are no longer
a part of this action, having been previously settled by compromise.7
King’s remaining claims concern her allegation that, while she was hospitalized,
the LSP Defendants “ordered [her] blood to be drawn without her consent and without a
warrant.”8 King contends that the warrantless blood draw was a violation of her Fourth
Amendment right to be free from unreasonable search and seizure. Defendants urge this
Court to dismiss King’s §1983 claims on summary judgment, arguing that several
exceptions to the warrant requirement applied to their search and that, in the alternative,
they are entitled to qualified immunity. The Court will address the parties’ arguments in
turn.
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment 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.”9 “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.”10 A party moving for summary judgment “must ‘demonstrate the absence

6

Rec. Doc. No. 54-2, p. 2, ¶ 6.
Rec. Doc. No. 25.
8
Rec. Doc. No. 57, p. 1.
9
Fed. R. Civ. P. 56(a).
10
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
7

60154 
Page 2 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 3 of 21

of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”11 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.’”12 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.”13
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”14 All reasonable factual
inferences are drawn in favor of the nonmoving party.15 However, “[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.”16 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”17

11

Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 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, 323-25)).
12
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)).
13
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).
14
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 (1986)).
15
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
16
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
17
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).

60154 
Page 3 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 4 of 21

B. Claims Under 42 U.S.C. § 1983
To successfully allege constitutional violations in a § 1983 claim, the Fifth Circuit
has held that a plaintiff “must allege specific conduct giving rise to a constitutional
violation. This standard requires more than conclusory assertions: The plaintiff must
allege specific facts giving rise to the constitutional claims.”18 All of the LSP Defendants
are sued in their individual capacities.19 In order to establish the personal liability of a
certain defendant to a plaintiff who is claiming damages for deprivation of his civil rights,
the plaintiff must show that particular defendant's action or inaction was a violation of the
plaintiff's civil rights.20 Overall, “[p]ersonal involvement is an essential element of a civil
rights cause of action.”21
The summary judgment evidence in the record demonstrates that the only LSP
Defendant to have personal involvement in the events giving rise to King’s Fourth
Amendment claim was Trooper Thompson. In his Affidavit, attached as an exhibit to
Defendants’ Motion for Summary Judgment, Trooper Thompson states that, on July 23,
2016, he “was dispatched to [OLOL] to request a blood sample since a pedestrian had
suffered from serious injuries.”22 Trooper Thompson arrived at OLOL before King and
“prepped the Blood Kit (BAC #543350) in anticipation of [King’s] arrival.”23 When she
arrived, Trooper Thompson waited for the nursing staff to complete a medical assessment

18

Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (internal citations omitted).
Rec. Doc. No. 22 (Amended Complaint), p. 3.
20
Archie v. LeBlanc, No. CV08-CV-1381, 2010 WL 3522296, at *4 (W.D. La. July 28, 2010), report and
recommendation adopted, No. 08-CV-1381, 2010 WL 3522293 (W.D. La. Sept. 2, 2010), aff'd, 447 F. App'x
591 (5th Cir. 2011) (citing Reimer v. Smith, 663 F.2d 1316, 1322 n. 4 (5th Cir.1981). Also, Malley v. Briggs,
475 U.S. 335, 106 S.Ct. 1092, 1098 n. 7, 89 L.Ed.2d 271 (1986)).
21
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
22
Rec. Doc. No. 54-4, p. 2.
23
Id.
19

60154 
Page 4 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 5 of 21

of King in anticipation of her “imminent amputation surgery.”24 During the assessment,
Nurse Leigh Ann Trepagnier discovered a pipe containing narcotics residue in King’s
bra.25 Trooper Thompson testifies that, “[a]fter the assessment was done, [he] walked
back into [King’s] room”26 to request the blood sample. But, Thompson avers that, “due
to the severity of her injuries,”
[King] was unable to sign the Consent form and Blood Collector’s Report. I
read and explained the Consent Form and Blood Collector’s Report prior to
the blood draw, as to ensure Plaintiff’s understanding. I then witnessed
Plaintiff’s blood draw and [the nurse] witnessed Plaintiff verbally consent to
the blood draw.27
Trooper Thompson’s personal involvement in the blood draw that King contends was
unlawful is also confirmed by King’s own Statement of Disputed Material Facts.28 Therein,
King states that “it was Trooper Burnell Thompson III who requested Plaintiff’s blood
draw.”29 Therefore, as an initial matter, the Court finds that the summary judgment
evidence demonstrates sufficient personal involvement on the part of Trooper Thompson
to support a claim under § 1983. The merits of that claim will be discussed below.
As for the other LSP Defendants – Lt. Bergeron, Sgt. Davis, and Sgt. Douglas
Thompson – the record clearly demonstrates that they were not personally involved in the
events giving rise to King’s Fourth Amendment claim. King does not dispute Defendants’
assertion in their Statement of Undisputed Material Facts that King “never met Lt.
Bergeron or Sgt. Davis.”30 Nor does King dispute Defendants’ contention that Lt.

24

Id.
Rec. Doc. No. 54-2 at ¶ 26.
26
Id.
27
Id.
28
Rec. Doc. No. 57-1.
29
Id. at p. 1, ¶ 2.
30
Rec. Doc. No. 54-2, p. 3, ¶ 18.
25

60154 
Page 5 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 6 of 21

Bergeron’s involvement on the day of the accident was limited to “bringing the Nikon Total
Station, equipment used by investigating officers to take measurements at crash
scenes”31 to the scene of the accident, and that Lt. Bergeron “had no other involvement
in the investigation, and had no personal interaction or involvement with Plaintiff,
whatsoever.”32 Likewise, King does not dispute Defendants’ statements that Sgt. Davis’s
involvement was limited to “scoping the scene for evidence, such as skid marks and tire
marks”;33 “conduct[ing] a breathalyzer test on Defendant Hebert”;34 and performing “a
walk-around of Deputy Hebert’s vehicle.”35 The undisputed facts are deemed admitted
and demonstrate that neither Lt. Bergeron nor Sgt. Davis was personally involved in the
blood draw that is the subject of King’s remaining claims.
As for Sergeant Douglas Thompson, the summary judgment evidence in the record
demonstrates that his personal involvement in this matter was limited to: (1) “arriving on
the scene . . . for the purpose of conducting a crash investigation”36 and (2) visiting King
at OLOL the day after her accident. Specifically, Sgt. Thompson attests in his Affidavit
that he went to OLOL on July 24, 2016, the day after the accident, around 2:30am “to visit
and interview Plaintiff.”37 He describes their interaction as follows:
I saw [King] was awake and speaking with the nurses caring for her. I
introduced myself and spoke with her briefly about her injuries and the
crash. Based on her statements, I advised her of her rights per Miranda and
she told me she understood them. I questioned her about where she was
coming from and where she was headed to on the night of the accident . .
.Plaintiff said that . . . she purchased the crack-cocaine and smoked it the
31

Id. at ¶ 20.
Id. at ¶ 21.
33
Id. at ¶ 16.
34
Id. at ¶ 19.
35
Id.
36
Rec. Doc. No. 54-2, p. 2, ¶ 12.
37
Rec. Doc. No. 54-6, p. 4, ¶ 19.
32

60154 
Page 6 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 7 of 21

same day she was hit by the police car. . .Based on the evidence at the
scene of the crash, my observations of the evidence, and statements given
by all parties involved, I arrested and released Plaintiff with a misdemeanor
summons for Iberville Parish Court for violation of Louisiana revised Statute
32:213, Crossing at Other than Crosswalks, 14:103A(3), Disturbing the
peace by appearing in an intoxicated condition, and 40:1023, Prohibited
acts (possession of drug paraphernalia).38
King disputes certain aspects of Sgt. Thompson’s testimony on other grounds but
does not bring forth any competent summary judgment evidence that Sgt. Thompson was
personally involved in the blood draw itself, which is the event giving rise to her remaining
claims. Although it is undisputed that Sgt. Thompson interviewed King about the events
preceding her injuries and issued her a misdemeanor summons, there is no evidence that
he ordered the blood draw or was present for the blood draw. Apart from his crash
reconstruction work at the scene of the accident, which does not establish personal
involvement in the alleged Fourth Amendment violation, the evidence reflects that Sgt.
Thompson’s personal involvement in this matter occurred on July 24, 2016, the day after
the blood draw that King claims was performed in violation of her constitutional rights.
Without evidence of personal involvement, an “essential element” of an individual
capacity claim under § 1983, King cannot prevail on her Fourth Amendment claim against
Sgt. Thompson, Sgt. Davis, or Lt. Bergeron. Therefore, King’s § 1983 claims against them
shall be dismissed.

38

Rec. Doc. No. 54-6, pp. 4-5.

60154 
Page 7 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 8 of 21

C. Fourth Amendment
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.” The United States Supreme Court has held that this prohibition on
unreasonable searches can extend to “the taking of a blood sample,”39 which “is a
search”40 for Fourth Amendment purposes. Further, the Supreme Court “has determined
that warrantless searches and seizures are per se unreasonable unless they fall within a
few narrowly defined exceptions.”41 Turning to the facts of the instant case, it is
undisputed that Trooper Thompson did not obtain a warrant before entering King’s
hospital room to obtain a blood sample on the night of July 23, 2016. Defendants contend
that the lack of a warrant is not dispositive because the circumstances surrounding the
blood draw fell within several of the “few narrowly defined exceptions”42 to the warrant
requirement.
1. Exigent Circumstances
Defendants contend that the “exigent circumstances in this case negated the need
for a warrant prior to [King’s] blood being drawn.”43 The well-recognized exigent
circumstances exception to the warrant requirement “applies when the exigencies of the

39

Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016).
Id.
41
United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993) (citing Coolidge v. New Hampshire, 403
U.S. 443 (1971)).
42
Id.
43
Rec. Doc. No. 54-1, p. 8.
40

60154 
Page 8 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 9 of 21

situation make the needs of law enforcement so compelling that a warrantless search is
objectively reasonable under the Fourth Amendment.”44 Courts have recognized a variety
of circumstances that “give rise to an exigency sufficient to justify a warrantless search,
including law enforcement's need to provide emergency assistance to an occupant of a
home, engage in ‘hot pursuit’ of a fleeing suspect, or enter a burning building to put out a
fire and investigate its cause.”45 More relevant to the instant case is the Supreme Court’s
holding that a warrantless search may be justified where law enforcement reasonably
believe that they must act quickly to prevent the imminent destruction of evidence.46 When
considering the exigent circumstances exception in the context of warrantless blood
draws, however, the Supreme Court has held that “the natural metabolization of alcohol
in the bloodstream” does not present “a per se exigency that justifies an exception to the
Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunkdriving cases.”47 Instead, the Court explains, “exigency in this context must be determined
case by case based on the totality of the circumstances.”48
Defendants describe the allegedly exigent circumstances in this case as follows:
Considering the imminent nature of the [amputation] surgery, Plaintiff’s
blood had to be drawn before she was put under anesthesia and
administered several medications. If Plaintiff’s blood were drawn after her
procedure, the quality of her blood would have significantly changed and
would have produced different results; different results would affect the
integrity and substance of the LSP investigation.49

44

Kentucky v. King
Missouri v. McNeely, 569 U.S. 141, 149 (2013) (internal citations and quotations omitted).
46
See Cupp v. Murphy, 412 U.S. 291, 296 (1973); Ker v. California, 374 U.S. 23, 40–41 (1963).
47
Missouri v. McNeely, 569 U.S. 141, 145 (2013).
48
Id.
49
Rec. Doc. No. 54-1, p. 11.
45

60154 
Page 9 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 10 of 21

King counters that the exigent circumstances exception is inapplicable because, unlike
the cases cited by Defendants where warrantless blood draws of drunk drivers were
deemed reasonable, King “was not operating a vehicle nor did she injure anyone. She
was an innocent pedestrian.”50 The word “innocent” is not helpful to the analysis, but the
Court is persuaded to some extent by King’s argument that exigent circumstances could
not possibly arise where “Defendants never explain the scope or substance of what the
investigation was or why a chemical test of Ms. King’s blood was necessary to the
investigation.”51 In a drunk driving investigation or other situation where the police seek a
blood sample from a driver who has caused an accident, exigence is created by the need
to secure evidence of the driver’s potential intoxication before that evidence dissipates.
By contrast here, where it is undisputed that King was not driving, it is less clear why law
enforcement urgently needed to obtain a sample of her blood. King was ultimately issued
a misdemeanor summons for crossing at other than a crosswalk, disturbing the peace by
appearing in an intoxicated condition, and possession of drug paraphernalia. Two of those
charges do not depend on the presence or absence of drugs or alcohol in King’s system.
As for “disturbing the peace by appearing in an intoxicated condition,” the LSP
Defendants do not explain why the need to issue a summons for that charge was so
urgent that it was impracticable to obtain a warrant before ordering a blood draw.
Likewise, the LSP Defendants’ heavy reliance on the recently decided Mitchell v.
Wisconsin52 case is not persuasive. Mitchell stands for the proposition that:
When police have probable cause to believe a person has committed a
drunk-driving offense and the driver's unconsciousness or stupor requires
50

Rec. Doc. No. 57, p. 2.
Id.
52
Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019).
51

60154 
Page 10 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 11 of 21

him to be taken to the hospital or similar facility before police have a
reasonable opportunity to administer a standard evidentiary breath test,
they may almost always order a warrantless blood test to measure the
driver's BAC without offending the Fourth Amendment.53
Here, however, King was not driving, nor was she unconscious. The Supreme Court
based its holding on the exigent circumstances exception to the warrant requirement, and
the LSP Defendants apparently expect this Court to find that holding to be controlling
here, despite the obvious factual distinctions between an unconscious motorist suspected
of drunk driving and a pedestrian injured by a driver. Although the Mitchell opinion does
emphasize the importance of ensuring “highway safety,” the Court’s highway safety
discussion is clearly focused on “the effects of irresponsible driving.”54 There is no
indication in Mitchell that the Supreme Court views irresponsible pedestrian behavior as
a similarly compelling issue that justifies warrantless searches.
Defendants also argue that, because Deputy Hebert, the driver of the vehicle that
struck King, submitted to a breathalyzer test, “it was customary for Plaintiff’s to be tested,
as well.”55 This argument is unsupported by the law. Even if this tit-for-tat rule were the
law with respect to testing, it would not explain Defendants’ actions here, since King was
subject to a blood draw, not a breath test. The Supreme Court has stated that “breath
tests are less intrusive”56 than blood tests from a Fourth Amendment standpoint.
The Supreme Court instructs that “the police bear a heavy burden when attempting
to demonstrate an urgent need that might justify warrantless searches or arrests.”57 That

53

Id. at 2539.
Id. at 2535 (emphasis added).
55
Rec. Doc. No. 54-11, p. 15.
56
Mitchell v. Wisconsin, 139 S. Ct. 2525, 2533, 204 L. Ed. 2d 1040 (2019).
57
Welsh v. Wisconsin, 466 U.S. 740, 749 (1984).
54

60154 
Page 11 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 12 of 21

burden must be met by “‘demonstrat[ing] specific and articulable facts to justify the finding
of exigent circumstances.’”58 The LSP Defendants have failed to demonstrate as a matter
of law that the exigent circumstances exception applies because they have failed to
articulate specific facts demonstrating that their need to obtain evidence in support of a
misdemeanor charge against the injured party in a car accident presented exigent
circumstances as described by the Supreme Court, namely, circumstances where “there
is compelling need for official action and no time to secure a warrant.”59 The Court finds
that the exigent circumstances doctrine does not provide an exception to the warrant
requirement in this case and does not support summary dismissal.
2. Consent
Next, the LSP Defendants contend that King’s Fourth Amendment rights were not
violated because she consented to the blood draw.60 King disagrees, nothing that she
“was explicit in her deposition that she never consented to the blood draw at issue.”61
Based on the evidence in the record, the Court finds that disputed issues of material fact
stand in the way of summary judgment on the consent issue.
“[O]ne of the specifically established exceptions to the requirements of both a
warrant and probable cause is a search that is conducted pursuant to consent.”62 In order
to satisfy the consent exception, “the government must demonstrate that there was (1)
effective consent, (2) given voluntarily, (3) by a party with actual or apparent authority.”63

58

United States v. Shephard, 21 F.3d 933, 938 (9th Cir.1994) (quoting United States v. Driver, 776 F.2d
807, 810 (9th Cir.1985)).
59
McNeely, 569 U.S. at 149 (2013) (quoting Tyler, 436 U.S. at 509, 98 S.Ct. 1942).
60
Rec. Doc. No. 54-1, p. 11.
61
Rec. Doc. No. 57, p. 2.
62
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
63
United States v. Danhach, 815 F.3d 228, 234 (5th Cir. 2016).

60154 
Page 12 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 13 of 21

In this case, the only evidence probative of King’s consent or lack or consent comes in
the form of statements from the two parties who were present for the blood draw – King
and Trooper Thompson. At her deposition, King was asked, “Did you ever verbally
consent to the blood draw?” to which she answered, “No.”64 Asked if there was “anybody
else in the room that may have consented on [her] behalf,” King answered, “No.”65 When
presented with a signed Consent Form for the blood draw, King stated, “that is not my
signature . . . that is not my writing.”66 Defense counsel pointed out that, next to the
signature, the words “unable to sign” were written, and he suggested that there was
“probably someone in there that knew that you weren’t able to write, and so they had to
do it.”67 King replied, “No. It wasn’t nobody in there. Nobody did never come to me with
no – none of this asking me for – to draw no blood.”68 Clearly, King is adamant that she
did not consent, verbally or otherwise, to the blood draw.
Trooper Thompson’s affidavit testimony tells a different story. As discussed above,
he attests that:
Due to the severity of her injuries, [King] was unable to sign the Consent
form and Blood Collector’s Report. I read and explained the Consent Form
and Blood Collector’s Report prior to the blood draw, as to ensure Plaintiff’s
understanding. I then witnessed Plaintiff’s blood draw and [the nurse]
witnessed Plaintiff verbally consent to the blood draw.69
Notably absent from Trooper Thompson’s attestation is any statement that King
consented. As referenced at King’s deposition, Defendants attach a signed Consent

64

Rec. Doc. No. 49-6, p. 40, ll. 17-19.
Id. at p. 43, ll. 22-24.
66
Rec. Doc. No. 49-6, p. 43, ll. 1-2.
67
Id. at p. 44, ll. 8-10.
68
Id. at p. 44, ll. 11-13.
69
Id.
65

60154 
Page 13 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 14 of 21

Form, which states, “I have granted permission for blood samples to be taken.”70 Wanda
L. King is listed as “Name of Subject,” but on the Signature of Subject line, the words
“unable to sign” are handwritten. Defendants do not explain who filled out the form on
King’s behalf; they simply state that King was “unable to sign” and that “[n]onetheless,
Plaintiff still verbally consented to the draw.”71 The implication appears to be that Nurse
Leigh Ann Trepagnier signed the form on King’s behalf, but Trepagnier’s signature on the
Blood Collector’s Report appears under the statement, “I hereby certify that I drew blood
specimens from the above named person.”72 This may be evidence that Trepagnier
performed the blood draw, but it does evince King’s consent or lack thereof. As such,
there is a genuine issue of material fact with respect to whether or not King consented to
the draw.
Defendants also argue that Louisiana law negates the issue of King’s consent
because it provides that individuals may be “deemed to have given consent”73 to blood
tests under certain circumstances. However, Defendants’ contention that Louisiana law
“seemingly equat[es] intoxicated drivers with intoxicated pedestrians”74 is belied by the
text of the relevant statute. Louisiana Revised Statute § 32:666 provides that:
When a law enforcement officer has probable cause to believe that a person
has violated . . . [a] law or ordinance that prohibits operating a vehicle while
intoxicated, that person may not refuse to submit to a chemical test or tests
. . . in any case wherein a fatality has occurred or a person has sustained
serious bodily injury in a crash involving a motor vehicle.75

70

Rec. Doc. No. 49-12, p. 2.
Rec. Doc. No. 54-1, p. 12.
72
Rec. Doc. No. 54-9, p. 2.
73
La. R. S. § 32:661 (emphasis added).
74
Rec. Doc. No. 54-1, p. 15.
75
La R. S. 32:666.
71

60154 
Page 14 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 15 of 21

Clearly, on its face, this statue pertains to individuals suspecting of “operating a
vehicle while intoxicated.” The parties agree that King was a pedestrian, not a driver.
Defendants attempt to shoehorn this statue into applicability by bolding and italicizing the
provisions that refer to “serious bodily injury” (which did occur in this case); but that does
not change the fact that the statute obviously addresses the issue of consent by impaired
drivers and thus fails to support Defendants’ contention that King’s consent was supplied
by the law. The record does not support summary dismissal of King’s Fourth Amendment
claim on the grounds of consent.
3. Inevitable Discovery
The LSP Defendants argue that the blood draw did not violate King’s Fourth
Amendment rights because “it was inevitable that her blood would be collected by OLOL
medical staff.”76 Inevitable discovery is an exception to the exclusionary rule which “allows
for the admission of evidence that would have been discovered even without the
unconstitutional source.”77 Under the inevitable discovery doctrine, “there must have been
a reasonable probability that the evidence would have been discovered from an untainted
source.”78 Additionally, under Fifth Circuit precedent, the Government must show that it
“was actively pursuing a substantial alternate line of investigation at the time of the
constitutional violation.”79 Indeed, “[f]or the inevitable discovery exception to apply, ‘the
alternate means of obtaining the evidence must at least be in existence and, at least to
some degree, imminent, if yet unrealized.’”80 The Government has the burden of proving

76

Rec. Doc. No. 54-1, p. 16.
Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016).
78
Id.
79
United States v. Zavala, 541 F.3d 562, 579 (5th Cir. 2008).
80
Id. at 580 (quoting United States v. Cherry, 759 F.2d 1196, 1205 n. 10 (5th Cir.1985)).
77

60154 
Page 15 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 16 of 21

“by a preponderance of the evidence that the information ultimately or inevitably would
have been discovered by lawful means . . .”81
In this case, the LSP Defendants have not met that burden. Their conclusory
assertion that King’s “blood would still have been inevitably available through OLOL”82 is
not competent summary judgment evidence that LSP would have inevitably gained
access to the sample. The LSP Defendants do not explain how they would have obtained
it except “through OLOL,” and they do not demonstrate, as required by Fifth Circuit
doctrine, that they were “actively pursuing” the possibility of obtaining King’s blood work
from OLOL. They merely state that they could have gotten it after the fact from the
hospital.83 The Court fails to see how OLOL performing a blood draw on King in advance
of her emergency surgery inevitably suggests that LSP would have been privy to that
draw or to the results of any screening performed. The OLOL Consent for Treatment form
that the LSP Defendants cite as evidence of King’s consent to the hospital’s blood draw
states that the undersigned patient authorizes and consents to the “preservation,
examination, testing, retention, use, including, without limitation, the use for scientific,
diagnostic . . . purposes, by Hospital, at its discretion. . .”84
Likewise, the “Adult Trauma Emergency Orders” document that Defendants cite
states that “clinical condition is sufficiently urgent to require the emergency release of
blood products.”85 In fact, the statement in its entirety reads: “Transfuse emergency

81

Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
Rec. Doc. No. 54-1, p. 17.
83
Rec. Doc. No. 60, p. 4 (“that sample could have been obtained by Louisiana State Police in furtherance
of their investigation”).
84
Rec. Doc. No. 54-12.
85
Rec. Doc. No. 1-4, p. 2.
82

60154 
Page 16 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 17 of 21

release un-crossmatched blood – Clinical condition is sufficiently urgent to require the
emergency release of blood products prior to completion of routine blood bank testing.”86
If the “emergency release” contemplated by this form involves law enforcement,
Defendants fail to demonstrate how. Overall, nothing in the evidence brought forth by
Defendants establishes that the inevitable discovery doctrine applies to this situation.
Therefore, the LSP Defendants’ Motion for Summary Judgment is denied with respect to
their argument that King’s blood draw comported with the Constitution because the
sample would have inevitably ended up in the hands of LSP.
4. Qualified Immunity
The LSP Defendants further contend that the claims against them should be
dismissed because they are entitled to qualified immunity. In accordance with this Court’s
ruling, supra, the only Defendant as to whom King has pled sufficient personal
involvement in her Fourth Amendment claim is Trooper Thompson. Accordingly, the Court
will undertake the qualified immunity analysis only with respect to Trooper Thompson.
King contends that Thompson’s conduct is not shielded by immunity because it was not
“reasonable or customary to order a blood draw from an injured pedestrian.”87 Defendants
disagree, explaining that Thompson was “merely doing [his] job[] and . . . attempting to
conduct a thorough and complete investigation.”88
In Saucier v. Katz, the Supreme Court set forth a two-part framework for analyzing
whether a defendant was entitled to qualified immunity.89 Part one asks the following

86

Id.
Rec. Doc. No. 57, p. 4.
88
Rec. Doc. No. 54-1, p. 19.
89
Saucier v. Katz, 533 U.S. 194 (2001).
87

60154 
Page 17 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 18 of 21

question: “Taken in the light most favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional right?”90 Part two asks whether
the allegedly violated right is “clearly established” such that “it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”92 A court
need not address these two questions sequentially; it can proceed with either inquiry
first.91 “If the defendant’s actions violated a clearly established constitutional right, the
court then asks whether qualified immunity is still appropriate because the defendant’s
actions were ‘objectively reasonable’ in light of ‘law which was clearly established at the
time of the disputed action.’”92 Officials “who reasonably but mistakenly commit a
constitutional violation are entitled to immunity.”93
There is no question that, under the Fourth Amendment, King enjoyed a clearly
established constitutional right to be free from unreasonable warrantless searches. Nor
can there be any dispute that the blood draw performed on her was such a search.94
Assuming, for purposes of the qualified immunity analysis, that Trooper Thompson’s
conduct violated King’s rights, the question becomes: were Trooper Thompson’s actions
objectively reasonable? Based on the record, the following facts are undisputed: Trooper
Thompson “was dispatched to [OLOL] to request a blood sample since a pedestrian had
suffered from serious injuries.”95 Once he arrived at OLOL, Trooper Thompson “prepped

90

Id. at 201.
See Pearson, 555 U.S. at 236 (“On reconsidering the procedure required in Saucier, we conclude that,
while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”);
see also Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).
92
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing Williams v. Bramer, 180 F.3d 699, 703 (5th
Cir. 1999)).
93
Williams, 180 F.3d at 703.
94
Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016).
95
Rec. Doc. No. 54-4, p. 1.
91

60154 
Page 18 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 19 of 21

the blood kit (BAC 543350) in anticipation of [King’s] arrival.”96 Before King’s amputation
surgery, Nurse Leigh Ann Trepagnier performed a blood draw.97 A toxicology report was
ordered

by

LSP

and

ultimately

indicated

the

presence

of

“cocaine/metabolites/benzolecgonine” in King’s system.98
This Court held, supra, that there is a genuine dispute of material fact surrounding
whether or not King actually consented to the blood draw. King suggests that this disputed
fact issue prevents the Court from coming to a conclusion on qualified immunity. The
Court disagrees. Even assuming that the blood draw was performed without King’s
consent and in the absence of a true exigency or other circumstances that give rise to an
exception to the warrant requirement – in other words, in violation of the Fourth
Amendment – King has not shown that Trooper Thompson’s actions were objectively
unreasonable. Trooper Thompson was dispatched to obtain a blood sample in
furtherance of a crash investigation. The fact that the LSP Defendants do not articulate
the scope or purpose of their investigation in terms that are satisfactory to the Plaintiff is
not dispositive of the issue. If Thompson mistakenly believed that, due to exigency or
inevitable discovery, he had a legal basis to perform the blood draw without a warrant,
that mistake remains within the realm of conduct shielded by qualified immunity. Indeed,
“[a]ctions and decisions by officials that are merely inept, erroneous, ineffective, or
negligent do not amount to deliberate indifference and thus do not divest the official of
qualified immunity.”99

96

Rec. Doc. No. 54-2, p. 4.
Rec. Doc. No. 54-2, ¶ 24 and 30.
98
Rec. Doc. No. 54-4, p. 3.
99
Whitley v. Hanna, 726 F.3d 631, 643 (5th Cir. 2013).
97

60154 
Page 19 of 21 

Case 3:17-cv-00406-SDD-EWD

Document 66

05/12/20 Page 20 of 21

King has identified no evidence that Trooper Thompson’s request for a blood draw
was deliberately indifferent or that “every reasonable official [in Thompson’s position]
would have understood that what he is doing violates”100 Plaintiff’s rights. The Supreme
Court in Mitchell held that a warrantless blood test is sometimes appropriate for a driver
suspected of intoxication due to the exigency involved. If Trooper Thompson inferred that
the same principle applied to a pedestrian suspected of intoxication after a vehicle
accident, that inference, while arguably mistaken, was not undertaken in deliberate
indifference to King’s rights. King complains that the LSP Defendants “cite no case
supporting, or otherwise justify [sic], the warrantless drawing of blood from a pedestrian
simply because the pedestrian was injured by someone else.”101 She is right; they cite no
such case. However, the lack of case law on this issue actually bolsters Trooper
Thompson’s argument for qualified immunity. In the absence of cases holding that a
warrantless blood draw on a pedestrian involved in a pedestrian-vehicle accident is per
se unreasonable, it would be unreasonable to expect that any officer in Trooper
Thompson’s position would have known that what he was doing was unconstitutional.
Thus, Trooper Thompson is entitled to qualified immunity and the claims against him shall
be dismissed with prejudice.

100
101

Reichle v. Howards, 556 U.S. 658, 664 (2012).
Rec. Doc. No. 57, p. 4.

60154 
Page 20 of 21 

Case 3:17-cv-00406-SDD-EWD

III.

Document 66

05/12/20 Page 21 of 21

CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment102 is

hereby GRANTED and the claims against them are dismissed with prejudice.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on May 12, 2020.

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

102

Rec. Doc. No. 54.

60154 
Page 21 of 21