Banks et al v. City of Gonzales et al

Filing 35

RULING: The Court finds that there are no genuine issues of material fact that preclude summary judgment, and Defendants' 26 Motion for Summary Judgment is GRANTED. Plaintiffs' claims are dismissed with prejudice. Judgment shall be entered accordingly. Signed by Chief Judge Shelly D. Dick on 5/20/2019. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DORESTINE BANKS, ET AL.
CIVIL ACTION
VERSUS
18-634-SDD-EWD
CITY OF GONZALES, ET AL.

RULING
This matter is before the Court on the Motion for Summary Judgment1 filed by
Defendants City of Gonzales, Sherman Jackson, Leland Sykes, Gary Ferrari, and Walter
Taylor (“Defendants”). Plaintiffs Dorestine Banks, Fredrick Banks, Doretha Farlough,
Stella M. Banks, Anna L. Young, Robert Banks, Jr., and Willie Mae Williams (“Plaintiffs”)
have filed an Opposition2 to this motion, to which Defendants filed a Reply.3 For the
reasons set forth below, the Defendants’ motion shall be granted.
I.

FACTUAL AND PROCEDURAL BACKGROUND
This matter arises out of the death of the Plaintiffs’ brother Michael Banks

(“Banks”), who was arrested on suspicion of DUI on April 3, 2015.4 Plaintiffs are the
surviving siblings of Banks.5

Plaintiffs allege that, while Banks was detained at the

Gonzales Police Department on the date of his arrest, he had an altercation with some
police officers and suffered a subdural hematoma when he hit his head on the floor.6

1

Rec. Doc. No. 26.
Rec. Doc. No. 29.
3
Rec. Doc. No. 34.
4
Rec. Doc. No. 1, ¶ 8.
5
Id.
6
Id. at ¶¶ 9-11.
2

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Banks was transported to the hospital for treatment,7 and, although he was released from
the hospital, Plaintiffs allege he “never fully recovered” and was “unable to function
normally” after this incident.8 On August 27, 2015, Plaintiffs allege Banks was “found in
his home with a breathing respiratory attached to his face, unresponsive.”9 Banks was
transported to the hospital where a hematoma was discovered, and he ultimately passed
away on August 28, 2015.10
Plaintiffs claim Banks’ family was unaware of Banks’ declining health and injuries
until July 28, 2017, when a story in the Pelican Post newspaper revealed the alleged
mistreatment and excessive force used on their brother by Defendants Ferrari and
Taylor.11 Plaintiffs filed this lawsuit against the Defendants advancing constitutional
claims under 42 U.S.C. § 1983.
Defendants now move for summary judgment on two grounds: (1) Plaintiffs lack
standing to pursue a wrongful death or survival action because Banks had two children
at the time of his death, and his children are the only persons entitled to bring these claims
under Louisiana law; and (2) Plaintiffs’ claims are prescribed.

Plaintiffs oppose

Defendants’ motion, arguing that Banks’ obituary referencing his two children is
inadmissible “hearsay,” and their claims are not prescribed under the doctrine of contra
non valentum.

7

Id. at ¶ 12.
Id. at ¶ 14.
9
Id.
10
Id.
11
Id. at ¶ 17.
8

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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.”12 “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.”13 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”14 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.’”15 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.”16
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.’”17 All reasonable factual
inferences are drawn in favor of the nonmoving party.18 However, “[t]he Court has no

12

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
14
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, 106 S.Ct. at 2552)).
15
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)).
16
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).
17
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)).
18
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
13

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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.”19 “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.”’”20
B. Defendants’ Statement of Material Facts are Deemed Admitted
Plaintiffs have failed to comply with Local Rule 56(b), which requires a litigant to
include with a summary judgment opposition “a separate, short and concise statement of
the material facts as to which the opponent contends there exists a genuine issue to be
tried. All material facts set forth in the statement required to be served by the moving
party will be deemed admitted, for purposes of the motion, unless controverted as
required by this Rule.”21 Accordingly, as a matter of law, Defendants’ statement that,
“[a]t the time of his death, Banks had two children,” is deemed admitted for purposes of
this motion. Further, Defendants cite to evidence supporting this statement.22 Plaintiffs
fail to controvert this statement or to submit any evidence whatsoever in opposition to
Defendants’ motion. It is “well established that arguments set forth in a brief in response
to a motion for summary judgment, unsupported by ... adequate summary judgment

19

RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
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).
21
Emphasis added.
22
See Rec. Doc. No. 26-1.
20

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evidence, are insufficient to raise genuine issue of material fact to defeat a properly
supported motion for summary judgment.”23
C. Survival/Wrongful Death Actions
“As a threshold matter, any party bringing suit must have standing to do so, and
the [United States Court of Appeals for the] Fifth Circuit has instructed district courts to
evaluate state law concepts of paternity to establish standing in wrongful death and
survivorship actions.”24 Further, “[s]tanding under the Civil Rights Statutes is guided by
42 U.S.C. § 1988, which provides that state common law is used to fill the gaps in
administration of civil rights suits. Therefore, a party must have standing under the state
wrongful death or survival statutes to bring a claim under 42 U.S.C. §§ 1981, 1983, and
1988.”25
Under Louisiana Civil Code Articles 2315.1 and 2315.2, the right of a survival or
wrongful death action is afforded to four exclusive categories of survivors. However, the
statutes do not allow for all of the classes of survivors to bring actions. Rather, the
existence of a person qualifying within a higher class precludes a person in a lower class
from filing suit.26 The primary category under both 2315.1 and 2315.2 includes the
surviving spouse and/or children of the decedent. Thus, pursuant to Articles 2315.1 and
2315.2, surviving siblings may only recover in the event that the decedent was not

23

Hockaday v. Tx. Dep't of Criminal Justice, 914 F. Supp. 1439, 1446 (S.D. Tex. 1996).
Howell v. Hillcorp Energy Co., No. 12–0293, 2013 WL 1455758, *3 (E.D. La. 2013).
25
Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004)(citations omitted). Louisiana law on survival actions
applies to Plaintiff’s ADA and RA claims as well. See Rideau v. Keller Indep. Sch. Dist., 819 F.3d 155, 161
(5th Cir. 2016) (citing Hutchinson on Behalf of Baker v. Spink, 126 F.3d 895, 898 (7th Cir. 1997)) (“We may
consider that common law rule in determining who may assert a claim for a minor's compensatory damages
under the ADA or Rehabilitation Act, just as other courts have looked to the common law to determine when
federal civil rights claims survive the death of the person aggrieved.”).
26
See Kumasi v. Cochran, No. 2015 WL 4429192 at *3 (M.D. La. July 17, 2015).
24

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survived by a spouse or child, or a parent.27 As made clear by the Louisiana Supreme
Court, “[w]hen a tort victim is survived by a child, the parents of the tort victim have no
right to recover for the damages sustained by the victim or for their own damages for the
victim's wrongful death.”28 The same is true as to siblings.
Plaintiffs claim that Banks’ obituary is hearsay and does not establish paternity.
Plaintiffs also argue that it is Defendants’ burden to establish Banks’ paternity as to the
alleged children. Plaintiffs are incorrect on both counts. “The party invoking federal
jurisdiction-in this case the plaintiffs-bears the burden of establishing standing.”29
Standing is a jurisdictional requirement that cannot be waived.

Plaintiffs have the

obligation of demonstrating through summary judgment evidence that they have standing
to assert this right of action, and they have failed to do so.
Further, Defendants cite applicable jurisprudence holding that an obituary can be
admitted as an exception to the hearsay rule to establish paternity. In Succession of
Rodgers,30 the Louisiana Second Circuit Court of Appeal held that the trial court erred
when it excluded a newspaper obituary offered to establish paternity. The Rodgers court
stated:
One of the oldest exceptions to the hearsay rule encompasses reputation
and statements about family history and pedigree. McCormick on Evidence,
2d Ed. § 322 (1972). In such cases, hearsay is admissible to prove not
only descent and relationship, but also facts as to birth, marriage and
death, and the date when these events occurred. Succession of
Anderson, 176 La. 66, 145 So. 270 (1932); In Re Gray's Succession, 201
La. 121, So.2d 481 (1982); IMC Exploration Co. v. Henderson, 419 So.2d
27

Id.
Jenkins v. Mangano Corp., 2000-0790 (La. 11/28/00), 774 So. 2d 101, 105. See also, Melancon v.
Louisiana, No. 11-1794, 2013 WL 1288702, at *2 (W.D. La. Mar. 26, 2013) (holding that the decedent’s
mother had no standing to pursue her claims because he had children).
29
Louisiana Environment Action Network v. McDaniel, 2007 WL 2668880, *4 (E.D. La. Sep. 5, 2007).
30
499 So.2d 492 (La. App. 2 Cir. 1986).
28

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490 (La.App. 2d Cir.1982), writ denied 423 So.2d 1149, 1150 (La.1982);
Dazio v. Wainwright, 81 So.2d 96 (La.App. 2d Cir.1955); Succession of
White, 85 So.2d 528 (La.App. Orleans 1956). This exception to the hearsay
rule is founded on the necessity which arises from the essentially perishable
nature of the probative facts and the very limited number of persons who
can be assumed to have either an interest in or knowledge of such facts.
Generally, a declaration regarding pedigree is admitted only after showing
that the declarant is unavailable, the statement was made before the
controversy giving rise to the litigation and that there was no apparent
motive for the declarant to misrepresent the facts. The exception goes
beyond declarations and permits use of contemporary records of family
history such as entries in a family bible or on a tombstone even though the
author may not be identifiable. Succession of Marcour, 180 La. 129, 156
So. 198 (1934), extended this rule to admit an undertaker's record and
newspaper article. The issue in that case was whether a decedent was born
prior to or during the lawful marriage of his parents. The court in Marcour
found that the article was written and published at a time when no motive
existed to distort the truth and it was therefore admissible.31
As in Rodgers, the Proof of Publication affidavit and attached obituary submitted
by Defendants establish that the obituary was prepared and published on September 4,
2015, a few days after Banks’ death on August 28, 2015. Plaintiffs claim they were
unaware of the underlying alleged conduct that forms the basis of this lawsuit until July
28, 2017. Thus, the obituary was prepared and published without motive or thought to
pending or potential litigation.

As such, the obituary is admissible to establish a

presumption of paternity in this matter, and Plaintiffs have failed to controvert this
evidence with any countervailing summary judgment evidence. Accordingly, Plaintiffs
lack standing and capacity to assert the claims herein, and Defendants are entitled to
summary judgment.32

31

Id. at 494-95.
Because Plaintiffs lack standing and capacity to bring this suit, the Court need not consider the
prescription argument.

32

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III.

CONCLUSION
For the reasons set forth above, the Court finds that there are no genuine issues

of material fact that preclude summary judgment, and Defendants’ Motion for Summary
Judgment33 is GRANTED. Plaintiffs’ claims are dismissed with prejudice.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 20th day of May, 2019.
___

S

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

33

Rec. Doc. No. 26.

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