Simon v. Gee et al

Filing 77

MEMORANDUM RULING. Signed by Magistrate Judge Joseph H L Perez-Montes on 9/21/2018. (crt,Tice, Y)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ELIZABETH SIMON,
Plaintiff

CIVIL ACTION NO. 1:17-CV-00237

VERSUS
REBEKAH GEE, ET AL.,
Defendants

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM RULING
Before the Court are: (1) a Motion for Summary Judgment (Doc. 57), filed by

pro se plaintiff Elizabeth Simon (“Simon”); 1 and (2) a Motion for Summary Judgment
(Doc. 52), filed by Defendants Rebekah Gee (“Gee”), Karen Medlock (“Medlock”), and
Michelle Duncan (“Duncan”) (collectively referred to as “Defendants”).

Because

Simon has not raised a genuine issue of material fact that Defendants are entitled to
qualified immunity, summary judgment is granted in favor of Defendants.
I.

Background
Simon, proceeding pro se, filed a civil rights complaint under 42 U.S.C. § 1983

on February 3, 2017. (Doc. 1). Simon alleges she was maliciously prosecuted and
falsely arrested by Defendants. (Doc. 1). Simon is not presently incarcerated. Simon
seeks punitive and compensatory damages in excess of $75,000. (Doc. 1).

The deadline for dispositive motions was October 31, 2017. (Doc. 26). Simon’s Motion for Summary
Judgment was untimely filed on November 9, 2017. (Doc. 57). Defendants assert Simon’s Motion for
Summary Judgment should be denied as untimely. (Doc. 60). Regardless, for the reasons discussed
herein, Simon has failed to show any genuine issue of material fact and Defendants are entitled to
summary judgment.
1

1

Simon contends she is an insanity acquittee, found not guilty by reason of
insanity on September 29, 2003. (Doc. 1). Simon was given a “Conditional Release
and Probation Supervision” form to sign. (Doc. 1). Simon alleges she signed it
without the assistance of counsel and when she was not on medication.

(Doc. 1).

Simon was supervised by Kenneth Cooley initially, then Mike Cole, then by Karen
Medlock beginning in 2011.

(Doc. 1).

Medlock was the District V Forensic

Coordinator charged with monitoring Simon’s compliance with court-ordered
treatment and her “conditional release.” (Doc. 1). Medlock works with Simon’s
Probation Officer LaSaundra Fontenot. 2 (Doc. 1). Duncan is Medlock’s supervisor
and Director of Community Forensic Services, Louisiana Department of Health
(“LDH”). 3 (Doc. 1).
Simon contends she and Medlock never got along and admits she told Medlock
she should be fired. (Doc. 1). Simon alleges that, as a result, Medlock recommended
to the Court that, since Simon was in psychosis, she needed to be placed in jail. (Doc.
1). Simon further alleges Medlock presented false information to the judge and the
Assistant District Attorney.

(Doc. 1).

Simon contends that Medlock can only

authorize her hospitalization, and that the recommendation of jail constitutes
malicious prosecution.

(Doc. 1).

Simon contends Medlock then demanded an

immediate meeting with her while Simon was at work, and had Simon arrested for
failing to go to the meeting. (Doc. 1). Simon admits Duncan sent her a text message

2

LaSaundra Fontenot is not a party to this action.

3

LDH was formerly the Louisiana Department of Health and Hospitals (“DHH”).

2

to call Medlock and told her it is considered a violation of probation to not talk to
Medlock. (Doc. 1). Simon contends Medlock violated her Fourth and Fourteenth
Amendment rights for having her arrested without cause. (Doc. 1). Simon further
contends she contacted Gee, but all agencies dismissed her complaints. (Doc. 1).
Defendants answered the complaint denying Simon’s allegations, and
asserting various affirmative defenses, including qualified immunity. (Docs. 12, 13). 4
Defendants now seek summary judgment based on qualified immunity. (Doc. 52).
Simon opposes the motion. (Docs. 58, 61, 68). Simon also filed a cross-motion for
summary judgment. (Doc. 57). Simon requests summary judgment in her favor
based on Defendants acting outside the scope of their duties. 5 (Doc. 57). Defendants
oppose Simon’s motion. (Doc. 60).
II.

Law and Analysis
A.

Standards governing the Motion for Summary Judgment.

Under Rule 56 of the Federal Rules of Civil Procedure, a court must 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.” Fed. R. Civ.
P. 56. Paragraph (e) of Rule 56 also provides the following:
If a party fails to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by Rule 56(c), the
court may:
Simon sought to amend her Complaint to add the State of Louisiana (Doc. 18), which was denied as
barred by the Eleventh Amendment. (Doc. 55). Simon’s second motion to amend, seeking a discharge
from monitoring by the State of Louisiana (Doc. 32), was also denied. (Doc. 55). Simon’s third and
fourth motions to amend (Docs. 35, 39) were also denied. (Doc. 55).
4

Simon continues to request the Court discharge the State and its agencies from monitoring her. (Doc.
57). However, that request has already been denied as such relief is appropriately sought in a petition
for habeas relief, not through a civil rights complaint. (Doc. 55).

5

3

(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed--show that the movant is
entitled to it; or
(4) issue any other appropriate order. 6
Fed. R. Civ. P. 56(e).
“A genuine dispute of material fact exists ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Hefren v.
McDermott, Inc., 820 F.3d 767, 771 (5th Cir. 2016) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In deciding a
motion for summary judgment, a court must construe all facts and draw all inferences
in the light most favorable to the non-movant. Dillon v. Rogers, 596 F.3d 260, 266
(5th Cir. 2010). However, a mere scintilla of evidence is insufficient to defeat a motion
for summary judgment. Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999).
If the movant produces evidence tending to show that there is no genuine issue
of material fact, the non-movant must then offer evidence sufficient to establish a
genuine issue of material fact. Herrera v. Millsap, 862 F.2d 1157, 115 (5th Cir. 1989).
However, mere conclusory allegations are not competent summary judgment
evidence, and such allegations are insufficient to defeat a motion for summary
judgment. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992), cert. denied, 506
U.S. 825 (1992).

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Local Rule 56.2W (formerly 2.10W) also provides that all material facts set forth in a statement of
undisputed facts submitted by the moving party will be deemed admitted unless the opposing party
controverts those facts by filing a short and concise statement of material facts as to which that party
contends there exists a genuine issue to be tried.

4

Additionally, where a defendant asserts qualified immunity at the summary
judgment stage, “the burden shifts to the Plaintiff to raise facts that dispute the
defendant’s assertion of qualified immunity.” Estate of Pollard v. Hood Cnty., Tex,
579 F.App’x 260, 264 (5th Cir. 2014) (per curiam). The court must still view all facts
and make all reasonable inferences in light most favorable to the plaintiff. Id. But
“plaintiff must produce evidence that presents a genuine issue of material fact that
(1) the defendants’ conduct amounts to a violation of the plaintiff’s constitutional
right; and (2) the defendants’ actions were ‘objectively unreasonable in light of clearly
established law at the time of the conduct in question.” Id. (quoting Cantrell v. City
of Murphy, 666 F.3d 911, 922 (5th Cir. 2012). cert. denied, 133 S.Ct. 119 (2012). If
the plaintiff fails, the motion for summary judgment should be granted. Estate of
Pollard, 579 F.App’x at 264.
B.

42 U.S.C. § 1983

The Civil Rights Act of 1871, 42 U.S.C. § 1983, provides that “[e]very person
who, under color of any statute, ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any . . . person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. To state a claim for
relief under § 1983, a plaintiff must establish (1) the deprivation of a right secured
by the Constitution or laws of the United States, and (2) that the alleged deprivation
was committed under color of state law. Bryant v. Military Dep't of Miss., 597 F.3d
678, 686 (5th Cir. 2010).

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C.

Qualified Immunity

Qualified immunity provides government officials performing discretionary
functions with a shield against civil damages liability, so long as their actions could
reasonably have been thought consistent with the rights they are alleged to have
violated. Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006) (citing Anderson v.
Creighton, 483 U.S. 635, 638 (1987)). In determining whether an official enjoys
qualified immunity, the Court must determine (1) whether the plaintiff has
demonstrated a violation of a clearly established federal constitutional or statutory
right, and (2) whether the official's actions violated that right to the extent that an
objectively reasonable person would have known. Id. (citing Hope v. Pelzer, 536 U.S.
730 (2002)).
A legal right is clearly established if the contours of the right are “sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.”

Thompson v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir. 2001)

(quoting Anderson, 483 U.S. at 635). A court may evaluate the reasonableness of the
official's conduct and the existence of a statutory or constitutional violation in either
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009) (internal quotation marks
omitted).

“Bare allegations of malice should not suffice” to overcome qualified

immunity. Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982).
D.

Simon has not raised a genuine issue of material fact that Defendants
are entitled to qualified immunity under 42 U.S.C. § 1983.

Defendants assert there is no genuine issue of material fact they are entitled
to qualified immunity under § 1983. (Doc. 52-1). Defendants assert their actions
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were not objectively unreasonable in light of clearly established law. (Doc. 52-1).
Defendants further assert that Simon’s failure to comply with court-ordered
probation requirements resulted in her arrest. (Doc. 52-1).
Simon opposes and filed a cross-motion for summary judgment, asserting she
was unlawfully arrested on May 27, 2016, and that her constitutional rights were
violated. (Docs. 57, 68). Simon asserts Medlock and Duncan acted outside the scope
of their duties. (Docs. 58, 68). Simon further asserts that Medlock was acting in a
police capacity rather than a medical professional or social worker capacity when she
obtained a warrant for Simon. (Doc. 68). Simon contends Medlock, in her role as
District Forensic Coordinator, has no legal authority to obtain warrants to arrest
people for “non-criminal activity.” 7 (Doc. 68). Rather, Simon concedes that her Parole
Officer LaSaundra Fontenot had the discretion to do so. (Doc. 68). Simons contends
that Defendants acted outside of their duties, which she alleges is to monitor only.
(Doc. 68).
The following facts are undisputed:
(1) The incident at issue occurred on May 27, 2016, at the Kroger Grocery
Store in Lake Charles, Louisiana.
(2) At the time of the incident, Simon was on “conditional release and
probation supervision” as a result of being found not guilty by reason of
insanity of second degree murder and three counts of attempted first degree
murder on September 29, 2003. 8
The records submitted by Simon show LaSaundra Fontenot, not Medlock, caused Simon to be
arrested on May 27, 2016 for violations of the terms of her probation. (Doc. 57-2).

7

Simon was initially ordered released on probation subject to general conditions under La. Code Crim.
P. art. 895 and subject to special conditions for an indeterminate period of time. (Doc. 18-1, p. 2). The
special conditions included that Simon shall be recommitted if she becomes dangerous to herself or
others; that she shall remain under the care of a licensed psychiatrist or clinical psychologist; that she
remain in a “structured environment” such as a group home or halfway house treatment facility; . . .
and that at least annually, the treatment facility where she is housed . . . make a report to the Court
8

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(3) As part of her “conditional release and probation supervision,” Simon was
required to meet with Karen Medlock, district forensic coordinator, once a
month.
(4) Medlock called, texted, and emailed Simon beginning on May 23, 2016 to
see Simon.
(5) On May 27, 2016, Duncan sent Simon a text message informing Simon to
call Medlock as soon as possible and informed Simon that not talking to Simon
is a violation of probation.
(6) Simon was arrested on May 27, 2016 outside of Kroger, where Simon was
employed.
(7) Simon was not terminated from her job at Kroger as a result of being
arrested on May 27, 2016.
(8) Simon was not demoted from her position at Kroger as a result of the
alleged incident.
Simon disputes that Medlock made “attempts” to contact her by phone calls,
texts, or email. (Doc. 61). Rather, she asserts Medlock spoke to her by phone and
email, and they set the date of June 3, 2016 for a meeting. (Doc. 61). Simon also
disputes that Medlock’s supervisor, Duncan, attempted to contact her on May 27,
2016 in an attempt to set up Simon’s monthly mandatory meeting with Medlock. (Doc.

on her status and progress. (Doc. 18-1, p. 3). Simon was ordered to a forensic facility, but due to lack
of bed space, was diverted to outpatient community mental health treatment and was granted
conditional release.
On June 22, 2005, Simon signed a “Conditions of Release Document,” which included conditions that
Simon shall regularly attend monthly counseling and/or treatment, or more frequently if directed by
her Probation Officer, local mental health center staff, or DHH-District Forensic Coordinator; shall be
subject to outpatient tracking and monitoring services provided by the District Forensic Coordinator;
and that she will not exhibit any assaultive behavior toward others and if she presents as a danger to
self or others, she will be remanded to immediate in-patient hospitalization or returned to custody for
further proceedings. (Doc. 18-1, p. 10). Another condition included that failure to comply with
treatment and/or failed appointments to the DHH-District Forensic Coordinator and Probation Officer
would result in Simon being remanded for further court proceedings. (Doc. 18-1, p. 10). Additionally,
the conditions included that Simon would follow the requirements of La. Code Crim. P. art. 895,
including submitting to available medical, psychiatric, mental health, or substance abuse examination
or treatment or both when deemed appropriate or ordered to do so. (Doc. 18-1, p. 11). By her signature,
Simon acknowledged her failure to abide by and conform to these conditions could result in revocation
of her conditional release. (Doc. 18-1, p. 10).

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61). Simon also disputes that Duncan contacted her to inform her that if she didn’t
contact Medlock, she would be in violation of her probation. (Doc. 61).
Simon alleges Duncan never called her nor had any definitive contact with her
to inform her they would have her arrested that day. (Doc. 61). Simon disputes that
Duncan never had any direct contact with her, other than when she tried to contact
Simon in an attempt to set up her mandatory monthly meeting with Medlock in May
2016. (Doc. 61). Simon asserts Duncan had contact with her in 2011, including
various emails through the years. (Doc. 61). She asserts she did not talk to Duncan
in May 2016 by phone, text, or email. (Doc. 61). However, Simon admits in her
Complaint that Duncan texted her on May 27, 2016 to contact Medlock within 10 to
15 minutes and informed her that not speaking to Medlock was a violation of
probation. (Doc. 1).
Simon also disputes that Gee was not involved with any direct interactions
between Simon, Medlock, and Duncan regarding setting up her monthly meeting in
May 2016, and resulting in her arrest on May 27, 2016. (Doc. 61). Simon asserts Gee
was aware of the scope of duties of the Community Forensic Division, and did not
terminate Medlock after allegedly being informed of her meltdown in Simon’s
apartment. (Doc. 61). However, Simon concedes Gee had no direct knowledge of the
alleged incident “as it occurred.” (Doc. 61).
“A State's operation of a probation system, like its operation of a school,
government office or prison, or its supervision of a regulated industry, likewise
presents ‘special needs' beyond normal law enforcement that may justify departures

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from the usual warrant and probable-cause requirements.” Griffin v. Wisconsin, 483
U.S. 868, 873-74 (1987). The United States Supreme Court explained:
Probation, like incarceration, is a form of criminal sanction imposed by
a court upon an offender after verdict, finding, or plea of guilty.
Probation is simply one point (or, more accurately, one set of points) on
a continuum of possible punishments ranging from solitary confinement
in a maximum-security facility to a few hours of mandatory community
service. A number of different options lie between those extremes,
including confinement in a medium- or minimum-security facility, workrelease programs, halfway houses, and probation-which can itself be
more or less confining depending upon the number and severity of
restrictions imposed.
Id. at 874 (citations and quotations omitted). Thus, the Court concluded, “[t]o a
greater or lesser degree, it is always true of probationers (as we have said it to be true
of parolees) that they do not enjoy ‘the absolute liberty to which every citizen is
entitled, but only . . . conditional liberty properly dependent on observance of special
[probation] restrictions.’ ” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).
Just as other punishments for criminal convictions curtail an offender's
freedoms, a court granting probation may impose reasonable conditions
that deprive the offender of some freedoms enjoyed by law-abiding
citizens. United States v. Knights, 534 U.S. 112, 117, 122 S.Ct. 587, 151
L.Ed. 2d 497 (2001). The Supreme Court “. . . has repeatedly
acknowledged that a State has an ‘overwhelming interest’ in supervising
parolees because ‘parolees . . . are more likely to commit future criminal
offenses.’ Pennsylvania Bd. of Probation and Parole, 524 U.S., at 365,
118 S.Ct. 2014 (explaining that the interest in combating recidivism ‘is
the very premise behind the system of close parole supervision’).
Similarly, [the] Court has repeatedly acknowledged that a State's
interests in reducing recidivism and thereby promoting reintegration
and positive citizenship among probationers and parolees warrant
privacy intrusions that would not otherwise be tolerated under the
Fourth Amendment. See Griffin, 483 U.S., at 879, 107 S.Ct. 3164;
Knights, supra, at 121, 122 S.Ct. 587.” Samson v. California, 547 U.S.
843, 126 S.Ct. 2193, 2200, 165 L.Ed.2d. 250 (2006).
10

See Edwards v. Stephens, 2006 WL 2349584, at *6 (W.D. La. July 12, 2006).
Louisiana law provides that when a committed person is released on probation,
known as “conditional release,” the probationer shall be under the supervision of
probation and parole, and the Louisiana Department of Health (“LDH”) shall be
responsible for the community treatment and monitoring of persons placed on
outpatient status. La. Code Crim. P. 658. “When the probationer violates or is about
to violate the conditions of [her] probation, [she] may be arrested and detained in
conformity with the applicable provisions of Article 899 of this Code.” La. Code Crim.
P. art. 658(B)(1). 9 The division of probation and parole or the LDH through its
conditional release program coordinator or a designee shall immediately notify the
court of any substantive violations or imminent violations of the conditions of a
person’s probated release and shall present recommendations to the court regarding
whether the court should revoke the probation and recommit the probationer. Id.
“The court, on its own motion or that of the district attorney or probation
officer, or upon receiving a report recommending revocation or other disposition from
the conditional release program coordinator, may cause the person to be arrested, if
he is not already in custody, and shall immediately hold a hearing to consider the

La. Code Crim. P. art. 899(B) states, in pertinent part: “If a probation officer has reasonable cause to
believe that a [probationer] has violated or is about to violate a condition of his probation or that an
emergency exists so that awaiting an order of the court would create an undue risk to the public or the
probationer, the probation officer may arrest the [probationer] without a warrant . . . . The probation
officer shall immediately notify the proper court of the arrest and shall submit a written report
showing what manner the [probationer] violated, or was about to violate, a condition of his probation.”
La. Code Crim. P. art. 899(B).
9

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violations listed or transfer the case to the parish of commitment, if different from
that of the arrest, at which place the hearing should be held as soon as possible.” Id.
Here, Simon also does not dispute she was subject to treatment and monitoring
as a condition of her release. Rather’s Simon’s contact with the District Forensic
Coordinator of LDH was a court-imposed condition at the time of her alleged incident.
Additionally, none of the cases cited by Simon are applicable to the facts of her case.
Simon concedes that Medlock was responsible as the District Forensic Coordinator
for monitoring her pursuant to her conditions of release and supervision. Simon
asserts Gee ignored Simon’s complaint regarding Medlock and allowed her to
continue to monitor her. Simon claims Medlock acting in a police capacity and went
to the judge and had her arrested. (Doc. 68). Simon asserts that she agreed to, and
a meeting was set for, June 3, 2016, but was arrested without probable cause. (Doc.
61).
However, records submitted by Simon show a series of emails reflecting her
refusal to cooperate with Medlock and her refusal to submit to a mental health
evaluation as directed by Medlock. (Doc. 57, pp. 1-6; Doc. 61, pp. 23-31). Simon
testified in her deposition that she was required to meet with Medlock once a month.
(Doc. 52-5). Simon testified Medlock called, emailed, and texted her prior to the
alleged incident, beginning May 23, 2016, but that she did not call her back
immediately. (Doc. 52-6). Moreover, the record shows Simon’s Probation Officer,
LaSaundra Fontenot, submitted a “Detainer Notification, Affidavit of Probable
Cause, and Motion for Hearing to Revoke Probation” attesting that she caused Simon

12

to be arrested on May 27, 2016, for violations of the terms of her probation. (Doc. 572). The judge found probable cause on the probation violation, ordered a hearing, and
denied bail. (Doc. 57-2). Simon asserts she has since been released from probation
and conditional release and supervision as of April 2018. (Docs. 68, 69). Even
assuming those facts as true, that has no bearing on the allegations concerning her
May 27, 2016 arrest for violating her conditional release and supervision.
Defendants are entitled to summary judgment based on qualified immunity.
Qualified immunity protects public officials from civil liability if, viewing the alleged
facts in the light most favorable to the plaintiff, the official’s conduct did not violate
a constitutional right so clearly established that the conduct was unreasonable.
Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004). Simon does not dispute
she was subject to Conditional Release and Supervision. During the time period
relevant to this inquiry, plaintiff was a probationer. As such, Simon was also required
to “[s]ubmit [her]self to available medical, psychiatric, mental health, or substance
abuse examination or treatment or both when deemed appropriate and ordered to do
so by the probation and parole officer.” See La. Code Crim. P. art. 895(A)(12).
Moreover, La. Code Crim. P. 658(B) mandates that the division of probation and
parole or the LDH through its conditional release program coordinator or a designee
immediately notify the court of any substantive violations or imminent violations of
the conditions, and provides that a probationer may be arrested and detained in
conformity with the applicable provisions of Article 899 for same. La. Code Crim. P.
658(B).

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Simon has shown no genuine issue of material fact that Defendants violated
her constitutional rights. Even if Defendants’ conduct actually violated Simon’s
constitutional rights, they are entitled to qualified immunity because the conduct was
objectively reasonable under the circumstances. Duckett v. City of Cedar Park, Tex.,
950 F.2d 272, 279-80 (5th Cir. 1992).
III.

Conclusion
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 52) is

GRANTED.
IT IS FURTHER ORDERED that Simon’s Motion for Summary Judgment
(Doc. 57) is DENIED.
IT IS FURTHER ORDERED that Simon’s action against all Defendants is
DISMISSED WITH PREJUDICE.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this
21st
_______ day of September, 2018.
______________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

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