Hungerford v. Lake Charles et al

Filing 12

MEMORANDUM ORDER: Directing plaintiff to amend complaint. Pro Se Response due by 1/29/2018. Signed by Magistrate Judge Kathleen Kay on 12/28/2017. (crt,Haik, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

DAVID WAYNE HUNGERFORD
DOC # 444829

:

DOCKET NO. 17-cv-778
SECTION P

VERSUS

:

UNASSIGNED DISTRICT JUDGE

POLICE DEPT, CITY OF LAKE
CHARLES, ET AL.

:

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

Before the court is the amended civil rights complaint [doc. 8] filed pursuant to 42 U.S.C.
§ 1983 by plaintiff David Wayne Hungerford, who is proceeding pro se and in forma pauperis in
this matter. Hungerford is currently incarcerated at the Calcasieu Correctional Center (“CCC”) as
a pretrial detainee. Doc. 1, p. 3. However, he raises claims relating to his arrest by officers of the
Lake Charles Police Department (“LCPD”).
I.
BACKGROUND
Hungerford alleges that, on May 2, 2017, he was beaten by officers of the LCPD. Doc. 8,
p. 3. From this beating, he maintains that he suffered broken bones but received no medical
treatment from the LCPD officers and instead “sat [four] or more [hours] before they brought me
to [CCC] and glued my cheek together.” Doc. 8, p. 3. He states that some unidentified person told
him that he did not suffer any broken bones, but he maintains that he could prove otherwise if
given X-rays. Id.
Hungerford now brings suit against the LCPD, the City of Lake Charles, the Mayor of the
City of Lake Charles, and the Chief of Police of the City of Lake Charles. Id.; doc. 1, pp. 1, 4. In

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relief he seeks “[t]o have the officer reprimanded and to receive a settlement between $5,000.00
to $500,000.00” for the alleged police brutality. Doc. 8, p. 4. He also requests that he not face any
repercussions for suing the LCPD. Id.
II.
LAW & ANALYSIS
A. Frivolity Review
Hungerford has been granted leave to proceed in forma pauperis in this matter.
Accordingly, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2), which provides
for sua sponte dismissal of the complaint or any portion thereof if the court determines that it is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)–(iii).
A complaint is frivolous if it lacks an arguable basis in law or fact. Gonzalez v. Wyatt, 157
F.3d 1016, 1019 (5th Cir. 1998). A complaint fails to state a claim upon which relief may be
granted if it is clear the plaintiff cannot prove any set of facts in support of his claim that would
entitle him to relief. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). When
determining whether a complaint is frivolous or fails to state a claim upon which relief may be
granted, the court must accept plaintiff’s allegations as true. Horton v. Cockrell, 70 F.3d 397, 400
(5th Cir. 1995) (frivolity); Bradley v. Puckett, 157 F.3d at 1025 (failure to state a claim).
B. Section 1983
Federal law provides a cause of action against any person who, under the color of law, acts
to deprive another person of any right, privilege, or immunity secured by the Constitution and laws
of the United States. 42 U.S.C. § 1983. Thus the initial question is whether the plaintiff has alleged
that his constitutional rights have been violated. If no constitutional violation has been alleged,
there is no cognizable claim that would entitle plaintiff to relief. In order to hold the defendants
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liable, a plaintiff must allege facts to show (1) that a constitutional right has been violated and (2)
that the conduct complained of was committed by a person acting under color of state law; that is,
that the defendant was a state actor. West v. Atkins, 108 S.Ct. 2250, 2254–55 (1988).
C. Rule 8
Rule 8 of the Federal Rules of Civil Procedure requires a pleading to contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2).
Under Rule 8, the complaint must allege “sufficient facts from which the court can determine
the existence of subject matter jurisdiction and from which the defendants can fairly appreciate
the claim made against them.” Bynum v. Terrebonne Parish Consol. Gov’t, 2011 WL 6654985, at
*3 (E.D. La. Nov. 8, 2011) (citations omitted).
D. Theories of the Complaint
1. Proper parties
a. Lake Charles Police Department
According to Rule 17(b) of the Federal Rules of Civil Procedure, Louisiana law governs
whether defendants can be sued in this court. Under Louisiana law, an entity must qualify as a
“juridical person,” which is defined as “an entity to which the law attributes personality, such as a
corporation or partnership.” LA. CIV. CODE art. 24. Police departments are generally not juridical
entities and the proper defendant is instead the municipality. Durall v. Lafayette Police Dept., 2011
WL 6181387 at *1 n. 1 (W.D. La. Nov. 16, 2011); Evans v. City of Homer, 2007 WL 2710792 at
*4–*5 (W.D. La. Sep. 12, 2007). Hungerford’s claims against the LCPD should be asserted against
the city itself, which was named as a defendant to this suit in his original complaint. See doc. 1.
He should therefore dismiss all claims against the LCPD and instead assert these against the City
of Lake Charles.

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b. Lake Charles Chief of Police and Mayor
It is unclear whether Hungerford still intends to maintain claims against the Chief of Police,
as this defendant was not mentioned in the amended complaint. See doc. 8. To the extent that he
does, it is not clear whether such claims are brought in a personal or official capacity. However,
Hungerford’s claims against both the mayor and chief of police raise concerns.
As the Supreme Court has explained:
[T]he distinction between official-capacity suits and personal-capacity suits
is more than “a mere pleading device.” . . . State officers sued for damages
in their official capacity are not “persons” for purposes of the suit because
they assume the identity of the government that employs them . . . . By
contrast, officers sued in their personal capacity come to court as
individuals. A government official in the role of personal-capacity
defendant thus fits comfortably within the statutory term “person.”
Khansari v. City of Houston, 14 F.Supp.3d 842, 852 (S.D. Tex. 2014) (quoting Hafer v. Melo, 112
S.Ct. 358, 362 (1991)).
A government official sued in his personal capacity is shielded by the doctrine of qualified
immunity, and may only be held liable upon a showing of personal involvement in the alleged
constitutional deprivation. Id. at 852–53. Meanwhile, when a plaintiff sues a municipal or county
official in his official capacity, the municipality or county is liable for the resulting judgment.
Bennett v. Pippin, 74 F.3d 578, 584 (5th Cir. 1996). Suits against government defendants in their
official capacities “are typically an alternative means of pleading an action against the
governmental entity involved.” Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996) (citing Hafer,
112 S.Ct. at 361 (1991)). There is no basis for such alternative pleading in this matter, where the
city is already a defendant. Accordingly, Hungerford should amend his complaint to clarify
whether he still intends to raise claims against the Chief of Police. To the extent any claims are
made against this party and the Mayor of Lake Charles in a personal capacity, Hungerford should

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say so. To the extent claims against either party are made in an official capacity, Hungerford should
instead raise them against the City of Lake Charles.
2. Supervisory liability
It is clear that the parties to this suit are named in a supervisory capacity, as none are alleged
to have been personally involved in Hungerford’s alleged beating or medical care. Supervisory
officials may not be held liable under § 1983 under the doctrine of respondeat superior. See
Mouille v. City of Live Oak, 977 F.2d 924 (5th Cir. 1992). To be liable under § 1983, a supervisory
official must be personally involved in the act causing the alleged constitutional deprivation, have
failed to train or supervise the officials directly involved in circumstances amounting to deliberate
indifference to the plaintiff’s rights, or must have implemented a policy so deficient that the policy
itself acts as a deprivation of constitutional rights. Brown v. Bolin, 500 Fed. App’x 309, 314 (5th
Cir. 2012); see also Cozzo v. Tangipahoa Parish Council—President Gov’t, 279 F.3d 273, 289
(5th Cir. 2002). Accordingly, Hungerford must amend his complaint to clarify a basis for
supervisory liability in line with the above, identify the actors personally involved in these events
and name them as defendants instead, or dismiss his suit.
3. Municipal liability
Similar to the above, municipal liability attaches in a § 1983 suit where the governmental
entity “is alleged to have caused a constitutional tort through a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers,” as well as when
the injury results from an informal custom of the entity. Zarnow v. City of Wichita Falls, Tex., 614
F.3d 161, 166 (5th Cir. 2010) (internal quotations omitted). The municipality may not be held
liable “merely for employing a tortfeasor,” and the plaintiff is instead required to show three

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elements: a policymaker, an official policy, and a resulting violation of constitutional rights. Id. at
167; Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
Here the presumptive policymaker is the mayor and/or chief of police. In order to establish
municipal liability at this stage, Hungerford should identify the policy or custom at issue and its
connection to the alleged use of excessive force.
4. Heck concerns
Under the Supreme Court’s precedent in Heck v. Humphrey, a plaintiff who has been
convicted of a crime may not use § 1983 to collaterally attack that conviction. 114 S.Ct. 2364,
2372 (1994). In other words, a plaintiff may not recover on a § 1983 claim that calls into question
the validity of a conviction unless that conviction has been reversed, expunged, declared invalid,
or called into question by federal habeas corpus. Id. at 2372–73. Accordingly, certain convictions,
such as battery of an officer, may bar a plaintiff from bringing an excessive force claim based on
those same events. Arnold v. Town of Slaughter, 100 Fed. App’x 321, 323 (5th Cir. 2004) (citing
Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996)); but see Thomas v. Pohlmann, 681 Fed.
App’x 401, 407 (5th Cir. 2017) (excessive force claim not necessarily undermined by battery of
an officer conviction, where plaintiffs alleged that the officers continued to use excessive force
after they had ceased their resistance).
As stated above, Hungerford was on pretrial detention at the time he filed this complaint.
See doc. 1, p. 3. Accordingly, he must identify what charges were filed against him and what the
disposition of those charges is. If he has been charged in any manner that might raise Heck
concerns in this matter, he should explain the connection between the charge(s) and the claims
currently under review.

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5. Medical care
Hungerford briefly complains of the medical care he received from LCPD officers while
awaiting transfer to CCC, and of their failure to recognize his broken bones. To the extent that he
intends to raise this as a separate constitutional claim based on denial of medical care, he should
say so. He should be aware, however, that the standards for such a claim are high. The Fifth Circuit
treats medical care claims by arrestees identically to those raised by pretrial detainees. Nerren v.
Livingston Police Dep’t, 86 F.3d 469, 472–73 (5th Cir. 1996). Where, as here, the plaintiff alleges
only an individual or episodic act, he is required to show subjective deliberate indifference in order
to demonstrate a constitutional violation.1 Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997). Under
this standard, the plaintiff must show that the responsible party knew of and disregarded “an
excessive risk to the inmate’s health and safety.” Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir.
2001). As the Fifth Circuit has repeatedly cautioned, “[d]eliberate indifference is more than mere
negligence” and “disagreement with medical treatment alone cannot support such a claim.” Id. at
549 (citations omitted).
6. Damages
It is unclear whether Hungerford is seeking punitive damages. If he is, she should be aware
that a municipality may not be held liable for punitive damages under § 1983. Broussard v.
Lafayette City-Parish Consol. Gov’t, 45 F.Supp.3d 553, 578–79 (W.D. La. 2014). Additionally,
as discussed above, Hungerford’s official-capacity claims against the Chief of Police are “in all
respects other than name, to be treated as a suit against the government entity.” Mitchell v. City of
New Orleans, 184 F.Supp.3d 360, 378 (E.D. La. 2016) (alteration and quotations omitted).

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This is the test used to show personal liability for a denial of medical care. Gibbs, 254 F.3d at 549. In order to show
municipal liability for same, Hungerford would have to identify a deficient policy or custom, which would then be
analyzed under an objective standard. See id.; Scott, 114 F.3d at 53.
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7. Injunctive relief
Finally, Hungerford has requested that he be protected against repercussions for filing suit.
Doc. 8, p. 4. Requests for injunctive relief are subject to the jurisdictional standing requirements
of Article III. See, e.g., Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000). To meet this
requirement, a plaintiff must demonstrate that a case or controversy exists. Bauer v. Texas, 341
F.3d 352, 357–58 (5th Cir. 2003). In a request for injunctive relief he is therefore required to
“allege facts from which it appears there is a substantial likelihood that he will suffer injury in the
future.” Id. at 358. Past exposure to illegal conduct is insufficient “if unaccompanied by any
continuing, present adverse effects.” Id. (quoting City of Los Angeles v. Lyons, 103 S.Ct. 1660,
1665 (1983)).
Hungerford does not allege that he is currently experiencing or under threat of any
repercussions. Accordingly, he does not satisfy the standing requirements above. He should
dismiss this request for relief or allege facts sufficient to show ongoing injury and/or threat of
future injury.
III.
CONCLUSION
Hungerford’s amended pro se complaint is deficient in a number of respects as described
above. Before this court can determine the proper disposition of his action, he should be given the
opportunity to remedy the deficiencies or dismiss those claims that he cannot remedy. Bazrowx v.
Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
Accordingly,
THE CLERK IS DIRECTED to mail a copy of this order to Hungerford at his last address
on file.

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IT IS ORDERED that Hungerford amend his complaint within thirty (30) days of the
filing of this order to cure the deficiencies as outlined above, and dismiss the claims he is unable
to cure through amendment.
Failure to comply with this order may result in dismissal of the claims above as frivolous
under 28 U.S.C. § 1915 or dismissal of the action under Rule 41(b) or 16(f) of the Federal Rules
of Civil Procedure. See Link v. Wabash R. Co., 82 S. Ct. 1386 (1962).
Hungerford is further required to notify the court of any change in his address under LR
41.3. Failure to do so will result in a recommendation that this action be dismissed without
prejudice.
THUS DONE AND SIGNED in Chambers this 28th day of December, 2017.

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