Benson et al v. McKinney et al

Filing 38

MEMORANDUM RULING granting in part and denying in part 24 MOTION for Summary Judgment filed by Marie Stubblefield, Greg McKinney, Police Dept of Delhi, Willie Lee, X Y Z Insurance Co, Town of Delhi. Signed by Judge Robert G James on 04/16/09. (crt,Yocum, M)

RINE MOERVOV, E A CN E L
AVt~ 1 62009
WES~ttdPL0th3IA~

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DWISION

BOBBY BENSON, SR., ET AL. VERSUS GREG MCIUINNIEY, ET AL.

CD/IL NO. 07-0672 JUDGE ROBERT G. JAMES MAG. JuDGE KAREN L. HAYES RULING

Pending before the Court is a Motion for Summary Judgment [Doc. No. 241 filed by Defendants the Town of Delhi, the Town of Delhi Police Department ("DPD"), former DPD Chief of Police Greg MeKinney ("McKinney"), DPD Assistant Chief of Police Willie Lee ("Lee"), and DPD Officer Marie Stubblefield ("Stubblefield"). Defendants move for summaryjudgment on the claims of Plaintiffs Bobby Benson, Sr. ("Mr. Benson") and Emma Benson ("Mrs. Benson"), individually and on behalf of their minor son, Bobby Benson, IT. For the following reasons, Defendants' Motion for Summary Judgment is GRANTED IN PART and DEMED IN PART. I. FACTUAL BACKGROUND' Plaintiffs claim that beginning in 2001 and continuing until August 18, 2006, Defendants conspired to threaten, harass, intimidate, retaliate against, arrest, and attempt to prosecute Mr. Benson because ofhis race, African-American, and his actions as an alderman of the Town of Delhi.

`Plaintiffs did not point the Court to any evidence in opposition to Defendants' Motion for Summary Judgment. It is not the duty of this court to "sift through the record in search of evidence to support a party's opposition to sunimaryjudgment." Forsyth v. Barr, 19 F.3d 1527, 1537(5th Cit. 1994). The Court has considered pertinent statements from Plaintiffs' verified Complaint [Doc. No. 1] that are not specifically disputed by Defendants. 1

As a result, Plaintiffs allege that they and their son have been damaged and continue to be damaged, Plaintiffs allege that in 2003, Mr. Benson criticized McKinney and the DPD for engaging in racial profiling and hiring police officers with criminal records and "[in]sufficient integrity." [Doc. No. 1,~J1lJ. On May 10, 2004, Mr. Benson publicly opposed a request to raise the amount of criminal fines in the Town of Delhi. [Doc. No. 1, ¶11]. On May 11, 2004, Mr. Benson was stopped by DPD Officer Jesse Nielson. Mr. Benson was issued a traffic citation for speeding; the citation alleged that Mr. Benson was traveling 41 miles per hour in a 35-mile-per-hour zone. Mr. Benson pled guilty and paid the fme. On or about June 29, 2005, Zaek McDowell, the chairman ofa voter recall petition to remove McKinney as Chief of Police, was detained by the DPD on a public highway. Mr. Benson drove to the scene ofthe detention and was allegedly told by unnamed DPD officers to leave the scene orface arrest. On July 6, 2005, Mr. Benson requested a copy of all the water bills for McKinney, based on information that McKinney, as an individual property owner, had not paid his water bill for several months. Mr. Benson claims that he encountered difficulty. in obtaining the water bills. Prior to and on July 11, 2005, Mr. Benson spoke out publicly against Defendants and led a protest at Delhi City Hail. Mr. Benson alleged that Defendants had taken illegal and abusive actions against the citizens of the Town of Delhi and Richland Parish. Mr. Benson continued to speak out publicly against Defendants. On November 12, 2005, Benson was elected to the Board of Aldermen for the Town of Delhi, District B.
`2

OnNovember 14, 2005, Lee, the Assistant ChiefofPolice, allegedly threatened Benson with substantial physical injury if Mr. Benson tried to interfere with the operation of the DPD. On April 16, 2006, Mr. Benson filed a complaint with the DPD. Mr. Benson reported that he had entered a residence located at 113 Thomas Street in Delhi, which was owned by his deceased grandfather, and that someone was living there without permission and stealing electricity. Mr. Benson alleges that he entered the residence with his brother, Shelton Benson, and James Schaeffer. A radio and DVD player were removed from the residence. Officers Stubblefleld and Cooper investigated Mr. Benson's complaint. On April 18, 2006, a related incident complaint was filed by Byron Fletcher C'Fleteher"). Fletcher reported that someone had removed his radio and DVD player from his residence at 113 Thomas Street. On April 19, 2006, Stubblefleld arrested Mr. Benson on charges of theft and unauthorized entry. Prior to Mr. Benson's arrest, Stubblefield did not threaten Mr. Benson or suggest that he was being targeted. Apparently, Defendants alerted local media to the arrest. On April 28,2006, Stubblefield stopped Mrs. Benson for allegedly runthng a stop sign. Mrs. Benson was given a warning. Mrs. Benson was not threatened by Stubblefield during this traffic stop. On August 18, 2006, MeKinney pled guilty to various criminal charges against him. On April 17, 2007, Plaintiffs filed suit against the Town of Delhi; the DPD; MeKinney, in his official and individual capacity; Lee, in his official and individual capacity; and Stubblefleld, in her official and individual capacity. [Doe. No. 1]. On January 22, 2009, Defendants filed a Motion for Summary Judgment [Doe. No. 24]. 3

On April 6, 2009, Plaintiffs filed a memorandum in opposition [Doe. No. 36] and statement ofmaterial facts [Doe. No. 37]. Plaintiffs contend only that Defendants failed to meet their burden on summary judgment and do not dispute Defendants' statement of material facts. II. LAW AND ANALYSIS A. Summary Judgment Standard

A motion for summary judgment cannot be granted simply because there is no opposition. An unopposed motion seeking sunmiary judgment shall be granted "if appropriate." FED. R. Civ. P. 56(e), Sunimaryjudgmentis appropriate "ifthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 5 6(c). The moving party bears the initial burden of informing the court of the basis for its motion by identifying portions ofthe record which highlight the absence of genuine issues ofmaterial fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id. Unless the moving party meets this burden, the court may not grant the unopposed motion, regardless of whether any response was filed. Heizel v. Bethlehem Steel Corp., 50 F.3d 360, 362 (5th Cir. 1995). B. Claims by Mr. Benson

Mr. Benson claims that he was given a traffic citation and arrested as a result of racial 4

discrimination and political retaliation. Mr. Benson also claims that Defendants alerted the media to Iris arrestto embarrass and humiliate him. Mr. Benson cites 42 U.S.C.

§~ 981, 1

1983, 1985, and

1988, and claims he was falsely arrested and imprisoned and tortiously defamed. Mr. Benson also seeks a declaratory judgment that Defendants violated his due process, equal protection, and First Amendment rights. Defendants contend that Mr. Benson has failed to establish violations of any right. Defendants also assert the defense of qualified immunity. 1.

§ 1981

Claims

Under a liberal construction of the Complaint, Mr. Benson contends that he was discriminated against because ofhis race when he was given a traffic citation for speeding on May 11, 2004, and when he was arrested for theft and imauthorized entry on April 19, 2006.2 Section 1981 provides that [a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit ofall laws and proceedings for die security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C.

§

1981(a). At the primafacie stage, "a plaintiff must establish `(1) that she is a member

of a racial minority; (2) that [the defendant] had intent to discriminate on the basis of race; and (3) that the discrimination concerned one or more ofthe activities enumerated inthe statute." Arguello v. Conoco, Inc., 330 F.3d 355,358 (5th Cir. 2003) (quotingMorris v. DillardDep `tStores, Inc., 277

2To the extent that Mr. Benson seeks to hold all Defendants liable for race discrimination under § 1981 through § 1983, the Court notes that the claims against the Defendant-Officers in their official capacities merge with Mr. Benson's claim against the Town of Delhi. S

F.3 d 743, 751(5th Cir. 2001)). The Court assumes that Mr. Benson relies on the "like punishments" clause. See 42 U.S.C.

§

198 1(a).

Defendants move for summary judgment solely on whether Mr. Benson can establish aprima facie ease of racial discrimination. See [Doe. No. 24-2, p. 6]. Defendants primarily contend there is no evidence that they intended to discriminate against Mr. Benson because of his race. With respect to the traffic citation, Defendants rely on the fact that a majority of die officers of the DPD are African-American and on DPD Officer John Mej ias's3 testimony that he was not aware of any racial profiling and was never instructed to profile or arrest minorities more than Caucasians. Defendants also rely on Mr. Benson's testimony that tie only evidence he has to suggest the citation was racially motivated are his "feelings" and the fact tiiat he had traveled the same speed for many years at that location without receiving a citation. [Doe. No. 24-4, Exh. B. Part 1, pp. 28--29]. With respect to the arrest, Defendants argue that Stubblefleld, who is African-American, had probable cause to arrest Mr. Benson for theft and unauthorized entry. Fletcher, who filed tie complaint, and several other witnesses informed Stubblefield that they saw Mr. Benson remove die property from the house on Thomas Street. Stubblefield testified that she arrested Mr. Benson "based solely on [her] determination that [she] had probable cause to arrest him..
. .

[She] was never

asked by Chief Greg McKinney or anyone else at Delhi to discriminate against Bobby Benson, Sr." [Doe. No. 24-3, Exh. A, pp. 1--2]. The Court finds that there is no evidence to support an inference ofrace discrimination witii respect to die traffic citation. Mr. Benson offers only his subjective beliefs that the issuance of die citation was racially motivated, However, die ticketing officer's race/ethnicity is not in evidence, 3Officer Mejias testified that he is one-half Mexican. 6

and Mr. Benson does not dispute diat he was speeding and, therefore, that a citation was warranted. With respect to the arrest, Mr. Benson disputes whether Defendants had probable cause to arrest him. Benson alleges that the arrest was racially motivated because "Defendants knew that Alderman Benson had permission to go into the residence at Thomas Street from his mother and from tie other member of die Benson family"; "Defendants knew tiiat die dwelling was legally unoccupied [sic], and dius it was not legally occupied by any owner, lessee, or other person who possessed the legal right to occupy the dwelling"; "Defendants knew that James Schaeffer, not AldermanBenson, took die radio and DVD player from die abandoned residence at Thomas Street"; and "Defendants knew that James Schaeffer was in possession of the abandoned property without intent to deprive the owner thereof, and that James Schaeffer and Alderman Benson intended to return die property to its owner." [Doe. No. 1, ¶~f44--49]. A review of Stubblefield's affidavit, die incident reports, and witness statements show that Stubblefield was aware when she arrested Mr. Benson that diere was a dispute as to whether Fletcher was legally residing in die Thomas Street residence. However, for die reasons discussed infra, Stubblefield had probable cause to arrest Mr. Benson. Moreover, Mr. Benson has offered no evidence that the arrest was motivated by Mr. Benson's race or the race of his constituents, other than the fact that he is African-American, he represents African-Americans, and McKinney is Caucasian. The Court finds that this alone falls to support an inference of race discrimination. Defendants' Motion for Summary Judgment on this claim is GRANTED. 2.

§ 1983

Claims

Mr. Benson contends that Defendants' actions deprived him ofdie right to be free from false arrest/imprisonment, the right to equal protection of die laws, die right to due process, and die right 7

to freedom of expression. Mr. Benson's claims are cognizable under Section 1983 provides in pertinent part as follows:

§

1983.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within die jurisdiction diereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,or otherproperproceeding forredress... 42 U.S.C.

§

1983. "To state a claim under

§

1983, plaintiffs must allege two elements: first, that

they were deprived of a right or interest secured by the Constitution and laws of the United States, and second, that the deprivation occurred under color ofstate law." Doe v. Rains County Indep. Sc/i. Dist, 66 F.3d 1402, 1406 (Stii Cir. 1995). Defendants do not deny diat they were acting under color ofstate law. However, Defendants deny that they deprived Mr. Benson of a constitutional right and contend that they are entitled to qualified immunity. "Police officers, like odier public officials acting within die scope oftheir official duties, are shielded from claims of civil liability, including § 1983 claims, by qualified immunity." Morris v. Dillard Dept. Stores, Inc., 277 F.3d 743, 753 (Sdi Cir. 2001). In reviewing a police officer's claim of qualified immunity, the Supreme Court instructs diat the court must engage in a two-step inquiry. The court must first address die constitutional issue: whedier the facts alleged, "`[t]aken in die light most favorable to the party asserting injury," are sufficient to "`show the officer's conduct violated a constitutional right." Brosseau
is.

Haugen, 543 U.S. 194, 197 (2004) (per curiani) (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)). Assuming that the plaintiff hasralsed a genuine issue of material fact for trial on die constitutional issue, the court must then address die qualified inmiunity issue: whether it was clearly established diat the officer was violating an individual's 8

constitutional rights. Id. at 199. a. False Arrest

Mr. Benson's allegations of false arrest are properly analyzed under cases interpreting die Fourth Amendment. See Blac/cwell v Barton, 34 F.3d 298, 302 (5th Cir. 1994). "To ultimately prevail on his section 1983 false arrest/false imprisonment claim, [Mr. Benson] must show that [Defendants] did not have probable cause to arrest him." Haggerty v. Tar. S. Univ., 391 F.3d 653, 655 (5th Cir. Tex. 2004). Probable cause exists if there was "reasonably trustworthy

information.. .sufflcient to warrant a prudent man in believing that [Mr. Benson] had committed or was committing an offense." Becky. Ohio, 379 U.S. 89, 91(1964). The Court's analysis must begin with a review of the criminal statutes. Mr. Benson was charged with theft and unauthorized entry of a dwelling. See [Doe. No. 24-3, Exh. 1]. "Theft is the misappropriation or taking ofanything ofvalue which belongs to anodier, either widiout die consent of die oilier to the misappropriation or talcing, or by means of fraudulent conduct, practices, or representations. An intent to deprive the oilier pernianendy of whatever may be die subject of die misappropriation or talcing is essential." LA. REV. STAT.

§

14:67. "Unauthorized entry of an

inhabited dwelling is die intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person." LA. REV. STAT.

§

14:62.3.

At die time of Mr. Benson's arrest, die arresting officer, Stubblefield, had conflicting information regarding whether Fletcher was legally residing in die Thomas Street residence, and, therefore, whether Mr. Benson's entry was lawful. There was also conflicting information regarding whether Mr. Benson removed Fletcher's radio and DVD player from die residence and why Mr.

9

Benson removed that property from the residence. Even if die trier of fact believes Mr. Benson's version, die Court finds that there was probable cause to arrest Mr. Benson based on Fletcher's contention that Mr. Benson's grandmother had given him perniission to live at die Thomas Street residence and die eyewitness statements that Mr. Benson removed die property from die residence and placed it in his truck. Mr. Benson has offered legitimate defenses to both charges--that lie was permitted to enterthe residence, diat he did not remove die property from die residence, and diat die person who removed die property did so to prevent damage to die property when the residence was torn down. However, die ultimate question is not whedier die charges were defensible, but whedier die arresting officer had probable cause. See Baker i'. McCollan, 443 U.S. 137, 145 (1979) ("The Constitution does not guarantee that only die guilty will be arrested. Ifit did,

§

1983 would provide

a cause of action for every defendant acquitted-indeed, for every suspect released."); see also Baifield i'. State, 05-22 18, 2008 U.S. Dist. LEXIS 14317, at *2l_24 (W.D. La. Feb. 25, 2008) (holding that conflicting evidence did not negate probable cause to arrest). The Court, therefore, finds that Mr. Benson has failed to show a violation of a clearly established right. Defendants' Motion for Summary Judgment on this claim is GRANTED. b. False Imprisonment/Due Process

Mr. Benson alleges that Defendants denied him due process. [Doe. No. 1, ¶52]. This allegation presumably refers to Mr. Benson's arrest and resultant deprivation of liberty; the allegations of Mr. Benson's Complaint do refer to nor support any odier type of due process claim. False imprisonment is cognizable under die FourteenthAmendment due process clause and requires a showing diat die defendant lacked probable cause to detain him. See Thomas v. Kippermann, 846 F.2d 1009, 1011 (Sdi Cir. 1988). Because die Court finds that die arrest was 10

supported by probable cause, Mr. Benson's subsequent detention was lawful.4 Defendants' Motion for Sumniary Judgment on this claim is GRANTED. c. Equal Protection

Mr. Benson alleges that Defendants denied him equal protection under die law because of "his racial heritage, the racial heritage of his family, and die racial heritage of his political constituents." [Doe. No. 1, ¶53]. "To state a claim for racial discrimination under die Equal Protection Clause, die plaintiff `must allege and prove that he received treatment different from diat received by similarly situat[ed] individuals and diat the unequal treatment stemmed from a discriminatory intent." Goiniller
is.

Dees, 06-33, 2007 U.S. Dist. LEXIS 23230, at *5 (ND. Miss, Mar. 28, 2007) (quoting Priester i& Lowndes County, 354 F.3 d 414, 424 (5th Cir. 2004)). Mr. Benson has not alleged nor offered proof diat similarly situated individuals were subjected to less severe punishment. Moreover, as discussed above, Mr. Benson has failed to present evidence of discriminatory intent. Defendants' Motion for Sunmiary Judgment on this claim is GRANTED. d. First Amendment

Under a liberal construction ofdie Complaint, Mr. Benson alleges that Defendants ticketed and arrested him in retaliation forthe exercise ofhis First Amendment rights. See [Doe. No. 1, ¶1Jh4, 49, 54]. "The First Amendment prohibits not only direct limitations on speech but also adverse government action against an individual because of h[is] exercise of First Amendment freedoms." Co/son
i'.

Grohinan, 174 F.3d 498, 508 (Sdi Cir. 1999). "Any form of official retaliation for

4Mr. Benson has not alleged diat the duration of die detention was unlawful. 11

exercising one's freedom of speech, including prosecution, direatened prosecution, had faith investigation, and legal harassment, constitutes an infringement of diat freedom." Izen v. Catalina, 382 F.3d 566, 571 n.5 (Sdi Cir. 2004) (quotations and citations omitted). To establish a First Amendment retaliation claim, Mr. Benson must show: (1) he was engaged in constitutionally protected activity; (2) Defendants' actions caused him to suffer an injury "that would chill a person of ordinary firmness from continuing to engage in diat activity"; and (3) Defendants' actions were substantially motivated againsthis exercise ofconstitutionally-protected activity. Id. (quotations and citations omitted). Widi respect to die arrest, Mr. Benson's allegations may establish the first two elements of a First Amendment retaliation claini. Mr. Benson alleges that he was engaged in a number of constitutionally protected activities prior to his arrest, including a public protest. He also alleges diat be was threatened with die loss of employment as a result of die arrest. [Doe. No. 1, ¶56]. Widi respect to die third element, Mr. Benson alleges that Defendants ticketed and arrested him because of his public criticism of the DPD. 1-lowever, Mr. Benson has offered no evidence to support that clalm, other dian his subjective belief In contrast, Defendants have offered Stubblefleld' s testimony diat she did not consult with McKinney prior to the arrest and diat die arrest was based solely on her belief that there was probable cause to arrest Mr. Benson. The Court, dierefore, finds that Mr. Benson has failed to state a First Amendment retaliation claim based on his arrest.5 There is no dispute diat die traffic citation was supported by probable cause. However, "[i]t

5Even if Mr. Benson could establish all three elements, diere is some indication in the case law diat a plaintiff cannot bring a First Amendment retaliation claim based on an unlawful arrest; die plaintiff is limited to bringing a claim for false arrest under die Fourth Amendment. See Rhodes is. Prince, 07-10278, 2008 U.S. App. LEXIS 7740 (Sdi Cir. April 9, 2008) (unpublished). 12

is well established diat an act taken in retaliation for the exercise of a constitutionally protected right is actionable even if the act, when talcen for a different reason, would have been proper." Id. at 572 (quotations and citations omitted). Mr. Benson was cited for speeding on May 11, 2004, the day after he publicly opposed a request to ralse die amount of criminal fines in die Town of Delhi. Assuming arguendo that this constitutes circumstantial evidence of Defendants' intent to retahiate against Mr. Benson for engaging in constitutionally protected activity, Mr. Benson must establish diat Defendants' actions caused him to suffer an injury diat would chill a person ofordinary finnness from continuing to engage in diat activity. "{S]ome retaliatory actions--even if diey actually have die effect of chilling die plaintiffs speech--are too trivial or minor to be actionable as a violation of the First Amendment." Keenan is. Tejeda, 290 F.3d 252,258 (Sdi Cir. 2002). In addition, "any `chill' ofprotected rights must be more than `niinimal' and not `wholly subjective." Johnson v. Rodriguez, 110 F.3d 299, 314 (5th Cir. 1997) (citing United States i'. Ramsey, 431 U.S. 606, 622--24 (1977)). Mr. Benson has not alleged that die ticketing officer threatened Mr. Benson or diat the traffic stop was odierwise effectuated in an intimidating manner. Cf Keenan, 290 F.3d at 259 (holding diat two traffic stops "involving an undercurrent of violence" would have deterred a person of ordinary firmness). Mr. Benson has also not alleged that the issuance ofdie traffic citation caused him to forego any constitutionally protected activity; in fact, die allegations of the Complaint show that Mr. Benson continued to speak out against Defendants for the next two years. Cf Johnson, 110 F.3d at 314 (relying on die lack of evidence diat constitutionally protected activity "was actually foregone because of di[e] purported `chill"). The Court, therefore, finds that Mr. Benson has failed to state a First Amendment retaliation claim based on his traffic citation. 13

Defendants' Motion for Summary Judgment on dris claim is GRANTED. 3.

§ 1985 Claim

Mr. Benson has alleged diat Defendants conspired to falsely arrest and imprison him [Doe. No. 1, ¶55], as well as to chill Iris expression. [Doe. No. 1, ¶54]. To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy involvingtwoormore ~persons;{2)for thepurpose of depriving~ irectly or d indirectly, a person or class ofpersons ofthe equal protection ofdie laws; and (3) an act in furtherance ofdie conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of die United States. In so doing, the plaintiff must show that die conspiracy was motivated by a class-based aninius. Hilliard is. Ferguson, 30 F.3d 649, 652-653 (Sdi Cir. 1994) (citations omitted). Defendants moved for summary judgment on die basis diat Mr. Benson has not and cannot show an agreement among any ofdie Defendants or diat die alleged conspirators were motivated by his race or a class-based aninius. Defendants rely on DPD Officer Mejias's testimony about die lack of racial profiling; diat Officer Mejias was not instructed by McKinney to arrest Mr. Benson; and that a majority ofthe DPD officers are African-American. Officer Mej ias also testified diat he never witnessed any racially slanderous comments by McKinney or any odier officer about Mr. Benson or his family. Defendants have also offered Stubblefleld's testimony, the arresting offer, diat she arrested Mr. Benson solely because she believed diere was probable cause and that she was never instructed by McKinney to discriminate against Mr. Benson. Mr. Benson has offered no argument or evidence in response. Taken in the light most favorable to Mr. Benson, the allegations inhis Complaint fall to raise a genuine issue ofmaterial fact for trial on any of die elements of die on this claim is GRANTED. 14

§

1985 claim. Defendants' Motion for Summary Judgment

4.

§ 1988 Claim

Section 1988 provides for the recovery of attorney's fees to die prevailing party in an action under~ 1981, 1983, or 1985. See42U.S.C.

§ 1988(b).

Defendantsmoveforsumrnaryjudgment

on Mr. Benson's § 1988 claim. Because the Court finds diat Mr. Benson has failed to prevail under

§§

1981, 1983, and 1985, Defendants' Motion for Summary Judgment on duis claim is GRANTED. 5. Defamation

Mr. Benson alleges diat Defendants contacted media outlets about his arrest in an effort to embarrass him and that he was defamed as a result. Defendants move for summary judgment on die basis diat Mr. Benson, who is an alderman for die Town of Delhi, is a public official and, dierefore, is prohibited from recovering damages for a defamatory falsehood related to his official conduct unless it is proven diat die statement was made with "actual malice." "Defamation requires proof of five elements in Louisiana law: (1) defamatory words; (2) publication; (3) falsity; (4) actual or implied malice; and (5) injury." Tate i~Bradley, 837 F.2d 206, 208 (5th Cir. 1988) (citing Carter v. Ca~'Ish abin, 316 So.2d 517, 521 (La. App. 1975)). The C required state-of-mind is actual malice where die allegedly defamatory statements are made about a public official or figure. See New York Times Co. v. Sullivan, 376 U.S. 254,279--80 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130, 162 (1967). A showing of "actual malice" requires proofthat the alleged defamation was made "widi knowledge diat it was false or with reclcless disregard of whedier it was false or not." New York Times Co., 376 U.S. at 279--80. The Court notes diat neidier party has alleged or identified any "defamatory words." Mr. Benson alleges only that "Defendants took actions to inform die television stations and die local 15

newspapers, and to give media oudets visual access to Alderman Benson, while he was handcuffed and under arrest, to maximize the embarrassment, humiliation and damage to Alderman Benson from diese false, illegal and unconstitutional arrests." [Doc. No. 1, ¶50]. Nor has eidier party alleged or identified any "publication." Assuming arguendo that these elements are met, and that Mr. Benson's dieory of defamation is diat Defendants falsely accused him of comniitting a criminal act, Mr. Benson's defamation claim still falls. Based on die foregoing analysis diat there was probable cause for his arrest and dius a reasonable basis for accusing Mr. Benson of committing a criminal act, Mr. Benson camiot malce die requisite showing of falsity or malice. Defendants' Motion for Sunuiiary Judgment on this claim is GRANTED. 6. Declaratory Judgment

Mr. Benson seeks a declaratory judgment diat Defendants violated his due process, equal protection, and First Amendment rights. Because die Court fmds that Mr. Benson has failed to show a violation of diose rights, Mr. Benson's declaratory judgment action is moot. Defendants' Motion for Summary Judgment on this claim is GRANTED. C. Claims by Mrs. Benson

Mrs. Benson claims that Defendants took illegal and unconstitutional actions against her. She primarily complains of an April 28, 2006 traffic stop. She also alleges that she was defamed and damaged as a result ofdie actions talcen against her, Mr. Benson, and dieir son. Mrs. Benson was stopped by Stubblefield for running a stop sign. Mrs. Benson denies diat she ran die stop sign. Mrs. Benson was given a warning but not a citation. Mrs. Benson concedes diat she was not threatened by Stubblefield during this traffic stop. 16

Under a liberal construction ofthe Complaint, Mrs. Benson's allegations support a claim for unlawful seizure under the Fourth Amendment, which is cognizable under

§

1983. Defendants did

not offer Stubblefield's testimony, so it is unclear why she stopped Mrs. Benson and dius whedier she had individualized reasonable suspicion to effectuate the traffic stop. See Terry is. Ohio, 392 U.S. 1,22(1968); see also Bush v. Parish of St. Tammany, 754 F.2d 1132, 1136 (5th Cir. 1984) (upholding award of nominal damages for an unlawful seizure). The Court, dierefore, finds that Defendants have failed to meet dieir burden, and dieir Motion for Summary Judgment on this claim against Stubblefield in her individual capacity is DENIED.G To die extent that Mrs. Benson seeks attorney's fees under § 1988, die Court DEFERS ruling on diat claim, pending resolution of her 1983 claim for unlawful seizure. Defendants' Motion for Summary is GRANTED on Mrs. Benson's defamation claim. The Complaint sets forth no specific acts of defamation against her, and any derivative claim diat she might assert for die defamation of her husband fails, for die reasons cited previously. Defendants' Motion for Summary Judgment is GRANTED on any claim that Mrs. Benson asserts for damages resulting from Defendants' actions against Mr. Benson and dieir son. Her claim for damages is derivative, and for die reasons stated previously and infi'a, Mr. Benson and dieir son have not been damaged. D. Claims by Mr. and Mrs. Benson on behalf of Bobby Benson, Ii

§

The Complaint alleges diat Bobby Benson, II "was personally slandered, defamed, 6Mrs. Benson's claim against Stubblefield in her official capacity merges widi her claim against the Town of Delhi, Turner i~Houma Mun, Fire & Police Civil Seiis. Bd., 229 F.3d 478, 483 (5th Cir. 2000), which fails for die reasons cited previously and infra. In addition, diere are no allegations in die Complaint diat support an unlawful seizure claim against any Defendant besides Stubblefiehd. 17

embarrassedand damaged by die illegal and unconstitutional actions talcen by die Defendants to use their purported powers under color of state law to harass, direaten, damage, humiliate and embarrass his fadier, Alderman Benson, by alleging that Alderman Benson was a criminal, having Alderman Benson arrested, and by intentionally disseminating the groundless charges and arrest to the media so that these actions were broadcast throughout die community." [Doc. No. 1, ¶61]. Plaintiffs have set forth no facts to show that Bobby Benson, II was personally slandered or defamed. To die extent that dieir son could state a claim for loss of consortium, his claim is derivative of the claims alleged by Mr. Benson. Defendants' Motion for Summary Judgment on diese claims is GRANTED. K Municipal Liability

Defendants move for summary judgment on die claims against die Town of Delhi. Defendants correctly argue diat a municipality cannot be found liable under

§

1983 under the

doctrine of respondeat superior. See Bolton v. City of Dallas, Tex., 541 F.3d 545, 548 (5th Cir. 2008). Thus, die Town of Delhi is not liable for die acts of individual Defendants who are not pohicymalcers. Further, Mr. Benson has not offered any evidence of a policy, custom, or action of a pohicymalcer diat would give rise to municipal liability. Defendants' Motion for Summary Judgment on die claims asserted under § 1983 against the Town of Delhi is GRANTED. F. Claims against the DPD

Defendants move for sunimaryj udgment on die claims against die DPD. Defendants contend that the DPD is not a separate entity from die Town of Delhi diat is capable of being sued. Federal Rule of Civil Procedure 17(b) provides that die "capacity to sue or he sued shall be determined by die law ofthe state in which die district court is held." FED. R. Civ. P. 17(b). "This 18

Court, as well as other Louisiana courts, has consistently held diat a plaintiffs suit against a police department should be dismissed because the police department is not a juridical entity" capable of being sued under Louisiana law. Martin
is.

Davis, 06-1770, 2007 U.S. Dist. LEXIS 16975, at *5

(RD. La. Mar. 8, 2007). Defendants' Motion for Summary Judgment on die claims against die DPD is GRANTED. III. CONCLUSION For the foregoing reasons, the Motion for Summary Judgment [Doc. No. 24] filed by Defendantsthe Town of Delhi, the DPD, McKinney, Lee, and Stubblefield is GRANTED TN PART and DENIED [N PART. Defendants' Motion for Summary Judgment is DENIED with respect to die claims of Plaintiff Mrs. Benson against Defendant Stubbhefleld, in her individual capacity, related to the alleged unlawful seizure. Defendants' Motion for Summary Judgment is GRANTED widi respect to the remaining claims, and diose claims are DISMISSED WITH PREJUDICE. MONROE, LOUISIANA, diis _____day of April, 2009.

UNITED STATES DISTRICT JUDGE

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