Grimes v. Johnson et al

Filing 40

RULING re 37 MOTION for Summary Judgment filed by Timothy Stephens. Signed by Judge Robert G James on 11/22/16. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JEROME GRIMES

CIVIL ACTION NO. 15-2065

VERSUS

JUDGE ROBERT G. JAMES

DUSTIN JOHNSON, ET AL

MAG. JUDGE KAREN L. HAYES

RULING
This is an action brought by pro se Plaintiff Jerome Grimes (“Grimes”) against Monroe Police
Officer Timothy Stephens (“Officer Stephens”). Grimes asserts a claim of false arrest 42 U.S.C. §
1983 and a Louisiana state law claim for defamation.
Pending before the Court is Defendant’s Motion for Summary Judgment [Doc. No. 37]. For
the following reasons, the motion is GRANTED IN PART and DENIED IN PART. Grimes’ § 1983
claims are DISMISSED WITHOUT PREJUDICE, and his defamation claim is DISMISSED WITH
PREJUDICE.
I.

FACTS AND PROCEDURAL HISTORY
On July 11, 2015, Elizabeth Warshaw (“Warshaw”) was traveling in her vehicle on her way

home following another vehicle driven by a friend, Dustin Johnson, on Interstate 20. [Doc. No. 37-2,
p. 26, Exh. E, Elizabeth Warshaw Affidavit (“Warshaw Affidavit”); id. at Exh. F, Dustin Johnson
Affidavit (“Johnson Affidavit”)]. Warshaw avers that a Chevy Cruz came up very fast behind her and
began swerving with its lights flashing on and off. Id. Warshaw exited on Garrett Road, and the
Chevy Cruz followed her to the Kangaroo Gas Station. Id.

According to Warshaw, Johnson, and Barbra Sullivan—a witness pumping gas—the Chevy
Cruz attempted to strike Johnson when Johnson exited his vehicle to check on Warshaw. [Id. at Exh.
G, Barbara Sullivan Affidavit (“Sullivan Affidavit”); Warshaw Affidavit, id. at Exh. E; Johnson
Affidavit id. at Exh. F]. The Chevy Cruz then struck Johnson’s vehicle with Johnson’s two-year-old
daughter inside. Id. Warshaw, Johnson, and Sullivan also aver that a male exited the Chevy Cruz and
began to attack Johnson in a stabbing motion with a shiny object. [Warshaw Affidavit, id. at Exh. E;
Sullivan Affidavit id. at Exh. G]. The man driving the Chevy Cruz was later identified as Grimes. [Id.
at Exh. A, Officer Timothy Stephens Affidavit (“Stephens Affidavit”)]. Warshaw and Sullivan both
called 911 to report the incident. [Warshaw Affidavit, id. at Exh. E; Sullivan Affidavit id. at Exh. G].
At approximately 10:45 p.m., the Monroe Police Department received emergency calls
concerning the incident. Officer Stephens was on patrol and responded to the calls within a few
minutes. [Stephens Affidavit, id. at Exh. A]. Officer Stephens observed several people in the parking
lot of the Kangaroo gas station and personally witnessed an individual later identified as Grimes
standing in front of the Kangaroo gas station. Id. Officer Stephens avers that Warshaw reported the
incident to him and identified Grimes as the individual who had been harassing her. Id. Officer
Stephens and other Monroe Police Officers observed Grimes looking up towards the sky and “talking
about being employed by the CIA and that . . . Warshaw was a covert spy. Id. Officer Stephens then
approached Grimes and placed him in handcuffs. Id.
Officer Stephens interviewed other individuals at the scene who witnessed Grimes’ vehicle
strike Johnson’s vehicle, Grimes’ attempt to hit Johnson with his vehicle, and Grimes’ attack on
Johnson with an object. Id. at 2. Officer Stephens also observed scratches to Johnson’s neck area and
located the scissors identified by the witnesses as the shiny object. Id.
2

Grimes was arrested and charged with Aggravated Battery and Aggravated Assault. He was
released from Ouachita Correctional Center (“OCC”) on July 13, 2015. However, he failed to appear
in court to answer the charges against him. A warrant was issued for his failure to appear, and
Affordable Bail Bonds is actively searching for Grimes. [Id. at Exh. D, Danny Hester Affidavit
(“Hester Affidavit”); Stephens Affidavit, id. at Exh. A].
On July 15, 2016, Grimes initiated this action against Defendants Officer Stephens, Johnson,
Warshaw and Jane Doe. [Doc. No. 1]. On December 8, 2015, the Court dismissed all Defendants
except Officer Stephens for failure to effect service within 120 days. [Doc. No. 12].
On September 8, 2016, Defendant Officer Stephens filed a Motion for Summary Judgment.
[Doc. No. 37]. Grimes filed an opposition memorandum [Doc. No. 39].
II.

LAW AND ANALYSIS
A.

Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment “should be rendered if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(c)(2). The moving party bears the initial burden of informing the court of the basis
for its motion by identifying portions of the record which highlight the absence of genuine issues of
material 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.
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If the moving party can meet the initial burden, the burden then shifts to the nonmoving party
to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19
F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the Court must
accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor.
Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence. Thus, Summary Judgment is
appropriate if a reasonable jury could not return a verdict for the nonmoving party.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)(citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248(1986)).
B.

False Arrest Claim

Grimes appears to challenge the validity of his arrest and any future conviction for aggravated
battery and aggravated assault. [Doc. No. 1]. However, Grimes has failed to appear in the Fourth
Judicial District Court, Ouachita Parish, State of Louisiana on the above charges. A warrant against
Grimes for failure to appear remains outstanding.
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held that a
successful civil rights action that would necessarily imply the invalidity of the plaintiff’s conviction
or sentence must be dismissed unless the plaintiff first shows that the conviction or sentence has been
reversed, expunged, declared invalid, or called into question by a federal court. Id. at 489–91. Here,
Grimes has not been convicted of a crime. While the rule in Heck does not extend to pending criminal
matters, a successful § 1983 false arrest action would necessarily imply the invalidity of any future
conviction that might result from the aggravated battery and aggravated assault charges and would,
therefore, implicate Heck. See Wallace v. Kato, 549 U.S. 384, 393–94 (2007).
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Accordingly, the Court declines to reach the merits of Grimes’ § 1983 claims. To this extent,
Officer Stephens’ Motion for Summary Judgment is DENIED. The Court will dismiss this action
without prejudice to Grimes’ ability to bring a § 1983 action upon the final resolution of his criminal
case.1
C.

Defamation

Grimes also appears to assert that Officer Stephens defamed his character. For a defamation
claim, a plaintiff must establish the following necessary elements: (1) a false and defamatory
statement concerning another person; (2) an unprivileged publication to a third party; (3) fault
(negligence or greater) on the part of the publisher; and (4) resulting injury. Kennedy v. Sheriff of East
Baton Rouge, 05–1418 (La. 07/10/06), 935 So.2d 669, 674. In Louisiana, privilege is a defense to a
defamation action. Id. at 682. A conditional or qualified privilege applies if the statement “is made
(1) in good faith, (2) on any subject matter of which the person communicating has an interest or in
reference to which he has a duty, (3) to a person having a corresponding interest or duty.” Id.
Determining whether a qualified privilege exists involves a two-step process. Id. First, it must
be determined whether the attending circumstances of a communication occasion a qualified
privilege. Id. Second, it must be determined whether the privilege was abused, which requires that
the grounds for abuse—malice or lack of good faith—be examined. Id. The second step of
determining malice or abuse of the privilege is generally a question of fact for the jury unless only one
conclusion can be drawn from the evidence. Id.

1

The Court notes that it has the authority to stay Grimes’ civil case pending the resolution
of his criminal case. See Wallace, 549 U.S. at 393-94; see also Mackey v Dickson, 47 F.3d 744,
746 (5th Cir. 1995). Here, the Court finds that dismissal without prejudice is a more efficient use
of resources under the circumstances presented.
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The defendant abuses the privilege if he (1) knows the matter to be false or (2) acts in reckless
disregard as to its truth or falsity. Id. Only those statements made with a high degree of awareness of
their probable falsity meet the reckless disregard standard. Id. The plaintiff must prove that the
publication was deliberately falsified or published despite the publisher’s awareness of probable
falsity. Id. The practical effect of the assertion of the conditional or qualified privilege is to rebut the
plaintiff's allegations of fault and to place the burden of proof on the plaintiff to establish abuse of
the privilege. Id.
Officer Stephens is a police officer who enjoys a qualified privilege. The only alleged
defamatory communication by Officer Stephens is a report to the OCC. Any statements that he made
pursuant to his duty to notify the OCC of the charges and facts of the crime are privileged. There was
no indication that Officer Stephens added any false or injurious statements beyond the facts he relied
upon for the showing of probable cause. Therefore, Officer Stephens cannot be liable for such
statements properly communicated in performance of his duties. See Trentecosta v. Beck, 96–2388
(La.10/21/97), 703 So.2d 552; see also Kennedy, 935 So.2d at 674. To this extent, Officer Stephens’
Motion for Summary Judgment is GRANTED and Grimes’ defamation claim is DISMISSED WITH
PREJUDICE.
D.

Other Possible Claims

Grimes’ claims in his Complaint and opposition to the Motion for Summary Judgment are
conclusory in nature and appear fanciful, fantastic, and delusional. Grimes spends much of his
opposition to the Motion for Summary Judgment reiterating his unsupported claim that Officer
Stephens, Warshaw, and Johnson are part of a covert terrorist conspiracy, but may be attempting to
assert additional claims.
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When a claim is raised for the first time in response to a summary judgment motion, “the
district court should construe that claim as a motion to amend the complaint under Federal Rule of
Civil Procedure 15(a).” Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n. 2 (5th Cir. 2008);
Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972). “[A]ny party may amend its pleading
only with the opposing party’s consent or the court’s leave.” FED. R. CIV. P. 15(a). “In deciding
whether to grant leave to file an amended pleading, the district court may consider such factors as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility
of the amendment.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).
Grimes’ civil cover sheet indicates that the nature of his suit is a violation of his civil rights.
In his opposition to Defendant’s Motion for Summary Judgment, Grimes appears to raise additional
claims, but such claims are made either against non-state actors or without sufficient evidentiary facts
to raise a constitutional claim. Therefore, for these reasons, the Court declines to grant Grimes leave
to file an amended complaint under the circumstances as such amendment would be futile.
III.

CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment [Doc. No. 37]

is GRANTED IN PART and DENIED IN PART. To the extent Defendant Officer Stephens moves
for summary judgment on Grimes’ defamation claim under Louisiana law, his motion is GRANTED,
and that claim is DISMISSED WITH PREJUDICE. To the extent that Officer Stephens moved for
summary judgment on Grimes’ § 1983 claims, the motion is DENIED. However, Grimes’ § 1983
claims are DISMISSED WITHOUT PREJUDICE pursuant to Wallace v. Kato.

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MONROE, LOUISIANA, this 22nd day of November, 2016.

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