Hemingway et al v. caldwell et al
MEMORANDUM RULING re 62 MOTION for Summary Judgment filed by Charlie Caldwell, David Emberton. Signed by Judge S Maurice Hicks on 08/13/2013. (crt,McDonnell, D)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
JONATHAN HEMINGWAY, ET AL.
CIVIL ACTION NO. 09-1031
JUDGE S. MAURICE HICKS, JR.
CHARLIE CALDWELL, ET AL.
MAGISTRATE JUDGE HORNSBY
Before the Court is a Motion for Summary Judgment filed by Defendants Charlie
Caldwell, Shreveport City Marshal (“Marshal Caldwell”), and David Emberton, former
Deputy City Marshal (“Deputy Emberton”). See Record Document 62. Defendants seek
dismissal of all claims against them solely on the grounds of qualified immunity. See id.
Plaintiffs Jonathan Hemingway and Christopher Hemingway oppose the motion. See
Record Document 66. No reply was filed by Marshal Caldwell and Deputy Emberton. For
the reasons which follow, the Motion for Summary Judgment is DENIED.
During the night of June 21, 2008, Plaintiffs were patrons at a Shreveport, Louisiana
nightclub called Phoenix Underground. See Record Document 62 (Defendants’ Statement
of Undisputed Facts at ¶ 1). On that same night, Deputy Emberton, who was on sick leave
from his job as a Deputy City Marshal for the City of Shreveport, was nonetheless working
at Phoenix Underground as a security guard.
(Defendants’ Statement of
Undisputed Facts at ¶¶ 2, 4). This lawsuit arises from an incident that occurred at Phoenix
Underground between Plaintiffs, Deputy Emberton, and other named defendants during the
late night hours of June 21, 2008 and/or the early morning hours of June 22, 2008.
The parties do not dispute that Deputy Emberton was “clothed with the authority of
the City Marshal, but retained for wages by [Phoenix Underground] pursuant to the policies,
pattern and practice of the City Marshal.” Id. (Defendants’ Statement of Undisputed Facts
at ¶ 3).1
On the night of the incident, Deputy Emberton was wearing street clothes, not
his uniform. See id. (Defendants’ Statement of Undisputed Facts at ¶ 7). Generally, when
working an off-duty job, Deputy Emberton wore his badge on his belt on a belt clip or
around his neck on a neck lanyard. See id. (Defendants’ Statement of Undisputed Facts
at ¶ 7, citing Exhibit 1(E) at 83. If he wore the badge on his belt on a belt clip, the badge
was only visible if he opened his jacket “just a little bit.” Id., Exhibit 1(E) at 83, line 13.
During his deposition, Deputy Emberton, in recounting the incident at issue in this case,
stated: “I know during that incident one time I actually took my badge off my belt . . .” Id.,
Exhibit 1(E) at 83, lines 23-25.
The facts of the incident at the center of this case remain unclear, as Defendants’
summary judgment evidence is lacking in factual detail. In their Statement of Undisputed
Facts, Defendants allege:
During the early morning hours of June 22, an altercation ensued in
which the Hemingways and others were involved. (Compl. ¶ 7 -13).
Pursuant to their duties, Emberton and other club employees
restrained Plaintiffs in the process of making an arrest. (See id.).
Record Document 62 (Defendants’ Statement of Undisputed Facts at ¶¶ 8-9). These two
bare-bones and conclusory statements are the only “undisputed facts” presented by
Defendants that even attempt to describe the actual incident at issue.
Defendants contend that former Deputy Emberton should not have been working
off-duty on June 21, 2008, as he was on sick leave. See Record Document 62
(Defendants’ Statement of Undisputed Facts at ¶ 6). This contention is based on Section
8.0.1 of the City Marshal’s “Administrative Policies and Procedures Manual” issued on April
30, 2004 and revised on September 30, 2010. See id., Exhibit 1(C). Plaintiffs dispute this
fact because they believe at the time of this incident there was no written policy regarding
off-duty employment. See Record Document 66-1 at ¶ 1 (Fact No. 6).
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In the Complaint, Plaintiffs allege that they were physically detained, falsely
imprisoned, handcuffed, and arrested without probable cause or warrant by Deputy
Emberton. See Record Document 1 at ¶ 7. They further allege that Deputy Emberton beat
them without provocation or justification. See id at ¶ 8. More specifically, Plaintiffs contend
that Deputy Emberton “deliberately abused [them] for no reason”; “used unreasonable,
excessive and unnecessary force against them”; and “allowed [other defendants] to beat
[them].” Id. at ¶ 32. The Complaint further states:
One example of Emberton’s deliberate abuses against Plaintiffs is that he
beat, shoved, kicked, and abused [Jonathan] Hemingway after Hemingway’s
hands were handcuffed behind his back and Hemingway was defenseless.
Id. at ¶ 33.
In opposing the Motion for Summary Judgment, Plaintiffs dispute that the actions of
the Defendants were performed “pursuant to their duties” to the extent that this fact
suggests that there was any justification for their restraint or arrest. Record Document 66-1
at ¶ 1 (Fact No. 8). While they do not dispute that Deputy Emberton arrested them,
Plaintiffs “certainly dispute the lawfulness of the arrest[s]” and that Deputy Emberton’s
actions were necessary for his protection or the protection of other bar patrons. See id. at
¶ 2. Plaintiffs further note that they both were acquitted of all charges for which they were
arrested. See id.2
Neither party specifically identifies the offenses for which Plaintiffs were arrested
on June 21, 2008 or June 22, 2008. In connection with their opposition, Plaintiffs have
submitted a certified transcript from Shreveport City Court, Caddo Parish, Louisiana, dated
October 26, 2011. See Record Document 66, Exhibit D. The caption on the certification
reads: “State of Louisiana versus Christopher E. Hemingway, Dockets: 8K050533;
DA080147; 9K048692, and State of Louisiana versus Johnathan D. Hemingway, Dockets:
DA080146; 8K050532.” Id. The transcript seems to reference simple battery, entering and
remaining after being forbidden, and simple assault as the criminal charges against
Plaintiffs. See id. at 156. The Judge found Plaintiffs not guilty on all charges. See id.
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Pursuant to 42 U.S.C. § 1983, Plaintiffs filed this lawsuit on June 19, 2009, seeking
declaratory, injunctive and monetary relief for alleged violations of the Fourth and
Fourteenth Amendments to the United States Constitution. See Record Document 1.3
They also asserted claims under the Louisiana Constitution and Louisiana Civil Code
Article 2315. See id. The named defendants are Marshal Caldwell;4 Downtown Down
Under Entertainment, LLC, d/b/a Phoenix Underground; Deputy Emberton; Shawn Harris,
employee of Phoenix Underground and/or Tim Huck Management, LLC; Jason Willis,
employee of Phoenix Underground and/or Tim Huck Management, LLC; Timothy Huck,
employee and/or agent of Phoenix Underground and owner/manager of Tim Huck
Management, LLC; and Tim Huck Management, LLC. See id. at ¶ 3. Marshal Caldwell
and Deputy Emberton have now filed the instant Motion for Summary Judgment seeking
dismissal of all claims against them on the grounds of qualified immunity. See Record
LAW AND ANALYSIS.
Summary Judgment Standard.
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Quality Infusion Care, Inc. v. Health Care Serv.
On January 4, 2013, all claims of Plaintiff Tiffany Hemingway were dismissed
without prejudice for failure to prosecute. See Record Document 58.
Marshall Caldwell was sued only in his official capacity. See Record Document 1
at ¶ 3 (emphasis added). No claims were made against Marshal Caldwell in his individual
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Corp., 628 F.3d 725, 728 (5th Cir.2010).5 “Rule 56[(a)] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Patrick v. Ridge, 394
F.3d 311, 315 (5th Cir.2004).
“A party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986).
If the moving party fails to meet this initial burden, the motion must be denied, regardless
of the nonmovant’s response. See Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th
If the movant demonstrates the absence of a genuine dispute of material fact, “the
nonmovant must go beyond the pleadings and designate specific facts showing that there
is a genuine [dispute] for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th
Cir.2004). Where critical evidence is so weak or tenuous on an essential fact that it could
not support a judgment in favor of the nonmovant, then summary judgment should be
granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). Where the
parties dispute the facts, the Court must view the facts and draw reasonable inferences in
The Court notes that Rule 56 now employs the phrase “genuine dispute,” rather
than “genuine issue.” This 2010 amendment does not alter the Court’s analysis, as there
was not a substantive change to the summary judgment standard. See F.R.C.P. 56(a) and
advisory committee’s note (emphasis added).
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the light most favorable to the plaintiff. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct.
1769 (2007). In sum, the motion for summary judgment “should be granted so long as
whatever is before the district court demonstrates that the standard for the entry of
summary judgment, as set forth in Rule 56(c), is satisfied.” Celotex Corp., 477 U.S. at 323,
106 S.Ct. at 2553.
Qualified immunity protects government officials from liability for civil damages to the
extent that their conduct is objectively reasonable in light of clearly established law. See
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). “When a defendant
invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability
of the defense.” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.2002).
To demonstrate the inapplicability of the qualified immunity defense, the plaintiff
must satisfy a two-prong test. See Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir. 2005).
First, the plaintiff must allege a violation of a clearly established constitutional right. See
id. at 257-258. “A right is clearly established if its contours are sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Id. at 258.
Second, the plaintiff must claim that the defendant’s conduct was objectively reasonable
under the law at the time of the incident. See id. The Court may conduct the two-pronged
inquiry in any order. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818
Claims Against Deputy Emberton.
As stated previously, Plaintiffs Jonathan Hemingway and Christopher Hemingway
allege false arrest and excessive force claims against Deputy Emberton. Deputy Emberton
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argues that he is entitled to dismissal of these claim on the grounds of qualified immunity.
His argument can be summarized as follows:
[Qualified immunity] applies even if Emberton were deemed to have
used “excessive” force, given that he used what force he reasonably
determined was necessary, under the circumstances he was presented with,
to effect a lawful arrest and protect himself and other bar patrons.
As noted above, even if the allegations in Plaintiffs’ Complaint could
make out a constitutional violation (which Defendants deny), the Court must
ask whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted. Because Emberton’s actions were
objectively reasonable in light of the facts and circumstances confronting him,
he is entitled to summary judgment in his favor.
Record Document 62 at 16. Plaintiffs maintain that statements in Deputy Emberton’s
motion such as “he used what force he reasonably determined was necessary” and he
“effect[ed] a lawful arrest” are conclusory and baseless in light of the scant, and disputed,
factual record. Record Document 66 at 14. Plaintiffs further note that the analysis set forth
in Deputy Emberton’s motion is devoid of a single citation to any portion of the summary
judgment record, thus failing to meet the initial burden to show the absence of a genuine
dispute of material fact. See id. They contend that Deputy Emberton’s motion is without
merit, as there are “wildly different accounts of the facts and circumstances surrounding
this incident.” Id. at 15.
False Arrest Claims
In order to prove a claim of false arrest, a plaintiff must show that he was arrested
without probable cause. See Brown v. Lyford, 243 F.3d 185, 189 (5th Cir.2001). Probable
cause is defined as “the facts and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about to commit
an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632 (1979).
Page 7 of 12
Plaintiffs have alleged a violation of a clearly established constitutional right, that
is, they were arrested without probable cause or warrant. Yet, due to the scant factual
record, it is unclear exactly when, and for what offense(s), Plaintiffs were arrested.
Additionally, the summary judgment record is insufficient for this Court to fully understand
the facts and circumstances within Deputy Emberton’s knowledge at the time he would
have made a probable cause determination. As a consequence of these factual issues,
it likewise cannot be determined on the present state of the record whether Deputy
Emberton’s actions were objectively reasonable under the circumstances. These factual
issues must be resolved and/or developed more fully before this Court can determine
whether Deputy Emberton is entitled to qualified immunity. Therefore, the Motion for
Summary Judgment must be DENIED as to the arrest claim against Deputy Emberton.
Excessive Force Claims
To state a violation of the Fourth Amendment prohibition on excessive force, a
plaintiff must allege (1) an injury that (2) resulted directly and only from the use of force that
was excessive to the need, and that (3) the force used was objectively unreasonable. See
Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004). The objective reasonableness
of the force depends on the facts and circumstances of the particular case. See Ikerd v.
Blair, 101 F.3d 430, 434-435 (5th Cir. 1996). The court should consider the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872 (1989).
reasonableness of the use of force must be judged from the perspective of a reasonable
officer. See id.
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Again, Plaintiffs have alleged that medical injuries occurred during the altercation
with Deputy Emberton. See Record Document 1 at ¶¶ 18-21, 39-41. Defendants do not
appear to dispute this issue. However, the issues of excessiveness and reasonableness
are factually disputed.
Plaintiffs contend they were beaten without provocation or
justification. Plaintiff Jonathan Hemingway maintains he was beaten while his hands were
handcuffed behind his back and after he was defenseless.
Moreover, the summary judgment record is severely lacking with respect to key
facts, such as the severity of the crimes at issue and the immediate threat, if any, Plaintiffs
posed to Deputy Emberton and others at the bar. Other than Plaintiffs’ contention that the
force used was without provocation or justification, there is no factual evidence in the
summary judgment record relating to resistance, namely in what manner, if any, Plaintiffs
were actively resisting Deputy Emberton. The determination of objective reasonableness
turns on the specific facts surrounding the June 21-22, 2008 incident, including the
behavior of both Deputy Emberton and Plaintiffs. Thus, due to the present state of the
record, this Court is simply unable to ascertain at this juncture whether Deputy Emberton
is entitled to qualified immunity as to the excessive force claims. The Motion for Summary
Judgment must, therefore, be DENIED as to the excessive force claims against Deputy
Claims Against Marshal Caldwell.
As stated supra, Marshal Caldwell was sued in his official capacity. See Record
Document 1 at ¶ 3. Plaintiffs asserted no individual capacity claims against Marshal
Caldwell. The defense of qualified immunity applies only to suits against defendants in
their individual capacities. See Kentucky v. Graham, 473 U.S. 159, 166-167, 105 S.Ct.
Page 9 of 12
3099, 3105-3106(1985) (holding that officials in their individual capacities “may . . . be able
to assert personal immunity defenses,” including qualified immunity, that are not available
in official-capacity suits); Sanders–Burns v. City of Plano, 594 F.3d 366, 371 (5th Cir.2010)
(stating that qualified immunity is “a defense that is only relevant to individual capacity
claims”). The instant motion moves for dismissal of all claims against Marshal Caldwell
solely on the grounds of qualified immunity. Yet, this defense is unavailable to Marshal
Caldwell in his official capacity. Therefore, the Motion for Summary Judgment must be
DENIED as to the claims against Marshal Caldwell.6
Notwithstanding, summary judgment would likely have been denied on the merits
as to the Section 1983 Monell municipal liability claims against Marshal Caldwell. In their
Statement of Disputed Material Facts, Plaintiffs point to competent summary judgment
evidence relating to the claims against Marshal Caldwell:
The former City Marshal had a policy of forbidding the chief deputy
from “writing up” deputies for disciplinary infractions. (Ex. A,
Deposition of Charlie Caldwell, pp. 12).
The City Marshal never attempted to “write up” deputy Emberton. (Ex.
A, Deposition of Charlie Caldwell, pp. 12, 32-33).
Despite the Marshal’s knowledge of several “nightclub-related”
complaints of excessive force by Emberton, there are no documents
in Emberton’s personnel file showing that the Marshal ever
investigated those incidents. (Exhibit C to Defendant’s MSJ; Ex. A,
Deposition of Charlie Caldwell, p. 27).
Emberton was not disciplined for a previous incident where Emberton
admitted having punched a man in the mouth while holding handcuffs
in his fist, breaking the man's teeth and lacerating his mouth. (Ex. B,
Deposition of David Emberton, p. 16; Exhibit C, Deposition of David
Emberton in Bailey, pp. 118-119; Ex. A, Deposition of Charlie
Caldwell, p. 12).
The City Marshal did not document any disciplinary action of any kind
against Emberton in his personnel file. (Exhibit C to Defendant’s MSJ).
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State Law Claims.
Defendants contend that they “are also entitled to qualified immunity under parallel
state law.” Record Document 62 at 16. More specifically, they argue:
The immunity afforded under the Louisiana statute [La. R.S. 9:2798.1]
parallels that available under federal law. Roberts, 397 F.3d at 296.
The allegations in Plaintiffs’ Complaint indicate that the acts for which
they seek to hold the City Marshal accountable involved the exercise of his
policymaking and/or discretionary acts. . . . The making of a lawful arrest by
Defendant Emberton, against whom the state-law claims are raised, is also
a discretionary act within the course and scope of his lawful powers and
duties, so he, too is entitled to state-law qualified immunity, for all of the
same reasons asserted above with regard to immunity under federal law.
Id. at 16-17.
In Roberts v. City of Shreveport, the Fifth Circuit noted that “Louisiana applies
qualified immunity principles to state constitutional law claims based on the same factors
that compelled the United States Supreme Court to recognize a qualified good faith
immunity for state officers under § 1983.” Roberts, 397 F.3d 287, 296 (5th Cir. 2005). The
Roberts court further held that “inasmuch as the plaintiffs’ claims under state constitutional
law parallel entirely the § 1983 allegations, [the defendant] enjoys the privilege of qualified
Defendants seek immunity as to the state law claims “for all of the same reasons
asserted . . . with regard to immunity under federal law.” Record Document 62 at 17. Yet,
Prior to the incident complained of herein, the City Marshal had settled
at least three lawsuits alleging excessive force against Emberton in
which both the City Marshal and David Emberton were named as
Defendants. (Defendant’s MSJ, Exhibit G).
Record Document 66-1. Defendants did not address these specific facts, as they did not
file a reply. Thus, it appears these facts would have created a genuine dispute of material
fact, precluding the entry of judgment as a matter of law in favor of Marshal Caldwell as to
the municipal liability claims.
Page 11 of 12
this Court held that it was unable to make a qualified immunity determination as to Deputy
Emberton, as the insufficient factual record did not provide enough details to reach a
conclusion regarding reasonableness. Moreover, this Court held that the defense of
qualified immunity was unavailable to Marshal Caldwell, as there were no individual
capacity claims asserted against him. Thus, summary judgment is likewise DENIED as to
the state law claims.
Based on the foregoing analysis, the Motion for Summary Judgment filed by Marshal
Caldwell and Deputy Emberton is DENIED. Genuine disputes of material fact exist that
prevent this Court from determining whether Deputy Emberton is entitled to qualified
immunity. Because Marshal Caldwell was sued only in his official capacity, the defense of
qualified immunity is unavailable to him. Finally, the state law claims remain, as this Court
was unable to make a federal qualified immunity determination and Defendants sought
immunity as to the state law claims for all of the reasons asserted with regard to immunity
under federal law.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 13th day of August,
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