Cook v. Shreveport et al

Filing 79

MEMORANDUM RULING granting 51 MOTION for Summary Judgment filed by Red River Entertainment of Shreveport Partnership in Commendam, denying as moot 67 MOTION in Limine to Exclude Certain Evidence and Reference to Same at Trial filed by Red River Entertainment of Shreveport Partnership in Commendam. All of Cook's claims against Sam's Town are dismissed. Signed by Judge S Maurice Hicks on 8/19/2011. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
STUART COOK

CIVIL ACTION NO. 10-0809

VERSUS

JUDGE S. MAURICE HICKS, JR.

CITY OF SHREVEPORT, ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment (Record Document 51) filed by
Defendant, Red River Entertainment of Shreveport Partnership in Commendam, d/b/a
Sam’s Town Casino (“Sam’s Town”). Sam’s Town moves for summary judgment on the
grounds that Plaintiff Stuart Cook (“Cook”) is unable to prove a Section 1983 claim or a
state law negligence claim against Sam’s Town. See id. Cook opposed the Motion for
Summary Judgment. See Record Document 62. For the reasons which follow, the Motion
for Summary Judgment is GRANTED and all of Cook’s claims against Sam’s Town are
DISMISSED.
BACKGROUND1
This lawsuit arises from a May 25, 2009 early morning incident that occurred in a
Sam’s Town Casino hotel room in Shreveport, Louisiana. On May 24, 2009, Cook
performed as a member of a band, Creedence Clearwater Revisited, at the Sam’s Town
Casino in Shreveport, Louisiana.2 Between 11:00 and 11:30 p.m., Cook joined other band
1

Sam’s Town filed a Statement of Uncontested Material Facts. See Record
Document 51-2. In response, Cook filed a Concise Statement of Disputed Material Facts.
See Record Document 62-1. The Court has incorporated the undisputed facts into the
background section of the instant Memorandum Ruling. The disputed facts are noted and
citations to the summary judgment record are provided for any such disputed facts.
2

Cook is an original member of the band Creedence Clearwater Revival and now
plays bass for Creedence Clearwater Revisited.

members and members of the band’s crew at one of the casino lounges to have drinks.
Cook estimates that he stayed at the bar between 45 minutes and one hour. He left the
bar alone around midnight or 12:30 a.m.
Relying upon Cook’s deposition testimony, Sam’s Town contends that Cook did not
get back to his hotel room until approximately 3:45 a.m and that at approximately 4:00 a.m.,
Cook heard a knock on the hotel room door. See Record Document 62, Exhibit 1007 at
95-96. Cook contests these facts, stating that he has no firm or independent recollection
of what happened after he left the casino bar. See Record Document 62-1 at ¶¶ 4-6. His
first clear memory is of men claiming to be hotel security pounding on his door. See id.,
Exhibit 1007 at 48. He believes he had been in his room for about 15 or 20 minutes at that
time. See id., Exhibit 1007 at 49.
Sam’s Town relies on the deposition testimony of Lorenzo Johnson to fill in the gap
of time. See Record Document 51-2 at ¶¶ 12-27, citing Exhibit B. Johnson, one of Sam’s
Town employees on the night of this incident, received a call from the Sam’s Town
dispatcher shortly before 4:00 a.m. to meet a hotel guest at the valet drop off area and
escort him to his room. See Record Document 51, Exhibit B at 15-16, 46-47. When
Johnson arrived at the valet drop off area, he met Eldorado Casino security officers who
had escorted Cook, sitting in a wheelchair, to Sam’s Town because he was intoxicated.
See id. Johnson stated that he personally observed that Cook was intoxicated. See id.
Johnson pushed Cook in a wheelchair to the hotel front desk because Cook could not
provide his room number. See id., Exhibit B at 47. Johnson then escorted Cook to his
room, opened the door with a key, and helped Cook out of the wheelchair. See id., Exhibit
B at 11, 19, 20-21. It was at this time that Johnson noticed that Cook’s room was in
Page 2 of 14

disarray, there was a broken lamp on the floor, and clothes were thrown everywhere. See
id., Exhibit B at 20-23. Johnson left Cook’s room and reported the condition of the hotel
room to Jody Crane (“Crane”), who was the front desk supervisor on duty, and to the
security supervisor, Ronnie Walker (“Walker”). See id., Exhibit B at 25-26.
Cook does not dispute that Johnson told Crane that the hotel room was in disarray,
there was a broken lamp on the floor, clothes were thrown everywhere, and a chair was
turned over. Crane decided to check the room because assessing room damage was his
responsibility.3 Johnson and Crane then returned to Cook’s room to check on the damage
and to determine if there was any other damage in the room.
Relying upon the testimony of Otis Brewer (“Brewer”), Cook contests many of the
facts set forth above relating to his condition and the manner in which he returned to his
hotel room. Brewer stated in his deposition that he saw Cook standing on his own volition
in the casino bar and that Cook was engaged in a heated confrontation with Walker. See
Record Document 62, Exhibit 5009 at 44-49. Brewer recalled that Cook was neither too
intoxicated nor in a wheelchair. See id. Brewer further recalled that he, Walker, and
Johnson escorted Cook, who was walking on his own, to his room. See id. As the group
was still standing in Cook’s hotel room doorway, Brewer was called to another incident in
the parking garage. See id. Brewer recalled that Cook was visibly upset with the way he
was being treated. See id.

3

Sam’s Town does not have a policy to deal with a situation where a guest refuses
to allow entry into his room. Since a hotel guest had never previously refused entry, Crane
notified the casino manager and security supervisor of the situation. Crane spoke to the
casino manger, Bennie Ray, who agreed that the room should be checked to see if there
was more damage.
Page 3 of 14

After hearing the pounding on his door, Cook looked through the hotel door
peephole and saw two men, possibly Johnson and Crane, standing outside who identified
themselves as hotel security. Cook refused to allow them to enter. A Sam’s Town
employee then made a 911 call to the Shreveport Police Department and reported the
property damage in Cook’s room. See Record Document 64, Exhibit 5019. Shreveport
Police Officers Pat Hensley (“Officer Hensley”), Paul Robinson (“Officer Robinson”), and
Francis Mogavero (“Officer Mogavero”) responded and went to Sam’s Town to investigate.
Officer Robinson was in charge of the officers on the scene.
Casino Manager Bennie Ray, Walker, and the officers met Crane outside of Cook’s
room. The officers knocked on Cook’s door and requested entry. He again denied their
request for entry. A Sam’s Town maintenance employee made several unsuccessful
attempts to open the door with a pass key and tool. Cook changed his mind a short time
later and decided to open the door to allow the police officers into his room. However,
before he could release the safety latch, the officers pushed the door open.
There are factual disputes relating to what occurred in Cook’s hotel room once there
was forced entry. Cook’s excessive force claim against the individual police officers and
the City of Shreveport will proceed to trial. The officers contend that Cook resisted arrest.
Cook contends that he did not. However, it is undisputed that Sam’s Town employees did
not strike Cook during this incident.
LAW AND ANALYSIS
I.

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
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entitled to judgment as a matter of law.”4 Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir. 2010). “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). 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 issue 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).
II.

Section 1983 Claims.
Cook alleges that Sam’s Town employees requested that members of the

Shreveport Police Department go with them to his hotel room where they attempted to gain
unlawful entry. See Record Document 18 at ¶¶ 6-7. He further alleges that Sam’s Town
employees acted in concert with the officers to deliberately force their way into his hotel
room. See id. Cook is essentially claiming that Sam’s Town was a willful participant in
joint action with the Shreveport Police Department.
To state a claim for relief under Title 42, United States Code, Section 1983, Cook

4

The Court notes that the newly amended Rule 56 requires that there be “no genuine
dispute as to any material fact,” but this change does not alter the Court’s analysis.
F.R.C.P. 56(a) and advisory committee’s note (emphasis added).
Page 5 of 14

must establish that he was deprived of a right secured by the Constitution or laws of the
United States, and that the alleged deprivation was committed under color of state law.
See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 985
(1999). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.” Id.
The Supreme Court has employed a number of tests for deciding whether a private
actor’s conduct can be fairly attributable to the State for purposes of Section 1983 liability.
See Cornish v. Correctional Services Corp., 402 F.3d 545, 549 (2005). These tests include
the public function test, the state compulsion test, the nexus or state action test, and the
joint action test. See id. at 549-550. Here, the Court will focus on the nexus or state action
test and the joint action test.5
Nexus or State Action Test
The nexus or state action test “considers whether the State has inserted itself into
a position of interdependence with the private actor, such that it was a joint participant in
the enterprise.” Id. at 550. Cook argues for the application of the nexus or state action test
because of the alleged close relationship between the Shreveport Police Department and
Sam’s Town. He points to the deposition testimony of Officer Mogavero, which indicates
that the officers were somewhat familiar with the security personnel at Sam’s Town and
other casinos and that calls such as those involving Cook were commonplace. Cook also
noted that the three Shreveport Police Department officers involved in this case had worked
part-time security for various casinos in downtown Shreveport.
5

Cook conceded that the “public function test” and the “state compulsion test” are
inapplicable to this case. See Record Document 62 at 21.
Page 6 of 14

Here, the summary judgment evidence simply does not support a finding that the
Shreveport Police Department had “so far insinuated itself into a position of
interdependence with [Sam’s Town] that it was a joint participant in the enterprise.” Richard
v. Hoechst Celanese Chemical Group, Inc., 355 F.3d 345, 352 (5th Cir. 2003). Both Officer
Mogavero and Officer Robinson stated in their depositions that they had never worked for
Sam’s Town.

See Record Document 51, Exhibit E at 27-28 and Exhibit F at 27.6

Additionally, the front desk supervisor stated in his deposition that this was the first time a
hotel guest had refused entry; thus, there is simply no summary judgment evidence to
indicate that calls to the Shreveport Police Department from Sam’s Town for incidents such
as those involving Cook, i.e., a hotel guest refusing to answer the door, were
commonplace. See id., Exhibit C at 45.
Joint Action Test
Under the joint action test, “private actors will be considered state actors where they
are willful participants in joint action with the State or its agents.” Cornish, 402 F.3d at 550.
To maintain a claim that a private citizen is liable under § 1983 on the basis of joint action
with state officials, Cook “must allege facts showing an agreement or meeting of the minds
between the state actor and the private actor to engage in a conspiracy to deprive the
plaintiff of a constitutional right, and that the private actor was a willing participant in joint
activity with the state or its agents.” Polacek v. Kemper County, Miss., 739 F.Supp.2d 948,
952 (S.D.Miss. 2010). It is well settled that private parties do not become state actors
merely by calling upon law enforcement for assistance. See Guillot v. Coastal Commerce
6

The summary judgment record does not indicate whether Officer Hensley ever
worked for Sam’s Town.
Page 7 of 14

Bank, No. 10-2092, 2010 WL 4812959, *3 (E.D.La. Nov. 19, 2010). Likewise, private
citizens who give information to law enforcement do not become state actors under Section
1983 when the information is used to effect an arrest, even if the citizen knew that the
information was false. See Guillot, 2010 WL 4812959, *3.
Sam’s Town has moved for summary judgment on Cook’s Section 1983 claim,
arguing that the undisputed facts establish that its employees did not conspire with the
Shreveport police officers to deprive Cook of his constitutional rights. Sam’s Town called
the Shreveport Police Department for assistance in gaining access to Cook’s room. See
Record Document 51, Exhibit F at 11-12, 14. Upon arrival, the officers conducted their own
investigation. See id. Officer Robinson initially decided that the officers would not enter
Cook’s room. See Record Document 51, Exhibit F at 11-12, 14. However, he later decided
to enter the room based on what he perceived to be an emergency/welfare situation. See
id., Exhibit F at 11, 14-15. The decision to enter Cook’s room was made exclusively by the
officers. See id., Exhibit E at 59-61, 65 and Exhibit F at 20-21, 39-43.
Conversely, Cook argues that the evidence establishes that Sam’s Town did much
more than merely furnish information to the Shreveport Police Department. See Record
Document 62 at 23. He argues that a jury could find that:
the incident report was fabricated to “cover up” Walker and Johnson’s
conduct; that the police were deliberately lied to by Sam’s Town employees
to induce them to make an illegal entry and arrest; that evidence which would
have proven what actually happened was destroyed; and, many other
reasonable inferences from the circumstances, all of which could be adverse
to Sam’s Town.
Id. Cook contends that “material issues remain as to whether Sam’s Town provided false
or exaggerated information to the [Shreveport Police Department] as a means of gaining
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entry into Cook’s room, and violating his constitutional rights.” Id. at 24. Finally, relying
upon Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743 (5th Cir. 2001), Cook argues that
there are material issues of fact “as to whether the [Shreveport Police Department] officers
did conduct an investigation sufficient to protect Sam’s Town from liability under Sec.
1983.” Id. at 25.7
Cook’s arguments to prevent summary judgment are unconvincing. As noted
previously, private actors who give information to law enforcement do not become state
actors under Section 1983 when the information is used to effect an arrest, even if the
citizen knew that the information was false. See Guillot, 2010 WL 4812959, *3. Thus,
Cook’s argument that Sam’s Town gave false or exaggerated information to the officers is
of no matter. Additionally, there is simply no competent summary judgment evidence to
support a finding that the Shreveport Police Department, more particularly the three officers
involved in the incident in question, and Sam’s Town had any discussion or agreement to
deprive Cook of his constitutional rights.
Conversely, there is competent summary judgment evidence demonstrating that the
three officers, namely Officer Robinson, conducted an independent investigation. In Morris,

7

Cook argues that Brewer’s testimony creates fact issues. However, even if
Brewer’s testimony is considered true, it is not material to the resolution of Cook’s Section
1983 claims against Sam’s Town.
In its Section 1983 analysis, the Court must determine whether Sam’s Town and the
Shreveport Police Department conspired to deprive Cook of his constitutional rights. As
set forth infra, the critical issue in this analysis is whether the officer conducted an
independent investigation. The Court has found that the officers’ deposition testimony,
namely that of Officer Robinson, establishes that the officers performed an independent
investigation while standing at Cook’s hotel room door. Thus, Brewer’s testimony is
immaterial because he has admitted that he was not present when the officers arrived at
Cook’s hotel room door and later made the decision to enter Cook’s hotel room.
Page 9 of 14

the Fifth Circuit held that a merchant will not be subject to Section 1983 liability “unless an
officer has failed to perform independent investigation, and that evidence of a proper
investigation may include such indicators as an officer’s interview of an employee,
independent observation of a suspect, and the officer writing his own report.” Morris, 277
F.3d at 750. Here, in his deposition, Officer Robinson stated:
Originally, he told me that he needed SPD to go into the room. I told him no.
Under an abundance of caution I didn’t see any reason at that point that we
were going in the room.
...
I explained . . . that all I have heard so far is hollering and screaming which
is consistent with an intoxicated person. I said I mean, he’s intoxicated, he’s
in his room, I haven’t heard nothing else. During this time you start hearing
things being thrown around in the room, you start hearing a male saying
things about Nazis, communism, just crazy things inside the room. So that’s
when I looked at Officer Mogavero and I said this might be more than an
intoxicated person. I said we can’t legally leave him here by himself
screaming and hollering. We don’t know if he’s got a rifle, we don’t know if
he’s got a gun. I mean, any reasonable person that starts hearing somebody
screaming like that and starts talking about Nazis and communism, I said
there’s just no way, we are going to have to do a welfare concern at least and
check on him. So that is when I asked Officer Mogavero to basically put his
shoulder in the door and force entry whenever they unlocked the latch to
prevent him from slamming it back.
Record Document 51, Exhibit F at 12, 15. Thus, the decision to enter the room was based
on Officer Robinson’s independent investigation, namely his observation of a situation
involving an intoxicated person that escalated into an emergency/welfare concern.
There is no evidence that Sam’s Town employees and the officers had a meeting
of the minds to violate Cook’s constitutional rights. Instead, this appears to be a situation
where Sam’s Town employees merely called the Shreveport Police Department for
assistance in gaining access into Cook’s room. In such cases, Sam’s Town is not liable
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under Section 1983.8 Summary judgment in favor of Sam’s Town is, therefore, granted,
as Sam’s Town was not acting under color of state law at the time of the incident in
question.
III.

State Law Negligence Claims.
Cook alleges claims against Sam’s Town under Louisiana Civil Code Article 2315:
Sam’s Town Casino is also liable to plaintiff for . . . damages as a result of its
employees, agents or officers setting in motion and participating in the chain
of events that culminated in plaintiff's injuries and damage to reputation.

Record Document 18 at ¶ 13. It appears that Cook is alleging that Sam’s Town was
negligent in attempting to enter his room to investigate the damage to hotel property, and
in requesting assistance from the Shreveport Police Department when he refused entry.
In Pitre v. Louisiana Tech University, 673 So.2d 585 (La. 1996), the Louisiana
Supreme Court explained the duty-risk analysis to determine liability under Article 2315.
The duty-risk analysis examines “the conduct of each individual party and the peculiar
circumstances of each case.” Id. at 589. “The relevant inquiries are:
(1)
8

Was the conduct of which the plaintiff complains a cause-in-fact of the

In Young v. Harrison, 284 F.3d 863 (8th Cir. 2002), the court explained:

Young has not presented any evidence that [security guard] Adcock and the
police had a meeting of the minds with regard to violating Young’s
constitutional rights. There is not sufficient evidence that would enable a
rational factfinder to conclude that the officers’ conduct at the hotel resulted
from concerted action “tantamount to substituting the judgment of a private
party for that of the police or allowing the private party to exercise state
power.” The only facts on which Young relies consist of Adcock calling the
police and bringing the officers to the suite. This is not enough to bring
Adcock and the hotel he worked for under the purview of section 1983.
Young, 284 F.3d 870.
Page 11 of 14

resulting harm?
(2)

What, if any, duties were owed by the respective parties?

(3)

Whether the requisite duties were breached?

(4)

Was the risk, and harm caused, within the scope of protection
afforded by the duty breached?9

(5)

Were actual damages sustained?

Id. at 589-590. “If the plaintiff fails to satisfy one of the elements of duty-risk, the defendant
is not liable.” Id. at 590. Here, Sam’s Town is not liable because Cook has failed to satisfy
the fourth inquiry, that is, legal causation.
In Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So.2d 669,
the Louisiana Supreme Court discussed legal causation in the context of a malicious
prosecution claim:
[I]t is clear that any chain of causation regarding plaintiff's subsequent
detention was broken. The decision to detain plaintiff was made by the
independent actions and investigation of the Sheriff's Office. Therefore, . .
. plaintiff cannot establish that he will be able to provide factual support
sufficient to satisfy his burden of proving legal causation, an essential
element of a malicious prosecution action.
Kennedy, 935 So.2d 669, 690 n. 20. In Adams v. Harrah’s Bossier City Investment
Company, LLC, 41,468 (La.App. 2 Cir. 1/10/07), 948 So.2d 317, Harrah’s suspected that
the plaintiff had stolen a $500 chip from another patron and called the police to investigate.
See id. at 318. The plaintiff was arrested and charged with felony theft. See id. The
district attorney’s office ultimately dismissed the charge and the plaintiff sued Harrah’s for

9

Stated another way, this inquiry focuses on whether the party’s substandard
conduct was a legal cause of the injuries at issue. See Toston v. Pardon, 2003-1747 (La.
4/23/04), 874 So.2d 791, 801.
Page 12 of 14

damages allegedly arising out of the arrest. See id. Relying upon Kennedy, the Adams
court reasoned:
In the case sub judice, the Shreveport police conducted a similar
independent investigation into the suspected theft. After the three police
officers arrived, two of them viewed the video recording and arrived at a
decision to arrest Mr. Adams independent of Harrah’s. Plaintiffs argue that
Harrah’s possible involvement in commenting on the video distinguishes this
case from Kennedy. In particular, Plaintiffs point out that the usual procedure,
as described by one of the investigating police officers, is for Harrah’s
security to review the video tape with the police and point out what they
believed was the criminal act. The officer was unable to recall if, in this
particular instance, Harrah’s security had such involvement. Even if they
did, this involvement does not rise to such a level as to prevent the
police investigation from being independent of Harrah’s own
suspicions. As such, the independent investigation by the police
breaks any legal causation.
Plaintiffs further argue that Kennedy is distinguishable because, unlike
the employees in Kennedy, Harrah’s security force is composed of highly
trained personnel amounting to a private police force. We find this distinction
unpersuasive. The reasoning of the Kennedy court is not based on the
qualifications of who made the complaint, but, instead, on subsequent and
intervening law enforcement investigation. The police in the instant case
made an independent investigation just as the Sheriff’s Office did in
Kennedy. This is the critical factor that prevents Plaintiffs from proving legal
causation on any of their claims.
Id. at 320 (emphasis added).
Here, this Court held in the context of the joint action test that the three officers,
namely Officer Robinson, conducted an independent investigation. The officers spoke to
Sam’s Town employees and gathered information. More importantly, they personally
observed what originally appeared to be a case involving an intoxicated person in his hotel
room escalate into an emergency/welfare concern. The officers independently made their
decision to enter the hotel room and to arrest Cook; thus, Sam’s Town was not the legal
cause of Cook’s alleged injuries caused by the officers’ entry into his hotel room and his

Page 13 of 14

arrest. Summary judgment in favor of Sam’s Town is, therefore, granted and Cook’s state
law negligence claims are dismissed.
CONCLUSION
Based on the foregoing analysis, the Motion for Summary Judgment (Record
Document 51) filed by Sam’s Town is GRANTED. The Court finds that Sam’s Town is not
a private actors whose conduct can be fairly attributable to the City of Shreveport for
purposes of Section 1983 liability. The Court further finds that Cook’s state law negligence
claims fail on the ground of legal causation.

Accordingly, all of Cook’s claims against

Sam’s Town are DISMISSED.10
An order consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 19th day of August,
2011.

10

Sam’s Town has also filed a Motion in Limine (Record Document 67) seeking to
exclude certain trial exhibits. In light of the instant ruling, which dismisses all claims against
Sam’s Town, the Motion in Limine (Record Document 67) is DENIED AS MOOT.
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