Top Dollar Pawn, Gun and Car Audio #5 L L C v. Caddo Parish et al

Filing 146

MEMORANDUM RULING granting 122 Motion for Summary Judgment; granting 123 Motion for Summary Judgment; denying 125 Motion for Partial Summary Judgment. Signed by Judge S Maurice Hicks on 09/10/2014. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
TOP DOLLAR PAWN, GUN &
CAR AUDIO #5 LLC

CIVIL ACTION NO. 12-0577

VERSUS

JUDGE S. MAURICE HICKS, JR.

CADDO PARISH, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court are three Motions for Summary Judgment.
Documents 122, 123 & 125.

See Record

Defendants Terri Scott, Willie Shaw, and the City of

Shreveport filed a Motion for Summary Judgment. See Record Document 122. Defendant
Steve Prator also filed a Motion for Summary Judgment. See Record Document 123.
Plaintiff Top Dollar Pawn, Gun and Car Audio #5, LLC (“Top Dollar”) opposed both motions
filed by the defense. See Record Document 131. Top Dollar also moved for partial
summary judgment as to liability of Defendants Willie Shaw and Steve Prator. See Record
Document 125. Defendants Terri Scott, Willie Shaw, the City of Shreveport, and Steve
Prator opposed this motion. See Record Documents 129 & 130. For the reasons which
follow, the defense Motions for Summary Judgment (Record Documents 122 & 123) are
GRANTED and Top Dollar’s Motion for Partial Summary Judgment is DENIED. All of Top
Dollar’s Section 1983 claims against Defendants Terri Scott, Willie Shaw, the City of
Shreveport, and Steve Prator are DISMISSED WITH PREJUDICE.
BACKGROUND
Top Dollar filed this Section 1983 action on March 6, 2012 naming as defendants,
inter alia, Willie Shaw, in his capacity as Chief of Police of the Shreveport Police
Department (“Chief Shaw”); Terri Anderson-Scott, in her capacity as City Attorney of

Shreveport (“City Attorney Scott”); and Steve Prator, in his capacity as Sheriff of Caddo
Parish, Louisiana (“Sheriff Prator”). See Record Document 1. In May 2012, Top Dollar
filed a Supplemental and Amended Complaint naming the City of Shreveport (“the City”)
as a defendant. See Record Document 29. The Supplemental and Amended Complaint
reasserted claims against Chief Shaw, City Attorney Scott, and Sheriff Prator and clarified
that Top Dollar was asserting claims against these defendants in both their individual and
official capacities. See id. All individual capacity claims against these defendants have
been dismissed. See Record Documents 72, 73, 99 & 100.
Top Dollar alleges “an illegal seizure of property and a deprivation of its rights to due
process under the Fourth, Fifth and Fourteenth Amendments to the United States
Constitution by the actions and policies of the named defendants.” See Record Document
29 at ¶ III(A)(1). More specifically, Top Dollar challenges the procedures used by law
enforcement authorities when taking suspected stolen property from Top Dollar and
delivering it to purported owners/theft-victims. Top Dollar contends such procedures were
in violation of the United States Constitution and the Louisiana Pawnshop Act, La. R.S.
37:1781, et seq. Section 1805 of the Louisiana Pawnshop Act provides, in pertinent part:
B.

When a pawnbroker acquires a thing which has been deemed stolen
pursuant to Subsection C, the pawnbroker shall return the thing to the
owner at no cost.

C.

(1)

When ownership of a thing is disputed, final determination as
to ownership for the purposes of this Part shall be made in
either a civil or criminal proceeding filed in a Louisiana court of
competent jurisdiction.

(2)

When the party claiming ownership of a thing either refuses to
initiate or cooperate in the criminal proceeding against the
alleged perpetrator the thing shall be deemed not to have been
stolen for the purposes of this Part.

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(3)

When the perpetrator cannot be located, or a criminal
prosecution is not initiated for any reason other than the refusal
of the purported owner to initiate or cooperate in the criminal
proceeding, ownership of the thing may be determined in a civil
proceeding. In such instances, the thing shall either be
returned to the owner pursuant to Subsection B, or remain the
property of the pawnbroker.

La. R.S. 37:1805.
In support of their Motions for Summary Judgment, Defendants have submitted a
discovery document produced by Top Dollar, which is referenced by Defendants as Exhibit
218. This document is a list of all items that Top Dollar claims were illegally seized by law
enforcement agencies and the seizures for which Top Dollar is now seeking damages for
in this lawsuit. See Record Document 122, Exhibit 298 at 16-17; Exhibit 299 at 153-154;
Exhibit 218. Of the items contained on Exhibit 218, there are only two transactions which
are alleged to have occurred within a year of the filing of Top Dollar’s Complaint in this
matter. See Record Document 122-2 at ¶ 7; Record Document 131-1 at ¶ 7. One
transaction involves a $25.00 pair of wire snaps which were actually purchased at Top
Dollar off a retail shelf. See id. The second is a television allegedly seized by Southern
University Police Department (“SUPD”). See id. SUPD is not a named defendant in this
matter. See id.
Top Dollar does not contest Exhibit 218, but maintains “that said document is the
best evidence of its own content.” Record Document 131-1 at ¶ 5. Additionally, Top Dollar
maintains “that illegal seizures by Defendant continued after the filing of suit up to and
including the incident of October 1, 2012.” Record Document 131-1 at 5. This October 1,
2012 incident was raised by Top Dollar in its November 2012 Motion for Preliminary
Injunction and involved an alleged illegal seizure by the Shreveport Police Department

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(“SPD”). See Record Document 57; Record Document 57-2 at 3-4. The Motion for
Preliminary Injunction was eventually resolved by a Consent Order:
NOW INTO COURT, through undersigned counsel come
1.

Plaintiff, Top Dollar Pawn, Gun and Car Audio #5, L.L.C.
(“TDP”);

2.

Defendant, Steve Prator in his official capacity as Sheriff of
Caddo Parish, Louisiana (“CPSO”);

3.

Defendant, the City of Shreveport; (“City”);

having reached an agreement on the preliminary injunction, enter into a
Consent Agreement to resolve certain claims asserted in plaintiff’s Motion for
Preliminary Injunction against these defendants;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that when
the CPSO and the Shreveport Police Department through the City lawfully
seize an item pursuant to LSA-R.S. 37:1805 which has been pledged to TDP,
the CPSO and the Shreveport Police Department through the City will not
return the item to a purported owner without a judicial determination of
ownership until further order pending this Honorable Court’s interpretation of
LSA-R.S. 37:1805.
Record Document 68. Defendants made no admission as to a violation of the United
States Constitution or the Louisiana Pawnshop Act. See Record Documents 65 & 68.
LAW AND ANALYSIS
I.

Rule 56 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.
Corp., 628 F.3d 725, 728 (5th Cir.2010).1 “Rule 56[(a)] mandates the entry of summary
1

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
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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
Cir.1995).
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 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

advisory committee’s note.
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summary judgment, as set forth in Rule 56(c), is satisfied.” Celotex Corp., 477 U.S. at 323,
106 S.Ct. at 2553.
II.

Analysis.
A.

Prescription.

In light of Exhibit 218, Defendants’ first ground for summary judgment is prescription.
Top Dollar filed this civil action pursuant to 42, United States Code, Section 1983. “Section
1983 does not contain a statute of limitations, so the law of the forum court applies.” Cruz
v. Louisiana ex rel. Dept. of Public Safety and Corrections, 528 F.3d 375, 378 (5th
Cir.2008). “It is well established in decisions in this circuit that wrongs committed by
Louisiana state officials in violation of federal law are considered to be torts subject to
Louisiana’s one-year statute of limitations for tort actions.” Watts v. Graves, 720 F.2d
1416, 1423 (5th Cir. 1983).
Top Dollar does not dispute the contents of Exhibit 218. More specifically, it does
not dispute that Exhibit 218 is a list of all items that Top Dollar claims were illegally seized
by law enforcement agencies and the seizures for which Top Dollar is now seeking
damages for in this lawsuit. See Record Document 122-2 at ¶ 5; Record Document 131-1
at 3, ¶ 5. Likewise, Top Dollar did not dispute the following facts:
Of the items contained on Exhibit 218 there are only two transactions which
are alleged to have occurred within a year of the filing of Top Dollar’s
Complaint in this matter. One transaction involves a $25.00 pair of wire
snaps which were actually purchased at Top Dollar off a retail shelf. The
second is a television allegedly seized by Southern University, which is not
a named defendant in this matter.
Record Document 122-2 at ¶ 7; Record Document 131-1 at 3, ¶ 7. Based on these
undisputed facts, Top Dollar’s Section 1983 claims against the remaining Defendants
appear to be time-barred.
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Exhibit 218 establishes that all of the items that were allegedly illegally seized were
“seized” between 2005 and 2010. The only exceptions were the 2011 transactions
involving the wire snaps and the television. The wire snaps were purchased and not
“seized.” The television was not “seized” by the SPD or the Caddo Parish Sheriff’s
Department (“CPSD”), but rather by a law enforcement agency that is not named as a
defendant in this matter. Top Dollar had one year from the 2010 “date seized” to assert its
Section 1983 claims against Defendants. Because it failed to file its lawsuit until March
2012, the lawsuit is untimely.
In opposing the prescription argument, Top Dollar seems to concede that its claims
are prescribed on their face. However, Top Dollar argues that its claims are not prescribed
because “Defendants’ policy constitutes a continuing violation and a continuing violation
is in effect so long as the ongoing policy remains in effect.” Record Document 131 at 11.
Top Dollar further points to “the widespread effects that have resulted from Defendants’
continuing policy” and asserts that this case is akin to “an ongoing pattern of
discrimination.” Id. at 12. The crux of Top Dollar’s continuing violation theory is set forth
below:
Similar to an ongoing pattern of sexual discrimination here,
Defendants[] have had an ongoing system in place that provides the
framework for ongoing violations of due process which discriminate against
pawnbrokers. Furthermore, these violations of due process have been
ongoing prior to the initiation of this litigation and have been continuing until
the Court issued [a Consent] Order [on Top Dollar’s Motion for Preliminary
Injunction] on December 20, 2012 mandating that the CPSD and the SPD will
not return the item to the purported owners without a judicial determination
of ownership.
...
As a continuing violation is in effect so long as the policy is in effect,
Plaintiff’s action is timely.
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Id.
Alternatively, Top Dollar contends that its claims are not prescribed because the
SPD and the CPSD are joint tortfeasors. See id. at 13. Pursuant to Louisiana Civil Code
Article 2324, “interruption of prescription against one joint tortfeasor is effective against all
joint tortfeasors.” La. C.C. Art. 2324(C). Top Dollar argues that “the instant lawsuit was
timely filed against the SPD as the SPD continued to commit illegal seizures constituting
constitutional violations through the filing of the Motion for Preliminary Injunction filed in
November 2012; thus, this timely filing against one joint tortfeasor, the SPD, interrupted
prescription and is effective against the other joint tortfeasor, the CPSD. See id. at 14. Top
Dollar points to the “most recent seizure on October 1, 2012,” which it raised in its Motion
for Preliminary Injunction. See id.; see also Record Document 57-2 at 10.
The Court finds that Top Dollar’s joint tortfeasor argument fails as a matter of law,
as there is no allegation that both the SPD and the CPSD seized the same item. See La.
C.C. Art. 1788 (“When different obligors owe together just one performance to one obligee,
but neither is bound for the whole, the obligation is joint for the obligors.”). Top Dollar’s
argument based on the continuing violation theory requires closer examination.
Top Dollar relies upon several employment discrimination cases in support of
applying the continuing violation theory to the instant matter. One such case is Perez v.
Laredo Junior College, 706 F.2d 731 (5th Cir. 1983), wherein the Fifth Circuit explained:
[F]ederal law determines when a civil rights action accrues and,
therefore, when the statute of limitations begins to run. In deciding when the
statute of limitations commences to run under . . . § 1983, we look to the Title
VII cases. The determination requires us to identify precisely when the
deprivation forbidden by § 1983 . . . occurred. . . . To establish a continuing
violation, however, the plaintiff must establish that the unconstitutional or
illegal act was a part of standard operating procedure, a fixed and continuing
practice.
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If the discrimination alleged is a single act, the statute begins to run
at the time of the act. If, on the other hand, the statutory violation does not
occur at a single moment but in a series of separate acts and if the same
alleged violation was committed at the time of each act, then the limitations
period begins anew with each violation and only those violations preceding
the filing of the complaint by the full limitations period are foreclosed.
Similarly, if the statutory violation occurs as a result of a continuing policy,
itself illegal, then the statute does not foreclose an action aimed at the
company’s enforcement of the policy within the limitations period.
Perez, 706 F.2d at 733-734. The Court finds that Top Dollar’s reliance on Perez, and the
other cited cases, is misplaced.
Top Dollar misunderstands the application of the continuing violation theory. Based
on the undisputed facts set forth in Exhibit 218, Top Dollar has conceded there was no
violation by the remaining Defendants in 2011. Thus, the last alleged violation attributable
to the remaining Defendants occurred in 2010. An isolated October 2012 incident relating
to the Shreveport Police Department, which was disclosed to the Court in the context of a
Motion for Preliminary Injunction, does not revive distinct acts which occurred outside the
prescriptive period, i.e., March 2011 to March 2012. In McGregor v. Louisiana State Univ.
Bd. of Sup’rs, 3 F.3d 850 (5th Cir. 1993), the Fifth Circuit explained that “the continuing
violation theory provides that where the last act alleged is part of an ongoing pattern of
discrimination and occurs within the filing period, allegations concerning earlier acts are not
time-barred.” Id. at 866 (emphasis added). Here, the “last act alleged” by Top Dollar did
not occur within the filing period between March 2011 and March 2012. Rather, it allegedly
occurred in October 2012 and cannot revive Top Dollar’s stale claims from 2010 and
earlier.
The Court further notes that Top Dollar, by virtue of Exhibit 218, has conceded that
no seizures relating to the remaining Defendants occurred in 2011. Under Perez and

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McGregor, to establish a continuing violation, Top Dollar must show an ongoing pattern and
establish that the illegal acts were part of a fixed and continuing practice. See Perez, 706
F.2d at 733-734; McGregor, 3 F.3d at 866. The absence of any seizures attributable to the
SPD or the CPSD in 2011 is a critical flaw in Top Dollar’s argument that there was an
ongoing pattern or a fixed and continuing practice of illegal seizures.
Based on the foregoing analysis, the Court finds that Top Dollar failed to timely file
suit and Defendants’ Motions for Summary Judgment (Record Documents 122 & 123) are
GRANTED. All of Top Dollar’s claims against City Attorney Scott, Chief Shaw, the City,
and Sheriff Prator are DISMISSED WITH PREJUDICE.2
B.

Top Dollar’s Motion for Partial Summary Judgment.

Top Dollar seeks a partial summary judgment as to liability of Defendants Sheriff
2

Defendants also moved for summary judgment on the basis that there was no due
process violation, as Top Dollar never exercised the right to pre-deprivation process set
forth in Section 1805 of the Louisiana Pawnshop Act. More specifically, Defendants show
that Top Dollar never disputed ownership of the seized items and never objected to the
seized items being returned.
Section 1805(C)(1) provides:
When ownership of a thing is disputed, final determination as to ownership
for the purposes of this Part shall be made in either a civil or criminal
proceeding filed in a Louisiana court of competent jurisdiction.
La. R.S. 37:1805(C)(1) (emphasis added). Top Dollar Pawn contends that “Defendants
clearly misinterpret the clear import of Section 1805” and that it is not required “to elect to
utilize its constitutional due process protections by placing an item in dispute.” See Record
Document 131 at 14.
“Questions of statutory interpretation are questions of law.” Kemp v. G.D. Searle &
Co., 103 F.3d 405, 407 (5th Cir. 1997). This Court’s review of the Louisiana Pawnshop Act
and the summary judgment record is in accord with Defendants’ proffered interpretation of
Section 1805(C)(1). It is this Court’s belief that Top Dollar must make some sort of an
affirmative election to dispute ownership such that a civil or criminal proceeding to
determine ownership would commence. Thus, while the Court has granted summary
judgment on the basis of prescription, it also appears that summary judgment is proper on
this additional ground.
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Prator and Chief Shaw “for the unreasonable seizure of [Top Dollar’s] property in violation
[of] due process.” Record Document 142 at 1. This Court has concluded that Top Dollar’s
claims against City Attorney Scott, Chief Shaw, the City, and Sheriff Prator are prescribed.
Accordingly, Top Dollar’s Motion for Partial Summary Judgment (Record Document 125)
must be DENIED.
CONCLUSION
Based on the foregoing analysis, the Court finds that summary judgment in favor of
Defendants is appropriate, as Top Dollar’s Section 1983 claims are prescribed.
Accordingly,
IT IS ORDERED the Motions for Summary Judgment (Record Documents 122 &
123) filed by Defendants City Attorney Scott, Chief Shaw, the City, and Sheriff Prator be
and are hereby GRANTED and the Motion for Partial Summary Judgment (Record
Document 125) filed by Plaintiff Top Dollar be and is hereby DENIED.
IT IS FURTHER ORDERED that all of Top Dollar’s claims be and are hereby
DISMISSED WITH PREJUDICE.
A judgment consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 10th day of September,
2014.

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