Coleman v. Lee et al

Filing 97

MEMORANDUM RULING re 79 MOTION for Summary Judgment filed by Sherlon Cone, Harrison Butch Shaver. Signed by Chief Judge S Maurice Hicks, Jr on 9/28/2018. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ERWIN DARNELL COLEMAN

CIVIL ACTION NO. 15-2365

VERSUS

JUDGE S. MAURICE HICKS, JR.

C.O. LEE, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court is a Motion for Summary Judgment (Record Document 79) filed
by Defendants, Sherlon Cone (“Cone”) and Harrison Shaver (“Shaver”) (collectively
“Defendants”). Plaintiff, Erwin Darnell Coleman (“Coleman”) opposes the Motion. See
Record Document 81. Defendants seek dismissal of all Coleman’s claims. For the
reasons stated in the instant Memorandum Ruling, Defendants’ Motion for Summary
Judgment is hereby DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of January 27, 2015, Shreveport Police Department officers (“SPD
officers”) arrived at Coleman’s residence after being advised by Coleman’s neighbor that
he was involved in criminal activity. Also present at Coleman’s residence when the SPD
officers arrived were Defendants. Defendants’ presence at the residence during the
events at issue is undisputed. At all times relevant to these proceedings Coleman was on
parole supervision, and Defendants were employed as probation and parole Officers by
the Louisiana Department of Corrections.
It is undisputed that SPD officers knocked on Coleman’s door, and that when
Coleman exited his residence, he was handcuffed and arrested by SPD officers. The

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exact details surrounding Coleman’s arrest are disputed; however, it is undisputed that
Cone and Shaver made no physical contact with Coleman on January 27, 2015.
Coleman alleges that SPD officers engaged in excessive force when they arrested
him. Cone and Shaver are not alleged to have used excessive force at all against
Coleman. Specifically, he alleges that upon exiting the front of his residence, after being
prompted to do so by the SPD officers, those officers immediately grabbed him and
placed handcuffs on him. He alleges that after he was handcuffed, one of the SPD officers
slammed him onto the concrete ground face-first, causing him to lose three teeth and
causing injuries to his abdomen and groin areas. He further alleges that he was then
kicked in the head and lower body repeatedly. See Record Document 81-2 at 2 & 3.
According to Coleman and his mother, Ruthie Coleman, these events lasted for over a
minute. See Record Document 81-2 at 3 & Record Document 81-5 at 14. SPD Officer
Lee testified, however, that he effected a takedown of Coleman, and that only after taking
Coleman to the ground, did he place handcuffs on him. See Record Document 81-4 at
121-122.
While there is a dispute in this case as to whether the SPD officers even used
excessive force or not in their arrest of Coleman, the claim of Plaintiff against Cone and
Shaver is a failure to intervene issue. Despite their observations, Coleman alleges,
Defendants failed to “intervene or stop the use of force,” despite having enough time to
do so. See Record Document 81-2 at 3. Because the acts of the SPD officers during
Coleman’s arrest are not at issue in this Motion for Summary Judgment, these acts,
whatever they may have been, shall hereafter be referred to as the “Acts.” What is at

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issue in this Motion is whether Defendants observed, or were even in a position to
observe, the Acts. The facts regarding this issue are disputed.
Coleman alleges that Defendants were in the immediate vicinity of the Acts as they
unfolded. See Record Document 81-2 at 2 & 3. Specifically, he alleges that he could “see
two female officers toward one end of the front porch on the grass within 10 feet of his
location. One he recognized as Cone. Shaver was next to Plaintiff while he was being
handcuffed. Shaver was within five feet of Coleman at that time.” Record document 81-2
at 3.
It is undisputed that Shaver was in the immediate vicinity of the Acts. See Record
Document 79-6 at 15. However, Shaver denies seeing anything after the beginning of
Coleman’s takedown, because he was “looking in the other direction.” Record Document
79-6 at 11. He alleges that after seeing the beginning of the SPD officers’ takedown of
Coleman he turned to watch “what was going on in the residence to make sure that there
was no one else in there who may be a problem . . . .” Id. at 11 & 19. Shaver testified in
his deposition that he looked in the other direction for “around a minute,” and that when
he turned back around Coleman was already handcuffed. Id. at 19. However, when
Coleman’s mother, Ruthie Coleman, was asked about the behavior of those present at
the scene as the Acts occurred, she stated, “[t]hey were just looking, you know.” Record
Document 81-5 at 13.
Cone specifically contradicts Coleman’s allegations as to her location during the
Acts. She testified in her deposition that upon arriving at Coleman’s residence, she
immediately “went to the back of the residence” because she “figured he’d run out the
back.” Record Document 79-7 at 6. She alleges that she remained at the back “until [the

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other officers] said [Coleman] was in custody.” Id. at 7-8. In support of this testimony, SPD
officer Skinner testified that at the time Coleman was taken down to the ground by SPD
officer Lee, the two female officers were “[o]n the back of the house.” Record Document
82-2 at 4. Additionally, the other female officer present, SPD Officer Haley, testified in her
deposition that she was at the back of the residence with Cone, and that Cone was not in
a position to witness Coleman’s takedown. See Record Document 79-8 at 4 & 9. Shaver
also testified that Cone was at the rear of the residence; however, he further testified that
he did not recall the point in time at which Cone came back around to the front. See
Record Document 79-6 at 18. Finally, SPD Officer Lee stated in his deposition that Cone
was at the rear of the residence during the time that SPD officers were knocking on the
front door of Coleman’s residence; however, he also stated that he was not sure whether
she was present at the time he placed the handcuffs on Coleman, as he did not see her
until Coleman had already been handcuffed and placed in a chair. See Record Document
79-9 at 4-5.
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
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). “A genuine [dispute] of material fact exists when
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. at 728. During this stage, courts must look to the substantive law underlying the lawsuit

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in order to identify “which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510 (1986)
“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 [dispute] for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th
Cir. 2004). A nonmovant cannot meet the burden of proving that a genuine dispute of
material fact exists by providing only “some metaphysical doubt as to the material facts,
by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of
evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 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).
In reviewing a motion for summary judgment, the court is to view “the facts and
inferences to be drawn therefrom in the light most favorable to the non-moving party.”
Tubos de Acero de Mexico, S.A. v. Am. Int'l Inv. Corp., Inc., 292 F.3d 471, 478 (5th Cir.
2002); see also Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014). The court should not,
however, in the absence of any proof, presume that the nonmoving party could or would
prove the necessary facts. See Little, 37 F.3d at 1075.
II.

Section 1983

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Section 1983 provides that any person who, under color of state law, deprives
another 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 other proper proceeding
for redress . . . .” Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citing 42 U.S.C.
§ 1983).

Section 1983, however, does not create any substantive rights; it simply

provides a remedy for the rights designated therein. See id. at 365. “Thus, an underlying
constitutional or statutory violation is a predicate to liability under § 1983.” Id. (citation
omitted). “To state a claim under § 1983, a plaintiff must (1) allege a violation of rights
secured by the Constitution or laws of the United States and (2) demonstrate that the
alleged deprivation was committed by a person acting under color of state law.” Leffall v.
Dallas Independent School District, 28 F.3d 521, 525 (5th Cir. 1994). Therefore, the first
prong requires an inquiry as to whether plaintiff has alleged a violation of a constitutional
right at all. See id. at 525; Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995).
Coleman alleges that Defendants observed and failed to intervene in the use of
excessive force by SPD officers in subduing and arresting him. Claims that law
enforcement officers used excessive force are analyzed under the Fourth Amendment.
See Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003) (citing Graham v.
Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989)). Furthermore, the Fifth Circuit
has made it clear that “an officer who is present at the scene and does not take
reasonable measures to protect a suspect from another officer’s use of excessive force
may be liable under §1983.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (citing
Hale v. Townley, 45 F.3d 914 (5th Cir. 1995). Therefore, because this Circuit recognizes

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a cause of action for bystander liability in excessive force cases, Coleman meets the first
prong, as he has alleged a violation of his 4th Amendment rights.
The second prong requires the alleged deprivation to be committed by a person
acting under the color of state law. See Leffall, 28 F.3d at 525. Defendants were employed
as Probation and Parole Officers by the Louisiana Department of Corrections.
Additionally, it is undisputed that at all times relevant to this proceeding Defendants were
acting in their official capacities. Record Document 79-2 at 1. As a result, Defendants
were acting under the color of state law. Therefore, Coleman has met the second prong
to state a claim under Section 1983. Accordingly, Coleman has sufficiently stated a claim
pursuant to Section 1983.
III.

Qualified Immunity
When, as here, plaintiff seeks money damages from government officials in their

individual capacities under Section 1983, the affirmative defense of qualified immunity is
available to protect defendants “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815
(2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)).
The qualified immunity doctrine balances two often conflicting interests — “the need to
hold public officials accountable when they exercise power irresponsibly, and the need to
shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Id. at 231, 129 S. Ct. 815. As such, “[t]he protection of qualified immunity
applies regardless of whether the government official’s error is “a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (citations

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omitted). In effect, qualified immunity “gives ample room for mistaken judgments by
protecting “all but the plainly incompetent or those who knowingly violate the law.”
Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir.2000) (citing Malley v. Briggs, 475 U.S.
335, 341, 106 S. Ct.1092, 1096 (1986) (internal quotation marks omitted).
Qualified immunity is technically characterized as an affirmative defense.
However, once raised by defendants, it devolves upon plaintiff to negate the defense by
showing that the officials’ conduct violated clearly established law. See Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir.2008) (citation omitted). Plaintiff’s burden is twopronged. See Club Retro LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (quoted sources
omitted). First, plaintiff must demonstrate that defendant(s) violated a constitutional right
under current law. See id. at 194. “Second, [plaintiff] must claim that the defendant’s
actions were objectively unreasonable in light of the law that was clearly established at
the time of the actions complained of.” Id. (quoted source and internal quotation marks
omitted). It is noteworthy that no motion for summary judgment has been filed on the issue
of excessive force or qualified immunity by the SPD officers.
V.

Section 1983 Failure to Intervene Claims Against Defendants
Coleman has asserted only excessive force bystander claims against Defendants

under §1983. Defendants have invoked the affirmative defense of qualified immunity in
their Motion for Summary Judgment. The Court will now determine whether Coleman’s
claims survive Defendants’ Motion for Summary Judgment.
Defendants argue that they are entitled to qualified immunity for Coleman’s
bystander claims. As mentioned above, the first prong of qualified immunity requires a
demonstration that Defendants violated Coleman’s constitutional rights. Defendants

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argue that there is no genuine dispute as to a material fact regarding this question. The
Court disagrees.
As stated above, the Fifth Circuit, along with other federal circuit courts, has made
it clear that “an officer who is present at the scene and does not take reasonable
measures to protect a suspect from another officer’s use of excessive force may be liable
under §1983.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (citing Hale v. Townley,
45 F.3d 914 (5th Cir. 1995). According to the Fifth Circuit’s holdings in Whitley and Hale,
“an officer may be liable under §1983 under a theory of bystander liability where the officer
‘(1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a
reasonable opportunity to prevent the harm; and (3) chooses not to act.’” Id. The Fifth
Circuit further observed that “the fact that the police officers ‘were from different law
enforcement agencies does not as a matter of law relieve [an officer] from liability for
failure to intervene.’” Id. Important considerations in deciding whether these elements are
met are whether the defendant officer (1) observed the use of the alleged excessive force
or (2) had sufficient time to prevent the use of excessive force. See Tufaro v. City of New
Orleans, 2004 WL 1920937 at *4 n. 20, 2004 U.S. Dist. LEXIS 17146 at *12 n.20 (E.D.
La. 2004) (citing Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997)).
Defendants argue in their Motion for Summary Judgment that there is no genuine
dispute as to whether Cone or Shaver knew that SPD officers were violating Coleman’s
constitutional rights by engaging in excessive force. In the alternative, they argue that
there is no genuine dispute as to whether there was a reasonable opportunity for
Defendants to intervene. As such, Defendants argue that they are entitled to qualified
immunity, as Defendants have not violated Coleman’s constitutional rights. Finally,

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Defendants argue that even if Coleman’s constitutional rights were violated under current
law, Defendants’ conduct was not objectively unreasonable in light of well-established
law at the time of the alleged conduct. As such, they argue that they are still entitled to
qualified immunity.
A. Defendant Cone
In the present matter, Defendants argue that there is no genuine dispute as to the
fact that Cone was behind the residence, and therefore, was not in a position to know that
Shreveport Police officers were engaging in excessive force. In support, Defendants cite
to deposition testimony from Cone, Shaver, and multiple SPD officers. However, Coleman
alleges in his sworn declaration that as the Acts occurred, he could “see two female
officers toward one end of the front porch on the grass within 10 feet of his location. One
he recognized as Cone.” Record Document 81-2 at 3. Additionally, both Shaver and
Officer Lee testified in their depositions that, although they knew Cone went to the rear of
the residence upon her arrival, they were unsure of when she went back to the front of
the residence. Coleman places Cone in the immediate vicinity of the Acts. To the extent
that other witness testimony contradicts Coleman’s allegations, the credibility of the
witnesses is called into question. Summary judgment is not the place for a determination
of credibility. See Turner v. Baylor Richardson Medical Center, 476 F.3d 337 (5th Cir.
2007) (“When assessing whether a dispute to any material fact exists, we consider all of
the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”). Therefore, there is a genuine factual dispute as to whether Cone was in
a position to even observe the Acts.

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Defendants argue next that even if Cone was in a position to observe the Acts as
they occurred, there was no reasonable opportunity to intervene, as the Acts occurred
too swiftly. However, Coleman and his mother, Ruthie Coleman, stated in competent
summary judgment evidence that the Acts occurred for over a minute. See Record
Document 81-2 at 3 & 81-5 at 14. Additionally, Shaver stated in his deposition that he
looked in the other direction for “around a minute,” and that when he turned back around
Coleman was already handcuffed. Record Document at 11 & 19. Whether accurate in
fact or not, one minute is more than enough time to intervene if a fellow officer is engaged
in the use of excessive force. Therefore, there is sufficient evidence to produce a genuine
dispute of material fact as to whether there was a reasonable opportunity for Cone to
intervene in any excessive force that may have occurred. There is a dispute as to whether
Cone was or was not in a position to even observe the Acts.
Finally, Defendants argue that the case should be dismissed based on the second
prong of the qualified immunity analysis. As stated above, the second prong of the
analysis requires the defendant’s actions to be “objectively unreasonable in light of the
law that was clearly established at the time of the actions complained of.” See Club Retro
LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (quoted sources omitted). Defendants
argue that the law establishing a bystander claim in excessive force cases was not clearly
established at the time of the Acts in question. The Court disagrees.
For a right to be clearly established, the “contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.”
Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151. As the Fifth Circuit has held, “preexisting law must dictate, that is, truly compel (not just suggest or allow or raise a question

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about), the conclusion for every like-situated, reasonable government agent that what
defendant is doing violates federal law in the circumstances.” Pasco ex rel. Pasco v.
Knoblauch, 566 F.3d at 579–80 (internal quotations omitted). The proper inquiry is
whether, under the law in effect at the time of the arrest, the officers could have
reasonably believed that they were not required to intervene and prevent the alleged use
of excessive force. See Deshotels v. Marshall, 454 Fed.Appx. 262 (2011).
Liability of an officer for failing to intervene in the use of excessive force by another
law enforcement officer has been found by this Court as far back as 1984. See Smith v.
Dooley, 591 F.Supp. 1157 ( W.D.La.1984), aff’d, 778 F.2d. 788 (5th Cir. 1985) (officers
held liable where they were present at scene of excessive force and made no effort to
intervene). More importantly, Fifth Circuit case law from 1995 clearly outlines a claim for
an officer’s failure to intervene in excessive force cases. See Hale v. Townley, 45 F.3d
914 (5th Cir. 1995). The facts in Hale are similar to the facts of the present case. In Hale,
the plaintiff produced evidence that he was beaten by a police officer while the bystander
officer stood by and watched it occur. Id. Additionally, the existence of the bystander claim
in excessive force cases was reinforced by the Fifth Circuit in 2013. See Whitley v. Hanna,
726 F.3d 631, 646 (5th Cir. 2013). The Acts in question in this matter occurred on January
27, 2015. Therefore, the law surrounding this particular matter was well-established at all
times relevant to this matter, and the Defendants could not have reasonably believed that
they were not required to intervene in the SPD officers’ alleged use of excessive force.
Accordingly, Coleman has presented evidence sufficient to raise a genuine dispute
as to whether Cone observed the alleged excessive force and whether Defendants had
sufficient time to intervene in the alleged excessive force. Whether or not excessive force

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was or was not used in arresting Coleman remains a genuine dispute of fact and law.
Additionally, the law surrounding bystander claims in excessive force cases was well
established on January 27, 2015. Therefore, Cone is not entitled to dismissal at this stage
based on qualified immunity. Cone’s Motion for Summary Judgment as to this claim is
DENIED.
B. Defendant Shaver
In the present matter, Defendants argue that there is no genuine dispute as to
whether Shaver observed the Acts in question. As such, they argue that summary
judgment should be granted in Shaver’s favor. It is undisputed that Shaver was in the
immediate vicinity of the Acts. See Record Document 79-6 at 15. However, Shaver denies
seeing anything after the beginning of Coleman’s takedown, because he was “looking in
the other direction.” Id. at 11. If this were the only relevant evidence, the Court might
agree that there is no genuine dispute as to this material fact. However, when Coleman’s
mother, Ruthie Coleman, was asked about the behavior of those present at the scene as
the Acts occurred, she stated, “They were just looking, you know.” Record Document 815 at 13. Given this testimony, although not particularly specific or detailed, along with the
undisputed fact that Shaver was standing in the immediate vicinity of the Acts, the Court
finds that there is a genuine dispute as to whether Shaver observed the Acts in question.
As such, summary judgment is inappropriate on this ground.
Defendants then raise the same second and third arguments that they did for
Cone: that there is no genuine dispute as to whether there was a reasonable opportunity
to intervene and that Defendants’ behavior was not objectively unreasonable in light of

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well-established law at the time. However, the analyses and conclusions as to Cone apply
with equal weight as to Shaver.
Accordingly, Coleman has presented evidence sufficient to raise a genuine dispute
as to whether Shaver observed the alleged excessive force and whether Shaver had
sufficient time to intervene in the alleged use of excessive force. Additionally, the law
surrounding bystander claims in excessive force cases was well established on January
27, 2015, the date of Coleman’s arrest. Therefore, Shaver is not entitled to dismissal
based on qualified immunity at this stage of the proceedings. Therefore, Defendants’
Motion for Summary Judgment is DENIED as to this claim.
CONCLUSION
Defendants’ Motion for Summary Judgment (Record Document 79) is hereby
DENIED, as there are genuine disputes as to material facts preventing the application of
the qualified immunity defense. An order consistent with the terms of the instant
Memorandum Ruling shall issue herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, on this the 28th day of
September, 2018.

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