Pikaluk v. Horseshoe Entertainment L P et al
Filing
83
MEMORANDUM RULING re 54 MOTION for Summary Judgment filed by James Lafleur, Horseshoe Entertainment L P, Jason Williams, Rob Brown, Steven Jones, Federico M Arends, III. Signed by Chief Judge S Maurice Hicks, Jr on 5/13/2019. (crt,McDonnell, D)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
KYLE D. PIKALUK
CIVIL ACTION NO. 18-0215
VERSUS
JUDGE S. MAURICE HICKS, JR.
HORSESHOE ENTERTAINMENT, LP,
ET AL.
MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment (Record Document 54) filed by
Defendants, Horseshoe Entertainment, LP (“Horseshoe”), Steven Jones, Rob Brown,
Jason Williams, Federico M. Arends, III, and James LaFleur (hereinafter referred to as the
“Horseshoe Defendants”). The Horseshoe Defendants move for summary judgment on the
grounds that they are not state actors as required by Title 42, United States Code, Section
1983. See id. Alternatively, they argue Plaintiff Kyle D. Pikaluk (“Pikaluk”) is unable to
establish the essential elements of his Section 1983 claims. See id. The Horseshoe
Defendants also seek summary judgment as to Pikaluk’s Louisiana state law claims. See
id. Pikaluk opposed the Motion for Summary Judgment. See Record Documents 58 & 63.
For the reasons which follow, the Motion for Summary Judgment is GRANTED and all of
Pikaluk’s claims are DISMISSED WITH PREJUDICE.
BACKGROUND1
On March 17-18, 2017, Pikaluk was a patron at the Horseshoe Hotel & Casino in
1
The Horseshoe Defendants filed a Statement of Uncontested Material Facts. See
Record Document 54-1. In response, Pikaluk filed a Statement of Disputed and Contested
Facts. See Record Document 58-1. The Court has incorporated the undisputed facts from
these two filings 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.
Bossier City, Louisiana.
The Horseshoe Hotel & Casino is a licensed gaming
establishment and is an affiliate of Caesars Entertainment Corporation. Defendants
Steven Jones, Rob Brown, Jason Williams, Federico M. Arends, III, and James LaFleur
were, at all times relevant herein, employed by Horseshoe.2
Pikaluk is an “advantage player,” meaning he utilizes techniques and strategies in
order to gain an advantage or “edge” over the casino, thereby increasing his chance of
winning. He classifies this case as “casino patron abuse,” maintaining that Horseshoe
wanted to punish him for winning more than $30,000 playing blackjack at their casino
during the late night hours of March 17, 2017 and the early morning hours of March 18,
2017. Record Document 63 at 6; Record Document 58-1 at ¶ 9. Pikaluk now seeks
monetary damages from the Horseshoe Defendants as a result of events that occurred on
the premises of the Horseshoe Hotel & Casino on March 18, 2017, the date he attempted
to cash in his chips. See Record Document 54-1 at ¶ 5; Record Document 58-1 at ¶ 1;
Record Document 63 at 6-7. He asserts Section 1983 claims; state law tort claims of false
arrest/conspiracy for false arrest, false imprisonment/conspiracy for false imprisonment,
battery/conspiracy to commit battery, malicious prosecution/conspiracy for malicious
prosecution, negligence and gross negligence, and conversion; and violation of the
Louisiana Unfair Trade Practices and Consumer Protection Act (“LUTPA”). See Record
Document 31.
2
On December 27, 2018, Pikaluk and Defendants Joseph C. Thomerson, Donald
Razinsky, and Jordan D. Johnson filed a Joint Stipulation of Dismissal. See Record
Document 53. These former defendants were, at all times relevant herein, police officers
employed by the Bossier City Police Department. Donald Razinsky was a reserve officer
for the Bossier City Police Department.
Page 2 of 24
The Horseshoe Defendants contend that prior to March 18, 2017, Pikaluk had been
banned from numerous casinos, including several Caesars Entertainment affiliated
properties. See Record Document 54-1 at ¶ 7, citing Record Document 54-5 (Pikaluk
Deposition) at 36-45 & Record Document 54-13 (Interrogatory Response) at 10-11. Pikaluk
contests this fact and asserts that the Horseshoe Defendants have mischaracterized his
deposition testimony and interrogatory responses. See Record Document 58-1 at ¶ 2.
Instead, he maintains that he was “backed off” or “asked to leave” the casino properties,
as compared to being banned and told not to return. Id. Pikaluk recalls only two casinos
that imposed a ban against him – one in Canada and one in Mesquite, Nevada. See id.
He maintains that he was never banned from returning to a Caesars affiliated property.
See id.
While a patron at Horseshoe on March 17-18, 2017, Pikaluk used his “advantage
player” techniques and seemingly did not want his identity known to the casino. The
Horseshoe Defendants eventually identified him. According to several of the Horseshoe
Defendants, after referencing Pikaluk’s identity in the electronic casino management
system, Horseshoe supervisory level employees determined that, as of June 2016, Pikaluk
was a companywide ban, meaning he was permanently banned from all Caesars
Entertainment affiliated properties. Record Document 54-1 at ¶ 9, citing Record Document
54-11 (James LaFleur Deposition) at 88 -91; Record Document 54-10 (Rob Brown
Deposition) at 62-63; Record Document 54-9 (Steven Jones Deposition) at 70-71. The
WinNet message, which Pikaluk produced, states:
GUEST IS EVICTED COMPANYWIDE. CONTACT SECURITY. LHEBERT
06/23/16.
Page 3 of 24
Record Document 63-2 (WinNet Message) at 17. Pikaluk contests the meaning of the
message in the electronic casino management system, alleging:
Defendants only saw messages in the WinNet system that Plaintiff was a
“companywide ban”. They did not (and could not) “determine” from the
WinNet messages that Plaintiff had actually been banned from Caesars
propertie [sic] or that Caesars had actually sent Plaintiff notice that he was
banned. . . . Defendants . . . did not contact anyone at Caesars to obtain
verification or confirmation of the WinNet messages or whether Plaintiff had
been notified of any companywide ban and had received such notice.
Record Document 58-1 at ¶ 3.
On March 18, 2017, after learning of the companywide ban in the electronic casino
management system and knowing that Pikaluk was on the premises (specifically, at the
cashier’s cage attempting to cash in a portion of his chips), the Horseshoe Defendants
notified the Bossier City Police Department. Horseshoe refused to cash in Pikaluk’s chips
and returned the chips and his Canadian passport to him. He was escorted from the cage
area and onto the entry ramp where he encountered Bossier City Police Officers. See
Record Document 58-1 at ¶ 8(l). No Horseshoe employee physically laid hands on Pikaluk.
Sergeant Joseph C. Thomerson (“Sergeant Thomerson”), Officer Jordan D. Johnson
(“Officer Jordan”), and Reserve Officer Donald Razinsky were dispatched to the scene by
the Bossier City Police Department. There is no dispute that Pikaluk was ultimately
arrested for criminal trespassing. See Record Document 54-15. Sergeant Thomerson was
the senior officer and made the decision to arrest Pikaluk. See Record Document 54-6
(Sergeant Thomerson Deposition) at 28-29, 34; Record Document 54-7 (Officer Johnson
Deposition) at 41. Sergeant Thomerson stated that his decision was “based on the
statements from the Horseshoe guys that were there, the security, and then seeing Mr.
Page 4 of 24
Pilaluk on the property.” Record Document 54-6 at 8. He admitted that his decision was
made prior to talking to Pikaluk, but only after seeing him on casino property. See id.
Sergeant Thomerson and Officer Johnson believed the elements of criminal trespassing
were satisfied and that probable cause to arrest existed. See Record Document 54-6 at
25-29, 100-101; Record Document 54-7 at 91-93. Officer Johnson further stated that
Pikaluk was arrested, as compared to issuing him a summons, because he was not from
the immediate Shreveport-Bossier area. See Record Document 54-7 at 92-93. On July
11, 2017, the criminal trespass charge against Pikaluk was nolle prossed by the Bossier
City Attorney. See Record Document 54-15 at 8.
During his deposition, Sergeant Thomerson was questioned extensively about his
decision to arrest Pikaluk.
He stated that Steven Jones, the Horseshoe Security
Supervisor, made the initial complaint regarding Pikaluk. See Record Document 54-6
(Sergeant Thomerson Deposition) at 79. Sergeant Thomerson further testified:
Q.
Why were you only dealing with [Steven] Jones.
A.
That’s what – who was making the complaint.
Q.
The complaint?
A.
The call that came in.
...
A.
He was – my understanding, he was a supervisor. He was the
supervisor at the time.
...
Q.
. . . And when you investigate and respond to a trespassing call, what
steps do you take to confirm that the suspect has, in fact, been
banned, to use your term.
Page 5 of 24
A.
How reliable is the person making that complaint to me.
Q.
And in this instance, Mr. [Steven] Jones.
A.
Yes.
Q.
No, . . . did Mr. [Steven] Jones ever tell you that the Horseshoe itself
had banned Mr. Piklauk?
A.
He said he’s been banned from Horseshoe and all their properties.
...
A.
He told me that Mr. Pikaluk had been banned, had been notified that
he is banned from the property.
...
A.
That he has been banned, that Mr. Pikaluk knew he had been
banned, that he had certified letters that he had been banned.
Q.
Okay. And that’s the information you relied upon to arrest Mr. Pikaluk
for trespassing.
A.
Mr. [Steven] Jones’ statements, yes.
...
Q.
And he told you all that before you arrested Mr. Pikaluk.
A.
Oh, yes. He told me that when we were walking in.
Id. at 79, 100-101. Sergeant Thomerson prepared a police report. See Record Document
54-15 at 2-4; Record Document 54-6 at 11. The report reflects officer interaction with
Pikaluk, as the report states “K. Pikaluk denied having knowledge of being banned.” Id. at
4; Record Document 54-6 at 28-29. Sergeant Thomerson further testified that he trusted
Steven Jones. See id. at 27-29.
Officer Johnson testified in his deposition that Sergeant Thomerson made the
decision to arrest Pikaluk for criminal trespassing, but Officer Johnson “physically [made]
Page 6 of 24
the arrest.” Record Document 54-7 at 4. Officer Johnson also discussed his personal
interaction with Pikaluk, acknowledging that Pikaluk denied having been banned and that
Officer Johnson did not believe Pikaluk was giving him “anything to substantiate his claims.”
Id. at 6. Officer Johnson explained that his response, and that of the Bossier City Police
Department, to a request for assistance with a trespasser would be consistent as to all of
the casinos in Bossier City. See id. at 7-8.
Officer Johnson stated that police would
respond, the casino personnel would tell the officer(s) that a person had been banned, that
the person knew, and then the person would be arrested. See id. at 9.
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.”3 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.
3
The Court notes that Rule 56 now 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 7 of 24
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.
Federal Claims.
The Horseshoe Defendants are private citizens. Yet, in his suit, Pikaluk contends
that he was arrested and prosecuted for criminal trespassing through the joint action of
the Horseshoe Defendants and the Bossier City Police Officers. See Record Document
58-1 at ¶ 8 (emphasis added). The allegation of joint action is the main basis of Pikaluk’s
Secton 1983 claims against the Horseshoe Defendants. To support his allegation, Pikaluk
points to the following, amongst other, facts: Steven Jones prior employment with the
Bossier City Police Department; Sergeant Thomerson and Officer Johnson’s prior “off duty”
security work at Horseshoe; the lack of any independent investigation or observations of
Pikaluk’s conduct by the Bossier City Police Officers; and the Horseshoe Defendants’
failure to provide the Bossier City Police Officers with any writing evidencing the
companywide ban. Id. at ¶¶ 8(a), (b), (c), & (h). He further argues that he was arrested
for criminal trespassing pursuant to a preexisting, customary plan, understanding, practice,
and arrangement between the Bossier City Police Department and Bossier City casinos for
arresting persons designated as trespassers. See id. at ¶ 8(I).
To state a claim for relief under Title 42, United States Code, Section 1983, Pikaluk
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.
Page 8 of 24
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 (5th Cir. 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.4
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. “The focus of the inquiry into whether a private actor can be
subjected to constitutional liability is whether ‘such a close nexus between the State and
the challenged action’ exists ‘that seemingly private behavior may be fairly treated as that
of the State itself.’” Morris, 277 F.3d at 747-748, citing Brentwood Acad. v. Tennessee
Secondary Sch. Athletic Assoc., 531 U.S. 288, 121 S.Ct. 924 (2001). In Morris, the Fifth
4
The “public function test” and the “state compulsion test” are inapplicable to the
instant matter. The Court notes that the nexus or state action test and the joint action test
are similar. Pikaluk specifically uses the phrases “joint action,” “joint and collusive actions,”
and “joint action/participation” in his briefing. See Record Document 63 at 14, 25-30;
Record Document 58-1 at ¶ 8. Pikaluk references and relies upon Adickes v. S. H. Kress
& Co., 398 U.S. 144, 90 S. Ct. 1598 (1970), Smith v. Brookshire Bros., 519 F.2d 93 (5th
Cir. 1975), Phillips v. Vandygriff, 711 F.2d 1217 (5th Cir. 1983), and Morris v. Dillard Dep’t
Stores, Inc., 277 F.3d 743 (2001). These cases discuss both the nexus or state action test
and the joint action test. Finally, the Horseshoe Defendants state in their motion that “the
nexus/state action test and the joint action test are closely related, so they will be discussed
in combination below.” Record Document 54-2 at 13.
Page 9 of 24
Circuit held:
We have refined application of the doctrine since [Smith v. Brookshire
Brothers, Inc., 519 F.2d 93 (1975)] in three subsequent decisions, White,
Hernandez, and Bartholomew, in which we established that a merchant is not
a state actor unless the conduct on the part of a guard or officer giving rise
to the claimed deprivation occurred based solely on designation of suspicion
by the merchant and was not accompanied by any independent investigation
by the officer. . . . In our two most recent decisions, Hernandez and
Bartholomew, we clarified that the “vice” exposed by this court in our two
earliest cases, Brookshire and Duriso, in which we found merchants to be
state actors, “was that the police, pursuant to a ‘preconceived plan,’ would
arrest any person merely because he was designated for arrest by the store
[employee].” Hernandez, 673 F.2d at 772 (citations omitted). See also
Bartholomew, 889 F.2d at 63 (explaining that the “crucial” focus of the inquiry
is whether an officer “acted according to a preconceived plan and on the
say-so of the private actor, not on the basis of [the officer’s] own
investigation”).
Morris, 277 F.3d at 749. An officer’s partial reliance on a report of suspicion made by a
merchant employee is insufficient to create state action where the officer also conducts an
independent investigation of the alleged crime. See id. The Fifth Circuit held “that
interviewing the employee to obtain an eyewitness account can constitute sufficient
independent investigation where the officer was not an eyewitness to any conduct
constituting an alleged crime.” Id. Courts within the Fifth Circuit are not to “subject a
merchant to § 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.” Id. at 749-750.
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 Section 1983 on the basis of joint
Page 10 of 24
action with state officials, Pikaluk “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 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.
The Court must first identify the specific conduct of which Pikaluk complains. See
Cornish, 402 F.3d at 550. Here, Pikaluk’s Second Amended Complaint and his opposition
indicate that such conduct was his arrest. This was an action by the Bossier City Police
Department, not the Horseshoe Defendants. If the Court were to assume that the conduct
was the initial decision by the Horseshoe Defendants to request assistance from the
Bossier City Police Department, then the critical issue is whether such request coupled with
the subsequent decision by the officers to arrest Pikaluk was part of a preconceived plan,
a joint action, and/or a conspiracy.
In Latham v. City of Bossier City, No. 11-0597, 2012 WL 4325821 (W.D. La. Sept.
19, 2012), Defendants Boomtown Casino and two of its employees filed a motion for
summary judgment seeking dismissal of Plaintiff’s Section 1983 claims. The district court
applied the nexus or state action test, granted Boomtown Casino’s summary judgment, and
dismissed Plaintiff’s Section 1983 claims against Boomtown Casino and its two employees.
Page 11 of 24
Plaintiff had argued “that Boomtown [Casino] and the Bossier City Police Department have
a practice or policy of working together to remove ‘nuisance patrons’ from the casino, which
frequently leads to an arrest.” Latham, 2012 WL 4325821, *4. Plaintiff claimed there was
a pre-existing plan between Boomtown Casino and the Bossier City Police Department to
arrest nuisance or disorderly patrons simply because the casino said to do so. See id. The
district court held that Boomtown Casino’s official policy was to only call for police
assistance and that the summary judgment evidence demonstrated that the Bossier City
Police Department’s procedures and response as to Boomtown Casino were “the same as
any other [casino] establishment.” Id. There was also competent summary judgment
evidence to demonstrate an independent investigation by the officers. See id.
In Cook
v. City of Shreveport, No. 10-0809, 2011 WL 3665000 (Aug. 19, 2011), this Court analyzed
Plaintiff’s Section 1983 claims against Sam’s Town Casino using the nexus/state action test
and the joint action test. This Court granted summary judgment and dismissed the Section
1983 claims against Sam’s Town Casino, finding:
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.
Id. at *5. This Court further noted that there was no competent summary judgment
evidence demonstrating that Sam’s Town Casino employees and the officers had a
Page 12 of 24
meeting of the minds to violate Cook’s constitutional rights. See id.
Here, Pikaluk focuses on the alleged lack of independent investigation by the police
officers and his contention that there was a preexisting, customary plan, understanding,
practice, and arrangement between the Bossier City Police Department and Bossier City
casinos for arresting persons designated as trespassers. Pikaluk also maintains that video
and audio evidence, to include stray comments by Sergeant Thomerson, indicate there was
a conspiracy between the Horseshoe Defendants and the Bossier City Police Department
Officers. See Record Documents 63-3 (Notice of Manual Attachments for Pikaluk Exhibits
35-41).
The Court first discounts Pikaluk’s contention that the Horseshoe Defendants
knowingly provided the Bossier City Police Department Officers with false information, that
is, that Pikaluk had received notice of the companywide ban entered on WinNet and knew
he was banned from Caesars affiliated properties. As stated by this Court in Cook, 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 Cook, 2011 WL 3665000, *5. Pikaluk’s argument as to the lack
of an independent investigation likewise fails. Sergeant Thomerson testified that he made
the decision to arrest, that is, he made his own determination concerning arrest and
probable cause after arriving on scene. The Court acknowledges that Sergeant Thomerson
did minimal investigating once he arrived on the scene; yet, there is competent summary
judgment evidence that he interviewed Steven Jones, saw Pikaluk on the casino premises,
and wrote his own report. See Morris, 277 F.3d at 749 (“interviewing the employee to
obtain an eyewitness account can constitute sufficient independent investigation where
Page 13 of 24
officer was not an eyewitness to any conduct constituting an alleged crime”). Despite
Pikaluk’s contentions to the contrary, these facts are enough to establish an independent
investigation and there is no genuine dispute of material fact on this issue.
Next, Pikaluk argues that the Horseshoe Defendants are state actors because there
was a preexisting, customary plan, understanding, practice, and arrangement between the
Bossier City Police Department and Bossier City casinos for arresting persons designated
as trespassers. This Court believes competent summary judgment evidence to establish
an independent investigation negates Section 1983 liability in this case, as the Morris court
held in the context of the nexus or state actor test:
We have refined application of the doctrine since [Smith v. Brookshire
Brothers, Inc., 519 F.2d 93 (1975)] in three subsequent decisions, White,
Hernandez, and Bartholomew, in which we established that a merchant is not
a state actor unless the conduct on the part of a guard or officer giving rise
to the claimed deprivation occurred based solely on designation of suspicion
by the merchant and was not accompanied by any independent
investigation by the officer.
Morris, 277 F.3d at 749 (emphasis added). Here, the Horseshoe Defendants sought the
assistance of the Bossier City Police Department for a trespasser. Yet, as previously
stated, there was also an independent police investigation, thereby preventing this Court
from holding that the Horseshoe Defendants are state actors.
Notwithstanding, Steven Jones testified in his deposition that “it is up to” the police
department as to whether an arrest is made after Horseshoe makes a call for assistance
in relation to a trespasser. See Record Document 54-9 (Steven Jones Deposition) at 6.
In his deposition, Sergeant Thomerson explained that he made the decision to arrest on
the ramp – “it happened there all at once.” Record Document 54-6 at 31. He further
testified that he did not think it was a fair assessment to say that he had the arrest prePage 14 of 24
planned or pre-decided. See id. Pikaluk seems to focus on Officer Johnson’s deposition
testimony that the Bossier City Police Department’s response to a request for assistance
with a trespasser to any Bossier City casino was consistent – the police would respond, the
casino personnel would tell the officer(s) that a person had been banned, that the person
knew, and then the person would be arrested. See Record Document 54-7 at 7-9. Without
more, Officer Johnson’s deposition is insufficient summary judgment evidence to establish
a conspiracy or some sort of preexisting, customary plan, understanding, practice, and
arrangement between the Bossier City Police Department and Bossier City casinos for
arresting persons designated as trespassers. The video evidence – showing at most stray
comments – is also insufficient to establish a “conspiratorial arrangement,” as alleged by
Pikaluk. Record Document 63 at 30; see also Hanna v. Home Ins. Co., 281 F.2d 298, 303304 (5th Cir. 1960) (“Merely characterizing (defendants’) conduct as conspiratorial or
unlawful does not set out allegations upon which relief can be granted”.). Therefore, the
Horseshoe Defendants can not be considered state actors for purposes of Section 1983
liability and the Horseshoe Defendants’ summary judgment motion is granted as to
Pikaluk’s Section 1983 claims.5
III.
State Law Claims.
Negligence/Gross Negligence
Pikaluk asserts a state law claim for negligence/gross negligence, arguing the
5
Pikaluk has also made a Section 1983 conspiracy claim. This claim fails because
a conspiracy claim is not actionable without an actual violation of Section 1983. See
Hanna, 281 F.2d at 303 (“Section 1983 does not provide a cause of action for a conspiracy
to deny due process; there must be an actual denial of due process before a cause of
action arises.”).
Page 15 of 24
Horseshoe Defendants negligently caused his arrest in failing to follow Horseshoe’s own
security procedures and policies in requesting assistance from the Bossier City Police
Department. 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)
Was the conduct of which the plaintiff complains a cause-in-fact of the
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?6
(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, the Horseshoe Defendants are not liable because Pikaluk
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
6
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 16 of 24
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
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 Pikaluk’s Section 1983 claims that there was
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an independent police investigation. Thus, the Horseshoe Defendants were not the legal
cause of Pikaluk’s alleged injuries caused by his arrest. Summary judgment in favor of the
Horseshoe Defendants is, therefore, granted and Pikaluk’s state law negligence/gross
negligence claims are dismissed.
Malicious Prosecution
Under Louisiana law, a claim for malicious prosecution requires the following
elements: (1) the commencement or continuance of an original criminal proceeding; (2)
its legal causation by the present defendant against plaintiff who was defendant in the
original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the
absence of probable cause for such proceeding; (5) the presence of malice therein; (6)
damage conforming to legal standards resulting to plaintiff. See Miller v. E. Baton Rouge
Par. Sheriff’s Dep’t, 511 So. 2d 446, 452 (La. 1987). Again, this Court has held there was
an independent investigation by the Bossier City Police Department in this matter. Thus,
the independent actions and investigation by those officers broke the chain of causation
between the Horseshoe Defendants’ initial complaint and Pikaluk’s arrest. See Adams, 948
So.2d at 320. Thus, summary judgment is granted in favor of the Horseshoe Defendants
and Pikaluk’s malicious prosecution claim is dismissed.
Wrongful Arrest and False Imprisonment
“Wrongful arrest, or the tort of false imprisonment, occurs when one arrests and
restrains another against his will and without statutory authority.” Kennedy, 935 So.2d at
690. “The tort of false imprisonment consists of the following two essential elements: (1)
detention of the person; and (2) the unlawfulness of the detention.” See id.
Pikaluk argues that the Horseshoe Defendants are liable for falsely arresting and
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imprisoning him even though the actual arrest was done by the Bossier City Police
Department since the arrest was procured solely through false information provided to the
police. See Record Document 63 at 21. Moreover, he alleges that the Horseshoe
Defendants arrested and falsely imprisoned him when they confined him at the cashier’s
cage for more than 10 minutes under the pretext of attempting to cash his chips so that the
police could arrive and arrest him. See id. at 21-22. He asserts that he was not free to
leave because the Horseshoe Defendants were holding his chips and his passport. See
id. at 22.
Pikaluk’s false arrest/false imprisonment tort claim relating to his actual arrest fails.
The Horseshoe Defendants were not acting under the color of law when they escorted
Pikaluk to the ramp area of the casino. All of the actions associated with the actual arrest
of Pikaluk were committed by the police officers who arrived on the scene, not the
Horseshoe Defendants. See Latham, 2012 WL 4325821, *4.
Pikaluk further asserted a false arrest/false imprisonment tort claim based on his
alleged detention at the cashier’s cage. He cited the Restatement (Second) Torts and a
Kentucky state court case to support his claim. See Record Document 63 at 22, n. 61 &
62. Yet, under Louisiana law, “false imprisonment is the unlawful and total restraint of the
liberty of the person.” Kelly v. W. Cash & Carry Bldg. Materials Store, 99-0102 (La. App.
4 Cir. 10/20/99), 745 So. 2d 743, 750 (emphasis in original). The Kelly court went on to
state that “false imprisonment may not be predicated on a person’s unfounded belief that
he was restrained” and that “bare words are insufficient to effect an imprisonment if the
person to whom they are spoken is not deprived of freedom of action.” Id. Here, Pikaluk
has not presented competent summary judgment evidence that he was totally restrained.
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There is no dispute that he waited for over 10 minutes; yet, he has not alleged that he
requested the return of his passport and such request was denied. He never alleged that
he tried to leave and was restrained in any manner from doing so. Summary judgment in
favor of the Horseshoe Defendants is, therefore, granted and Pikaluk’s state law false
arrest/false imprisonment claims are dismissed.
Battery
Under Louisiana law, “the intentional tort of battery is a harmful or offensive contact
with a person, resulting from an act intended to cause the plaintiff to suffer such a contact.”
Griffith v. Young, 46,184 (La. App. 2 Cir. 4/13/11), 62 So. 3d 856, 859. Here, it is
undisputed that no Horseshoe employee physically laid hands on Pikaluk. See Record
Document 54-5 at 120. Thus, summary judgment is granted in favor of the Horseshoe
Defendants and Pikaluk’s battery claim is dismissed.
State Law Conspiracy
Pikaluk included a conspiracy claim with his state law claims of malicious
prosecution, false arrest, false imprisonment, and battery. “An independent cause of action
for civil conspiracy does not exist in Louisiana; rather the actionable element of [A]rticle
2324 is the intentional tort that the conspirators agreed to commit and committed, in whole
or in part, causing plaintiff’s injury.” Hardy v. Easterling, 47,950 (La. App. 2 Cir. 4/10/13),
113 So. 3d 1178, 1184. Article 2324(a) provides, “He who conspires with another person
to commit an intentional or willful act is answerable, in solido, with that person, for the
damage caused by such act.” Thus, the “conspiracy claim” actually arises from “the tort
which the conspirators agreed to perpetrate and which they actually commit in whole or in
part.” Owens v. Byerly, 2009-262 (La. App. 3 Cir. 10/7/09), 23 So. 3d 393, 398, writ
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denied, 2010-0117 (La. 4/16/10), 31 So. 3d 1063. Simply put, Pikaluk must show an
agreement existed among the Horseshoe Defendants and the Bossier City Police
Department Officers to commit malicious prosecution, false arrest, false imprisonment,
and/or battery. See Thames v. Thames, 50,639 (La.App. 2 Cir. 5/18/16), 196 So.3d 653,
655-656. He must also show there was an agreement as to the intended outcome or
result. See id.
As discussed previously in the context of Pikaluk’s Section 1983 claims, Pikaluk
cannot meet this burden. He lacks competent summary judgment evidence to show that
the Horseshoe Defendants and the Bossier City Police Department Officers had an
agreement to commit tortious acts and/or that they likewise agreed as to the intended
outcome or result. Summary judgment in favor of the Horseshoe Defendants is, therefore,
granted and Pikaluk’s state law conspiracy claims are dismissed.
LUPTA
Under Louisiana law, “unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce are hereby declared unlawful.” La. R.S.
51:1405. To recover under LUPTA, a plaintiff must establish some element of fraud,
misrepresentation, deception or other unethical conduct. See IberiaBank v. Broussard, 907
F.3d 826, 839 (5th Cir. 2018). “What constitutes an unfair trade practice is determined by
the courts on a case-by-case basis.” Id. However, courts “should find a practice unfair
under the statute only when the practice offends established public policy and is immoral,
unethical, oppressive or unscrupulous.” Id. The range of acts prohibited under LUPTA is
extremely narrow. See id. “The defendant’s motivation is a critical factor—his actions must
have been taken with the specific purpose of harming the competition.” Id. at 839-840.
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Here, Pikaluk argues that the Horseshoe Defendant’s refusal and failure to
redeem and cash his casino chips is an unfair and deceptive trade practice under LUPTA.
He contends that such refusal is an unethical, immoral, oppressive, deceptive, unfair,
substantially injurious, and unscrupulous act and is a misrepresentation or fraud by the
Horseshoe Defendants. Yet, this Court cannot find that the refusal/failure to redeem
Pikaluk’s chips fails within the narrowly defined prohibited practices envisioned by LUPTA.
Pikaluk has pointed this Court to no case law applying LUPTA in this context. Moreover,
the Horseshoe Defendants have at a minimum “a decent argument” for refusing to cash
Pikaluk’s chips, that is, he was on the premises and gambling despite a companywide ban.
See Hadassa Inv. Sec. Nigeria, Ltd. v. Swiftships Shipbuilders, LLC, No. 13-2795, 2016 WL
156264, at *4 (W.D. La. Jan. 12, 2016) (“Swiftships had absolutely no legal right, or even
a decent argument, for the retention of those funds.”). Thus, based on the showing made
by Pikaluk, summary judgment in favor of the Horseshoe Defendants is granted and
Pikaluk’s state law LUPTA claim, included the request for treble damages, is dismissed.
Conversion
The final remaining state law claim is conversion.7 Pikaluk contends that the
Horseshoe Defendants converted his property by refusing to redeem and cash his casino
chips. Conversion is “an act in derogation of the plaintiff’s possessory rights, and any
wrongful exercise or assumption of authority over another’s goods, depriving him of the
possession, permanently or for an indefinite time.” An Erny Girl, L.L.C. v. BCNO 4 L.L.C.,
7
The Horseshoe Defendants did not specifically address conversion, but sough
dismissal of all state law claims. See Record Document 54 at ¶ 5. Moreover, the
Horseshoe Defendants seek dismissal of any remaining claims pursuant to La. R.S.
27:27.4.
Page 22 of 24
2018-0360 (La. App. 4 Cir. 9/26/18), 257 So.3d 212, 222. Conversion is committed when
any of the following occurs: “1) possession is acquired in an unauthorized manner; 2) the
chattel is removed from one place to another with the intent to exercise control over it; 3)
possession of the chattel is transferred without authority; 4) possession is withheld from the
owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly;
or 7) ownership is asserted over the chattel.” Id. Pikaluk has again pointed this Court to
no case law analyzing a conversion claim in this context.
Conversely, the Horseshoe Defendants have sought dismissal of any remaining
claims – to include the conversion claim – pursuant to La. R.S. 27.27.4, which provides:
A.
Any licensee, permittee, or the casino gaming operator may exclude
or eject any person if such person engages in unlawful or disruptive
conduct. No licensee, permittee, or the casino gaming operator may
exclude or eject any person from a gaming establishment based upon
race, color, creed, national origin, sex, or disability as defined in R.S.
51:2232.
B.
Any licensee or casino gaming operator licensed pursuant to the
provisions of this Title, and any employee of a licensee or casino
gaming operator shall not be liable for any monetary damages or
any other remedy in any judicial proceeding as a result of the
exclusion or removal of any person for any reason, except race,
color, creed, national origin, sex, or disability as defined in R.S.
51:2232.
La. R.S. 27:27.4 (emphasis added). Pikaluk argues this statute is inapplicable because he
has not asserted any claims based on his exclusion from Horseshoe. The Court is
unconvinced as his case turns on his removal from Horseshoe due to the companywide
ban. In his Second Amended Complaint, he even references a “perp walk.” Record
Document 54-4 at ¶ 34.
Pikaluk also contends that the Horseshoe Defendants have
waived any defense relating to this statute because the statute was not asserted as an
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affirmative defense in the answer. Yet, the Fifth Circuit has “repeatedly rejected waiver
arguments when a defendant raised an affirmative defense for the first time at summary
judgment—or even later.” Motion Med. Techs., L.L.C. v. Thermotek, Inc., 875 F.3d 765,
772 (5th Cir. 2017). Therefore, based on the showing made by Pikaluk, summary judgment
in favor of the Horseshoe Defendants is granted and Pikaluk’s state law conversion claim
is dismissed pursuant to Section 27.4(B).
CONCLUSION
Based on the foregoing analysis, the Motion for Summary Judgment (Record
Document 54) filed by the Horseshoe Defendants is GRANTED. The Court finds that the
Horseshoe Defendants are not private actors whose conduct can be fairly attributable to
the Bossier City Police Department, i.e., the State, for purposes of Section 1983 liability.
The Court further finds that Pikaluk’s state law claims fail. Accordingly, all of Pikaluk’s
claims against the Horseshoe Defendants are DISMISSED.
A judgment consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 13th day of May, 2019.
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