Lopez v. Billiot

Filing 23

REPORT AND RECOMMENDATIONS re 17 MOTION to Strike filed by Ernest Billiot, 7 MOTION to Strike Penalty, Punitive or Exemplary Damages filed by Town of Delcambre, James Broussard, Carol Broussard. It is recommended that the Motion to Strike filed by the Town, Mayor Broussard and the Chief Broussard [rec. doc. 7] be GRANTED in part and DENIED in part, and that the Motion to Strike filed by Officer Billiot [rec. doc. 17] be GRANTED, and accordingly, plaintiffs claims for punitive damages against the Town, and Mayor Broussard, Chief Broussard and Officer Billiot, in their official capacities, should be Stricken, and plaintiffs claims for punitive damages against Chief Broussard, Mayor Broussard and Officer Billiot, in their individual capacities, should remain pending. Objections to R&R due by 6/1/2009. Signed by Magistrate Judge C Michael Hill on 5/12/09. (crt,Roaix, G)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E -O P E L O U S A S DIVISION S U S A N DUPLANTIS LOPEZ V S. ERNEST BILLIOT, ET AL. * C I V I L ACTION NO. 09-0250 * J U D G E DOHERTY * M A G I S T R A T E JUDGE HILL

R E P O R T AND RECOMMENDATION P en d in g before the court are the Motions to Strike Penalty, Punitive or Exemplary D a m a g e s [rec. docs. 7 and 17] filed by The Town of Delcambre, and Mayor Carol B ro u s s a rd and Chief James Broussard, in their individual and official capacities, and O f f ic e r Ernest Billiot ("Billiot"), in his official capacity.1 By these Motions, these d e f en d a n ts seek to strike plaintiff's claims for punitive damages. Plaintiff, Susan D u p la n tis Lopez, ("Lopez"), has filed Opposition. The Motions have been referred to the u n d e rs ig n e d for report and recommendation. [rec. docs. 13 and 19]. For the following reasons, it is recommended that the Motion to Strike filed by the T o w n , Mayor Broussard and the Chief Broussard [rec. doc. 7] be GRANTED in part a n d DENIED in part, and that the Motion to Strike filed by Officer Billiot [rec. doc. 17] b e GRANTED, and accordingly, plaintiff's claims for punitive damages against the T o w n , and Mayor Broussard, Chief Broussard and Officer Billiot, in their official

Officer Billiot does not move to strike the claim for punitive damages against him in his individual capacity. However, that claim is nevertheless discussed below.
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c a p ac itie s, should be Stricken, and plaintiff's claims for punitive damages against Chief B ro u ss a rd , Mayor Broussard and Officer Billiot, in their individual capacities, should re m a in pending. S T A T E M E N T OF CLAIM B e f o re the court is a civil rights action filed by plaintiff, Susan Duplantis Lopez. In her Complaint, plaintiff names Officer Ernest Billiot (individually and in his official c a p ac ity), Mayor Carol Broussard (individually and in her official capacity), Chief of P o lic e James Broussard (individually and in his official capacity) and the Town of D e lc a m b r e . Plaintiff alleges that she was unlawfully searched and sexually battered by O f f ice r Billiot in the restroom of the Delcambre Police Department following a traffic s to p . Plaintiff asserts claims pursuant to 42 U.S.C. § § 1983, 1985, and 1986 and claims u n d e r the Louisiana state law. Plaintiff does not specify the damages she seeks against e a ch named defendant, but rather prays generally for an award including an award for p u n itive damages. [Prayer for Relief, ¶ m and III]. W ith respect to Chief Broussard, plaintiff alleges that following the incident, she m a d e a 911 call to the Chief informing him of the alleged illegal sexual search and m is c o n d u c t by Officer Billiot, but that Billiot was neither released from his position nor re p rim a n d e d until after the Louisiana State Police conducted an investigation resulting in th e criminal indictment of Billiot. [¶ 18, 19, 43]. She further alleges that Chief B ro u s s a rd failed to properly train Billiot and that there existed a widespread practice of

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c u sto m by the Chief, by which he condoned and permitted, which allowed Billiot to v io la te plaintiff's constitutional rights, and further that Chief Broussard had actual and/or c o n stru c tiv e knowledge of the custom such that it could be attributable to the Town. [¶ 4 0 , 41]. Moreover, she asserts that Chief Broussard knew or reasonably should have k n o w n , prior to the sexual battery committed on plaintiff that such activity "regularly took p la c e at the hands of . . . Billiot." [¶ 43]. The sole allegation against Mayor Broussard is that she and the Town are vested " w ith the responsibility and authority to hire, train, supervise, set policies and procedures . . . to provide protection to the citizens of Delcambre, Louisiana, including [plaintiff] . . . w h ile traveling through its city limits." [¶ 23]. LAW AND ANALYSIS F e d e ra l Rules of Civil Procedure Rule 12(f) allows the court to strike "from any p le a d in g any insufficient defense or any redundant, immaterial, impertinent, or s c a n d alo u s matter." Cambridge Toxicology Group, Inc. v. Exnicios, 495 F.3d 169, 178 (5 th Cir. 2007). "Partly because of the practical difficulty of deciding cases without a f a ctu a l record it is well established that the action of striking a pleading should be s p a rin g ly used by the courts . . . It is a drastic remedy to be resorted to only when required f o r the purposes of justice." Augustus v. Board of Public Instruction of Escambia County, F lo r id a , 306 F.2d 862, 868 (5th Cir.1962).

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" A disputed question of fact cannot be decided on motion to strike." Id. Moreover, "when there is no showing of prejudicial harm to the moving party, the courts g e n e ra lly are not willing to determine disputed and substantial questions of law upon a m o tio n to strike." Id. Under such circumstances, it is proper for courts to leave the s u f f ic ie n c y of the allegations for determination on the merits. Id. A ll of the defendants contend that plaintiff's demand for punitive damages against th e m in their official capacities should be stricken from the pleadings because punitive d a m a g e s are not recoverable against a municipality nor its officers in Section 1983 a c tio n s . The Mayor and Chief also assert that because plaintiff does not allege they had p e rso n a l involvement in the alleged constitutional deprivation, and were merely acting in th e discharge of their official duties for the Delcambre Police Department, allowing p u n itiv e damages against them would be tantamount to allowing punitive damages a g a in s t the Town of Delcambre. P lain tiff responds that in her Complaint, she alleges that she reported Billiot's a c tio n s to the Town of Delcabre "public officers or officials" yet received no response u n til after Louisiana State officials launched an investigation. Thus, she asserts that w h ethe r the Mayor or the Chief acted personally or individually is a question for the court o r jury to decide. The Supreme Court has held unequivocally that "[a] municipality is immune from lia b ility for punitive damages in a § 1983 action." City of Newport v. Fact Concerts, Inc., 4

4 5 3 U.S. 247, 270-71 (1981). Thus, any allegations seeking recovery of punitive damages a g a in s t the Town of Delcambre should be stricken from the pleadings as a matter of law. T h e Supreme Court has also held that "an official-capacity suit is, in all respects o th e r than name, to be treated as a suit against the entity. It is not a suit against the official p e rs o n a lly, for the real party in interest is the entity." Kentucky v. Graham, 473 U.S. 159, 1 6 1 (1985). Plaintiff is barred from recovering punitive damages against an official acting in his official capacity. Accordingly, plaintiff cannot recover such punitive damages a g a i n s t Chief Broussard, Officer Billiot or Mayor Broussard in their official capacities, a n d the defendants' motion should be granted in that respect. The Supreme Court has recognized, however, that punitive damages are re c o v e ra b le against municipal employees when sued in their individual capacities. See S m ith v. Wade, 461 U.S. 30, 35 (1983). Plaintiff's Complaint alleges that Officer Billiot a c ted personally to violate the civil rights of plaintiff when he allegedly unlawfully s e a rc h e d and sexually battered her. Read liberally, plaintiff's Complaint also alleges p e rs o n a l involvement by Chief Broussard in the alleged constitutional violation or by way o f his participation in an alleged conspiracy to violate plaintiff's constitutional rights, by c o n c e a lin g and failing to act on the allegations lodged by plaintiff against Billiot, despite h a v in g personal knowledge of the incident via plaintiff's 911 call received by him. While th e se allegations may not survive an appropriate dispositive Motion, given that the action o f striking a pleading is a drastic remedy which should be sparingly used by the courts 5

a n d resorted to only when required for the purposes of justice, the defendants' Motion to S trik e should be denied as to plaintiff's claims for punitive damages against both Officer B illio t and Chief Broussard, in their individual capacities. It also appears that there are insufficient allegations against Mayor Broussard to s u p p o rt a finding of personal or individual involvement necessary to support a claim for p u n itiv e damages against her. It is not alleged that the Mayor had any personal k n o w led g e of the incident, or that she acted in any way outside her duties as Mayor in c o n n e ctio n with the incident sued upon herein. To the contrary, the sole allegation a g a in st the Mayor relates to her general mayoral responsibilities, namely to hire, train s u p e rv is e and adopt and implement policies and procedures to protect citizens. As such, u n d e r the allegations presently before this court, it appears that to allow an award of p u n itive damages against the Mayor would be tantamount to allowing such an award a g a in s t the Town of Delcambre, contrary to the Supreme Court's reasoning in Newport a n d Graham. Nevertheless, the defendants have not filed a Motion challenging the sufficiency of th e plaintiff's allegation. Instead they ask this court to make a factual and substantial le g a l determination as to plaintiff's right to recovery on a Motion to Strike. Under the a p p ro p ria te standard, such determinations are not properly made in deciding a motion to s trik e . As such, the defendants' Motion should be denied as to plaintiff's claim for

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p u n itiv e damages against Mayor Broussard, in her individual capacity, leaving the s u f f ic ie n c y of plaintiff's allegations for determination on the merits. To the extent that plaintiff seeks an award of punitive damages on her claims asse rted under Louisiana state law, the defendants' Motion to Strike should be granted. It is well settled Louisiana law that punitive damages are not allowed in civil cases unless s p e c if ic a lly provided for by statute. In the absence of such a specific statutory provision, o n ly compensatory damages may be recovered. See International Harvester Credit Corp. v . Seale, 518 So.2d 1039, 1041 (La.1988). Nowhere in the pleadings does plaintiff id e n tif y a statutory provision which allows recovery of punitive damages for the state law c la im s that plaintiff asserts against any of the defendants. The court is unaware of any s u c h Louisiana state law. Accordingly, the Court should strike plaintiff's claims for p u n i tiv e damages under her state law claims. F a ilu r e to file written objections to the proposed factual findings and/or the p r o p o s e d legal conclusions reflected in this Report and Recommendation within ten (1 0 ) days following the date of its service, or within the time frame authorized by F e d .R .C iv .P . 6(b), shall bar an aggrieved party from attacking either the factual fin d in g s or the legal conclusions accepted by the District Court, except upon g r o u n d s of plain error. See Douglass v. United Services Automobile Association, 79 F .3 d 1415 (5th Cir. 1996).

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T H U S DONE AND SIGNED in chambers at Lafayette, Louisiana, this 12 th day of M a y, 2009.

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