Simmons v. City of Mamou et al
Filing
71
MEMORANDUM RULING granting in part and denying in part 37 MOTION for Summary Judgment Pursuant to FRCP 56 filed by Greg Dupuis, Town of Mamou, Lucas Lavergne, David Charlie, Albert Moore, Todd Ortis, 55 MOTION for Reconsideration re 45 Order on Motion for Summary Judgment filed by Greg Dupuis, Town of Mamou, Lucas Lavergne, David Charlie, Albert Moore, Todd Ortis. Signed by Judge Elizabeth E Foote on 3/15/12. (crt,McDonnell, D)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
BOBBY FELIX SIMMONS
CIVIL ACTION NO. 09-663
VERSUS
JUDGE ELIZABETH ERNY FOOTE
CITY OF MAMOU, ET AL
MAGISTRATE JUDGE PATRICK J. HANNA
MEMORANDUM RULING
Before this Court is a Motion for Summary Judgment filed on behalf of the
Defendants, the Town of Mamou; Chief Greg Dupuis, individually and in his official capacity
as Chief of Police of the Town of Mamou; Officer Todd Ortis, individually and in his official
capacity as a police officer for the Town of Mamou; Officer Albert Moore, individually and
in his official capacity as a police officer for the Town of Mamou;1 Officer David Charlie,
individually and in his official capacity as a police officer for the Town of Mamou; and
Officer Lucas Lavergne, individually and in his official capacity as a police officer for the
Town of Mamou (collectively “Defendants”). [Record Documents 37, 55]. Defendants
contend summary judgment should be entered in their favor and that Plaintiff’s claims of
false arrest, interference with the exercise of free speech, failure to release on bond and
failure to provide adequate medical care in violation of the First, Fourth, Fifth and
Fourteenth Amendments should be dismissed in their entirety. See id. Plaintiff opposes
1
Plaintiff has represented to the Defendants and to the Court that he does not
intend to pursue any claims against Officer Albert Moore nor does he intend to pursue
any claims for an alleged violation of his Fifth Amendment rights. See Record
Documents 46, 57. Because Plaintiff consents to the dismissal of these claims, the
Court’s ruling will not address the merits of these claims.
this motion. See Record Documents 41, 57. For the reasons stated herein, Defendants’
motion for summary judgment is GRANTED IN PART and DENIED IN PART.
FACTUAL BACKGROUND
On May 19, 2008, Plaintiff, Bobby Simmons, a former police officer, contacted the
Ville Platte Gazette (“the Gazette”) via email inquiring as to why the Gazette had not run
a story regarding the alleged arrest of Greg Dupuis, Chief of Police of the Town of Mamou
(“Dupuis”), and Dupuis’ alleged interference with the Louisiana State Police, who were
subjecting one of Dupuis’ female officers to DUI testing.2 See Record Document 62-1, p.
25. The Gazette responded to Plaintiff stating that it had confirmed a female Mamou police
officer had been cited by State Police while off-duty; however, the newspaper had been
unable to verify the allegations regarding Dupuis. Id.
Plaintiff replied to the Gazette,
providing more details regarding the incidents alleged.3
2
Plaintiff’s email to the Gazette stated:
who was the mamou police officer (female) that was arrested
for DUI, what happened to the arrest of Greg Dupuis last night
or early morning by LSP. Why is there no story on Greg locing
the state police out of the room at Mamou PD because they
would not release his officer. [sic]
See Record Document 32-1, p. 25.
3
Plaintiff’s reply email to the Gazette stated:
It was a black female officer, the only one I know of is the
asst. chief. Greg locked the door to the DUI machine and
told the state police it was his f_cking office and get out.
The suyspect was taken to ville platte PD and ran on the
machine. Check the name of black female officers at
mamou pd including di[patchers and check the log on the
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Although the Gazette did not run a story on Dupuis’ alleged arrest or his interference
with the arrest of his officer, the newspaper’s inquiries, along with other rumors allegedly
circulating in the community, prompted Dupuis to act. When the Gazette refused to reveal
the source of its information, Dupuis and Officer Todd Ortis (“Ortis”) presented the Gazette
with a subpoena duces tecum issued by the District Attorney’s Office.
See Record
Document 60, Joint Exhibit 1. Upon obtaining the email exchange between Plaintiff and
the Gazette editor, Dupuis and Ortis submitted an affidavit executed by Ortis to Judge
Thomas Fuselier, District Court Judge for Evangeline Parish.
Based upon the representations made by Ortis in the affidavit, a warrant issued for
Plaintiff’s arrest on May 21, 2008. The warrant fixed bond at $1,000. Ortis and Dupuis
faxed the warrant to the Franklin Police Department, which executed the warrant, arrested
Plaintiff, and held him for approximately three hours until he was picked up by Mamou
Police Department Officer Albert Moore (“Moore”). See Record Document 37-1, Dupuis
Deposition, pp. 58-59. Although Moore was off-duty at the time of Plaintiff’s arrest, Moore
was called in to pick up Plaintiff in Franklin (St. Mary Parish) and transport him to Mamou
(Evangeline Parish) for booking. See id. Moore did so, and Plaintiff was held overnight at
the Mamou Police Department.
The next morning, Plaintiff was transported to the
Evangeline Parish jail in Ville Platte, Louisiana, where he bonded out.
machine at ville platte pd. [sic]
See Record Document 62-1, p. 25.
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In an article dated May 27, 2008, which announced Plaintiff’s arrest for emailing the
Gazette, Dupuis was quoted as stating:
I will be actively searching for the person or persons involved
in this defamatory campaign against me . . . and now it will
come to an end.
...
Anyone with information regarding these unfounded remarks
can freely contact me at my office at the Mamou Police
Department or come by my home. As stated previously, I am
offering ‘personally’ $500 for information leading to the people
responsible for these ridiculous rumors . . .
See Record Document 62-3, p. 71. Additionally, the Gazette reported that, according to
Ortis, the Mamou Police were actively investigating the matter to uncover additional
sources of the rumor and more arrests would be forthcoming. See id.
PROCEDURAL POSTURE
On April 22, 2009, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 (“§
1983") for alleged violations of his First, Fourth, and Fourteenth Amendment rights. First,
he alleges he was unlawfully arrested and detained for exercising his right to free speech.
He also claims that his family made repeated attempts to post his bond, which had been
set on the arrest warrant; however, the officers in Franklin and Mamou refused to accept
bond. Finally, Plaintiff, who suffers from a terminal breathing condition, contends that he
repeatedly requested, but was denied, adequate medical care, including prescribed
medication and treatment from a nebulizer and/or rescue inhaler, while in Defendants’
custody. See Record Documents 1, 46. Defendants now seek summary judgment in their
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favor and dismissal of Plaintiff’s claims in their entirety.4 See Record Documents 37, 55.
Defendants’ motion is based on their assertions that they are entitled to qualified immunity
for the claims against them in their individual capacities, and that under Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 690 at n.55, 98 S.Ct. 2018, 2036, 56 L.Ed.2d
611 (1978), there is no evidence to support the claims against the Town of Mamou or the
Defendants in their official capacities.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Rule 56(c)
4
The Court denied Defendants’ original summary judgment motion finding that
the motion could not be ruled on as filed, as Defendants failed “to satisfy their burden
of showing that they are entitled to the relief requested.” Record Document 44.
Thereafter, in accordance with the Court’s order, the parties filed a detailed outline of
the claims and defenses asserted in this matter. See Record Documents 46, 48.
Plaintiff’s outline identified the basis in law upon which each claim is founded, listed all
elements required to prove those claims, provided a brief recitation of the facts he
intends to use to support his claims, cited relevant jurisprudential authority, and
identified the specific remedies he seeks to recover if he is successful in proving the
merits of his claim. See Record Document 46. Defendants responded to Plaintiff’s
outline and specifically identified the facts and/or arguments they will use to rebut
Plaintiff’s claims, and stated each affirmative defense asserted in response to Plaintiff’s
claims. See Record Document 48. Defendants then filed a motion for reconsideration
of their motion for summary judgment, along with a memorandum clarifying the
defenses applicable for each defendant. See Record Document 51. Defendants’ motion
for reconsideration was granted, and the motion for summary judgment was placed
back on the docket for the Court’s consideration. See Record Document 56.
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“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.” Id., 477 U.S. at 322, 106 S. Ct. at 2552. If the party moving for
summary judgment fails to satisfy its initial burden of demonstrating the absence of a
genuine issue of material fact, the motion must be denied, regardless of the nonmovant's
response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the
motion is properly made, however, Rule 56(c) requires the nonmovant to go “beyond the
pleadings and designate specific facts in the record showing that there is a genuine issue
for trial.” Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citations
omitted). While the nonmovant’s burden may not be satisfied by conclusory allegations,
unsubstantiated assertions, metaphysical doubt as to the facts, or a scintilla of evidence,
Little, 37 F.3d at 1075, Wallace, 80 F.3d at 1047, all factual controversies must be
resolved in favor of the nonmovant. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446,
456 (5th Cir. 2005).
LAW AND ANALYSIS
I.
Qualified Immunity.
Section 1983 provides a federal cause of action for the “deprivation of any rights,
privileges or immunities secured by the Constitution and laws” against any person acting
under color of state law.5
Nonetheless, the doctrine of qualified immunity shields
5
Section 1983 does not itself create substantive rights; rather, it merely provides
remedies of rights guaranteed to citizens by the United States Constitution or other
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government officials from liability for claims against them in their individual capacity
“insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”6 Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Because qualified immunity is “an
immunity from suit rather than a mere defense to liability, . . . it is effectively lost if a case
is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct.
2806, 86 L.Ed.2d 411 (1985). Consequently, qualified immunity questions should be
resolved at the earliest possible stage in litigation. See Hunter v. Bryant, 502 U.S. 224,
227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).
In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the
Supreme Court held that a court ruling upon the issue of qualified immunity must apply a
two-step analysis. First, the Court must determine whether “the facts alleged show the
officer’s conduct violated a constitutional right.” Id. Second, if a violation has been
established, the Court must determine whether the officer’s actions were objectively
reasonable in light of clearly established law at the time of the conduct in question. See
federal laws. See Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1871, 104
L.Ed.2d 443 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct.
2427, 2432, 85 L.Ed.2d 791 (1985).
6
The doctrine of qualified immunity serves to shield government officials from
harassment, distraction, and liability when they perform their duties reasonably, and
applies regardless of whether the official’s error is “a mistake of law, a mistake of fact,
or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S.
223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Groh v. Ramirez, 540 U.S.
551, 567, 124 S.Ct. 1284, 157 L.Ed.2d. 1068 (2004) (Kennedy, J., dissenting)).
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id.; Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007).7 “The touchstone of this inquiry
is whether a reasonable person would have believed that his conduct conformed to the
constitutional standard in light of the information available to him and the clearly
established law.” Goodson v. Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). If officers
of reasonable competence could disagree as to whether the plaintiff’s rights were violated,
the officer’s qualified immunity remains intact. See Tarver v. City of Edna, 410 F.3d 745,
750 (5th Cir. 2005)(citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d
271 (1986)(holding the qualified immunity standard “gives ample room for mistaken
judgments” by protecting “all but the plainly incompetent or those who knowingly violate
the law.”)) The question of whether an official’s conduct was objectively reasonable is a
question of law to be decided by the Court. See Evett v. DETNTFF, 330 F.3d 681, 688 (5th
Cir. 2003)(citing Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994)).
A.
Fourth Amendment Unlawful Arrest.
Plaintiff alleges a Fourth Amendment violation against Dupuis and Ortis. Citing
Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689 (1979), Dupuis and Ortis seek dismissal of
7
In Pearson, the Supreme Court held that while the sequence set forth in Saucier
is often appropriate, it is no longer mandatory. Instead, lower courts “should be
permitted to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Id. In this matter, the Court finds it appropriate to follow
established sequence and determine whether the facts alleged show the officers’
conduct violated a constitutional right. Deciding this issue at the outset will assist the
Court in determining the specific constitutional standards applicable to the officers’
conduct and whether the officers’ actions were objectively reasonable in light of those
standards. See Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1697, 143 L.Ed.2d
818 (1999); Graham, 490 U.S. at 394, 109 S.Ct. 1865.
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the unlawful arrest claim based upon the existence of the facially-valid warrant. Dupuis
and Ortis claim qualified immunity from liability in their individual capacities. Plaintiff
contends that Dupuis and Ortis acted unreasonably in obtaining the warrant in the absence
of probable cause.
Furthermore, Plaintiff argues that the arrest warrant is willfully
misleading because it states the Plaintiff “intentionally” made false allegations; however,
there was no evidence that the allegations were false or that Plaintiff knew them to be
false. See Record Documents 46, 57. In order to determine whether Defendants Dupuis
and Ortis are immune from individual liability for the violations alleged against them, the
Court must consider whether Dupuis and Ortis acted reasonably in procuring the arrest
warrant given the constitutional rights of the Plaintiff, which must have been clearly
established at the time of the arrest.
By virtue of the Fourteenth Amendment, “the Fourth Amendment requires the States
to provide a fair and reliable determination of probable cause as a condition for any
significant pretrial restraint of liberty.” Baker, 443 U.S. 137, 142, 99 S.Ct. 2689, 2694
(1979); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). “Probable
cause” is defined as the existence of “facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or one of reasonable caution,
in believing, in the circumstances shown, that the suspect has committed, is committing,
or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627,
61 L.Ed.2d 343 (1979); Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).
Probable cause must be based on facts known to the officer at the time of the arrest; post-
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hoc justifications based on facts later learned cannot support an earlier arrest. Club Retro,
568 F.3d at 204; Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003).
It is axiomatic that when an arrest is effectuated pursuant to a valid warrant, the
existence of probable cause has been determined by a neutral and detached magistrate
and the requirements of the Fourth Amendment satisfied. See id. In such cases, a plaintiff
is precluded from asserting a Section 1983 claim for “false arrest” because no constitutional
violation has occurred. Baker, 443 U.S. at 142, 99 S.Ct. at 2694 (“The Constitution does
not guarantee that only the guilty would be arrested. If it did, Section 1983 would provide
a cause of action for every defendant acquitted–indeed, for every suspect released.”); see
also, Brown v. U.S. Postal Serv., 338 F.App’x. 438, 441 (5th Cir. 2009) (“Where based on
a valid warrant, ‘the arrest is simply not a false arrest’ and cannot form the basis of a
constitutional violation.”); Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982). As the
Fifth Circuit has recognized, “an arrest made under authority of a properly issued warrant
is simply not a ‘false’ arrest, it is a ‘true’ or valid one.” Rodriguez v. Ritchey, 556 F.2d
1185, 1193 (5th Cir. 1977). Moreover, if the facts supporting a warrant or indictment are
put before an intermediary such as a magistrate or grand jury, the intermediary’s
independent decision breaks the causal chain and insulates the initiating party. See Hand
v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988); Rodriguez, 556 F.2d at 1193. “The rationale
underpinning this rule is apparent, with the focus being upon the independent decision
making process of a court to impartially and objectively evaluate the underlying facts and
then to reach its own decision.” Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir. 1999).
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Of course, the foregoing principles presume the existence of a valid warrant issued
by a neutral magistrate who relies upon an officer’s sworn testimony. The Fifth Circuit has
cautioned that the chain of causation is broken only where all the facts known to the officer
at the time of the arrest are presented to the judicial intermediary; and the malicious
motive of the officer procuring the arrest warrant does not lead him to withhold any
relevant information. See Murray v. Earle, 405 F.3d 278, 292-93 (5th Cir. 2005); Morris,
181 F.3d at 673; Hand, 838 F.2d at 1427. Thus, to invoke the shield of the warrant, the
swearing officer must present all relevant facts known at the time.
The affidavit executed by Ortis in support of the warrant states, in pertinent part:
. . . on or about May 19, 2008 through May 20, 2008:
Count 1: Did willfully and unlawfully violate R.S. 14:47
DEFAMATION, in he did made expressions and publications
affecting the integrity of Greg Dupuis, Chief of Police of
Mamou, Louisiana, these unfounded allegations are a personal
attack on Chief Greg Dupuis due to the fact that the Mamou
Police Department was instrumental in the an undercover
operation resulting in the arrest of Bobby Felix Simmons. The
allegations made by Bobby Felix Simmons intentionally made
these allegations with the intent to deprive him of public
confidence or social intercourse. [sic]
See Record Document 37-1, Exhibit 3, p. 105.
As a preliminary observation, Louisiana Revised Statute 14:47 was, in large part,
declared unconstitutional by the United States Supreme Court in Garrison v. State of
Louisiana in 1964. Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d
125 (1964). In Garrison, the Court held that the Louisiana criminal defamation statute
unconstitutionally penalized two types of speech: (1) true statements made with actual
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malice and (2) false statements made with ill-will where a showing of the speaker’s
knowledge of their falsity or reckless disregard for their falsity was not required. See id.
at 78, 85 S.Ct. at 217.
The courts of Louisiana have since recognized the
unconstitutionality of the statute in certain circumstances. See State v. Defley, 395 So. 2d
759 (La. 1981); State v. Snyder, 277 So. 2d 660 (La. 1973). Thus, in order to comport
with Garrison, a defamatory statement must not only be false, it must also be made with
knowledge of its falsity or in reckless disregard of whether it is true or false. As officers
charged with enforcing Louisiana law, Defendants are presumed to know the law. See
Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987)(holding appropriate presumption that
officer-affiant had knowledge of state court decision which barred application of a state
criminal statute in certain situations).
The affidavit executed by Officer Ortis is troubling to the Court. First, Ortis and
Dupuis8 withheld from Judge Fuselier the substantive information regarding the nature of
the statements made by Plaintiff. The only evidence against Plaintiff was Plaintiff’s email
to a local journalist inquiring as to why a story had not been run.9 This fact was withheld.
Instead, Defendants made conclusory statements that Plaintiff violated a state statute
8
Dupuis testified that both he and Ortis took part in obtaining a subpoena duces
tecum and presenting the affidavit executed by Ortis to Judge Fuselier; however, none
of the remaining defendants have been implicated in this process. See Record
Document 37-1, Dupuis Deposition, pp. 42, 52].
9
Defendants concede that Plaintiff’s email to the Gazette editor formed the entire
basis of his arrest and that no investigation into Plaintiff’s conduct was done by
Defendants beyond procuring the emails, nor do the Defendants have any evidence that
Plaintiff communicated the statements to anyone other than the Gazette editor. See
Record Document 62-1, Ortis Deposition, pp.40-41.
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(which had been declared unconstitutional as applied in circumstances nearly identical to
the case at bar over forty years prior to Plaintiff’s arrest) when he made “unfounded”
allegations. Contrary to this sworn assertion, Dupuis and Ortis both knew at the time of
Plaintiff’s arrest that there was truth to the statement that a female officer had been cited
by state police. See Record Document 62-1, Dupuis Deposition, p. 64; see also Record
Document 62-1, Ortis Deposition, p. 46. However, they withheld the knowledge that there
was truth to some of the statements made by Plaintiff. Furthermore, evidence submitted
by Plaintiff shows that there may have been some truth to the statement that Dupuis
retaliated for the citation of one of his officers by removing the State Police intoxilyzer from
the Mamou Police Department facilities.10 While there is no evidence that Dupuis has ever
been stopped for suspicion of driving under the influence, there was likewise no evidence
that Plaintiff knew this to be false or had a reckless disregard for whether it was false.
While this “reckless disregard of truth” standard is not spelled out in the language
of the criminal defamation statute, the United States Supreme Court and the courts of
Louisiana have recognized the necessity of such a showing in order for the application of
the statute to comport with constitutional mandates. The Court finds this to be well-settled
law. Based upon a review of the summary judgment record, there was not a scintilla of
10
The log maintained by the Louisiana State Police of tests conducted on the
breathalyzer maintained at the Mamou Police Department indicate that a female Mamou
officer was the last person tested prior to the machine mysteriously being put out of
use until the State Police removed the machine some weeks later, per the request of
Chief Dupuis. See Dupuis Deposition, Record Document 62-3. Trooper Kerry Johnson
testified that when she arrived at the Mamou Police Department, the breathalyzer was
unhooked from use and placed in a closet. See Record Document 62-2, Johnson
Deposition, p. 40.
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evidence which suggested Plaintiff knew the remaining allegations to be false or made
them in reckless disregard of whether they were true or false.11 This, too, was withheld.
Instead, the grossly misleading characterization of the allegations as “unfounded” was
substituted.
Secondly, the only factually-specific information provided to Judge Fuselier was
speculation that Plaintiff’s motive for making the statements was retaliation for the Mamou
Police Department’s “instrumental” role in Plaintiff’s arrest. Ortis testified in his deposition
that he and Dupuis were present when a law enforcement officer from another jurisdiction
arrested Plaintiff on drug charges. Contrary to the assertion that the Mamou Police
Department was “instrumental” in the investigation, Ortis testified that neither he nor
Dupuis were involved in the investigation or Plaintiff’s arrest, but rather were simply
“there”. Record Document 62-1, Ortis Deposition, pp. 45-46.
The evidence before the Court does not support a qualified immunity defense or
summary judgment dismissal of Plaintiff’s claim of false arrest. To the contrary, the
affidavits and the deposition testimony of Dupuis and Ortis illustrate that these Defendants
first relied on an unconstitutional statute, withheld relevant facts and evidence from Judge
Fuselier, and misrepresented the nature of Plaintiff’s communication with the Gazette, the
statements contained therein, and possibly the nature of the Mamou Police Department’s
11
The Court notes Plaintiff’s correspondence with the newspaper was in the form
of an inquiry, and the record is void of any showing that Plaintiff published the
information to anyone in the community. To the contrary, Plaintiff’s email
correspondence evidences an intent to provide a journalist with information whereby
the journalist would be equipped to confirm whether certain rumors were true or not,
all prior to the publication of the allegations.
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role in the prior investigation of Plaintiff, all in order to obtain an arrest warrant. Thus, as
to Defendants Ortis and Dupuis, the warrant cannot and does not provide any shield from
liability for the arrest which followed. See Murray, Morris and Hand, supra; see also Rykers,
832 F.2d at 898 (holding that an officer who swears out an affidavit on which an arrest
warrant is based cannot appeal to the facial validity of the arrest warrant nor the insulation
given by the magistrate’s independent decision-making when relevant facts are withheld).
Finally, the Court notes that the Defendants’ apparent recognition of the need to mislead
the district judge in order to obtain the warrant may itself constitute evidence of the
unreasonableness of their actions in light of Plaintiff’s clearly established right to speak
freely without reprisal from law enforcement.
B.
First Amendment Freedom of Speech.
Plaintiff alleges Dupuis and Ortis violated his First Amendment rights by arresting
him in retaliation for exercising his right to free speech. Defendants contend that the
arrest was based upon a valid warrant, and, therefore, lawful. Defendants argue that a
lawful arrest cannot be the basis of a First Amendment violation, regardless of Plaintiff’s
ultimate guilt or innocence.
To prevail on a First Amendment retaliation claim, a plaintiff must prove that: (1)
he was engaged in constitutionally protected activity; (2) the defendants’ actions caused
him to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity; and (3) the defendants’ adverse actions were substantially
motivated against the plaintiff’s exercise of constitutionally protected conduct. See Izen
v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005); Keenan, 290 F.3d at 258. There can be no
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doubt that the freedom to criticize public officials, including police officers, is unequivocally
protected by our Constitution. It is likewise well-settled that the First Amendment prohibits
government officials from taking action against individuals in retaliation for exercising this
protected right. See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002); Colson v.
Grohman, 174 F.3d 498, 508 (5th Cir. 1999); see also, Crawford-El v. Britton, 523 U.S.
574, 588 n.10, 118 S.Ct. 1854, 1592, 140 L.Ed.2d 759 (1998) (“retaliation offends the
Constitution [because] it threatens to inhibit exercise of the protected right”); Perry v.
Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d (1972) (recognizing that
if government officials were permitted to impose penalties in retaliation for an individual’s
speech, the government would, in effect, be able to suppress or inhibit the individual’s
exercise of protected speech and produce indirectly a result which it could not command
directly). Criminal arrest and prosecutions in retaliation for the exercise of free speech
constitute “official action offending the Constitution,” and entitle those violated to recovery.
Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 1701, 164 L.Ed.2d 441 (2006).
The Court notes that not all instances of detention by police would chill a person of
ordinary firmness from continuing to engage in protected activity.
See Benson v.
McKinney, 2009 WL 1033172 (W.D.La. Apr. 16, 2009)(holding that where there was no
evidence presented of threats to plaintiff, a brief traffic stop resulting in a speeding ticket,
for which probable cause existed, would not deter a person of ordinary firmness, and in
fact did not deter plaintiff’s continued criticism of defendants). However, in the present
case, a citizen was handcuffed, arrested and held overnight for sending a private email
communication to a local newspaper which informed the paper of possible misconduct of
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a pubic official. There can be no doubt that such a communication constitutes protected
speech in this country. Plaintiff testified that at different points of his detention he was
chained to the wall, placed in leg irons, and isolated in the “coldest cell in the jail.” See
Record Document 37-1, Plaintiff’s Deposition. Therefore, the circumstances surrounding
Plaintiff’s arrest and detention are unlike those presented by a brief traffic stop, and could
certainly constitute retaliatory conduct that would chill a person of ordinary firmness.
The only issue remaining is whether the Defendants, when viewing the evidence in
a light most favorable to Plaintiff for purposes of summary judgment adjudication, were
substantially motivated by retaliation for Plaintiff’s speech. The Court finds the Gazette
article reporting Plaintiff’s arrest, as well as the deposition testimony of Dupuis and Ortis
regarding their pursuit of other citizens “caught” criticizing Dupuis, certainly raise genuine
issues of material fact regarding the motivation behind the officers’ actions in effecting the
arrest of Plaintiff. See Record Document 62-3, p. 70, “Mamou Police arrest one after
rumors suggest police chief’s activities are criminal.”
For the foregoing reasons, Defendants Dupuis and Ortis, in their individual
capacities, are not entitled to qualified immunity from Plaintiff’s claim of violation of his
First Amendment right to freedom of speech. The evidence does not support summary
judgment dismissal of this claim.
C.
Fourteenth Amendment Denial of Due Process.
1.
Failure to Release on Bond
Plaintiff alleges Defendants Dupuis, Charlie and Lavergne violated his Fourteenth
Amendment right to due process of law by refusing to allow him to post bond. See Record
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Document 62.
In order to determine whether these Defendants are immune from
individual liability for the violations alleged against them, the Court must consider whether
they acted reasonably in detaining Plaintiff overnight despite his bond having been set by
Judge Fuselier.
Plaintiff contends that his transfer to and detention in Mamou was unreasonable and
punitive given that his bond had been set. Plaintiff cites Augustus v. Roemer, 771 F.Supp.
1458, 1465 (E.D. La. 1991), for the proposition that “once (bail) determination is made and
bail has been set, the accused has a fundamental due process right not be deprived of the
opportunity to exercise the option to post bail and be released.” Defendants deny that
Plaintiff was ever prevented from posting bond. Relying on Louisiana Code of Criminal
Procedure Article 207, Defendants argue that Plaintiff was not released on bond in Franklin
(St. Mary Parish) because booking procedure required him to be transported to Mamou
(Evangeline Parish) for booking. Defendants contend that Plaintiff was held overnight until
another officer came on duty, then transported again to Ville Platte (Evangeline Parish) for
another booking because he was charged with a state offense. In Ville Platte, Plaintiff was
properly released when he made bail.
Louisiana Code of Criminal Procedure Article 207 provides:
When an arrest under a warrant occurs in a parish other than that in which
the alleged offense was committed, the person arrested shall be booked and
imprisoned in the parish where he was arrested until he gives bail or is
transferred to the parish where the offense is alleged to have been
committed. A person awaiting transfer shall not be detained in custody in
the parish of his arrest for a longer period than ten days.
Id. (emphasis added).
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Contrary to Defendants’ argument, Article 207 did not mandate Plaintiff’s transfer
to, and consequential detention in, Mamou. Rather, it specifically allows booking and
detention in the parish of arrest, for a maximum of ten days, until the arrestee posts bond
or is transferred to the parish where the alleged offense was committed. Plaintiff was held
in St. Mary Parish (the parish of arrest) for only three hours; therefore, his transfer to
Evangeline Parish was not warranted due to the accrual of the maximum time limit
provided in Article 207. Defendants have not presented the Court with any statutory or
regulatory provisions which would support the transfer to Mamou, a procedure which
contradicts Defendants’ own testimony that booking in Ville Platte, the parish seat of
Evangeline Parish, was necessary given the charge against Plaintiff. In any event, the
deposition testimony of the Chief of Police of Franklin12 establishes that local departmental
policy on this issue varied:
Q:
Okay. So when you receive [an arrest warrant from
another parish], y’all look to this portion at the bottom
that talks about bond?
A:
We contact them to see if they’re going to come pick
them up or they want them to bond out here.
Q:
And that’s just within the discretion of whoever should
be working?
12
In opposition to Defendants’ Motion for Summary Judgment, Plaintiff offers an
excerpt of the deposition testimony of “Franklin Parish Sheriff McGuire.” The excerpt
provided does not afford the Court verification of the deponent’s job title; however, it is
the Court’s understanding that Plaintiff’s arrest took place in the town of Franklin which
is located in St. Mary Parish. Additionally, the Court notes that Sabria McGuire is the
Chief of Police of the Franklin Police Department, which executed the arrest warrant of
Plaintiff.
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A:
Whoever, yeah. Some agencies let them bond here, we
send them the bond information. Some agencies allow
them to do cash bonds which we receive money orders
for that and we send them to the agency. It just
depends on – if we arrest someone for Lafayette, they
come get them. They don’t allow them to bond here,
but Iberia Parish because they’re in our 16th Judicial
area, we arrest someone on a warrant on Iberia, they
usually let them bond out here...It just depends where
– what the agency’s protocol is.
See Record Document 62-2, McGuire Deposition, pp. 42-43. Chief McGuire was unfamiliar
with the policy of the Mamou Police Department; however, Defendants Dupuis and
Lavergne testified that it was the Mamou Police Department’s Policy to require an arrestee
be transferred to Mamou for booking prior to any transfer to Ville Platte. See Record
Document 62-3, Supplemental Dupuis Deposition, pp. 50-58; see also Record Document
42-4, Lavergne Deposition, p. 24. Defendant Lavergne described following normal booking
procedure when Plaintiff was brought to Mamou and could not recall whether Plaintiff
questioned him regarding bond. See Lavergne Deposition, Document 42-4, p. 21.
The
deposition testimony of Plaintiff and Mrs. Simmons, however, was that officers in Franklin,
as well as Defendants Moore, Charlie and Lavergne, all advised Plaintiff and Mrs. Simmons
that bond would not be accepted because Defendant Dupuis wanted Plaintiff in jail and
could hold him for up to three to five days. See Record Document 37-1, Simmons
Deposition, pp. 142-143; see also Record Document 62-2, Mrs. Simmons’ Deposition, p.
10.
Additionally, the Court finds the notations on Plaintiff’s booking card troubling.
Under “Offense,” the notation “Hold for investigation” was made. Also, under “Bond,”
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“None” appears, despite Plaintiff’s bond having been set with the issuance of the arrest
warrant. See Record Document 62-2, “Mamou Police Department Booking Card, p. 45.
The Court finds that, as a matter of law, refusal to accept bond, which had been set
by a court, from a pre-trial detainee because the crime of which he is accused offended the
police chief, is objectively unreasonable in light of clearly established law. However,
genuine issues of fact exist as to whether Defendants Lavergne and Charlie actually
refused Plaintiff’s bond because Defendant Dupuis directed them to do so.
Such a
determination requires the Court to make credibility determinations which are inappropriate
at the summary judgment stage. For the aforementioned reasons, the Court finds genuine
issues of material fact exist as to Plaintiff’s claim that Defendants unlawfully detained him
in violation of his Fourteenth Amendment Due Process rights. Accordingly, the Defendants
are not entitled to qualified immunity at this stage.
2.
Failure to Provide Adequate Medical Care
Plaintiff has asserted claims of Fourteenth Amendment violations against Defendants
Dupuis, Lavergne, and Charlie for failure to provide adequate medical care to him while in
Defendants’ custody as a pre-trial detainee. Plaintiff’s claims against Defendants Lavergne
and Charlie, who were on duty at the Mamou Police Department the night Plaintiff was
held, are asserted against the Defendants in their individual and official capacities for the
alleged deliberate indifference demonstrated to Plaintiff’s serious medical risk. Plaintiff’s
claim against Defendant Dupuis, who was not present during Plaintiff’s detention, is
asserted against Dupuis in his individual and official capacity for maintaining a jail without
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medical staff, failing to supervise and train his employees and/or instructing them to
withhold medical treatment from Plaintiff.
It is well-established that “pretrial detainees” have a fundamental right under the
Due Process Clause of the Fourteenth Amendment to be provided “with basic human
needs, including medical care.” Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir.
1996) (en banc). In order to establish a constitutional violation of failure to provide
reasonable medical care, Plaintiff must prove that the Defendants acted with “subjective
deliberate indifference” to his need for medical care. Scott v. Moore, 114 F.3d 51, 54 (5th
Cir. 1997) (emphasis in original). Deliberate indifference requires proof that: (1) the
officer was aware of facts from which an inference of substantial risk of serious harm could
be drawn; (2) the officer actually drew that inference; and (3) the officer’s response
indicates the officer subjectively intended that harm occur. See Thompson v. Upshur
County, TX, 245 F.3d 447, 458-59 (5th Cir. 2001) (citing Hare, 74 F.3d at 643, 649-50).
“Deliberate indifference cannot be inferred merely from a negligent or even a grossly
negligent response to a substantial risk of serious harm.” Id.; see also, Bd. of Cnty.
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626
(1997) (“deliberate indifference” is a “stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.”).
The undisputed testimony of Officer Moore establishes that Defendants Lavergne
and Charlie were aware that Plaintiff was experiencing difficulty breathing at the time he
arrived in Mamou and needed medication. See Record Document 62-2, Moore Deposition,
p. 5. Plaintiff, however, has not presented sufficient summary judgment evidence to show
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Defendants Lavergne and Charlie acted deliberately indifferent to the risk of harm posed.
Mrs. Simmons testified as follows:
Q:
At any point, did you tell the dispatcher or anybody at
the Mamou Police Department, “Here’s his nebulizer. I
heard him wheezing. He might need a breathing
treatment”?
A:
No. I didn’t bring the nebulizer in. I told him he was
very sick, he had lung disease, he already missed
treatments, and if – and he really needed to have them.
Q:
And what were you told?
A:
Nothing.
Q:
Did you tell them, “I have the medicine with me. Will
you give it to him?”
A:
No.
See Record Document 62-2, Mrs. Simmons Deposition, pp. 8, 12.
Plaintiff gave similar testimony:
Q:
Okay. But did [Mrs. Simmons] ever take the portable
unit out of the truck and hand it to [Officer Moore] and
say, “Here, here’s the medicine that Bobby needs to
breathe”?
A:
I don’t recall. No.
In viewing this testimony in the light most favorable to Plaintiff, the Court cannot
conclude that Plaintiff will be able to bear his burden at trial of proving that Lavergne and
Charlie subjectively intended harm to occur by refusing Plaintiff medication. Indeed, based
upon this testimony, Plaintiff cannot show that treatment was refused at all. Therefore,
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Plaintiff cannot sustain a Fourteenth Amendment violation for inadequate medical care, and
this claim against Defendants Lavergne and Charlie must be dismissed.
Plaintiff’s claim against Defendant Dupuis requires a separate analysis. Regarding
departmental policy for the treatment of an arrestee experiencing breathing difficulty,
Dupuis testified that the arrestee would be monitored, dispensed prescribed medication by
the dispatcher, and taken to the hospital via ambulance if needed. See Record Document
37-1, Dupuis Deposition, p. 62. Plaintiff has not offered any evidence to show that this
procedure is inadequate. Likewise, there is no evidence to substantiate allegations that
Defendant Dupuis ordered the intentional withholding of medical treatment from Plaintiff.
Additionally, Plaintiff has not shown that the delay in receiving medication or a
breathing treatment exacerbated his medical condition. See Record Document 42-4,
Ingraldi Deposition, pp. 54-55; see also Record Document 42-4, Ardoin Deposition, p. 80.
Indeed, Plaintiff concedes that there was no need for him to seek further medical attention
at the hospital. The Court finds that Plaintiff did not suffer a cognizable injury sufficient
to establish a violation of his Fourteenth Amendment right to reasonable medical care. See
e.g., Claudet v. Jones, 2010 WL 4365512, *4-5 (E.D. La. Oct. 27, 2010) (finding that
plaintiff’s back, neck, shoulder and chest pain resulting from the alleged excessive force
incident did not present a “serious medical condition”); Gilbert v. French, 665 F.Supp.2d
743, 760 (S.D. Tex. Oct. 19, 2009) (holding that plaintiff could not establish a constitutional
violation in the absence of any evidence showing he was at risk of his medical condition
worsening as a result of his detention); Parker v. Doty, 2009 WL 804098, *2 (N.D. Tex.
Mar. 25, 2009) (“While Plaintiff may have endured an increased level of back pain without
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his medication, the pain was temporary, lasting no more than a day, and as such, does not
rise to the level of substantial harm.”); Morgan v. McDonald, 2007 WL 1428669, *3 (W.D.
La. Mar. 27, 2007) (holding that an actionable claim for a delay in medical care requires
plaintiff to show that he in fact suffered “serious harm”); Neubert v. Medical Adm’r, 2006
WL 3478732, *5 (N.D. Tex. Dec. 1, 2006) (finding that plaintiff provided “no evidence of
measurable, lasting, substantial harm for which ‘mere delay’ in treatment would justify
recompense”). Therefore, this claim against Defendant Dupuis must be dismissed.
II.
Municipal Liability.
Plaintiff’s claims against the Town of Mamou (the “Town”) and the officers in their
official capacities are based on the same alleged constitutional violations asserted against
the officers individually, that is, violations of the First, Fourth, and Fourteenth
Amendments. However, it is well-established that a local government agency cannot be
held liable for Section 1983 claims under a theory of respondeat superior.13 Monell v. Dep’t
of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2038, 56 L.Ed.2d 611
(1978); McGregory v. City of Jackson, 335 F.App’x 446, 449 (5th Cir. 2009). Rather, a local
government agency can be held liable only if the plaintiff establishes an official policy or
13
In addition to the claims asserted against the defendant officers in their
individual capacities, Plaintiff has asserted claims against Chief Dupuis, Officer Ortis,
Officer Charlie, and Officer Lavergne in their official capacities as well as a claim against
the Town of Mamou. See Record Documents 1, 46. Because official-capacity claims
are tantamount to a claim against the local governmental agency of which the officer is
an agent, the Court will analyze both Plaintiff’s official-capacity claims and claims
against the Town of Mamou under the Monell standard for municipal liability. See
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 at n.55, 98 S.Ct.
2018, 2036, 56 L.Ed.2d 611 (1978).
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custom, of which a policymaker can be charged with actual or constructive knowledge, and
a constitutional violation whose “moving force” is that policy or custom.14 McGregory,335
F.App’x at 448 (citing Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247-49 (5th Cir.
2003)). An official policy, for purposes of Section 1983 liability, is “[a] policy statement,
ordinance, regulation or decision that is officially adopted and promulgated by the
municipality's lawmaking officers or by an official to whom the lawmakers have delegated
policy-making authority,” or, alternatively, “[a] persistent, widespread practice of city
officials or employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute a custom that fairly
represents municipal policy.” Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)
(en banc). Notably, “a final decisionmaker's adoption of a course of action ‘tailored to a
particular situation and not intended to control decisions in later situations' may, in some
circumstances, give rise to municipal liability under § 1983.” See Bryan County, 520 U.S.
at 406, 117 S.Ct. 1382 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292,
89 L.Ed.2d 452 (1986)). The plaintiff must also “demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.” Bryan County, 520 U.S. at 404,
117 S.Ct. at 1388.
Defendants argue that, at most, Plaintiff can only prove a single incident of the
alleged constitutional violations by Defendants. Citing City of Oklahoma City v. Tuttle, 471
14
“[A] municipal policy may be established by a persistent pattern of conduct as
well as by a formal legal declaration.” Richardson v. Oldham, 12 F.3d 1373, 1381-82
(5th Cir. 1994).
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U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) and Fraire v. City of Arlington, 957
F.2d 1268, 1278 (5th Cir.), cert. denied, 506 U.S. 973, 113 S.Ct. 461, 121 L.Ed.2d 371
(1992), Defendants contend that proof of a single incident of unconstitutional activity does
not establish the existence of a policy, custom or widespread practice necessary to hold the
Town liable under Monell. Plaintiff, on the other hand, contends that the requirements of
Monell are satisfied by demonstrating a policy or decision was made “by an official to whom
lawmakers have delegated policy-making authority.” Brown v. Bryan County, 219 F.3d 450,
457 (5th Cir. 2000). Chief Dupuis, Plaintiff argues, is the final policymaker for the Town
of Mamou regarding the arrest practices employed by the Mamou Police Department;
therefore, his decisions regarding effectuating Plaintiff’s arrest give rise to municipal
liability.
The Court finds Defendants’ argument unpersuasive. First, Defendants’ reliance on
Tuttle and Fraire is misplaced given the factual distinction of the case sub judice. Viewing
the facts in the light most favorable to Plaintiff, the decisions and conduct of the Town’s
policy maker (Chief Dupuis) directly resulted in Plaintiff’s arrest and any constitutional
violations which followed.
Furthermore, even if a Monell claim can only be established
through evidence of an official policy or custom, the public statements made by Defendants
Dupuis and Ortis that they would continue arresting anyone caught spreading “rumors”
may qualify as such evidence. See Record Document 62-3, pp. 70-71,“Mamou Police
arrest one after rumors suggest police chief’s activities are criminal”. For these reasons,
the Court finds that Defendants are not entitled to summary judgment dismissing Plaintiff’s
claims against the Town and the Defendants in their official capacities.
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CONCLUSION
After careful consideration of the applicable law and evidence submitted, the Court
finds that Plaintiff has failed to come forth with evidence which would establish a genuine
issue of material fact exists on his claim of inadequate medical care. Therefore, this claim
is DISMISSED WITH PREJUDICE. Further, because Plaintiff does not intend to pursue
a claim against Defendant Albert Moore, or any claims for alleged violations of his Fifth
Amendment rights, these claims are DISMISSED WITH PREJUDICE. However, the
Court holds that Plaintiff has produced evidence sufficient to show genuine issues of
material fact exist as to all other claims asserted by Plaintiff herein, precluding qualified
immunity and summary judgment in favor of Defendants on those issues. Accordingly,
Defendants’ Motion for Summary Judgment [Record Documents 37, 55] is hereby
GRANTED IN PART and DENIED IN PART.
THUS DONE AND SIGNED on this 15th day of March, 2012
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