Lively et al v. Theriot et al

Filing 41

REASONS FOR JUDGMENT re 20 MOTION for Summary Judgment filed by Jedidiah Champagne, Andrew Bonvillian, Ronald J Theriot, Cary Jones. Signed by Magistrate Judge C Michael Hill on 6/29/2015. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SANDRA LIVELY, ET AL.

*CIVIL NO. 6:13-2756

VERSUS

* MAGISTRATE JUDGE HILL

RONALD J. THERIOT, ET AT.

*BY CONSENT OF THE PARTIES

REASONS FOR JUDGMENT
Pending before the Court is the Motion for Summary Judgment filed by defendants,
Sheriff Ronald Theriot (“Theriot”), Deputy Jedidiah Champagne ("Champagne"), Deputy
Carey Jones ("Jones") and Deputy Andrew Bonvillain (“Bonvillian”) on July 22, 2014.1 [rec.
doc. 20]. The plaintiffs have filed opposition [rec. doc. 31], to which the defendants filed a
Reply [rec. doc. 33]. Oral argument on the Motion was held and the Motion was taken under
advisement. [rec. doc. 34]. Post-Hearing Memorandums were filed by each party. [rec. docs 35
and 36].
For the reasons which follow, the Motion for Summary Judgment [rec. doc. 20] is
GRANTED as follows. All federal § 1983 claims asserted by the plaintiffs against Sheriff
Theriot, Deputy Champagne, Deputy Jones and Deputy Bonvillain are DISMISSED WITH
PREJUDICE. All state law claims asserted by the plaintiffs against Sheriff Theriot, Deputy
Champagne, Deputy Jones and Deputy Bonvillain are DISMISSED WITHOUT
PREJUDICE.

1

On Motion by the plaintiff, the hearing of the Motion was delayed pending the depositions of
Deputies Champagne, Bonvillain and Jones. [rec. docs. 22, 23, 24 and 28].

BACKGROUND
Plaintiffs Sandra Lively and Latoya Edmond filed the instant civil rights lawsuit against
the defendants on September 27, 2013. In their Complaint, plaintiffs assert that the civil rights
of Alvin Davis, Jr. ("Davis") were violated on September 28, 2012 when Davis was fatally shot
during an attempted arrest. Plaintiffs' claims are asserted under 42 U.S.C. § 1983 and
Louisiana state law.
By the instant Motion, Deputies Champagne, Jones and Bonvillain contend that they are
each entitled to qualified immunity and that, therefore, plaintiffs’ federal claims against them
should be dismissed. More specifically, these defendants contend that plaintiffs cannot
demonstrate that the officers violated Davis' constitutional rights because the alleged use of
excessive force was objectively reasonable under the circumstances when evaluated in the
context in which the force was deployed. These defendants also each assert that even if
plaintiffs have demonstrated a violation of Davis' constitutional rights, they are nevertheless
qualifiedly immune from suit because all of their actions were objectively reasonable in light of
clearly established law.
Sheriff Theriot contends that, with respect to plaintiffs' federal claims, he cannot be held
liable under a theory of respondeat superior and that the plaintiffs have failed to allege or put
forth sufficient evidence to sustain an individual supervisory or official capacity claim against
him.

2

Standard on Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”2
Rule 56(e) provides, in pertinent part, as follows:
If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c)3, the court may: . . . (3)
grant summary judgment if the motion and supporting materials - including the
facts considered undisputed - show that the movant is entitled to it . . . .
The Motion for Summary Judgment is properly made and supported. Thus, the
plaintiffs may not rest upon the allegations in their pleadings but, rather, must go beyond the
pleadings and designate specific facts demonstrating that there is a genuine issue for trial.
Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54 (1986). However, metaphysical
doubt as to the material facts, conclusory allegations, unsubstantiated assertions and those
supported by only a scintilla of evidence are insufficient. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994).
2

Rule 56 was revised, effective December 1, 2010, “to improve the procedures for presenting and
deciding summary-judgment motions and to make the procedures more consistent with those already
used in many courts. The standard for granting summary judgment remains unchanged.” See Committee
Notes, Rule 56.
3

Rule 56(c)(1) provides, in pertinent part, as follows:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or (B) showing that
the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.

3

Moreover, summary judgment is mandated against a party who fails to make a showing
sufficient to establish an essential element of that party’s case, and on which that party will
bear the burden of proof at trial. Celotex, 106 S.Ct. at 2552. Thus, with respect to those issues
on which the movant bears the burden of proof at trial, the movant need not produce evidence
negating the existence of material fact, but may merely point out the absence of evidence
supporting the non-movant's case. Id. at 2553-2554; Duplantis v. Shell Offshore, Inc., 948 F.2d
187, 190 (5th Cir. 1992).
The plaintiffs have submitted evidence in opposition to the instant Motion. However,
the plaintiffs’ evidence fails to demonstrate that there is a genuine issue of material fact with
respect to the § 1983 claims asserted against Deputy Champagne, Deputy Jones, Deputy
Bonvillain and Sheriff Theriot. Accordingly, summary judgment with respect to these claims is
appropriate.
LAW AND ANALYSIS
I. Qualified Immunity
Government officials are entitled to qualified immunity for civil damages if their
conduct does not "violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct.
3034, 3039, 97 L.Ed.2d 523 (1987). Claims of qualified immunity must be evaluated in the
light of what the officer knew at the time he acted, not on facts discovered subsequently. Luna

4

v. Mullenix, 773 F.3d 712, 718 (5th Cir. 2014) citing Graham v. Connor, 490 U.S. 386, 396,
109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) and Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 411 (5th
Cir. 2009). Qualified immunity is not merely a defense to liability but an immunity from suit.
Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60
(1995); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985).
Claims of qualified immunity require a two-step analysis. First, the court must
determine whether the plaintiff has demonstrated that “the officer’s conduct violated a
constitutional right.” Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003); Hall v.
Thomas, 190 F.3d 693, 696 (5th Cir. 1999) citing Siegert v. Gilley, 500 U.S. 226, 232, 111
S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). If there is no constitutional violation, the court’s
inquiry ends. Mace, 333 F.3d at 623.
If the plaintiff has shown the deprivation of a constitutional right, the court must then
decide whether the defendant’s conduct was objectively reasonable in light of “clearly
established” law at the time of the alleged violation. Hall, 190 F.3d at 696 citing Siegert, 500
U.S. at 231-232. This “second prong of the qualified immunity test is better understood as two
separate inquiries: whether the allegedly violated constitutional rights were clearly established
at the time of the incident; and, if so, whether the conduct of the defendants was objectively
unreasonable in the light of that then clearly established law." Estate of Sorrells v. City of
Dallas, 45 Fed. Appx. 325 (5th Cir. 2002) quoting Hare v. City of Corinth, Miss., 135 F.3d 320,
326 (5th Cir. 1998); Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).

5

Thus, even if it is determined that the official's conduct was unconstitutional, that is, that
the defendant violated the plaintiff’s clearly established constitutional rights, the court must
nevertheless decide whether the conduct was "objectively reasonable" and, if so, the defendant
may still be entitled to qualified immunity. Kipps v. Callier, 197 F.3d 765, 768-69 (5th Cir.
1999) (citations omitted). "Qualified immunity thus protects an official whose conduct was
objectively reasonable, even if the conduct infringed upon a constitutional right of the
plaintiff." Wagner v. Bay City, Texas, 227 F.3d 316, 321 (5th Cir. 2000) quoting Gutierrez v.
City of San Antonio, 139 F.3d 441, 445 (5th Cir. 1998) citing Anderson, 483 U.S. at 641, 107
S.Ct. at 3040.
“The qualified immunity standard gives ample room for mistaken judgments . . . .”
Hunter v. Bryant, 502 U.S. 224, 229 (1991). Thus, if officials of "reasonable competence
could disagree . . . immunity should be recognized.” Gibson v. Rich, 44 F.3d 274, 277 (5th Cir.
1995); Tarver, 410 F.3d at 750. Stated differently, "[q]ualified immunity gives government
officials breathing room to make reasonable but mistaken judgments,” and “protects all but the
plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, ––– U.S.
––––, ––––, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011). Consequently, “even law
enforcement officials who reasonably but mistakenly use excessive force are entitled to
immunity.” Wagner, 227 F.3d at 321.
While it is often appropriate to examine the qualified immunity inquiries sequentially,
courts are vested with sound discretion in deciding which of the prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case
6

at hand. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818 (2009).
A. Constitutional Violation
Apprehension by the use of deadly force is a seizure subject to analysis under the Fourth
Amendment. Plumhoff v. Rickard, ––– U.S. ––––, 134 S.Ct. 2012, 2021, 188 L.Ed.2d 1056
(2014) citing Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) and
Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Thus, under the
first prong of the qualified immunity analysis, the plaintiffs must produce facts sufficient to
show that the officers' actions violated Davis’ Fourth Amendment rights.
To show a Fourth Amendment violation, the plaintiffs must produce facts sufficient to
show that Davis suffered (1) an injury; (2) which resulted directly from a use of force that was
clearly excessive to the need; and (3) the force used was objectively unreasonable. Goodson v.
City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000); Ikerd v. Blair, 101 F.3d 430, 433-434
(5th Cir. 1996); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). “This is an objective
standard: ‘the question is whether the officers' actions are objectively reasonable in light of the
facts and circumstances confronting them, without regard to their underlying intent or
motivation.’ ” Ramirez v. Knoulton, 542 F.3d 124, 128–29 (5th Cir. 2008) quoting Graham, 490
U.S. at 396, 109 S.Ct. 1865). The force must be objectively reasonable under the totality of the
circumstances. Graham, 490 U.S. at 397. The Fourth Amendment's objective reasonableness
test applies to all uses of force, including actions which fall within the definition of "deadly
force". Scott v. Harris, 550 U.S. 372, 382-383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

7

Reasonableness is judged from the perspective of a reasonable officer on the scene,
rather than with 20/20 hindsight. Id., 490 U.S. at 396. “To gauge the objective reasonableness
of the force used by a law enforcement officer, [a court] must balance the amount of force used
against the need for force,” paying “careful attention to the facts and circumstances of each
particular case.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004) citing Graham,
490 U.S. at 396; Ikerd, 101 F.3d at 434. Factors to consider when determining whether the
force used was objectively reasonable include the severity of the crime at issue, whether the
suspect posed an immediate threat to the safety of officers or others, and whether the suspect
actively resisted arrest or attempted to avoid arrest. Graham, 490 U.S. at 396; Lytle, 560 F.3d
at 411. Graham instructs courts not to engage in second-guessing officers about the amount of
force that is necessary in a particular situation, recognizing that officers have to make split
second, on the scene decisions about the amount of force that is necessary in a particular
situation in circumstances that are tense, uncertain and rapidly evolving. Id., 490 U.S. at 396397; Ramirez, 542 F.3d at 129 citing Graham, 490 U.S. at 397; Tanner v. Harris, 31 Fed.Appx.
154 (5th Cir. 2001) citing Graham, 490 U.S. at 396-97; Wagner v. Bay City Texas, 227 F.3d
316, 321 (5th Cir. 2000) citing Graham, 490 U.S. at 396-97.
When deadly force is used, the severity and immediacy of the threat of harm to officers
or others are paramount to the reasonableness analysis. Luna, 773 F.3d at 719; Plumhoff, –––
U.S. at ––––, 134 S.Ct. at 2021; Scott, 550 U.S. at 386, 127 S.Ct. 1769 (noting that the use of
deadly force was not objectively unreasonable when “[t]he car chase that respondent initiated
in this case posed a substantial and immediate risk of serious physical injury to others”); Mace,
8

333 F.3d at 624 (“Use of deadly force is not unreasonable when an officer would have reason
to believe that the suspect poses a threat of serious harm to the officer or others.”); Thompson
v. Mercer, 762 F.3d 433, 440 (5th Cir. 2014) (noting that “the question is whether the officer
had reason to believe, at that moment, that there was a threat of physical harm”); Hathaway v.
Bazany, 507 F.3d 312, 320 (5th Cir. 2007) (noting that the “reasonableness of an officer's use of
deadly force is . . . determined by the existence of a credible, serious threat to the physical
safety of the officer or to those in the vicinity”); Bazan ex rel. Bazan v. Hidalgo Cnty., 246
F.3d 481, 493 (5th Cir. 2001) (“The excessive force inquiry is confined to whether the Trooper
was in danger at the moment of the threat that resulted in the Trooper's shooting.”). Indeed, in
cases involving the shooting of a suspect, the Fifth Circuit has stated that the “core issue” is
“whether the officer reasonably perceived an immediate threat.” Luna, 773 F.3d at 722 citing
Reyes v. Bridgwater, 362 Fed.Appx. 403, 408 (5th Cir.2010). “[T]he focus of the inquiry is the
act that led the officer to discharge his weapon.” Id. quoting Reyes quoting Manis v. Lawson,
585 F.3d 839, 845 (5th Cir. 2009); see also Bazan, 246 F.3d at 493.
While the Court recognizes that this is a close case with respect to Deputies Champagne
and Jones, the Court ultimately concludes that plaintiffs have not carried their burden of proof
in showing that Deputy Champagne, Deputy Jones and Deputy Bonvillain acted objectively
unreasonable under the circumstances. Thus, the Deputies did not violate Davis' Fourth
Amendment rights.
The summary judgment evidence demonstrates that Davis' vehicle was blocked from
behind by the officer's vehicles, both of which had their red and blue lights activated. The
9

officers verbally identified themselves as police officers and loudly commanded Davis to keep
his hands in plain view. Despite these warnings and obvious indications of police presence,
Davis nevertheless abruptly put his vehicle in reverse, drove backwards and actually struck
Deputy Bonvillain who was standing behind Davis' vehicle, causing him to stumble and
placing him in grave danger of being pinned between the rear of Davis' vehicle and Deputy
Champagne's police vehicle. Thus, it is clear that Davis' actions caused Bonvillain to be in
imminent grave danger of serious bodily injury.
Further, it was not until after Bonvillian had been struck by Davis' vehicle, when
Bonvillain was in immanent physical danger, that the officers fired their weapons at Davis'
vehicle. Bonvillain testified that he did not fire his weapon until after he was struck by Davis'
vehicle, lost his balance and got up, while the vehicle was still traveling in reverse. [Bonvillain
depo., at pg. 31, 39]. Indeed, under the circumstances, Bonvillain testified that he considered
Davis' car a weapon. [Id., at pg. 36-39]. Champagne testified that he began to shoot when he
recognized that Bonvillain was in immediate danger, that is, when he saw Davis' vehicle
backing up and saw through his peripheral vision that Deputy Bonvillain was directly behind
the vehicle. [Champagne depo., at pg. 107-109]. Deputy Jones testified that he saw Davis'
vehicle moving "quickly" in reverse, and with his peripheral vision, he saw someone get struck
by Davis' vehicle and that person falling; he heard Deputy Champagne shout "shoot" with "fear
and importance" in his eye, and considering the totality of these circumstances, only then fired
his weapon. [Jones depo., at pg. 62-63].

10

Finally, Deputies Champagne and Bonvillain testified that they stopped firing when
Davis' vehicle stopped and began traveling forward and the threat to Bonvillain had therefore
ceased. [Champagne depo., at pg. 110; Bonvillain depo., at pg. 39]. Jones similarly testified
that he stopped shooting, in accordance with his training, when the vehicle stopped and the
threat of physical harm was no longer present. [Jones depo., at pg. 62 and 57].
In light of the above cited evidence4, it is clear that Davis' actions by throwing his
vehicle in reverse in an attempt to evade arrest, traveling backward toward and striking
Bonvillain, and placing Bonvillain in the precarious position of further serious physical harm
by being pinned between the two vehicles, rendered the Deputies' responsive action
Constitutional.
The threat to Bonvillain posed by Davis' reckless attempted vehicular flight from the
scene was both serious and immediate. Although firing into Davis' vehicle created a significant
risk of injury to Davis, that risk is outweighed by the imminent risk of serious physical harm to
Bonvillain posed by Davis' reckless attempted vehicular flight from the scene. The Deputies
were therefore clearly justified in using their weapons to stop Davis from endangering
4

Plaintiffs argue the Deputies testimony should not be accepted by the Court because their initial
responses to plaintiffs' counsel's questions did not include the same detail as their answers to subsequent
questions by counsel, and contained discrepancies among their stories. The Court cannot accept this
argument. The fact that the deponents provided additional detail on further questioning is not surprising
or in any way out of the ordinary. Moreover, under the rapidly evolving circumstances, the Court is not
surprised that there are relatively minor discrepancies in the testimony. Indeed, the Fifth Circuit has
rejected a similar argument noting the Courts have learned to expect that the version of facts related by
witnesses "will almost always differ somewhat in the myriad details of the action", given the tension and
element of surprise in such a stressful situation. See Fraire v. City of Arlington, 957 F.2d 1268, 1279 (5th
Cir. 1992). In this case, as in Fraire, these differences are lacking in significance and are therefore
insufficient to place facts at issue.

11

Bonvillain further.
Ultimately, it was Davis, not the Deputies, who placed himself in danger by unlawfully
and recklessly attempting to flee from the scene that necessitated the split-second decision
made by the Deputies. See Scott, 127 S.Ct. at 1778 (finding it appropriate to take into account
the "relative culpabilties" of the parties involved). Although, in retrospect, there may have
been alternative courses of action for the Deputies to take, the Court, in accordance with the
instructions of Graham v. Connor, will not use "the 20-20 vision of hindsight" to judge the
reasonableness of the Deputies' use of force, employed under tense, uncertain and rapidly
evolving circumstances. See Mace, 333 F.3d at 625.
While plaintiffs argues that qualified immunity should not be granted to Champagne or
Jones because they allegedly did not directly view Davis' vehicle strike Bonvillian, as opposed
to some other person, that argument lacks merit. Both the Supreme Court's decisions in Scott
and Brosseau and the Fifth Circuit's decision in Thompson, instruct that the officers employing
force need not be aware of the precise location or identity of the other officers and civilians
they were acting to protect. See Scott, 550 U.S. at 384, 127 S.Ct. 1769 (“[R]espondent posed an
actual and imminent threat to the lives of any pedestrians who might have been present.”
(emphasis added)); Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 160 L.Ed.2d 583
(2004) (granting qualified immunity to an officer who fired at a driver who had not yet driven
his car in a dangerous manner to prevent possible harm to “other officers on foot who [she]
believed were in the immediate area . . . [and] any other citizens who might be in the area.”
(internal quotation marks and citation omitted)); Thompson, 762 F.3d at 439, 2014 WL
12

3882460, at *5 (holding that it was sufficient for the officer to reasonably believe there “might
be other travelers on the road,” even though the officer was not “aware of their presence”); see
also Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 581 (5th Cir. 2009) (recognizing that “the
holding of Scott was not dependent on the actual existence of bystanders – rather, the Court
was also concerned about the safety of those who could have been harmed if the chase
continued”). Here, both were sufficiently aware that an officer was in imminent danger as a
result of Davis' actions when they fired their weapons. Deputy Champagne knew Deputy
Bonvillain was directly behind the rapidly reversing Davis vehicle and Deputy Jones saw a
person get struck by the Davis vehicle and fall down.
To the extent that plaintiffs argue that the number of shots fired by the Deputies renders
their use of force objectively unreasonable, that argument lacks merit. The Supreme Court in
Plumhoff rejected this same argument, finding that the number of shots fired does not change
the reasonableness calculus. To the contrary, if firing at a suspect is initially justified to end a
severe threat, "the officers need not stop shooting until the threat has ended." Plumhoff, 134
S.Ct. at 2022. This Court has found that the officers actions were initially justified to end a
severe and immanent threat to Deputy Bonvillain. Furthermore, they stopped firing when the
threat had ceased, that is, when Davis' vehicle stopped moving backward and began traveling
forward. This would be a different case had the Deputies continued to fire at the vehicle
moving away from them or had Davis discontinued his flight and given himself up. However,
that is not what the evidence shows.

13

Finally, the Court cannot find that the Deputies' failure to remember details renders their
accounts of the incident unreliable. Initially, the Court notes that on Motion for Summary
Judgment, while the court must draw all reasonable inferences in favor of the nonmoving party,
the Court should not make credibility determinations or weigh the evidence. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000); Liberty Lobby, 477 U.S. at 255;
Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012) (citation and quotation marks omitted) (“The
evidence should be viewed in the light most favorable to the non-moving party, and this court
should refrain from making credibility determinations or from weighing the evidence.”). “[A]
motion for summary judgment cannot be defeated solely by conclusory allegations that a
witness lacks credibility.
Nevertheless, when the circumstances are conducive to lying, well-supported suspicion
of mendacity may serve as a legitimate basis for the factfinder's reasonable inferences
concerning the ultimate facts at issue.” Thomas v. Great Atl. & Pac. Tea Co., 233 F.3d 326,
331 (5th Cir. 2000) (footnote omitted). Summary judgment is not appropriate when “questions
about the credibility of key witnesses loom . . . large” and the evidence could permit the
trier-of-fact to treat their testimony with “skeptical scrutiny.” Id. at 331. The evidence before
this Court, however, including the extremely brief period of time the Deputies had to respond
to the serious threat posed by Davis' vehicle and the lack of specific facts to the contrary,
requires a finding that the officers' responses to the questions posed were entirely reasonable,
and "does not amount to a 'well-supported suspicion of mendacity' undermining [their]

14

credibility." See Bazany, 507 F.3d at 322 (citation omitted). Indeed, the majority of the alleged
non-responsive answers were related to facts extraneous to those of the actual shooting; given
the brevity of the encounter and rapid response time, each deputy remembered and recounted
their actions that night with relative clarity. See Jones, at pgs. 55-65; Bonvillain, at pgs. 27-43;
Champagne, at pgs. 56-65, 83-99, 103-111].
For these reasons, the Court concludes that Deputies Champagne, Jones and Bonvillain
did not violate Davis' Fourth Amendment rights. The Deputies are therefore entitled to
qualified immunity on the plaintiffs' federal individual capacity claims.
II. Official Capacity Claims
Plaintiffs have also sued Deputies Champagne, Jones and Bonvillain in their official
capacities. An official capacity suit is the equivalent of a suit against the entity of which the
officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165-166 (1985); Brandon v. Holt, 469
U.S. 464, 471-472 (1985); Hafer v. Melo, 112 S.Ct. 358, 361 (1991); McMillian v. Monroe
County, Ala., 520 U.S. 781, 784-85, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997)5 ; Burge v. St.
Tammany Parish, 187 F.3d 452, 466 (5th Cir. 1999). Municipalities may be held liable under

5

The Supreme Court in McMillian explained that:
a suit against a governmental officer "in his official capacity" is the same
as a suit " 'against [the] entity of which [the] officer is an agent,' "
Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114
(1985) quoting Monell v. New York City Dept. of Social Servs., 436 U.S.
658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611(1978) and that victory in
such an "official-capacity" suit "imposes liability on the entity that [the
officer] represents," Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873,
83 L.Ed.2d 878 (1985).

McMillian, 520 U.S. at 785 n. 2, 117 S.Ct. 1734.

15

§ 1983 for constitutional violations if: (1) there is a constitutional violation; (2) an official
policy or custom; and (3) a showing that the official policy or custom was the operational force
behind the constitutional violation. Bellard v. Gautreaux, 675 F.3d 454, 462 (5th Cir. 2012)
citing Monell v. Dep't of Soc. Ser., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
When there is no underlying individual constitutional violation for which a municipal
defendant can be held derivatively liable on the basis of its policies or customs, there can be no
liability against the municipality or its employees in their official capacities. Olabisiomotosho
v. City of Houston, 185 F.3d 521, 528-529 (5th Cir. 1999); Tejada v. Knee, 228 F.3d 409, 2000
WL 1056124, *2 (5th Cir. 2000) (unpublished); Breaux v. Brown, 2006 WL 3760242, *2 (W.D.
La. 2006); Patin v. Richard, 2011 WL 9118, *8 (W.D. La. 2011) citing Ashford v. City of
Lafayette, 2008 WL 5157900, *11 (W.D. La.2008); Vicknair v. Louisiana Dept. of Wildlife and
Fisheries, 2013 WL 1180834, *18-19 (W.D. La. 2013).
In this case, plaintiffs have failed to set forth a viable Constitutional claim against the
Deputies in their individual capacities. Thus, in the absence of any underlying constitutional
violation, plaintiffs cannot establish a claim against the Deputies in their official capacities as
such a suit is tantamount to a suit against their municipal employer.6 Id.
Accordingly, to the extent that plaintiffs assert any federal official capacity claim
against Deputy Champagne, Deputy Jones or Deputy Bonvillain, those claims are properly
dismissed with prejudice.

6

See fn. 3, supra.; Kentucky v. Graham, 473 U.S. 159 (1985); Brandon v. Holt, 469 U.S. 464
(1985); Hafer v. Melo, 112 S.Ct. 358 (1991); McMillian v. Monroe County, Ala., 520 U.S. 781, 784-85,
117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) ; Burge v. St. Tammany Parish, 187 F.3d 452, 466 (5th Cir. 1999).
16

III. Sheriff Theriot
Plaintiffs argue that Sheriff Theriot is liable for failing to adequately train, supervise and
discipline deputies, thereby condoning and allowing the alleged unconstitutional behavior by
his subordinates.
A supervisor may not be held liable under § 1983 on any theory of vicarious liability.
Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). Rather, to be
liable under § 1983, a supervisory official must be personally involved in the constitutional
deprivation, or there must be a sufficient causal connection between the supervisor's alleged
wrongful conduct and the constitutional violation. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th
Cir. 1987). Thus, a supervisory official may be liable when enforcement of a policy or practice
results in a deprivation of federally protected rights. Alton v. Texas A&M University, 168 F.3d
196, 200 (5th Cir. 1999); Vicknair v. Louisiana Dept. of Wildlife and Fisheries, 2013 WL
1180834, *16 (W.D. La. 2013). In this case, there is no evidence to suggest that Sheriff Theriot
was personally involved in the alleged use of excessive force. Thus, only the second theory of
liability is applicable.
A supervisory official not personally involved in the alleged constitutional violation may
be liable under a failure to train or supervise theory under § 1983 if: "(1) the supervisor either
failed to supervise or train the subordinate official; (2) a causal link exists between the failure
to train or supervise and the violation of the plaintiff's rights; and (3) the failure to train or
supervise amounts to deliberate indifference.” Estate of Davis, 406 F.3d at 381; Thompson v.

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Upshur County, 245 F.3d 447, 459 (5th Cir. 2001); Brown v. Callahan, 623 F.3d 249, 254 and
fn. 1 (5th Cir. 2010); Vicknair, 2013 WL 1180834 at *17 citing Thompson, supra., Roberts v.
City of Shreveport, 397 F.3d 287, 292 (5th Cir.2005) and Mesa v. Prejean, 543 F.3d 264, 274
(5th Cir. 2008). 7
A “plaintiff must allege with specificity how a particular training program is defective.”
Roberts, 397 F.3d at 293. “Plaintiffs cannot prevail by styling their complaints about the
specific injury suffered as a failure to train claim.” Id. citing City of Canton, 489 U.S. at 391,
109 S.Ct. at 1206. Rather, a direct causal connection must exist between the policy and the
alleged constitutional deprivation.8 Board of County Commissioners of Bryan County v.
Brown, 520 U.S. 397, 404, 412 and 415 (1997). "This connection must be more than a mere
'but for' coupling between cause and effect . . . [the] policy must be affirmatively linked to the
constitutional violation and be the moving force behind it." Fraire v. City of Arlington, 957
F.2d 1268, 1281 (5th Cir. 1992) (citations omitted).

7

In Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452–54 and fn.7–8 (5th Cir. 1994) (en banc) the
Fifth Circuit adopted the City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)
fault and causation standard of municipal liability for supervisory liability. ("The legal elements of an
individual's supervisory liability and a political subdivision's liability, however, are similar enough that
the same standards of fault and causation should govern.") Accordingly, the above analysis applies to
both the individual and official capacity claims asserted against the Sheriff.
8

The Brown Court explained that "Congress did not intend municipalities to be held liable unless
deliberate action attributable to the municipality directly caused a deprivation of federal rights." Board
of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 415 (1997). Accordingly, a plaintiff
must show that the action was taken with the requisite degree of culpability and must therefore
demonstrate a direct causal link between the complained of inadequacy and the deprivation of a federally
protected right. See Id., 520 U.S. at 404. Further, the connection between the alleged inadequacy and
the specific constitutional violation "must be strong." Id. at 412.

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Moreover, deliberate indifference is a stringent standard of fault requiring proof that a
supervisor "disregarded a known or obvious consequence of his action"; a showing of
negligence or even gross negligence will not suffice. Estate of Davis, 406 F.3d at 381.
Moreover, “[p]roof of more than a single instance of the lack of training or supervision causing
a violation of constitutional rights is normally required before such lack of training or
supervision constitutes deliberate indifference.” Thompson, 245 F.3d at 459; Mesa, 543 F.3d at
274; Brumfield, 551 F.3d at 329 citing Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th
Cir. 2003) quoting Thompson, 245 F.3d at 459; Brown, 623 F.3d at 253 citing Estate of Davis,
406 F.3d at 381.
In this case, the plaintiffs have failed to demonstrate that the Sheriff's subordinate
Deputies violated Davis' Constitutional rights. Thus, a direct causal connection between the
Sheriff's alleged inadequate training, supervision or discipline and a constitutional deprivation
is lacking. Stated differently, the plaintiffs have failed to establish that a causal link exists
between the alleged failure to train, supervise or discipline and any violation of Davis'
Constitutional rights. For this reason, summary judgment in favor of Sheriff Theriot is proper.
This Court's conclusion is bolstered by decisions of the Fourth Circuit which have
expressly held that "a claim of inadequate training under section 1983 cannot be made out
against a supervisory authority absent a finding of a constitutional violation on the part of the
person being supervised." Temkin v. Frederick County Commissioners, 945 F.2d 716, 723-724
(4th Cir. 1991); see also Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir. 1990) (dismissing claims
against a Mayor and Chief of Police on Summary Judgment because there was no underlying
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constitutional infraction and, accordingly, no need to reach the question of whether a municipal
policy was responsible for the officers' actions).
Moreover, even if the requisite causal link had been established, the plaintiffs have
failed to allege "with specificity" how the Sheriff's training, supervision or discipline was
defective and have failed to produce any evidence substantiating their general and conclusory
allegations that Davis' claimed constitutional violation resulted from a deliberately indifferent
training, supervisory or disciplinary failure. This is insufficient under Roberts. Furthermore,
plaintiffs have not alleged nor adduced any evidence demonstrating the requisite pattern of
similar violations arising from inadequate training, supervision or discipline necessary to
support a finding of deliberate indifference.
Plaintiffs assert that they have met their burden because "even though [the Deputies]
received training, the Sheriff had little to do with it and provided no direct involvement."
However, each Deputy testified by deposition as to their extensive training. Each was first
trained at an approved Police Academy, as a result of which each earned their Police Officer's
Standardized Training ("POST") certification. [Champagne, at pg. 11-16; Jones, at pg. 12-16;
Bonvillain, at pg. 7-9]. Each Deputy also testified that they undergo at least annual renewals of
that certification. [ Bonvillain, at pg. 23-24, 9-11; Jones, at pg. 29, 32, 38; Champagne, at pg.
16-19]. Champagne, Jones and Bonvillain further testified that they received training at
various other courses and seminars on issues related to narcotics investigations, while both
Jones and Bonvillain also discussed “on-the-job training.” [Champagne, at pg. 23-28; Jones, at
pg. 17-20, Bonvillain, at pg. 12, 13, 21]. While there may be differences in the Deputies'
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testimony regarding the extent of their training, there is no question that they did indeed receive
training. Moreover, the Court is unaware of any requirement that the Sheriff personally train
his Deputies, and plaintiff's apparent dissatisfaction with Sheriff Theriot's training program
cannot negate the fact that the training occurred. See Brumfield, 551 F.3d 329.
Plaintiffs further assert that Sheriff Theriot provided little to no supervision over his
men during this incident and did not call or come out to the scene after Davis had been shot.
However, such direct supervision by the Sheriff is not Constitutionally required. Deputies
Champagne and Jones testified as to the chain of command, including the fact that the
Narcotics unit was directly supervised by a Lieutenant, Lieutenant Troy LeBlanc, who
presumably reported to a higher ranked officer. [Champagne at pg. 28; Jones, at pg. 22, 27, 3645, 66-68]. Champagne additionally testified as to his communications with Lieutenant
LeBlanc prior to the commencement of the operation, and his approval of same, and it is
undisputed that Lieutenant LeBlanc was advised of the shooting immediately thereafter,
prompting LeBlanc to go to the scene. [Champagne, at pg. 42-46, 113; Jones, at pg. 66-68;
Bonvillain, at pg. 46].
Finally, although the plaintiffs assert that summary judgment is premature because they
were prevented from conducting discovery on the claims against the Sheriff, the Court
disagrees. [See rec. doc. 35]. Had there not been a stay entered in this case due to a conflict of
interest involving former plaintiffs' counsel, discovery could have commenced on all claims as
early as February 20, 2014 when the Rule 26 Conference between the parties was to have taken
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place.
Current counsel for the plaintiffs was enrolled on March 7, 2014. The instant Motion
was not filed until July 22, 2014. Plaintiff's counsel moved for a continuance of the hearing
date and an order compelling the depositions of the defendant Deputies. [rec. doc. 22].
Counsel never sought to depose the Sheriff, nor did counsel seek to compel discovery in any
form from the Sheriff. Accordingly, while the Court ordered the depositions of the defendant
Deputies be limited to their claim of qualified immunity, there was no such ruling with respect
to discovery vis-a-vis the Sheriff. [See rec. doc. 28]. Moreover, there was no subsequent
discovery Motion filed on behalf of the plaintiffs seeking further or additional discovery with
respect to the claims asserted against either the Deputies or the Sheriff.
Finally, despite this Court's limitation on the depositions of the Deputies, review of
these depositions reveals that counsel was, in fact, permitted to discover extensive information
about the Deputies experience, training and supervision. Thus, the Court does not find the
instant ruling premature.
For these reasons, the plaintiffs' federal claims asserted against Sheriff Theriot will be
dismissed with prejudice.
IV. State Law Claims
In light of the above, all federal claims asserted against the defendants are dismissed.
Accordingly, no federal question remains before this court.
A district court may decline to exercise supplemental jurisdiction if the court has
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dismissed all claims over which it had original jurisdiction. 28 U.S.C. § 1367(c)(3); Nowell v.
Acadian Ambulance Service, 147 F.Supp.2d 495, 510 (W.D. La. 2001). Indeed, when a court
dismisses all federal claims before trial, the general rule is to dismiss any pendent claims. Id.
citing Bass v. Packwood Hospital, 180 F.3d 234, 246 (5th Cir. 1999) citing Wong v. Stripling,
881 F.2d 200, 204 (5th Cir. 1989); Parker & Parsley Petroleum v. Dresser Industries, 972 F.2d
580, 585 (5th Cir. 1992). However, the dismissal should be without prejudice. Id.
Accordingly, the undersigned declines supplemental jurisdiction over the state law claims
asserted by the plaintiffs. Those claims will be dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment [rec. doc. 20] is
GRANTED as follows. All federal § 1983 claims asserted by the plaintiffs against Sheriff
Theriot, Deputy Champagne, Deputy Jones and Deputy Bonvillain are DISMISSED WITH
PREJUDICE. All state law claims asserted by the plaintiffs against Sheriff Theriot, Deputy
Champagne, Deputy Jones and Deputy Bonvillain are DISMISSED WITHOUT
PREJUDICE.
Signed June 29, 2015, at Lafayette, Louisiana.

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