Borgognoni v. City of Hattiesburg, MS et al
Filing
259
ORDER granting the Defendant City of Hattiesburg's 223 Motion for Summary Judgment; denying Plaintiff's 225 Motion for Partial Summary Judgment; and finding as moot Defendants' 256 Motion to Strike. Signed by District Judge Keith Starrett on May 25, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JORDAN CHASE BORGOGNONI
v.
PLAINTIFF
CIVIL ACTION NO. 2:13-CV-241-KS-MTP
CITY OF HATTIESBURG, MISSISSIPPI et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Partial Summary Judgment [225] filed by
Plaintiff Jordan Chase Borgognoni, and the Motion for Partial Summary Judgment [223] and Motion
to Strike [256] filed by the Defendant City of Hattiesburg. After reviewing the submissions of the
parties, the record, and the applicable law, the Court finds that the Plaintiff’s motion is not well
taken and should be denied. The Court further finds that the City’s Motion for Partial Summary
Judgment [223] is well taken and should be granted. The City’s Motion to Strike [256] will be
denied as moot.
I. BACKGROUND
Plaintiff Jordan Chase Borgognoni (“Plaintiff”) brings this action against Defendants City
of Hattiesburg, Mississippi (the “City”), the Hattiesburg Police Department (the “Department”),
Officer Chad Harrison, individually and in his official capacity (“Officer Harrison”), Officer Tyson
Fairley, individually and in his official capacity (“Officer Fairley”), and Lieutenant Chris Johnson,
individually and in his official capacity (“Lieutenant Johnson”) (collectively “Defendants”).
Pursuant to the Court’s Order [110] on March 31, 2015, the following claims remain pending in this
case: (1) Plaintiff’s federal claims against the City, Officer Harrison in his individual capacity,
Officer Fairley in his individual capacity, and Lieutenant Johnson in his individual capacity, under
42 U.S.C. § 1983 for violations of Plaintiff’s constitutional rights under the Fourth, Fifth, and
Fourteenth Amendments; and (2) Plaintiff’s state claims of assault and battery, conspiracy, reckless
disregard, intentional infliction of emotional distress, vicarious liability-respondeat superior, agency,
and the tort of outrage against the City, Officer Harrison, Officer Fairley, and Lieutenant Johnson.
All claims against the Department have been dismissed a duplicative of the claims against the City.
This case is centered around an incident occurring in the late night hours of June 22, 2012,
and the early morning hours of June 23, 2012. Officers Harrison and Fairley were dispatched to
Plaintiff’s apartment complex following a 911 call of a disturbance. Prior to this call, Plaintiff had
crashed his vehicle into an embankment in his apartment’s parking lot. Though the events of that
night are mostly in dispute, at some point, Plaintiff was arrested.
Plaintiff claims that Officers Harrison and Fairley used excessive force against him, causing
him to become injured. The use of force is disputed, but it is undisputed that Plaintiff was injured.
The officers then proceeded to take Plaintiff to the jail, where he was subsequently sent to the
Forrest General Hospital. While Plaintiff was unconscious at the hospital, a blood sample was taken
from him and tested for alcohol content. As a result of his injuries, Plaintiff has been paralyzed.
II. DISCUSSION
A.
Standard of Review
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment
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.” Fed. R. Civ. P. 56(a). “Where the burden of production at trial
ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary
support in the record for the nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808,
812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant must then
“come forward with specific facts showing that there is a genuine issue for trial.” Id. “An issue is
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material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v. Sandy Creek
Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex.,
246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.” Cuadra, 626 F.3d at 812 (citation
omitted).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville
v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, “the court must
view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving
party.” Sierra Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v. Scott, 276 F.3d
736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is mandatory “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.” Brown v. Offshore Specialty
Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
B.
Plaintiff’s Motion for Partial Summary Judgment [225]
Plaintiff requests that the Court grant him partial summary judgment as to his claim that the
blood test done on him was an improper search in violation of the Fourth Amendment, as made
applicable to the states through the Fourteenth Amendment. Plaintiff’s main argument is that,
because the officers had an opportunity to seek his consent while he was conscious but did not do
so, the blood test was an unlawful search in violation of Plaintiff’s constitutional rights. Plaintiff
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relies heavily on the implied consent law of Mississippi in his argument, but his § 1983 claim does
not ask whether Defendants broke Mississippi law. Rather, the relevant inquiry is whether or not
Defendants violated Plaintiff’s Fourth Amendment rights.
“[T]he Fourth Amendment does not proscribe all searches and seizures, but only those that
are unreasonable.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S. Ct. 1402, 103
L.Ed.2d 639 (1989) (citations omitted). “Whether a warrantless blood test of a drunk-driving
suspect is reasonable must be determined case by case based on the totality of the circumstances.”
Missouri v. McNeely, 133 S. Ct. 1552, 1563, 185 L.Ed.2d 696 (2013). Plaintiff’s sole argument for
summary judgment as to his illegal search claim rests upon the fact that the officers did not seek his
consent to test his blood while he was conscious. However, even if Plaintiff had been conscious and
had affirmatively refused to have his blood tested, the blood test could still have been reasonable
under the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 759, 86 S. Ct. 1826, 16
L.Ed.2d 908 (1966) (holding a warrantless blood test reasonable under the Fourth Amendment
despite it being taken over the suspect’s objection).
As Plaintiff has the burden of proving his claim and has advanced no other argument or
evidence showing why, under a totality of the circumstances analysis, the warrantless blood test
done on him was a violation of his Fourth Amendment rights, the Court must deny his Motion for
Partial Summary Judgment [225].
C.
The City’s Motion for Partial Summary Judgment [223]
Under Monell v. Department of Social Services, the City is not liable under § 1983 “solely
because its employee committed a constitutional tort.” Mason v. Lafayette City-Parish Consol.
Gov’t, 806 F.3d 268, 280 (5th Cir. 2015) (citing Monell v. Dep’t of Soc. Servs., 436 U. S. 658, 691,
98 S. Ct. 2018, 56 L.Ed.2d 611 (1978)). Rather, “to hold a municipality liable under § 1983, the
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plaintiff must prove three elements: (1) a policymaker; (2) an official policy; and (3) a violation of
constitutional rights whose moving force is the policy or custom.” Id. (quoting Piotrowski v. City
of Houston, 237 F.3d 567, 578 (5th Cir. 2001)) (internal quotations omitted). Under this analysis,
Plaintiff must show both “causation and culpability.” Id. There must be a “direct causal connection
. . . between the policy and the alleged constitutional deprivation.” Id. (quoting Fraire v. City of
Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992)). Additionally, “[u]nder the culpability requirement,
if the policy is facially lawful, a plaintiff must also show that the municipality promulgated [the
policy] with deliberate indifference to the known or obvious consequences that constitutional
violations would result.” Id. (quoting Piotrowski, 237 F.3d at 579) (internal quotations omitted)
(alteration in original).
Plaintiff has advanced four arguments as to why the City is liable under § 1983: (1) the
Department’s injured prisoner transport policy; (2) the Department’s custom and practice of ignoring
detainee requests for medical care; (3) the City’s failure to train with respect to prisoner’s medical
needs; and (4) the City’s ratification of the officers’ conduct.. The Court will address each argument
in turn.
1.
The Department’s Injured Prisoner Transport Policy
Plaintiff argues that the Department’s policy on injured prisoner transport was the moving
force behind the delay in medical treatment he received. He contends that the policy gives too much
discretion to police officer’s by requiring them to be “aware” of a prisoner’s injuries. This
requirement, however, tracks the necessary elements for finding a violation of Plaintiff’s
constitutional right to medical treatment.
“[A]n arrestee’s right to medical attention, like that of a pretrial detainee, derives from the
Fourteenth Amendment.” Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th Cir. 1996). An
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arrestee’s due process rights are therefore violated “if the official acts with subjective deliberate
indifference to the detainee’s or [arrestee’s] rights,” which is “defined . . . as subjective knowledge
of a substantial risk of serious medical harm, followed by a response of deliberate indifference.”
Id. at 473 (citing Hare v. City of Corinth, 74 F.3d 633, 647-50 (5th Cir. 1996)). The fact, then, that
the Department’s policy directs officer’s to use their subjective knowledge in determining whether
a prisoner is in need of medical treatment, means that the policy is directly in line with constitutional
requirements.
Furthermore, Plaintiff has failed to show how this policy was a moving force behind the
violation of his constitutional rights. He has made no showing that the policy, as followed by the
officers, caused his medical treatment to be delayed. See Mason, 806 F.3d at 280 (citing Fraire, 957
F.2d at 1281). He has also made no showing that the City promulgated the policy with deliberate
indifference to known or obvious constitutional violations that would occur as a result. See id.
(citing Piotrowski, 237 F.3d at 579). Therefore, the Court must find that Plaintiff has not met his
burden in showing that the Department’s policy on transporting injured prisoners was a moving
force behind the alleged constitutional violations.
2.
Custom and Practice of Ignoring Medical Needs
Plaintiff contends that, by having a policy which “imbued its officers with extraordinary
discretion over whether to take prisoner complaints of injury seriously” and “as a result of the lack
of training,” the Department “allowed an unwritten policy to exist that its officers could ignore
complaints of prisoner injury based on their broad discretion under the injured prisoner transport
policy.” (Plaintiff’s Memo. in Response [254] at p. 17.)
For a common practice to be a basis for liability under Monell, it must be so persistent and
widespread so that, “although [it] is not authorized by officially adopted and promulgated policy,
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[it] is so common and well settled as to constitute a custom that fairly represents municipal policy.”
Mason, 806 F.3d at 280 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984)).
The evidence put forward by Plaintiff does not establish that the Department’s custom was to ignore
complaints of injury by detainees. Rather, the evidence establishes it was the practice of the
Department’s officers to disregard complaints of injuries if they did not believe their truthfulness
on a case-by-case analysis. Plaintiff has not shown that this practice caused a violation of his rights
nor has he shown that it was adopted with a deliberate indifference to potential constitutional
violations. See Mason, 806 F.3d at 280. In fact, because the underlying constitutional violation
requires subjective knowledge of a substantial risk to an arrestee’s health, the Court is unsure how
a practice directing officers to use their own subjective knowledge of the situation to make their
decision, could be a moving force behind the constitutional violation. See Nerren, 86 F.3d at 473
(citing Hare, 74 F.3d at 647-50). Therefore, Plaintiff has not established that this practice was the
moving force behind the alleged violations of his constitutional right and cannot defeat summary
judgment on this argument.
3.
Failure to Train
Plaintiff argues that there is a “clear causal link between [the City’s] failure to train and the
alleged constitutional claim for medical care.” (Plaintiff’s Memo. in Response [254] at p. 21.)
However, even if the Court found such a causal link to exist, Monell requires more than just a
showing of causation—it also requires culpability. Mason, 806 F.3d at 280 (citing Fraire, 957 F.2d
at 1281).
Though a it may be liable in limited circumstances for a failure to train, “[a] municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.”
Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350, 179 L.Ed.2d 417 (2011). To be liable, the
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failure to train “must amount to deliberate indifference to the rights of person with whom the
[untrained employees] come into contact.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 388,
109 S. Ct. 1197, 103 L.Ed.2d 412 (1989)) (alteration in original).
“A pattern of similar
constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate
indifference for purposes of failure to train.” Id. at 62 (citing Bd. of Cnty. Comm’rs of Bryan Cnty.,
Okla. v. Brown, 520 U.S. 397, 409, 117 S. Ct. 1382, 137 L.Ed.2d 626 (1997)). Decisionmakers must
have “notice that a course of training is deficient in a particular respect” in order to be liable under
a failure-to-train theory. Id.
Plaintiff has the burden of proving the City had notice that its training was deficient, and has
put forward no argument or evidence that would show such notice existed. Therefore, he cannot
defeat summary judgement under this theory of liability.
4.
Ratification
Plaintiff claims that the City ratified the actions of the officers by not conducting a
meaningful investigation into the incident. Plaintiff relies on two cases in making this argument:
City of St. Louis v. Proprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L.Ed.2d 107 (1988), and Milam v.
City of San Antonio, 113 F.App’x 622 (5th Cir. 2004). Neither of these case, though, support
liability against the City in the current case.
In Proprotnik, the Supreme Court held where “a subordinate’s decision is subject to review
by the municipality’s authorized policymakers . . . [and] the authorized policymakers approve a
subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality
because their decision is final.” 485 U.S. at 127, 108 S. Ct. 915. Under this precedent, the City is
liable for the alleged constitutional violations if its authorized policymakers reviewed and approved
the actions that constituted the alleged constitutional violations. In other words, if the policymakers
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reviewed and approved the officers’ alleged decisions to use excessive force, to delay medical care,
or to illegally obtain Plaintiff’s blood. Plaintiff does not allege this. Instead, Plaintiff claims that
the City failed to properly investigate the officers actions after these alleged violations took place
and that it is subsequently liable under § 1983 for this failure. The Fifth Circuit expressly rejected
such an argument in Milam.
In Milam, the plaintiff made a similar argument as Plaintiff, stating that the municipality
ratified the arresting officers’ conduct by taking no disciplinary action against them. 113 F.App’x
at 628. According to the Fifth Circuit,
First, this record does not present a situation where the policymakers have approved
the decision and the basis for it. That the policymakers failed to take disciplinary
action in response to Milam’s complaints does not show that they knew of and
approved the illegal character of the arrest, determining that it accorded with
municipal policy. Second, it is hard to see how a policymaker’s ineffectual or
nonexistent response to an incident, which occurs well after the fact of the
constitutional deprivation, could have caused the deprivation.
Id. (internal citations and quotations omitted) (emphasis in original). Similarly, in this case, any
failure of the City that Plaintiff alleges necessarily occurred after the alleged constitutional
deprivations. The Court consequently cannot say that these failings caused the deprivations.
Plaintiff therefore cannot assert liability against the City on a ratification theory.
Because Plaintiff has made no showing that the City is liable under Monell for the alleged
violations of his constitutional rights, the Court will grant the City’s Motion for Partial Summary
Judgment [223]. The federal claims under § 1983 against the City will be dismissed with
prejudice. The state claims against the City remain pending.
D.
The City’s Motion to Strike [256]
The City moves that the Court strike the report of Plaintiff’s expert, Ronald Crew, from
consideration with regards to its Motion for Partial Summary Judgment [223]. Because the Court
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finds that the City’s Motion for Partial Summary Judgment [223] should be granted regardless of
whether this report is considered, the Motion to Strike [256] is denied as moot.
III. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial
Summary Judgment [225] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that the City’s Motion for Partial
Summary Judgment [223] is granted. The federal claims under § 1983 against the City will be
dismissed with prejudice. The state claims against the City remain pending.
IT IS FURTHER ORDERED AND ADJUDGED that the City’s Motion to Strike [256] is
denied as moot.
SO ORDERED AND ADJUDGED this the 25th day of May, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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