Smith v. City of Gretna Police Dept., 175 F. Supp. 2d 870 (E.D. La. 2001)

*871 *872 James A. McPherson, Mary E. Schillesci, McPherson & Schillesci, New Orleans, LA, for Gaylen E. Smith.

Walter J. LeBlanc, Jr., Molaison & LeBlanc, Gretna, LA, for City of Gretna Police Dept., Claude Joey Istre, Junius R. Rogers, Beauregard H. Miller, Jr.

Jeffrey Kent Warwick, Michael Joseph Gautier, LeBlanc, Miranda, Warwick & Milazzo, Metairie, LA, for Ray Brandt Dodge, Inc.

BERRIGAN, District Judge.

On April 25, 2001, the Court heard oral argument on the motions for summary judgment of the City of Gretna Police Department, Beauregard H. Miller, Jr., Claude "Joey" Istre and Junius R. Rogers (collectively "Public Defendants") (Rec. Doc. 40) and of Ray Brandt Dodge, Inc. ("Dodge") (Rec.Doc. 41).^[1] After reviewing the arguments of counsel, the record and the applicable law, IT IS ORDERED that the Motions for Summary Judgment are hereby GRANTED, and Plaintiff's case is hereby DISMISSED WITH PREJUDICE with regard to ALL DEFENDANTS.^[2]

A district court can grant a motion for summary judgment only when 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, 91 L. Ed. 2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute ... [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party ... [and a] fact ... [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset *873 Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 32224, 106 S. Ct. 2548, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248, 106 S. Ct. 2505. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 24950, 106 S. Ct. 2505 (citations omitted).

On September 29, 1998, at approximately 12:15 a.m., Plaintiff was driving a 1998 Dodge Stratus which belonged to his employer, Ray Brandt Dodge, Inc., on Stumpf Boulevard within the City of Gretna.^[3] When Officer Istre observed the Plaintiff drive by, the vehicle did not appear to have a valid inspection sticker/brake tag.^[4] In addition, the vehicle bore no visible Louisiana license plate.^[5] The car did, in fact, have a temporary dealer license plate, but the plate had fallen out of view and was lying in the rear seat of the vehicle.^[6] Plaintiff has not refuted Officer Istre's claim that the car did not have a valid inspection sticker/brake tag, and has offered no evidence regarding the visibility of the temporary license plate.^[7] Plaintiff alleges that once he was pulled over, Officer Istre asked him to whom the car he was driving belonged, where he lived, whether he had any drugs or weapons in the car, and, when Plaintiff asked the officer why he had been pulled over, Officer Istre allegedly responded by saying, "You shouldn't be worrying about that.... You should be worrying about who ... gave *874 you permission to take this car."^[8] Plaintiff maintains that he had proof of insurance that the dealership provided to employees driving company cars,^[9] but that the Officer never asked for this documentation.

At the time of the stop, Officer Istre attempted to verify whether Plaintiff was, in fact, driving the car with the permission of his employer. Plaintiff told the officer that Joe Murray or Ishman Boles could confirm that he had permission to drive the car,^[10] but Officer Istre instead contacted another police officer and obtained from him the name of a contact at the Dodge dealership with whom that police had worked in the past.^[11] This contact was Mr. Tourelle. Tourelle appeared at the scene and told Officer Istre that Plaintiff did not have permission to drive the car, and that he wanted to press charges against him. Plaintiff contends that Tourelle and Officer Istre conspired to violate his constitutional rights, noting that the officer told him "you're going to jail tonight"^[12] and that, when Plaintiff asked Tourelle to call either Murray or Boles, Tourelle said "No, you're not worth it. You're going to jail tonight."^[13]

The Court finds it plausible that the reason why Defendant was actually pulled over was that he was a black man driving an expensive new car the phenomenon known as "driving while black."^[14] However, well-established case law instructs that the subjective intent of the police officer when making a stop is irrelevant if in fact there existed an objectively reasonable basis for pulling the individual over. As the Fifth Circuit recently ruled in United States v. Escalante:

The traffic stop may have been pretextual. But under Whren v. United States, a traffic stop, even if pretextual, does not violate the Fourth Amendment if the officer making the stop has "probable cause to believe that a traffic violation has occurred." This is an objective test based on the facts known to the officer at the time of the stop, not on the motivations of the officer in making the stop. On the other hand, if it is clear that what the police observed did not constitute a violation of the cited traffic law, there is no "objective basis" for the stop, and the stop is illegal.

239 F.3d 678, 68081 (5th Cir.2001) (citing Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996)).

The undisputed facts of this case reveal that the police officer observed that the vehicle driven by Plaintiff lacked an inspection sticker/ brake tag,^[15] and a valid Louisiana license plate.^[16] Therefore, *875 based on these objective factors, the stop was permissible. After the stop was made, Officer Istre was entitled to ask for proof of registration and insurance. Upon learning that the Plaintiff was driving a vehicle with dealer plates, ostensibly with the permission of the car dealer, the officer was also entitled to verify whether Plaintiff was authorized to operate this car.^[17] Officer Istre was not required to call the individuals identified by Plaintiff as the only ones who could verify his story. Once Tourelle, an agent and representative of the Dodge dealership, told the officer that Plaintiff did not have permission to drive the car and that he wanted to press charges, the officer acted within his proper authority by placing Plaintiff under arrest. For all of these reasons, the Court finds that Officer Istre did not violate any constitutional rights of the Plaintiff.^[18]

At oral argument, Plaintiff conceded that the only basis for his federal claim against Tourelle arises from the allegation that Tourelle acted under color of state law by conspiring with Officer Istre to violate his constitutional rights. Having found no constitutional violation resulting from Officer Istre's actions, the Court finds that the claims against Tourelle must also fail. The filing of a criminal complaint is insufficient to transform a private individual into a state actor for purposes of § 1983 liability. See Hernandez v. Schwegmann Bros. Giant Supermarkets, 673 F.2d 771, 772 (5th Cir.1982). Likewise, the federal claims against Dodge for actions taken by its purported agent and representative must also be dismissed, because Tourelle was not acting under color of state law.^[19]

For all the foregoing reasons, IT IS ORDERED that Defendants' Motions to Dismiss are hereby GRANTED. Plaintiff's Complaint is DISMISSED WITH PREJUDICE WITH REGARD TO ALL DEFENDANTS.

IT IS SO ORDERED.

*877

*878

*879

*880

[1] Also noticed for hearing were numerous motions in limine. At the time of the hearing, the Motion to Strike Experts (Rec.Doc. 32) and the Motion to Strike Witness Testimony (Rec.Doc. 44) had been amicably resolved. With regard to the Motion to Strike Evidence of Other Legal Proceedings (Rec.Doc. 43), the parties only disputed whether reference to the bankruptcy proceeding of Mr. Tourelle and the related adversary proceeding brought against Tourelle by Plaintiff were admissible. In light of the Court's rulings below, any pending motions in limine are hereby DISMISSED AS MOOT.

[2] Dodge's defense rests on the argument that the actions of the private individuals in this dispute, and in particular, those of Edward Tourelle, do not satisfy the "under color of law" requirement necessary for liability under 42 U.S.C. § 1983. Therefore, in granting Dodge's motion for summary judgment, the Court finds that the claims against Tourelle must be dismissed as well. Although Dodge's counsel conceded that he was not formally representing Mr. Tourelle for the purposes of this hearing, he acknowledged that the substance of his motion also spoke to the issue of whether Plaintiff could recover from Tourelle under § 1983 for the events forming the basis of this lawsuit.

[3] The Public Defendants have argued that Plaintiff was driving his vehicle in violation of the emergency curfew, which had been placed in effect by the City in response to the threat of Hurricane Georges. See Public Defendants' Motion Exh. A. In his Opposition, Plaintiff maintained that the curfew had been lifted in Jefferson Parish as of 12:30 p.m. on September 28, 2001. See Plaintiff's Opposition to Public Defendant's Motion, Exh. C. However, at oral argument, counsel for the City emphasized that the fact that the curfew in Jefferson Parish had been lifted was irrelevant to the issue of whether the City of Gretna had lifted its curfew. If the purported curfew violation had been the only basis given by Officer Istre for pulling over the Plaintiff, the Court would be inclined to find a disputed issue of material fact that would preclude summary judgment. However, because there was another objective reason for the stop regarding the license plate, about which there are no disputed issues of material fact, summary judgment is appropriate at this time. See discussion infra.

[4] See Public Defendants' Motion, Exh. B (Istre Affidavit).

[5] See id.

[6] See id.

[7] The Court thoroughly reviewed both of Plaintiff's depositions for any statements that would call these representations made by Officer Istre in his affidavit into question. All Plaintiff stated in his deposition regarding these points was that he didn't remember whether the vehicle had a brake tag, that the vehicle had a temporary dealer license plate (but not whether it was visible), and that he had no proof of registration for the car. See Plaintiff's Opposition to Public Defendant's Motion, Exh. C at 34 (hereinafter "September 2000 Deposition"); See also Private Defendant's Motion, Exh. A at 18 (hereinafter "January 2001 Deposition").

[8] September 2000 Deposition at 3440, 56

[9] See id. at 34.

[10] See id. at 4142; see also January 2001 Deposition at 4043.

[11] This information came to the attention of the Court during oral argument.

[12] 2000 Deposition at 40.

[13] Id. at 4142.

[14] See, e.g., Angie Cannon, DWB: Driving While Black Motorists Are Fighting Back Against Unfair Stops and Searches, U.S. News & World Report, Mar. 15, 1999, available at 1999 WL 8432421.

[15] See La. R.S. 32:53(D) ("No person shall drive a vehicle upon highways within this state, or permit or allow any vehicle owned by him or under his control to be driven on said highways, unless and until such vehicle bears an inspection tag showing it to have been inspected and approved as required by the provisions of R.S. 32:1301-32:1310, if such vehicle is required to be so inspected.").

[16] See La. R.S. 47:507 (requirement that valid license plate be displayed at rear of vehicle).

[17] The City also cites La. R.S. 47:505(D) to support its contention that Plaintiff's use of a dealer license plate for personal rather than professional business was unlawful. See La. 27 R.S. 47:505(D) ("It is unlawful for any manufacturer or dealer to use or display a dealer's plate upon any vehicle not manufactured by such manufacturer or being bona fide demonstrated, sold, purchased, or exchanged by such dealer, or to permit such a dealer's plate to be used in any manner upon the vehicle belonging to himself or his employees, associates, agents, or representatives, or upon any vehicles being operated other than as an incident to and part of the legitimate object and purpose for which such plates are issued."). Although the documentation provided by the City regarding the disposition of all of the counts against the Plaintiff is not entirely clear, Plaintiff did plead guilty to at least one of the counts for which he was stopped. See Appendix 1 in globo.

[18] At oral argument, the Court observed that Plaintiff had not offered any evidence to support its allegations against Mr. Miller, Mr. Rogers or the City of Gretna Police Department and DISMISSED WITH PREJUDICE any claims against these Defendants. In reaching this outcome, the Court first notes that absolutely no argument or evidence was presented regarding the claims against Mr. Rogers in his individual capacity. Second, Section 1983 will not support a finding of liability against the Chief of Police, Mr. Beauregard H. Miller, Jr., in his individual capacity under a theory of respondeat superior. Rather, he must have been "either personally involved in the constitutional deprivation or [there must have been] a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Casanova v. City of Brookshire, 119 F. Supp. 2d 639 (S.D.Tex.2000). Likewise, there are no allegations that the City of Gretna Police Department has a "pattern or practice" of violating constitutional rights, as to justify municipal liability, or liability against Miller and/or Rogers in their official capacities (which is effectively the same as suing the City of Gretna). See Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Plaintiff also does not offer any support in his opposition of the "failure to train" allegation made in his complaint. Therefore, summary judgment in favor of Rogers, Miller and the City of Gretna Police Department is merited. Likewise, the Court's determination that no violation of Plaintiff's constitutional rights occurred obviates any need to engage in an analysis of whether Officer Istre would be entitled to qualified immunity for his actions.

[19] In previous motions, Dodge has disputed whether the actions of Tourelle may be attributable to the dealership. See Rec. Doc. 19; see also October 5, 2000 Minute Entry (denying Dodge's motion for summary judgment) (Rec.Doc. 22).