Beard v. Wolf et al, No. 2:2013cv04772 - Document 118 (E.D. La. 2014)

Court Description: ORDER granting 76 Motion in Limine; granting 77 Motion for Partial Summary Judgment. Signed by Judge Jay C. Zainey on 12/17/14. (jrc)
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Beard v. Wolf et al Doc. 118 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J ANICE BEARD CIVIL ACTION VERSUS NO: 13-4772 CRANE PAUL WOLF, ET AL. SECTION: "A" (5) ORD ER AN D REASON S The following m otion is before the Court: Mo tio n fo r Partial Su m m ary Ju d gm e n t ( Re c. D o c. 77) filed by Defendants, Sheriff Daniel Edwards and Crane Wolf. Plaintiff, J anice Beard, has filed an opposition to the m otion. The m otion, noticed for subm ission on October 22, 20 14, is before the Court on the briefs without oral argum ent. For the reasons that follow, the m otion is GRANTED. Also before the Court is Defendants' Mo tio n in Lim in e ( Re c. D o c. 76 ) to exclude evidence and testim ony at trial pertaining to several topics. The m otion was noticed for subm ission on October 22, 20 14. Plaintiff has not responded to the m otion. The Court finds Defendants' unrebutted argum ents to be persuasive. The m otion in lim ine will therefore be GRANTED in its entirety. I. Backgro u n d Plaintiff J anice Beard brings this action pursuant to 42 U.S.C. § 1983 against defendants Deputy Crane Paul Wolf and Sheriff Daniel Edwards, both of Tangipahoa Parish. This action arises out of plaintiff J anice Beard's arrest on February 22, 20 13. Beard was a passenger in a vehicle that was attem pting to exit a parking spot at a bar located in Ham m ond, Louisiana. (Com p. ¶ 6). The vehicle m ade contact with another vehicle and som eone called 911. Defendant Wolf responded to the call. Beard contends that Wolf was 1 belligerent and for no apparent reason pulled her from the vehicle, m aced her, and threw her to the ground. (Id. ¶ 10 ). Beard contends that she was then arrested without probable cause and subjected to excessive force in the process. (Id. ¶¶ 11-2). Beard alleges that she was denied tim ely m edical treatm ent and food service while being held at the jail, and deprived of her personal belongings because she lacked the cash fee to obtain them . (Id. ¶¶ 13-14, 18). The com plaint against Wolf and the official capacity claim s against Sheriff Daniel Edwards are brought pursuant to § 1983 and state law. Plaintiff was charged with resisting an officer, battery of a police officer, and disturbing the peace. (Rec. Doc. 45, Fourth Am ended Com plaint ¶ 80 ). Those charges were nolle prossed on April 28, 20 14. Plaintiff later am ended her com plaint to join claim s against the District Attorney for Tangipahoa Parish for m alicious prosecution. The Court dism issed those claim s on J uly 23, 20 14 (Rec. Doc. 64). A jury trial in this m atter is scheduled to com m ence on February 9, 20 15. (Rec. Doc. 63). Defendants now m ove for partial sum m ary judgm ent on several issues, each of which the Court addresses below. II. Mo tio n fo r Su m m ary Ju d gm e n t Sum m ary judgm ent is appropriate only if "the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any," when viewed in the light m ost favorable to the non-m ovant, "show that there is no genuine issue as to any m aterial fact." TIG Ins. Co. v. Sedgw ick Jam es, 276 F.3d 754, 759 (5th Cir. 20 0 2) (citing Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a m aterial fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-m oving party. Id. (citing Anderson, 477 U.S. at 248). The court m ust draw all justifiable 2 inferences in favor of the non-m oving party. Id. (citing Anderson, 477 U.S. at 255). Once the m oving party has initially shown "that there is an absence of evidence to support the nonm oving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-m ovant m ust com e forward with "specific facts" showing a genuine factual issue for trial. Id. (citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials, speculation, im probable inferences, unsubstantiated assertions, and legalistic argum entation do not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 10 93, 10 97 (5th Cir. 1993)). The Court begins by noting that Plaintiff's opposition to Defendants' m otion is for the m ost part unresponsive to the specific argum ents that Defendants are m aking. The opposition not only fails in large part to address Defendants' argum ents, but it also includes argum ents in opposition to issues that clearly have not been raised, and to claim s that are not part even part of this lawsuit.1 Plaintiff's opposition totals 546 pages yet the briefing contains only two citations to the exhibits.2 The party opposing sum m ary judgm ent m ust do so by citing to specific evidence in the record. W illis v. Cleo Corp., 749 F.3d 314, 317 n.3 (5th Cir. 20 14) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)). That party m ust also explain the "precise m anner" in which that evidence supports her argum ent. Id. (quoting Forsy th v. Barr, 19 F.3d 1527,1536 (5th Cir. 1994)). Rule 56 does not im pose on the district court a duty to sift through the record in search of evidence to support a party's opposition to 1 For instance, at pages 11-13 of the Opposition Plaintiff unexplicably argues about First Am endm ent retaliation, which is not part of this case. Plaintiff also spent m uch of her opposition arguing the m erits of the excessive force and false arrest claim s vis à vis Wolf in his individual capacity. But those claim s are not at issue in Defendants' m otion. 2 On October 22, 20 14, the Court ordered counsel for Plaintiff to deliver a hard copy of the Opposition to cham bers. (Rec. Doc. 98). The Court expressly instructed that the copy was to be tabbed but counsel ignored this instruction. The Court was provided 546 loose, unbound pages that have been difficult to use. 3 sum m ary judgm ent. Id. at 317 (quoting Ragas, 136 F.3d at 458). A. Officia l Ca p a cit y Cla im s Plaintiff has sued Sheriff Edwards in his official capacity only, and she has sued Deputy Wolf in both his official and individual capacities. (Rec. Doc. 3; Am ended Com p. ¶ 3(A)-(C)). Official capacity suits represent another way of pleading an action against an entity of which an officer is an agent. Turner v. Houm a Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 483 (5 th Cir. 20 0 0 ) (quoting Kentucky v. Graham , 473 U.S. 159, 165 (1985)). Thus, all of the official capacity claim s in this action are against the Sheriff of Tangipahoa Parish. The sole claim that the Court addresses for purposes of the official capacity claim s are the Fourth Am endm ent claim s for false arrest and excessive force. See the discussion infra regarding rights listed in the pleadings but that are not im plicated under the facts of this case. The official capacity claim s are governed generally by the principles of Monell v. Departm ent of Social Services of City of N ew York, 436 U.S. 658 (1978) . Under Monell, for a m unicipality to be liable for the constitutional violations of one of its em ployees, the plaintiff m ust offer proof of a policy or custom that was the m oving force behind the claim ed constitutional violation. Duvall v. Dallas County Tex., 631 F.3d 20 3, 210 (5th Cir. 20 11) (citing Monell, 436 U.S. at 694). In her opposition, Plaintiff points to no evidence to support the inference that the Sheriff had an official policy or custom of allowing officers to use excessive force and to arrest citizens without probable cause, m uch less one that was the m oving force behind Plaintiff's injuries. Plaintiff asserts in her opposition that she should be granted a continuance on Defendants' m otion and she m akes reference to outstanding discovery requests but she does not describe what she expects to discover at this late date. The Court notes that no m otions to com pel are pending and Plaintiff's m ost recent m otion before the m agistrate judge was 4 dism issed due to Plaintiff's counsel's failure to appear for the hearing. (Rec. Doc. 111; Minute Entry 11/ 19/ 14). Plaintiff did have a m otion to com pel pending but that m otion was likewise dism issed because once again counsel did not appear. (Rec. Doc. 10 9; Minute Entry 11/ 12/ 14). Plaintiff has not dem onstrated cause for delaying resolution of Defendants' m otion so no continuance will be granted. Plaintiff has failed to create an issue of fact as to a policy or custom that was the m oving force behind her alleged injuries. The m otion for sum m ary judgm ent is GRANTED as to this claim . Plaintiff also asserts a failure to train/ supervise claim as one of her theories of official capacity liability. To succeed on a failure to train claim the plaintiff m ust dem onstrate that 1) the m unicipality's training policy procedures were inadequate, 2) the m unicipality was deliberately indifferent in adopting its training policy, and 3) the inadequate training policy directly caused the plaintiff's injuries. Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 20 10 ) (citing Baker v. Putnal, 75 F.3d 190 , 20 0 (5th Cir. 1996)). A § 1983 failure to supervise claim requires proof that 1) the supervisor failed to supervise the officer; 2) a causal link exists between the failure to supervise and the violation of the plaintiff's rights; and 3) the failure to supervise am ounts to deliberate indifference. Goodm an v. Harris County , 571 F.3d 388, 395 (5th Cir. 20 0 9) (citing Sm ith v. Brenoettsy , 158 F.3d 90 8, 911-12 (5th Cir. 1998)). To establish deliberate indifference the plaintiff usually m ust dem onstrate a pattern of violations and that the inadequacy of the training is obvious and obviously likely to result in a constitutional violation. Id. (quoting Cousin v. Sm all, 325 F.3d 627, 637 (5th Cir. 20 0 3)). In her opposition Plaintiff suggests that Wolf was unable to testify regarding his general understanding of the Sheriff's policies.3 Plaintiff points out, without citation to any 3 This assertion contains one of the two citations to the Opposition's exhibits contained in the entire m em orandum . The specific deposition pages cited, however, are not included with the 5 evidence or reference to any details, that Wolf had a prior disciplinary history. These argum ents do not address the culpability of the Sheriff as a m oving force behind any violation. Plaintiff has failed to create an issue of fact as to a failure to train/ supervise claim . The m otion for sum m ary judgm ent is GRANTED as to these theories of liability. B. M is ce lla n e o u s Cla im s The Original and Am ended Com plaints contain references to various rights and causes of action that are not im plicated under the facts of this case. Defendants have m oved to dism iss any claim s under the Second, Fifth, Sixth, Eighth, and Fourteenth Am endm ents. Plaintiff has not responded to this aspect of the m otion. Thus, the m otion for sum m ary judgm ent is GRANTED as to any claim s brought under these Am endm ents. Any purported separate claim for invasion of privacy is likewise DISMISSED. C. Cla im s U n d e r 4 2 U .S.C. § 19 8 1, 19 8 5( 3 ) , a n d 19 8 6 Defendants m ove for sum m ary judgm ent on any claim s asserted under §§ 1981, 1985(3), and 1986. Section 1981 prohibits intentional racial discrim ination in the m aking and enforcing of contracts. Runy on v. McCrary , 427 U.S. 160 , 168 (1976); Oden v. Oktibbeha Cnty ., 246 F. 3d 458, 463 (5th Cir. 20 0 1).4 This provision is not im plicated under the facts of excerpts that are Exhibit B, at least not in the copy provided to the Court. 4 42 U.S.C. § 1981, entitled Equal Rights Under the Law, provides: (a) Statem ent of equal rights All persons within the jurisdiction of the United States shall have the sam e right in every State and Territory to m ake and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishm ent, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “m ake and enforce contracts” includes 6 this case. Section 1985 is a civil conspiracy statute.5 The law in this circuit recognizes that a § the m aking, perform ance, m odification, and term ination of contracts, and the enjoym ent of all benefits, privileges, term s, and conditions of the contractual relationship. (c) Protection against im pairm ent The rights protected by this section are protected against im pairm ent by nongovernm ental discrim ination and im pairm ent under color of State law. 5 42 U.S.C. § 1985(2), entitled Obstructing J ustice; Intim idating Party, Witness, or J uror, provides: If two or m ore persons in any State or Territory conspire to deter, by force, intim idation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any m atter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentm ent, or indictm ent of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentm ent, or indictm ent lawfully assented to by him , or of his being or having been such juror; or if two or m ore persons conspire for the purpose of im peding, hindering, obstructing, or defeating, in any m anner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attem pting to enforce, the right of any person, or class of persons, to the equal protection of the laws. 42 U.S.C. § 1985(3), entitled Depriving Persons of Rights or Privileges, provides: If two or m ore persons in any State or Territory conspire or go in disguise on the highway or on the prem ises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and im m unities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or m ore persons conspire to prevent by force, intim idation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal m anner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Mem ber of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set 7 1985(2) or (3) claim m ust be grounded on racial anim us. Bry an v. City of Madison, 213 F.3d 267, 276 (5th Cir. 20 0 0 ) (citing New berry v. East Tex. State Univ., 161 F.3d 276, 281 n.2 5th Cir. 1988)); Mitchell v. City of Sugar Land, No. 10 -223, 20 11 WL 1156253, at *8 (S.D. Tex. Mar. 25, 20 11) (citing W ong v. Stripling, 881 F.2d 20 0 , 20 2-0 3 (5 th Cir. 1989)). Plaintiff produces no evidence whatsoever that race played a factor in Wolf's conduct, m uch less that he conspired with others to do it. Further, a m unicipality cannot as a m atter of law enter into a conspiracy. Batiste v. City of Beaum ont, 421 F. Supp. 2d 969, 988 (E.D. Tex. 20 0 5); Mitchell, 20 11 WL 1156253, at *8 (citing Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998); Hiliard v. Ferguson, 30 F.3d 649, 653 (5 th Cir. 1994)). Plaintiff has no plausible claim under § 1985. And §1986 does not provide an independent cause of action but instead requires the existence of a valid claim under § 1985.6 Bradt v. Sm ith, 634 F.2d 796, forth in this section, if one or m ore persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived m ay have an action for the recovery of dam ages occasioned by such injury or deprivation, against any one or m ore of the conspirators. 6 42 U.S.C. § 1986, entitled Action for Neglect to Prevent, provides: Every person who, having knowledge that any of the wrongs conspired to be done, and m entioned in section 1985 of this title, are about to be com m itted, and having power to prevent or aid in preventing the com m ission of the sam e, neglects or refuses so to do, if such wrongful act be com m itted, shall be liable to the party injured, or his legal representatives, for all dam ages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such dam ages m ay be recovered in an action on the case; and any num ber of persons guilty of such wrongful neglect or refusal m ay be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and m ay recover not exceeding $ 5,0 0 0 dam ages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit 8 799 n.3 (5 th Cir. 1981). The m otion for sum m ary judgm ent is GRANTED as to any claim s under §§ 1981, 1985, and 1986. D . St a t e La w Cla im s To recover for intentional infliction of em otional distress under Louisiana law, a plaintiff m ust establish 1) that the conduct of the defendant was extrem e and outrageous; 2) that the em otional distress suffered by the plaintiff was severe; 3) and that the defendant desired to inflict severe em otional distress or knew that severe em otional distress would be certain or substantially certain to result from his conduct. Stevenson v. Lavalco, Inc., 669 So. 2d 60 8, 611 (La. App. 2 nd Cir. 1996) (citing W hite v. Monsanto, Co., 585 So. 2d 120 5 (La. 1991)). Defendants point out that Plaintiff has not sought any type of psychiatric or other psychological help as a result of the encounter with Wolf. Plaintiff fails to point to any com petent evidence to create an issue of fact on this claim , particularly with respect to the requirem ent of severe em otional distress. The m otion for sum m ary judgm ent is GRANTED as to this claim . Defendants m ove for sum m ary judgm ent on any claim s that Plaintiff m ight have asserted for abuse of process and m alicious prosecution. Plaintiff did not address this aspect of Defendants' m otion in her opposition. The m otion for sum m ary judgm ent is GRANTED as to these claim s. III. Mo tio n in Lim in e Plaintiff has not filed an opposition to Defendants' m otion in lim ine. The Court finds of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not com m enced within one year after the cause of action has accrued. 9 m erit to the m otion, which will be granted in its entirety, and the following evidence will be excluded at trial: 1) references to drug usage and/ or shooting up the crowd; 2) references to a lost wage claim (including any expert testim ony in this area); 3) accident reconstruction (including any expert testim ony in this area); 4) expert Lloyd Grafton; and 5) references to settlem ent. IV. Co n clu s io n All federal claim s are dism issed against Defendants in their official capacities. The only federal claim s rem aining for trial are Beard's Fourth Am endm ent claim s against Wolf in his individual capacity for excessive force and false arrest. The supplem ental state law tort claim s asserted against Wolfe personally, and against the Sheriff vicariously, for excessive force and false arrest, also rem ain for trial. Expert testim ony for purposes of establishing liability will not be adm itted. Accordingly, and for the foregoing reasons; IT IS ORD ERED that the Mo tio n fo r Partial Su m m ary Ju d gm e n t ( Re c. D o c. 77) filed by Defendants, Sheriff Daniel Edwards and Crane Wolf, is GRAN TED as explained above; IT IS FU RTH ER ORD ERED that the Mo tio n in Lim in e ( Re c. D o c. 76 ) filed by Defendants, Sheriff Daniel Edwards and Crane Wolf, is GRAN TED as explained above. Decem ber 17, 20 14 _______________________________ J AY C. ZAINEY UNITED STATES DISTRICT J UDGE 10