Smith v. Carruth et al, No. 2:2015cv04570 - Document 86 (E.D. La. 2017)
Court Description: ORDER & REASONS granting in part and denying in part 40 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 3/1/2017. (mmm)
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Smith v. Carruth et al Doc. 86 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA FELISHA SMITH CIVIL ACTION VERSUS NO. 15-4570 GRANT CARRUTH, ET AL. SECTION “R” (5) ORD ER AN D REASON S Defendants Am ite City, Am ite City Police Department (ACPD) and ACPD Police Chief J erry Trabona m ove for sum m ary judgm ent on plaintiff Felisha Sm ith’s claim s under 42 U.S.C. § 1983, and on Smith’s related state law claim s. 1 For the following reasons, the Court grants in part, and denies in part, defendants’ m otion. I. BACKGROU N D This civil case arises out of the alleged kidnapping and rape of plaintiff Felisha Sm ith. According to Sm ith’s am ended com plaint, Sm ith was kidnapped and raped by defendant Grant Carruth on or around September 20 , 20 14. 2 At the tim e, Carruth was a police officer with ACPD. 3 According to Sm ith, she placed an advertisem ent on an escort services website, and 1 2 3 R. Doc. 40 . R. Doc. 28 ¶ 10 . R. Doc. 40 -2 at 2 ¶ 3; R. Doc. 40 -8 at 56-57. Dockets.Justia.com Carruth responded to the ad at about 12:0 0 a.m. and invited Sm ith to his hom e. 4 Sm ith went to the address provided by Carruth, at which point Carruth identified him self as an undercover officer and purported to place Sm ith under arrest for prostitution. 5 Instead, Carruth drove Sm ith to a private wooded area and raped her. 6 Sm ith also alleges that on August 11, 20 14, Carruth kidnapped and sexually assaulted another victim , known as “A.B.”7 On Decem ber 1, 20 16, Carruth was convicted of third-degree rape and kidnapping of Sm ith by the 21st J udicial District Court for the Parish of Tangipahoa, Louisiana, and was sentenced to 8 years in state prison. 8 On September 18, 20 15, Sm ith filed this lawsuit, 9 and Sm ith am ended her complaint on May 3, 20 16. Sm ith alleges that Carruth’s acts violated her Fourth and Fourteenth Am endm ent rights under the Constitution. 10 Sm ith further alleges that Trabona is liable in both his individual and official capacities and that Am ite City and ACPD are liable under Monell v. Departm ent of Social Services of City of N ew York, 436 U.S. 658 (1978), for 4 R. Doc. 28 at 5 ¶ 15. Id. ¶ 18. 6 Id. at 6 ¶ 20 . 7 Id. at 4 ¶ 11. 8 Counsel for defendants com m unicated that Carruth was convicted via fax letter. R. Doc. 71. 9 R. Doc. 1. 10 R. Doc. 28 at 9 ¶ 31. 2 5 their failure to supervise and train Carruth and otherwise prevent him from raping Sm ith. 11 Sm ith also brings state law negligence claim s, and seeks to hold Am ite City and Trabona liable for Carruth’s torts under a theory of respondeat superior. 12 Sm ith seeks damages, attorneys’ fees, and costs. 13 Defendants now move for summ ary judgm ent, arguing there is no evidence indicating that Trabona or anyone associated with ACPD had any knowledge of Carruth’s alleged attack of A.B., and therefore there is no evidence to link Carruth’s attack on Sm ith and the actions of Trabona, ACPD, and Am ite City. 14 Additionally, Chief Trabona argues he is entitled to the defense of qualified im m unity. 15 In support, defendants subm it the affidavit of Trabona, as well as deposition testim ony of Trabona and Detectives Michael Moore and Dale Athm ann of the Tangipahoa Parish Sheriff’s Office (TPSO). 16 Sm ith filed a response, 17 and defendants replied. 18 On J anuary 31, 11 Id. ¶ 32. Id. at 6-7 ¶ 26. Plaintiff’s amended com plaint did not name ACPD as a party, as Am ite City Police Department is not a juridicial entity separate and distinct from Am ite City and is not am enable to suit. See Tracie v. Foster, No. 0 7-5754, 20 0 8 WL 1834466, at *2 (E.D. La. Apr. 23, 20 0 8). 13 Id. at 10 ¶ 33. 14 R. Doc. 40 . 15 R. Doc. 40 -1 at 6. 16 R. Doc. 40 -5 (Trabona Affidavit); R. Doc. 40 -6 (Moore Deposition); R. Doc. 40 -7 (Athm ann Deposition); R. Doc. 40 -8 (Trabona Deposition). 17 R. Doc. 45. 18 R. Doc. 51. 3 12 20 17, Sm ith filed a sur-reply, 19 and defendants filed a response to Sm ith’s sur-reply. 20 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ultim ate or conclusory facts and conclusions of law are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. 19 20 R. Doc. 67. R. Doc. 70 . 4 If the dispositive issue is one on which the m ovant will bear the burden of proof at trial, the m ovant “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the 5 existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION Sm ith’s federal claim s are brought under 42 U.S.C. § 1983. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Colum bia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. The elements of a section 1983 cause of action are: (1) a deprivation of rights secured by federal law (2) that occurred under color of state law, and (3) was caused by a state actor. See Victoria W . v. Larpenter, 369 F.3d 475, 482 (5th Cir. 20 0 4). A. Qu alifie d Im m u n ity Defendants first argue that Chief Trabona is entitled to qualified im m unity. 21 Qualified im m unity shields government agents, sued in their individual capacities, “from liability for civil dam ages insofar as their 21 R. Doc. 40 -1 at 6. 6 conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Behrens v. Pelletier, 516 U.S. 299, 30 5 (1996) (citation om itted). The defense of qualified im m unity is unavailable in a suit against a state actor in his official capacity, but is available in situations in which a governm ent actor is sued in his individual capacity. Kentucky v. Graham , 473 U.S. 159, 166 (1985). If a party asserts the defense of absolute or qualified im m unity in good faith, the burden shifts to the nonm ovant to rebut it. Disraeli v. Rotuna, 489 F.3d 628, 631 (5th Cir. 20 0 7). To rebut an absolute or qualified im m unity defense, the plaintiff m ay not sim ply rely on allegations in the pleadings, but m ust produce competent sum m ary judgm ent evidence raising a genuine issue of m aterial fact. Morales v. Boy d, 30 4 F. App’x 315, 318 (5th Cir. 20 0 8). Specifically, the plaintiff m ust identify facts supporting the conclusion that (1) “the defendant’s conduct violated [the plaintiff’s] constitutional right” and (2) the “defendant’s conduct was objectively unreasonable in light of clearly established law at the tim e of the violation.” Terry v. Hubert, 60 9 F.3d 757, 761 (5th Cir. 20 10 ) (citation om itted). “The very action in question need not previously have been held unlawful for a constitutional violation to be clearly established.” Id. at 763. Instead, the “unlawfulness [of the defendant’s conduct] m ust be apparent,” and “the 7 contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. Finally, in deciding this question, the facts alleged m ust be taken in the light m ost favorable to the party asserting the injury. Brosseau v. Haugen, 543 U.S. 194, 197 (20 0 4). As a threshold m atter, defendants argue that there was no underlying constitutional violation because Carruth was off-duty and his actions were “purely private.”22 There is no question, and defendants do not dispute, that rape and kidnapping violate clearly established rights if com m itted by state actors under color of law. See, e.g., Doe v. Tay lor Indep. Sch. Dist., 15 F.3d 443, 451-52 (5th Cir. 1994) (holding that sexual abuse and violation of bodily integrity clearly violate substantive due process rights under Fourteenth Am endm ent); McClendon v. City of Colum bia, 30 5 F.3d 314, 335-36 (5th Cir. 20 0 2) (same). Instead, defendants argue Carruth was not acting under color of law. Defendants are correct that not every action is under color of law sim ply because the actor is a public official. Sm ith v. W inter, 782 F.2d 50 8, 512 (5th Cir. 1986). However, the definition of “acting under color of state law” in section 1983 actions is broad, and covers situations in which the 22 R. Doc. 40 -1. 8 defendant possesses power “‘by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” W est v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941). Other cases have defined “under color of state law” as acting under “pretense of law.” Screw s v. United States, 325 U.S. 91, 111 (1945). A defendant in a section 1983 suit “acts under color of state law when he abuses the position given to him by the State.” W est, 487 U.S. at 50 (citing Monroe v. Pape, 365 U.S. 167, 172 (1961)). Further, this Circuit has long recognized that “whether a police officer is acting under color of law does not depend on duty status at the tim e of the alleged violation,” United States v. Tarpley , 945 F.2d 80 6, 80 9 (5th Cir. 1991) (citation om itted), and officials who act for purely personal reasons do not “necessarily fail to act ‘under color of law.’” Id. (quoting Brow n v. Miller, 631 F.2d 40 8, 411 (5th Cir. 1980 )). Sm ith testified that when she encountered Carruth, he flashed his police badge, handcuffed her, Mirandized her, and placed her under arrest. 23 She said Carruth then put her in the back of his vehicle, and threatened her with prostitution charges and jail. 24 According to Sm ith, Carruth continued 23 24 R. Doc. 45-2 at 3-4; R. Doc. 40 -10 at 11. Id. at 12-13. 9 to drive with Sm ith until he reached a secluded area, drew his weapon, and raped her. Sm ith’s testim ony regarding her rape and kidnapping show a violation of clearly established rights that occurred under color of state law. Carruth’s behavior resembles the behavior of the defendant-officer in United States v. Tarpley . 25 In Tarpley , the Fifth Circuit affirm ed the finding that Tarpley acted under color of law when he assaulted a m an who had an affair with Tarpley’s wife in Tarpley’s home. The Tarpley court noted that Tarpley used his service weapon, identified himself as a police officer, claim ed to have authority to assault the victim by virtue of being an officer, and that the “air of official authority pervaded the entire incident.” 945 F.2d at 80 9. As in Tarpley , there is evidence that Carruth used his badge and weapon, identified him self as a police officer, threatened to use his authority to arrest, charge, and jail the victim , and used his position of authority to intim idate the victim into com pliance. This is sufficient evidence for a jury to find that Carruth acted under pretense of law, that he took actions possible only because of the power granted to him under state law, and that he abused this authority. Defendants’ threshold argum ent that there was no constitutional 25 Tarpley was a criminal case and evaluated “under color of law” in the crim inal statutes 18 U.S.C. §§ 241 and 242, but the meaning is the same for both crim inal and civil statutes, and Tarpley cites to civil cases for its definition. 945 F.2d at 80 8-0 9. 10 violation is thus unavailing. Defendants’ citation to two out-of-circuit cases with different facts does not alter that conclusion, especially in light of Tarley . 26 That Carruth acted under color of state law does not end the inquiry. Plaintiff not only seeks to hold Carruth liable for his actions, she also seeks to im pose liability on Trabona. Regarding Trabona’s claim of qualified im m unity, Sm ith bears the burden to dem onstrate that Trabona’s conduct violated clearly established law. Salas v. Carpenter, 980 F.2d 299, 30 6 (5th Cir. 1992). Thus, to hold Trabona personally liable, Sm ith m ust show not only a violation of her clearly established rights, but also that Trabona’s conduct was objectively unreasonable in light of the existence of a clearly established theory of supervisory liability. See Tay lor, 15 F.3d at 454-456. Sm ith’s am ended com plaint asserts two theories of supervisory liability to hold Trabona liable. Specifically, her complaint alleges that (1) Trabona is liable because he was aware of Carruth’s previous attack on A.B. and failed to stop Carruth from attacking Sm ith, and (2) that Trabona failed 26 R. Doc. 40 -1 at 10 (citing Roe v. Hum ke, 128 F.3d 1213, 1216 (8th Cir. 1997) (police officer was not acting under color of law when he sexually assaulted m inor because he was not on duty, not in uniform , not wearing a badge, and not carrying weapon); Alm and v. DeKalb County , 10 3 F.3d 1510 , 1514-15 (11th Cir. 1997) (police officer not acting under color of state law when he forcibly broke into wom an’s apartm ent and raped her). 11 to supervise and/ or train Carruth. 27 In terms of the first theory, it is clearly established in this circuit that supervisors of police officers can be liable for the actions of their officers, even if they did not participate in those actions, if the supervisor “knew or should have known that the allegedly unconstitutional acts were occurring and [the supervisor] acquiesced in them .” W anger v. Bonner, 621 F.2d 675, 680 (5th Cir. 1980 ) (upholding jury instruction). As to plaintiff’s allegation that Trabona was aware that Carruth com m itted the first attack on A.B., Trabona contends that there is no evidence to support that allegation. Thus he could not have known that the attack on Sm ith was likely to occur. The evidence in the record confirms Trabona’s position, and there is no genuine dispute of fact as to whether Trabona knew of Carruth’s attack on A.B. before Sm ith was attacked. According to the Tangipahoa Parish police report, A.B. was attacked on August 11, 20 14. 28 TPSO Detective Moore was assigned to the case. Moore testified that until Carruth was arrested (after the Sm ith attack), Moore had not discussed Carruth with anyone from Am ite City. 29 Moore was also clear that ACPD had no involvem ent with the investigation of Carruth until after 27 28 29 R. Doc. 28 at 4-9. R. Doc. 67-1 at 15. R. Doc. 40 -6 at 87. 12 Carruth was arrested. 30 Moore said he had no knowledge that A.B. reported her attack to ACPD or Chief Trabona. 31 Additionally, he testified that despite Am ite City’s location in Tangipahoa Parish, TPSO and ACPD are not affiliated in any way. 32 Moore also testified that to his knowledge, ACPD was not notified via em ail of a description of a person of interest in the A.B. case. 33 Detective Dale Athm ann of TPSO was the lead detective on the Sm ith attack. He testified that his involvem ent with the A.B. investigation was lim ited to showing A.B. a photo lineup. 34 Athm ann said he was not aware of the A.B. attack until after Sm ith was attacked, so that he could not have inform ed ACPD about Carruth’s possible involvement with the A.B. attack before Sm ith was attacked. 35 Athm ann, like Moore, testified that he did not contact Trabona or anyone else with ACPD regarding Carruth until after Sm ith was attacked. 36 Finally, the record contains an affidavit and deposition testim ony from Trabona. Trabona attests that A.B. never reported her attack to him or the ACPD, and that neither Trabona nor anyone else at ACPD (aside from 30 31 32 33 34 35 36 Id. at 55. Id. at 111-12. Id. at 113-14. Id. at 122. Moore did adm it that he was “not certain.” Id. R. Doc. 40 -7 at 10 . Id. at 35. Id. at 58. 13 Carruth) had knowledge of the A.B. attack until after Sm ith was attacked. 37 Further, Trabona testified that he did not know anything about Carruth and either A.B. or Sm ith until after Carruth was arrested. 38 In fact, Trabona testified that he called the Sheriff of Tangipahoa Parish to tell him that he did not appreciate being kept in the dark. 39 For purposes of qualified im m unity, this lack of evidence indicates that Sm ith has not m et her burden to show that Trabona knew of Carruth’s previous actions and failed to stop him from attacking Smith. At this stage, Sm ith cannot rest on the allegations in her com plaint that Trabona or others within the ACPD knew of Carruth’s attack on A.B. Instead, she m ust subm it evidence indicating there is at least a factual dispute about Trabona’s knowledge. See Mitchell v. Forsy th, 472 U.S. 511, 526 (1985). Sm ith has failed to do so. Therefore, Trabona’s conduct was not objectively unreasonable, and Trabona is entitled to qualified im m unity against Sm ith’s claim s that Trabona knew or should have known that Carruth would attack Sm ith. Next, Sm ith asserts that Trabona is liable for his failure to train or supervise Carruth in a m anner that would have prevented Carruth from 37 38 39 R. Doc. 40 -5 at 2-3 ¶¶ 6, 11-13. R. Doc. 40 -8 at 10 2. Id. 14 violating her rights. The Fifth Circuit has adopted a three-part test for individual supervisory liability in the context of police officers. See Tay lor, 15 F.3d at 452. The test requires plaintiffs to show “1) the police chief failed to supervise or train the officer, 2) a causal connection existed between the failure to supervise or train and the violation of the plaintiff’s rights, and 3) such failure to supervise or train am ounted to [] deliberate indifference.” Id. at 452-53 (quotation om itted). Therefore, Sm ith cannot overcome Trabona’s qualified im m unity without showing that Trabona’s failure to train or supervise was objectively unreasonable in light of the requirement not to be deliberately indifferent to her rights. See Hare v. City of Conrinth, Miss., 135 F.3d 320 , 327-28 (5th Cir. 1998) (explaining interaction between qualified im m unity’s objective unreasonableness standard with failure to train’s deliberate indifference standard); see also Thom pson v. Upshur Cty ., TX, 245 F.3d 447, 460 (5th Cir. 20 0 1) (noting that when a defendant m oves for sum m ary judgment based on qualified im m unity on deliberate indifference claim s, plaintiff must show that “all reasonable officials sim ilarly situated would have then known that the [failure to train]” constituted deliberate indifference in violation of the Constitution). As to the first prong, the evidence on training is that the ACPD had a field officer training policy where the sergeants would take new hires on “ride 15 alongs” to teach them “what to do out there.”40 ACPD also had a policy of requiring at least 20 hours yearly of training in subjects including use of force, weapons training, hand-to-hand com bat training, first aid, and legal training. 41 Trabona also testified that he was unclear as to his departm ent’s disciplinary policy and that ACPD did not read or explain its policy and procedural m anual to its officers. 42 The existence of ACPD’s field officer training policy, the 20 hour requirement, and policy and procedure m anual is evidence that ACPD had some training. Sm ith contends that this training is insufficient, but points to no specific deficiencies in the training itself. But even assum ing that there were deficiencies in ACPD’s training policies, Sm ith has subm itted no evidence that this “failure” was causally connected to the violation of her rights or that the failure to supervise or train am ounted to deliberate indifference. Merely showing that additional training would have been helpful or that the injury “could have been avoided” if the em ployee had better or m ore training is insufficient. Connick v. Thom pson, 563 U.S. 51, 68 (20 11). 40 41 42 R. Doc. 40 -8 at 15. Id. at 42-43. Id. at 66, 10 3. 16 In this context, a showing of deliberate indifference generally requires “a showing ‘of more than a single instance of the lack of training or supervision causing a violation of constitutional rights.’” Burge v. St. Tam m any Parish, 336 F.3d 363, 370 (5th Cir. 20 0 3) (quoting Upshur Cty ., 245 F.3d at 459) (Burge II); see also Thom pson, 563 U.S. at 62. “A plaintiff m ust dem onstrate at least a pattern of sim ilar violations arising from training or supervising that is so clearly inadequate as to be obviously likely to result in a constitutional violation.” Brum field v. Hollins, 551 F.3d 322, 329 (5th Cir. 20 0 8) (internal m odifications and quotation om itted). Further, the plaintiff m ust dem onstrate that the supervisor whose alleged deliberate indifference caused the violation had actual or constructive knowledge of the pattern of sim ilar violations. See Pineda v. City of Houston, 291 F.3d 325, 330 (5th Cir. 20 0 2). And while there is a lim ited exception for singleincident liability, this exists only “where the facts giving rise to the violation are such that it should have been apparent to the [supervisor] that a constitutional violation was the highly predictable consequence of a particular policy or failure to train.” Burge II, 336 F.3d at 373 (citation om itted). Sm ith does not offer evidence to support a pattern. As described above, Trabona was not aware of the first attack on A.B. There is no evidence of a 17 com plaint from A.B. to Trabona or the ACPD. Additionally, Trabona testified that Carruth had a clean record before Trabona hired him and that there had been no complaints regarding Carruth between the tim e he was hired and when Trabona suspended him after his arrest. 43 Sm ith has produced no evidence that anyone complained about Carruth’s behavior before his attacks, and no evidence that other officers with ACPD com m itted sim ilar violations. Thus, Sm ith has failed to show a “pattern of sim ilar violations” that would give rise to failure to train or supervise liability. Further, the lim ited single-incident liability exception does not apply here because there is no evidence that Carruth’s attack was the “highly predictable consequence” of his alleged lack of training. 44 Brum field, 551 F.3d at 329. Everyone, let alone police officers, should know not to rape, and courts have consistently rejected “obvious” failure to train argum ents when com m on sense dictates that the violation should not require training to avoid. See, e.g., W alker v. City of N ew York, 974 F.2d 293, 299-30 0 (2d Cir. 43 R. Doc. 40 -8 at 28, 45. The Fifth Circuit described circumstances where it would be appropriate to find failure-to-train liability based on a single incident in Brow n v. Bry an Cty ., OK, 219 F.3d 450 (5th Cir. 20 0 0 ). In Brow n, the court noted that police officers regularly encounter situations in which use of force will be necessary, and therefore it is obvious and highly predictable that a total failure to train officers on use of force will result in excessive force violations. Id. at 462. Based on this obviousness, the single-incident exception was appropriate. Id. These circum stances are not present here. 18 44 1992) (rejecting failure to train not to perjure and prosecute the innocent argument); Andrew s v. Fow ler, 98 F.3d 10 69, 10 77 (8th Cir. 1996) (“In light of the regular law enforcement duties of a police officer, we cannot conclude that there was a patently obvious need for the city to specifically train officers not to rape young wom en.”); Barney v. Pulsipher, 143 F.3d 1299, 130 8 (10 th Cir. 1998) (“Specific or extensive training hardly seem s necessary for a jailer to know that sexually assaulting inm ates is inappropriate behavior.”). It goes without saying that police officers should not require training or special supervision to know not to rape and kidnap. Because Sm ith has not m et her burden to show a causal connection between any alleged failure to train or supervise Carruth and the violation of her rights, Trabona is entitled to qualified im m unity on Sm ith’s failure to train/ supervise claim s. Therefore, as Trabona has qualified im m unity as to all of Sm ith’s section 1983 claim s against him in his individual capacity, Trabona is entitled sum m ary judgment as to these claim s. B. Liability o f Am ite City an d Trabo n a in h is Official Capacity Sm ith’s suit also seeks to hold Am ite City and Trabona (in his official capacity) liable for the actions of Carruth. A suit against a government officer “in his official capacity” is the same as a suit against the government entity of which he is an agent. See Burge v. Parish of St. Tam m any , 187 F.3d at 19 468 (5th Cir. 1999) (citing McMillian v. Monroe Cty ., Ala., 520 U.S. 781, 78485 (1997)) (Burge I). Therefore, for the purposes of this section the liability of Trabona and the liability of Am ite City will be treated as one in the sam e. In section 1983 suits, m unicipalities cannot be held liable under a theory of respondeat superior. Pineda, 291 F.3d at 328. Instead, the Court m ust apply the Monell test, which ensures that m unicipalities are held responsible only for “their ow n illegal acts.” Connick v. Thom pson, 563 U.S. 51, 60 (20 11) (emphasis in original). Section 1983 municipal liability requires proof of three elements: (1) a policym aker, (2) an official policy or custom , and (3) a violation of constitutional rights whose “m oving force” is that policy or custom . Davis v. Tarrant Cty ., Tex., 565 F.3d 214, 227 (5th Cir. 20 0 9) (citations om itted). Thus, a plaintiff seeking to im pose liability on a m unicipality under section 1983 m ust “identify a m unicipal ‘policy’ or ‘custom ’ that caused the plaintiff’s injury.” Bd. of Cty . Com m ’rs of Bry an Cty . v. Brow n, 520 U.S. 397, 40 3-0 4 (1997). A policy need not itself be unconstitutional to satisfy Monell. City of Canton v. Harris, 489 U.S. 378, 387 (1989). The Fifth Circuit has identified at least three ways in which plaintiffs m ay m eet their burden to show a policy or custom . See Burge I, 187 F.3d at 471. The first two involve direct action by a “policym aker,” either in the form of generally applicable 20 policies or specific, directed actions. Id. The third involves a failure to act by policym akers when “the need to take some action to control [its agents] ‘is so obvious, and the inadequacy of existing practice so likely to result in a violation of constitutional rights, that the policym aker . . . can reasonably be said to be deliberately indifferent to the need.’” Id. (quoting Canton, 489 U.S. at 390 ) (internal m odifications om itted). Sm ith’s alleged basis for Monell liability is that Trabona and Am ite City adopted policies and custom s that caused the violation of her rights, and that defendants’ failure to train/ supervise Carruth evinces deliberate indifference. Defendants’ m otion for sum m ary judgment argues that ACPD had no policy or custom that can fairly be called the “m oving force” behind the violation of Sm ith’s rights, and that their failure to stop Carruth was not deliberate indifference to a risk that Carruth would violate Sm ith’s rights. 45 45 R. Doc. 40 -1 at 12-13. Sm ith argues in her response that defendants did not m ove for sum m ary judgm ent as to her failure to train and “failure of policy” claim s. See R. Doc. 45 at 17. But defendants m oved for sum m ary judgment on all of Sm ith’s section 1983 claim s, and they point out the lack of evidence establishing any causal link between the actions, policies, or custom s of defendants and the violation of Sm ith’s rights. See R. Doc. 40 1 at 12-13. Therefore, Sm ith bears the burden of showing a dispute of m aterial fact for all of her section 1983 claims, and cannot sim ply allege without support that defendants have not m oved for summ ary judgment on all of her claim s. See Celotex, 477 U.S. at 322-23. 21 1. Policies or Custom s As to Sm ith’s first basis for Monell liability, Sm ith identifies two “unwritten” policies or custom s that she argues caused the violation of her rights. First, she points to Trabona’s alleged policy of requiring wom en to com e into the police department to file a written com plaint against officers and requiring the com plainants to sign a form that acknowledges that they can be prosecuted if they are not telling the truth. 46 Second, she argues Trabona had a custom of allowing his officers to use their badges and handcuffs “to get wom en.”47 As to the first policy, Trabona testified that the police department requires certain com plaints regarding officer conduct to be m ade in person. 48 Sm ith argues that this policy is applied against wom en in a discrim inatory m anner and that requiring wom en to com e into the departm ent to report m isconduct discourages victim s from actually filing com plaints. 49 But Trabona’s testim ony indicates that this “in-person” com plaint policy is not lim ited to wom en m aking com plaints. Although Trabona testified that one reason for this policy is to prevent “a m an” from being falsely charged, he 46 47 48 49 R. Doc. 45 at 12. Id. at 20 . R. Doc. 40 -8 at 45-47. R. Doc. 45 at 19. 22 also said the policy applies to situations in which a person, m ale or fem ale, com plained about a rude officer who pulled him or her over. 50 Regardless, even if the policy was as Sm ith alleges, her argum ent that it was the m oving force behind the violation of her rights is m eritless. The “m oving force” analysis requires that “rigorous standards of culpability and causation . . . be applied to ensure that the m unicipality is not held liable solely for the actions of its employee[s].” Bry an Cty ., 520 U.S. at 40 5; see also Mason v. Lafay ette City -Par. Consol. Gov’t, 80 6 F.3d 268, 280 (5th Cir. 20 15) (holding that m oving force inquiry requires showing of causation and culpability). As to causation, “a plaintiff m ust show a ‘direct causal connection . . . between the policy and the alleged constitutional deprivation.’” Mason, 80 6 F.3d at 280 (quoting Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992)). “The “m oving force” inquiry im poses a causation standard higher than “but for” causation.” Id. As to culpability, the applicable standard in this context is deliberate indifference, or a showing that the City “prom ulgated the policy with ‘deliberate indifference’ to the known or obvious consequences that a constitutional violation would result.” Id. (quoting Piotrow ski v. City of Houston, 237 F.3d 567, 579). “Heightened negligence is insufficient to satisfy this standard.” Id. 50 Id. at 47-48. 23 Sm ith fails on both causation and culpability. There is no evidence of a direct causal connection between this policy and Carruth’s attack. Sm ith subm its no evidence that this policy actually discouraged com plaints or that wom en would have filed com plaints against any officer, much less Carruth, but for this policy. And there is no evidence suggesting that but for this policy, the attack on Sm ith would not have occurred. Sm ith’s argum ent that this policy “transm its the wrong message to Carruth”51 falls flat under Monell’s causation standard. There is sim ply no evidence that this policy was the “m oving force” behind the violation of Sm ith’s rights. See Lew is v. Pugh, 289 F. App’x 767, 775-76 (5th Cir. 20 0 8) (rejecting argument that inadequate com plaint policy was m oving force behind police officer’s rape because there was no direct causal link between policy and constitutional violation). As to culpability, given the lack of evidence indicating a risk of Carruth’s behavior, there is no basis to find that defendants adopted this policy with “deliberate indifference to the known or obvious consequences that a constitutional violation would result.” Mason, 80 6 F.3d at 280 (citation om itted). Without evidence of the risk of Carruth’s violating Sm ith’s rights, m uch less defendants’ awareness of said risk, it cannot be said 51 R. Doc. 45 at 14. 24 that this policy was adopted deliberately and without regard to that risk. See Burge II, 336 F.3d at 371. The second “policy” argued by Sm ith can be distilled into an allegation that Trabona acquiesced in his officers’ use of their badges and handcuffs to date wom en and engage in sexual activities with them . Sm ith points to Trabona’s testim ony that he tells his officers that their badges “will get [them ] in trouble with wom en,” because women are attracted to m en in uniform . 52 Trabona also testified that he thinks he rem embers telling his officers not to use their handcuffs for “kinky stuff.”53 As a threshold m atter, Trabona’s statem ents do not suggest that ACPD had a policy or custom to allow officers to use their badges or handcuffs in rom antic pursuits. Further, Sm ith subm its no evidence that police officers persistently or com m only used their badges and handcuffs in rom antic pursuits so that such conduct fairly represents ACPD policy. Unwritten policies or custom s will not be considered “official policy” under section 1983 unless they qualify as “persistent, widespread practice . . . , [that] is so com m on and well settled as to constitute a custom that fairly represents m unicipal policy.” W ebster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 52 53 R. Doc. 40 -8 at 10 6-10 8. Id. at 10 5. 25 1984) (en banc). Indeed, other than Carruth’s alleged conduct, Sm ith has not produced evidence that any ACPD officer m isused his handcuffs and badge. “[I]solated violations are not the persistent, often repeated, constant violations that constitute custom and policy.” Mason, 80 6 F.3d at 280 (quotation om itted). Because Sm ith cannot show that the policies she com plains of were the m oving force behind the violation of her rights and were adopted with deliberate indifference, her section 1983 claim s for these policies fail. 2. Failure to Train/ Supervise Sm ith’s final basis for section 1983 Monell liability is that defendants’ failure to train and/ or supervise caused the violation of her rights. 54 In lim ited circum stances, a m unicipality’s failure to train “may rise to the level of an official governm ent policy for purposes of [section] 1983.” Thom pson, 563 U.S. at 61. “A m unicipality’s culpability for a deprivation of rights is at its m ost tenuous where a claim turns on a failure to train.” Id. (citing Oklahom a City v. Tuttle, 471 U.S. 80 8, 822-23 (1985). The standard of proof required to establish defendants’ failure to train/ supervise is the same as required for Trabona’s alleged individual failure to train/ supervise Carruth. 54 Sm ith uses “train” and “supervise” interchangeably and does not flesh out her claim s individually as to her attem pt to show deliberate indifference. 26 See Tay lor, 15 F.3d at 453 (“The Court’s reasoning [in City of Canton v. Harris] in assessing a m unicipality’s liability [for failure to train/ supervise] leads us to use the sam e standard in assessing an individual supervisor’s liability under [section] 1983.”); Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 20 0 5). As above, Sm ith m ust show a causal connection between the failure to supervise or train and the violation of her rights, and that such failure to supervise or train am ounts to deliberate indifference. Thom pson, 563 U.S. at 61; see also Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 20 0 8). Merely showing that additional training would have been helpful or that the injury “could have been avoided” if the employee had better or m ore training is insufficient. Thom pson, 563 U.S. at 68. Plaintiff m ust also show culpability; she m ust establish defendants’ “conscious disregard for the consequences of their action—the ‘deliberate indifference’—necessary to trigger m unicipal liability.” Id. at 62 (quoting Bry an Cty ., 520 U.S. at 40 7). Further, the causation prong will not be satisfied without a showing that the alleged training deficiency was the “moving force” behind the violation. Id. at 59 n.5 (citing City of Canton, 489 U.S. at 389). In other words, failure to train liability here requires a forceful showing of both culpability and causation. 27 In City of Canton, Ohio v. Harris, the Suprem e Court explained that deliberate indifference in failure to train/ supervise cases can be shown either by establishing that the need to train is so obvious and so likely to result in the violation of constitutional rights, or by showing a failure to act in response to repeated complaints of constitutional violations. 489 U.S. at 390 , 390 n.10 . Again, Sm ith does not show that the failure to train was so obvious and so likely to result in the violation of her rights. There is no evidence of a pattern of sim ilar violations arising from a lack of training or supervision, and the “single-incident” exception is unavailable for the same reasons cited earlier. 55 See Brum field, 551 F.3d at 329; Burge II, 336 F.3d at 372. Therefore, Smith has not shown deliberate indifference on this basis. As to failure to act in the face of com plaints of previous violations, this fails for the same reasons Sm ith’s claim against Trabona in his individual capacity fails. There is no evidence of repeated com plaints of constitutional violations. 56 Although there was a previous incident involving Carruth, there is no evidence that anyone associated with ACPD had knowledge of that incident before Sm ith was attacked. Further, there is no evidence of previous violations by any ACPD officer, and a fortiori there is no evidence that 55 56 See p. 18, note 44, supra. See pp. 17-18, supra. 28 anyone associated with ACPD had knowledge of those violations. Finally, Sm ith subm its no evidence even suggesting Trabona or ACPD had a reason to believe that previous violations occurred. In response to the com plete lack of evidence that defendants were aware of a pattern of violations, Sm ith responds that 1) the evidence does “not confirm ” that Trabona and/ or ACPD did not know about Carruth’s attack on A.B.; 2) that TPSO pulled Carruth over while driving a vehicle that m atched the victim ’s description days after A.B.’s attack; 3) that there is evidence that someone with ACPD told Carruth about a prostitute and therefore was aware that Carruth used prostitutes; and 4) that the Court should discount Trabona’s affidavit and testim ony because of alleged inconsistencies between the affidavit and Trabona’s deposition. 57 These arguments are unavailing. First, defendants do not have the burden to prove that Trabona and ACPD were unaware of the attack on A.B. As plaintiff, Sm ith bears the burden to dem onstrate this knowledge, and defendants can m eet their burden on sum m ary judgment by m erely pointing out that the evidence in the record is insufficient. See Celotex, 477 U.S. at 325. Sm ith m ust, w ith 57 R. Doc. 45 at 7-14. 29 evidence, set out specific facts showing a genuine dispute of fact exists. Id. at 324. She has failed to do so. Second, that TPSO pulled over Carruth days after the A.B. attack does not create an issue of fact as to ACPD’s awareness. Form er TPSO patrol officer Christopher Sollie attests that after A.B. was attacked, TPSO sent out a departm ental message with the victim ’s description of her assailant and his vehicle. 58 About two days later, Sollie stopped a vehicle that m atched the description. 59 Sollie identified the driver as Carruth, let Carruth go, and reported the stop to his superior at TPSO. 60 But there is no evidence that Sollie or anyone else at TPSO told ACPD about this stop. That TPSO, an entity unaffiliated with ACPD, stopped Carruth in August is not evidence that ACPD was aware of the stop. And given the lack of evidence to suggest that Trabona or ACPD was aware of the stop or Carruth’s attack on A.B., any inference of knowledge based on the stop would be unreasonable. Third, Sm ith argues that Carruth adm itted to his arresting officers that someone with ACPD told him about a prostitute, and therefore it can be inferred that som eone with ACPD knew Carruth consorted with prostitutes. 61 58 59 60 61 R. Doc 45-2 at 220 ¶¶ 3-4. Id. ¶ 6. Id. at 221 ¶¶ 8-9. R. Doc. 67 at 3; R. Doc. 67-1 at 7. 30 This argument fails because soliciting prostitutes is not sufficiently sim ilar to rape and kidnapping. A pattern of violations requires m ore than “any and all bad or unwise acts[;]” the “prior acts [m ust] be fairly sim ilar to what ultim ately transpired.” Estate of Davis v. City of N . Richland Hill, 40 6 F.3d 375, 383 (5th Cir. 20 0 5) (citations om itted). Finally, Trabona’s affidavit and testim ony are perfectly consistent in term s of Trabona’s lack of knowledge regarding A.B. and Carruth, and his lack of knowledge that ACPD had any awareness about A.B. and Carruth. Therefore, Sm ith has failed to carry her burden in showing specific factual disputes as to the defendants’ awareness of Carruth’s past behavior. In sum, Sm ith seeks to hold defendants liable for their failure to train and/ or supervise Carruth, arguing that this was deliberate indifference to the obvious risk that Carruth would attack Sm ith. But there is no evidence suggesting that the defendants were aware of Carruth’s attack on A.B., there is no evidence suggesting that defendants were aware of any previous com plaints regarding a pattern of violations, and there is no evidence suggesting that anyone even com plained about Carruth. Therefore, it cannot be said that defendants were indifferent to any risk, m uch less deliberately so. Without some showing that defendants chose to ignore an obvious risk, there is no deliberate indifference. See Bry an Cty ., 520 U.S. at 411; Canton, 31 489 U.S. at 389. And as to supervision, there is no deliberate indifference because defendants had no knowledge, actual or constructive, of any reason for additional supervision. See Bry an Cty ., 520 U.S. at 411-13. Even if Sm ith could show deliberate indifference, she has failed to show that the failure to train or supervise was the m oving force behind the violation of her rights. Again, police officers should not need training to know not to rape, and it cannot be said that a lack of this training, without m ore, caused Carruth to rape Sm ith. Therefore, Sm ith’s failure to train/ supervise claim s fail. See Lew is, 289 F. App’x at 771-73 (rejecting failure to train/ supervise claim against police department after officer raped victim ). For the foregoing reasons, sum m ary judgm ent in defendants’ favor is warranted on all of Sm ith’s section 1983 claim s. C. State Law Claim s 6 2 Defendants also move for summ ary judgm ent on Sm ith’s Louisiana tort claim s. As to Trabona, Sm ith asserts claims of negligent hiring, negligent training, and negligent supervision. 63 She also seeks to hold 62 Because defendant Carruth did not m ove for sum m ary judgm ent on Sm ith’s federal claim s, those claim s rem ain, and the Court retains subject m atter jurisdiction. 63 R. Doc. 28 at 7-8 ¶ 26. 32 defendants vicariously liable through respondeat superior for the torts com m itted by Carruth. 64 1. State Law Im m unity Defendants first argue that Trabona has im m unity under La. Stat. Ann. § 9:2798.1(B). This statute provides that “[l]iability shall not be im posed on public entities or their officers or employees based upon the exercise or perform ance or the failure to exercise their policym aking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.” Id. The im m unity does not apply to “acts or om issions which constitute crim inal, fraudulent, m alicious, intentional, willful, outrageous, reckless, or flagrant m isconduct.” La. Stat. Ann. § 9:2798.1(C)(2). Additionally, the Supreme Court of Louisiana has clarified that the im m unity protects discretionary action when that discretion is grounded in social, econom ic, or political policy, and does not protect action taken at the operational level. Fow ler v. Roberts, 556 So. 2d 1, 15 (La. 1989). In determ ining whether the im m unity applies, the Court m ust first determ ine if Trabona had a choice in how to act. Id. Sm ith argues that Trabona’s “decisions and actions or om issions . . . were not discretionary,” 64 Id. 33 and therefore the im m unity should not apply. 65 But Sm ith’s argum ents have regularly been rejected, with both state and federal courts holding that the hiring, training, and supervision policies of Louisiana police entities are discretionary. See, e.g., Sm ith v. Lafay ette Parish Sheriff’s Dept., 874 So. 2d 863, 868 (La. App. 3 Cir. 20 0 4) (“Sheriff Breaux’s hiring/ retention policy was a discretionary act.”); Hoffpauir v. Colum bia Cas. Co., No. 12-40 3, 20 13 WL 5934699, at *12 (M.D. La. Nov. 5, 20 13) (finding that “the hiring, training, and supervision policy of the . . . Sheriff’s Department is a discretionary function”); City of Shreveport, 397 F.3d at 296 (finding hiring, training, and supervisory policies of police chief to be discretionary). Sm ith points to La. Stat. Ann. § 40 :240 1, which m andates training for peace officers, but this statute does not require any specific training, and it leaves the choice of training to the discretion of law enforcement. See Rom ain v. Governor’s Office of Hom eland Sec., No. 14-660 , 20 16 WL 3982329, at *1314 (M.D. La. J uly 22, 20 16) (rejecting sam e argument based on La. Stat. Ann. § 40 .240 1). Because Sm ith points to no statute m andating a policy or procedure as to ACPD’s hiring, training or supervision, the functions are discretionary and 65 R. Doc. 45 at 15. 34 La. Stat. Ann. § 9:2798.1 affords Trabona and Am ite City im m unity. 66 Sm ith does not argue that any action by Trabona was “crim inal, fraudulent, m alicious, intentional, willful, outrageous, reckless, or flagrant m isconduct.” Thus, La. Stat. Ann. § 9:2798.1(C) does not apply. Therefore, sum mary judgm ent on plaintiff’s state law negligence and negligent hiring, supervision and training claim s against defendants is granted. 2. Vicarious Liability for Carruth’s Torts Defendants additionally m ove for sum m ary judgment on Sm ith’s claim s asserting that defendants should be liable for Carruth’s torts based on respondeat superior. Discretionary im m unity does not apply to vicarious liability, and defendants do not argue that it does. See Hoffpauir, 20 13 WL 5934699, at *13. Under Louisiana Civil Code article 2320 , an em ployer is liable for the torts com m itted by its em ployees if, at the tim e, the em ployee was acting within the course and scope of his employm ent. La. Civ. Code art. 2320 ; Baum eister v. Plunkett, 673 So. 2d 994, 996 (La. 1996). In Lebrane v. Lew is, the Louisiana Suprem e Court articulated four factors in considering whether 66 Defendants do not explicitly argue that the im m unity applies to Sm ith’s claim s against Am ite City as well, but the plain language of the statute indicates that Am ite City is im m une as well. La. Stat. Ann. § 9:2798.1(A). 35 an employer should be held vicariously liable for the torts of its em ployees: (1) whether the tortious act was prim arily em ployment rooted; (2) whether the violence was reasonably incidental to the perform ance of the employee’s duties; (3) whether the act occurred on the employer’s prem ises; and (4) whether it occurred during the hours of employment. 292 So. 2d 216, 218 (La. 1974). No single factor is dispositive, and liability can be found even if some of the factors are not m et. Plunkett, 673 So. 2d at 997. The focus of the inquiry is determ ining “whether the em ployee’s tortious conduct was ‘so closely connected in tim e, place and causation to his em ploym ent-duties as to be regarded a risk of harm fairly attributable to the employer’s business,’” as com pared to “‘conduct m otivated by purely personal considerations entirely extraneous to the employer’s interests.’” Sm ith, 874 So. 2d at 866 (quoting Lebrane, 292 So. 2d at 218). The “scope of risks attributable to an em ployer increases with the am ount of authority and freedom of action granted to the [em ployee] in perform ing” his work. Erm ert v. Hartford Ins. Co., 559 So.2d 467, 477 (La. 1990 ). The question of course and scope of em ployment is a m ixed question of law and fact. Russell v. N oullet, 721 So. 2d 868, 871 (La. 1998); Bates v. Caruso, 881 So. 2d 758, 761 (La. App. 4 Cir. 20 0 4). Each case m ust be decided on its specific facts. Id. at 762. Generally, an em ployee’s actions are 36 within the course and scope of his employm ent if “the conduct is of the kind that he is employed to perform, occurs substantially within the authorized lim its of tim e and space, and is activated at least in part by a purpose to serve the em ployer.” Orgeron v. McDonald, 639 So. 2d 224, 226-27 (La. 1994). That the prim ary m otive of the em ployee is to benefit him self does not prevent the tortious act of the em ployee from falling within the scope of his em ploym ent. Erm ert, 559 So. 2d at 477. If the purpose of serving the em ployer’s business actuates the em ployee to any appreciable extent, the em ployer is liable. Richard v. Hall, 874 So. 2d 131, 137-38 (La. 20 0 4). In police cases, Louisiana courts give special weight to the considerable public trust and authority wielded by police officers in perform ing the vicarious liability analysis. See Doe v. Morris, No. 11-1532, 20 13 WL 3933928, at *4 (E.D. La. J uly 30 , 20 13) (citing Applew hite v. City of Baton Rouge, 380 So. 2d 119 (La. App. 1 Cir. 1979)). In Applew hite, the court held the City of Baton Rouge vicariously liable for a police officer’s rape of a wom an while he was perform ing duties for the city. The plaintiff in that case was walking along the highway with com panions when a uniform ed officer ordered her into his police car to be taken to jail for vagrancy. Id. at 120 . The officer then parked his car and forced the plaintiff to engage in sex. Id. In a civil suit brought by the victim, the City of Baton Rouge maintained that the 37 officer’s actions were far rem oved from the course and scope of his em ploym ent. The court found otherwise, emphasizing that the officer “was on duty in uniform and arm ed, and was operating a police unit at the tim e of this incident.” Id. The court found significant that the officer “was able to separate the plaintiff from her companions because of the force and authority of the position which he held.” Id. The court reviewed Louisiana case law in the police context and concluded that it consistently held em ployers responsible for transgressive police behavior even if the conduct was not squarely within the officer’s usual duties. Id. (citing Cheatham v. Lee, 277 So. 2d 513 (La. App. 1 Cir. 1973) (holding City of Baton Rouge vicariously liable for battery com m itted by police officer who was in uniform and arm ed but off duty chaperoning private party outside of city lim its); Bourque v. Lohr, 248 So. 2d 90 1 (La. App. 1 Cir. 1971) (insurer of City of New Iberia cast in judgm ent for certain torts comm itted by an off-duty, uniform ed police officer while using his private vehicle)). The Applew hite court sum m arized the position of the Louisiana courts by stating, “[i]n short, . . . where it is found that a law enforcement officer has abused the ‘apparent authority’ given such persons to act in the public interest, their em ployers have been required to respond in dam ages.” 380 So. 2d at 122. These cases m ake clear that officers’ duty status is not determ inative of the vicarious liability inquiry. 38 Post-Applew hite, Louisiana courts have continued to focus on abuse of authority in determ ining vicarious liability for employees in positions of power. In Latullas v. State, 658 So. 2d 80 0 (La. App. 1 Cir. 1995), the Louisiana First Circuit Court of Appeal held the State of Louisiana liable for a prison guard’s rape of a prisoner on prison grounds while the guard was in charge of a prisoner work crew. The court reasoned that the guard was able to separate the plaintiff from others and com m it the rape because of the authority bestowed upon him by his employer. 658 So. 2d at 80 4. The court acknowledged that the rape was “totally unauthorized . . . and m otivated by . . . personal desires.” Id. The court nevertheless found vicarious liability because the rape occurred while the guard was “acting for his em ployer in the control and supervision of inm ates, and it was through these duties that this opportunity arose.” Id. at 80 4-0 5. In a sim ilar vein is Turner v. State, 494 So. 2d 1292 (La. App. 2 Cir. 1986). There, a recruiting officer for the Louisiana National Guard induced four wom en to believe that he had the authority to conduct physical exams, during which he touched them inappropriately, while interviewing them for induction into the National Guard. Id. at 1296. The court found the State vicariously liable for the recruiting officer’s acts because the incident was 39 m ade possible by the apparent authority of the position the officer held with his employer. Id. Louisiana Courts have focused on apparent authority in non-law enforcem ent cases as well. In Dism uke v. Quay nor, 637 So. 2d 555 (La. App. 2 Cir. 1994), w rit denied, 639 So. 2d 1164 (La. 1994), the court affirm ed the finding that Gram bling University was vicariously liable for a rape com m itted by one of its em ployees acting as a cam p counselor. 637 So. 2d at 562. In doing so, the Court noted that though the employee was “technically off duty,” the em ployee used and abused the supervisory authority conferred on him by the university to get in close proxim ity with the victim and observe her until she was alone. Id. at 561-562. See also Harrington v. Louisiana State Bd. of Elem entary & Secondary Educ., 714 So. 2d 845, 851-52 (La. App. 4 Cir. 1998), w rit denied sub nom . Harrington v. Veller, 728 So. 2d 1287 (La. 1998) (finding state vicariously liable for rape of student in part because the em ployee “abused his position of authority when he raped [the victim ]”). Although the Louisiana Supreme Court has found no vicarious liability in two police officer cases, the Court has not confronted the issue in the context presented here. In Brasseaux v. Tow n of Mam ou, the Louisiana Suprem e Court found no vicarious liability for an off-duty officer’s assault. 752 So. 2d 815, 821-23 (La. 20 0 0 ). There, the officer was drinking at a bar 40 when his friend started a fight. The officer showed his badge only to protect his friend and himself. Unlike here, there was no finding that the officer in Brasseaux used his position as a police officer to stage the assault, or that the officer otherwise abused his authority to create the situation that led to the harm . Further, Brasseaux involved a part-time dispatcher who never perform ed (except on one day) the usual duties of police officers like patrolling and m aking arrests, and the Brasseaux court did not clearly delineate whether it treated the em ployee as a police officer or a m unicipal em ployee with less discretion. Id. at 821 (“However, we need not address that particular finding at this tim e, for whether his classification is that of a part-tim e tim e dispatcher or a police officer, it is certain that [defendant] was an em ploy ee of the Town of Mam ou Police Departm ent.”); see also id. at 824 (“I therefore conclude that [defendant], at the tim e of the attack, was not a police officer.”) (Lem m on, J ., concurring). See also Russell, 781 So. 2d. 868 (finding no vicarious liability when off-duty officer becam e caught up in a brawl at a private gathering). In this case, on the other hand, Sm ith testified that Carruth staged the kidnapping and rape by using the authority and accoutrem ents of his position as a police officer. She said that Carruth identified him self as an officer, displayed his badge, placed her under arrest, handcuffed her, read 41 her her rights, and threatened jail and charges. 67 Although defendants contend that Carruth did not “use his authority or police power” to carry out his attack on Sm ith, 68 the Court finds that plaintiff’s evidence at least raises a genuine dispute of m aterial fact that Carruth used and abused the apparent authority granted by his position as a police officer to kidnap and rape Sm ith. And, the authority to m ake arrests is an integral police function that im bues the officer with a public trust. At the sam e time, this tremendous power carries the concom itant risk of abuse. That risk, in a context where an officer uses the power and authority of his position as a police officer to isolate and subdue a victim , is a risk of harm that a jury could find attributable to the officer’s employer, which cloaked him with that apparent authority. See Sam pson v. City of N ew Orleans, No. 0 4-10 52, 20 0 5 WL 1490 8, at *3 (E.D. La. J an. 3, 20 0 5). 67 68 R. Doc. 45-2 at 3-4; R. Doc. 40 -10 at 11-13. R. Doc. 40 -1 at 15. 42 IV. CON CLU SION For the foregoing reasons, the Court GRANTS sum m ary judgm ent for defendants on all of Sm ith’s federal claim s and on Sm ith’s state law negligence claim s. The Court DENIES sum m ary judgment on Sm ith’s claim s that defendants are vicariously liable for Carruth’s torts under state law. 1st New Orleans, Louisiana, this _ _ _ _ _ day of March, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 43
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