Donahue v. Smith, et al, No. 2:2015cv06036 - Document 126 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 90 , 91 , 93 Motions for Summary Judgment filed by Defendants. Plaintiff's claims against all Defendants are DISMISSED with prejudice. Signed by Judge Susie Morgan on 9/11/2017. (clc)
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Donahue v. Smith, et al Doc. 126 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A SARAH BARN ETT D ON AH U E, Pla in tiff CIVIL ACTION VERSU S N O. 15 -6 0 3 6 RAN D Y SMITH , ET AL., D e fe n d an ts SECTION “E” ( 3 ) ORD ER AN D REAS ON S Before the Court are Defendants Bandon Donahue; 1 Sheriff Rodney J . Strain, J r. (the “Sheriff”); 2 and Sergeants Michael Ripoll, J r., Alex Dantagnan, J r., and Steven Gaudet’s (collectively the “Deputies”) 3 m otions for sum m ary judgm ent. Plaintiff Sarah Donahue opposes each m otion. 4 The Court rules on the m otions as set forth below. BACKGROU N D Plaintiff brings federal and state law claim s against her ex-husband, Brandon Donahue; the Sheriff; and the Deputies, alleging Defendants conspired “to thwart the prosecution of Brandon Donahue, a fellow law enforcem ent officer, for dom estic violence.”5 On August 3, 20 17, this Court ruled on Defendants’ m otions to dism iss. 6 Plaintiff’s rem aining federal claim s are her claim s against (1) Brandon Donahue and the Deputies, in their in dividual capacities, for the alleged con spiracy to violate her right to equal protection under § 1983; (2) the Sheriff, as the proper defendant for Plaintiff’s claim s again st the Deputies in their official capacities, for the alleged conspiracy 1 R. Doc. 93. R. Doc. 90 . Form er-Sheriff Strain’s successor is Randy Sm ith. When officials sued in their official capacities leave office, their successors assum e their role in the litigation . F ED. R. CIV. P. 25(d)(1). 3 R. Doc. 91. 4 R. Docs. 10 3, 113, 114. 5 R. Doc. 35 at 12– 13. 6 R. Doc. 88 . 2 1 Dockets.Justia.com to violate her right to equal protection under § 1983; (3) the Sheriff, in his official capacity, for Monell liability; and (4) Plaintiff’s request for attorney’s fees pursuant to 42 U.S.C. § 198 8 , in the event she is the prevailing party on any of the above claim s. 7 Plaintiff’s rem aining state-law claim s are her claim s against (1) Brandon Donahue and the Deputies for violating Plaintiff’s right to equal protection under the Louisiana Constitution by actions occurring within one year of her filin g suit on Novem ber 18, 20 15, and (2) her claim against the Sheriff based on respondent superior for Brandon Donahue’s and the Deputies’ alleged state constitutional violation of Plaintiff’s right to equal protection. 8 Brandon Donahue served as a reserve deputy with the St. Tam m any Parish Sheriff’s Office from 20 12 until 20 14. 9 According to Plaintiff, Brandon Donahue “engaged in a pattern of violence against Sarah, which he justified and excused an d was furthered by virtue of his position as a reserve deputy sheriff.”10 Plaintiff alleges that, during the course of their m arriage, Brandon Donahue threatened to kill her, threatened to use his Sheriff’s office-issued taser on her, threw coffee in her face, pressed his knee into her stom ach, and pushed the back of her body into a shower door. 11 To provide context, the Court sum m arizes Plaintiff’s allegations below. According to Plaintiff, on J uly 7, 20 13, following a dom estic disturbance between Plaintiff and Brandon Donahue, “[s]everal of Brandon Donahue’s colleagues from the St. Tam m any Parish Sheriff’s Office . . . responded to [a] 911 call at the Donahue residence.”12 Plaintiff claim s she described her injuries to the responding officers and advised them of 7 R. Doc. 88 at 43 n.223. R. Doc. 11 at 13– 14, ¶¶ 46– 52. 9 R. Doc. 35 at 3, ¶ 11. 10 Id. at ¶ 12. 11 Id. at ¶ 12. 12 Id. at 4. 8 2 Brandon Donahue’s history of dom estic abuse, but the respondin g officers refused to arrest Brandon Donahue. 13 This incident, Plaintiff alleges, was the first act in a continuing conspiracy between Brandon Donahue and the Deputies “to protect Brandon Donahue from prosecution for assault and to discredit Sarah in order to benefit Brandon Don ahue in his anticipated divorce an d child custody case against Sarah.”14 Plaintiff alleges that, in furtherance of the conspiracy, Sergeant Steven Gaudet conducted a “slip-shod and outcom e[-]determ inative” investigation into Plaintiff’s allegations against Brandon Donahue. According to Plaintiff, Gaudet’s police report “falsely suggested that Sarah had been the aggressor” and falsely stated that Plaintiff did not want to pursue crim inal charges against Brandon Donahue. 15 Plaintiff further alleges that Gaudet relied heavily on his “consultation” with Brandon Donahue in stead of Plaintiff, the alleged victim . 16 In furtherance of the conspiracy, Plaintiff contends Sergeant Michael Ripoll, when investigating an alleged assault against Plaintiff by Plaintiff’s attorney, “ignor[ed] and wholly disregard[ed] evidence that supported [Plaintiff’s] version of events and [relied] on inform ation provided by Brandon Donahue that discredited [Plaintiff] by portraying her as unstable and unreliable.”17 According to Plaintiff, the conspiracy continued when Brandon Donahue subm itted a written request to the St. Tam m any Parish Coroner’s Office for an Order for Protective Custody for Plaintiff, “alleging falsely that she had stated several tim es . . . that 13 Id. Id. 15 Id. 16 Id. 17 Id. at 7. 14 3 she ha[d] thought about suicide.”18 Plaintiff alleges she was involuntarily adm itted to the hospital, but was later released. 19 Following her release from the hospital, Plain tiff attem pted to pick up her son “as it was her tim e to have custody of her child.”20 When Plaintiff arrived at Brandon Donahue’s parents’ residen ce to retrieve her child, a St. Tam m any Parish Sheriff’s Office deputy inform ed her “he would not release the child to her, despite that it was [her] courtordered night to have custody of her son.”21 In response, Plaintiff called the Sheriff’s Office, which dispatched Sergeant Alex Dantagnan. Dantagnan allegedly “blocked [Plaintiff] from exiting the house,” “scream ed in [Plaintiff’s] face that she was psychotic, [and] that she was not leaving with the child,” and threatened to arrest her if she did not leave the house. 22 Plaintiff alleges that this event prom pted her to file a com plaint with the Internal Affairs Division of the St. Tam m any Parish Sheriff’s Office on Decem ber 11, 20 13. Plaintiff’s com plaint alleged “unfair favoritism shown by the Sheriff’s Office to Brandon Donahue” and a “continuous pattern of unfair and harassing treatm ent she received from the Sheriff’s Office and the Defendant Deputies.”23 Plaintiff alleges that, in furtherance of the conspiracy to protect Brandon Donahue, “the Sheriff’s Office never contacted [her] to obtain m ore inform ation or advise her of the status or outcom e of her com plaint.”24 According to Plaintiff, the Sheriff’s Office later advised her that Dantagnan had been cleared of any m isconduct. 18 Id. at 8. Id. at 8– 9. 20 Id. at 9. 21 Id. 22 Id. at 10 . 23 Id. at 10 – 11. 24 Id. at 11. 19 4 Finally, Plaintiff alleges that, on J une 24, 20 15, she m et with Gaudet to inform him she wished to press crim inal charges against Brandon Donahue for the alleged acts of dom estic abuse that occurred in J uly of 20 13. Plaintiff claim s that, in furtherance of the conspiracy to protect Brandon Donahue from arrest and prosecution, Gaudet attem pted to intim idate an d discourage Plaintiff from pursuing charges against Brandon Donahue by inform ing Plaintiff that any crim inal charge against Brandon Donahue had “probably prescribed.”25 According to Plaintiff, Gaudet prom ised to send reports from the J uly 20 13 incident to the district attorney’s office, but never did so. Plaintiff alleges that Brandon Donahue was form ally charged with dom estic abuse aggravated assault by the St. Tam m any Parish District Attorney’s office, and the charge was dism issed in J uly of 20 16. 26 AN ALYSIS Sum m ary judgm ent is proper only “if the m ovant shows that there is no genuine dispute as to any m aterial fact an d the m ovant is entitled to judgm ent as a m atter of law.”27 “An issue is m aterial if its resolution could affect the outcom e of the action.”28 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.”29 All reasonable inferences are drawn in favor of the non-m oving party. 30 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost 25 Id. at 12. Id. 27 F ED . R. CIV. P. 56; see also Celotex, 477 U.S. at 322– 23. 28 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 29 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 30 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 26 5 favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 31 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion[] and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.”32 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, to satisfy Federal Rule of Civil Procedure 56’s burden, the m oving party m ust do one of two things: it “m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .”33 When the m oving party chooses the latter option it m ust affirm atively show the absence of evidence in the record. This m ay require the m oving party to depose the nonm oving party’s witnesses or to establish the inadequacy of docum entary evidence. If there is literally no eviden ce in the record, the m oving party m ay dem onstrate this by reviewing for the court the adm issions, interrogatories, and other exchanges between the parties that are in the record. 34 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries its burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 35 Thus, the non-m oving party m ay 31 Hibernia N at. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citin g Am oco Prod. Co. v. Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 32 Celtic Marine Corp. v . Jam es C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 20 14) (quoting Celotex, 477 U.S. at 323). 33 Celotex, 477 U.S. at 331. 34 Id. (internal citation om itted). 35 Id. at 322– 25. 6 defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”36 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence.”37 Rather, “the party opposing sum m ary judgm ent is required to identify specific eviden ce in the record an d to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does n ot im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”38 SECTION 19 8 3 CON SPIRACY CLAIMS To state a claim for conspiracy under § 1983, Plaintiff m ust allege: (1) an agreem ent between the private and public defendants to com m it an illegal act and (2) a deprivation of a constitutional right. 39 Plaintiff’s rem aining claim of an underlying constitutional deprivation is her right to equal protection. To m ake out a “class of one” equal protection claim , Plaintiff m ust prove Defendants intentionally treated her differently from the way they treated sim ilarly situated individuals without any rational reason for doing so an d that this differential treatm ent was m otivated by “an illegitim ate anim us or ill-will” towards Plaintiff. 40 In their m otions for sum m ary judgm ent, Defendants seek dism issal of Plaintiff’s § 198 3 conspiracy claim s, arguing the evidence Plaintiff puts forth in support of her allegations cannot establish, even circum stantially, that Defen dants agreed to deprive her 36 Id. at 332– 33. Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324). 38 Id. (quotin g Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n.7 (5th Cir. 1992)) (citing Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). 39 Priester v . Low ndes Cnty ., 354 F.3d 414, 420 (5th Cir. 20 0 4). 40 See Shipp v. McMahon, 234 F.3d 90 7, 916 (5th Cir. 20 0 0 ), overruled in part on other grounds by McClendon v. City of Colum bia, 30 5 F.3d 314 (5th Cir. 20 0 2) (en banc) (citin g Village of W illow brook v. Olech, 528 U.S. 562 (20 0 0 )). 37 7 of any rights protected by the U.S. or Louisiana Constitutions. 41 Defendants further argue that, even if Plaintiff can show an agreem ent, she has not put forth sufficient evidence to show Defendants treated Plaintiff differently from the way they treated any other alleged victim of dom estic violence or that any disparate treatm ent stem m ed from Defendants’ ill will towards Plaintiff. 42 Plaintiff claim s she has offered sufficient circum stantial eviden ce to dem onstrate genuin e issues of m aterial fact exist with respect to these issues and that Defendants are not entitled to sum m ary judgm ent with respect to her § 1983 claim s. 43 Exis te n ce o f Agre e m e n t To establish the existence of a conspiracy, a plaintiff “m ust show that the defendants agreed to com m it an illegal act”44 and “allege specific facts to show [their] agreem ent.”45 Allegations that are m erely conclusory, without reference to specific facts, will not suffice. 46 “This requirem ent m ust often be m et by circum stantial evidence; conspirators rarely form ulate their plans in ways susceptible of proof by direct eviden ce.”47 A conspiracy allegation under § 1983 allows a plaintiff to “im pose liability on all of the defendants without regard to who com m itted the particular act.”48 “A private party m ay be held liable under § 1983 if he or she is a ‘willful participant in joint activity with the State or its agents.’”49 41 R. Doc. 90 -3 at 7; R. Doc. 91-3 at 8– 9; R. Doc. 93-1 at 1. R. Doc. 91-3 at 20 – 22. 43 R. Doc. 10 3 at 10 – 12. 44 Arsenaux v. Roberts, 726 F.2d 10 22, 10 24 (5th Cir. 1982); see also Hale v. Tow nley , 45 F.3d 914, 920 – 21 (5th Cir. 1995); Manton v. Strain, No. 0 9-0 339, 20 10 WL 4364552, at *6 (E.D. La. Oct. 21, 20 10 ). 45 Priester, 354 F.3d at 412. 46 Id. (citing Brinkm an v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986)). 47 Thom as v. City of N ew Orleans, 687 F.2d 80 , 83 (5th Cir. 198 2) (quotin g Crow e v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979)). 48 Hale, 45 F.3d at 920 . 49 Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). 42 8 To show an illegal agreem ent, a plaintiff’s evidence, “when ‘placed in . . . context . . . [must raise] a suggestion of a preceding agreem ent, not m erely parallel conduct that could just as well be indepen dent action.’”50 In Jabary v. City of Allen, 51 to support his § 198 3 conspiracy claim s, the plaintiff alleged the defendants “held private m eetings to devise a m ethod of shutting down” the plaintiff’s business and they had “several conversations, private m eetings, and other com m unications” in which the defen dants discussed ways to “deprive [the plaintiff] of his civil rights and the due process of the law.”52 Even at the m otion to dism iss stage, allegations that the defendants held “private m eetings,” were not sufficient when, as the Fifth Circuit noted, “[t]he tim es, places, an d other circum stances of the ‘private m eetings’ and secret conversations [were] notably absent” from the plain tiff’s evidence. The Fifth Circuit held that the plaintiff “fail[ed] to create a reasonable inference that such an agreem ent existed.”53 In Thom as v. City of N ew Orleans, 54 the Fifth Circuit held the plaintiff had put forth sufficient eviden ce at the trial of the case to show the defendants had agreed to com m it an illegal act that resulted in his injury. In that case, the plaintiff, a police officer, testified that after he reported a fellow officer for using deadly and unnecessary force in executing a m isdem eanor arrest, he was suspended and ultim ately discharged. 55 The record showed “that the various defendants had participated in private m eetings during which [the plaintiff’s] contentions were discussed” and included witnesses who testified 50 Jabary v. City of Allen, 547 F. App’x 60 0 , 611 (5th Cir. 20 13) (quoting Bell Atlantic Corp. v. Tw om bly , 550 U.S. 544, 557 (20 0 7)). 51 547 F. App’x 60 0 (5th Cir. 20 13). 52 Id. at 611. 53 Id. 54 687 F.2d at 8 0 . 55 Id. at 81– 82. 9 that a “blue curtain” existed within the police departm ent. 56 The Fifth Circuit held that, based on this circum stantial evidence, “a jury reasonably could . . . infer[] that . . . a conspiracy existed.”57 In discharging his initial burden on sum m ary judgm ent, Brandon Donahue avers Plaintiff will not be able to prove an essential elem ent of her conspiracy claim because the record is devoid of an y evidence showing Defendants agreed to deprive Plaintiff of her constitutional rights. 58 Brandon Donahue argues the only evidence Plaintiff offers to show the existence of an agreem ent is her own deposition 59 in which she was questioned about eviden ce of a conspiracy and responded: (1) “Evidence was ignored in the police report”; 60 (2) “I wasn’t given the sam e protection that [Mr. Donahue] was”; 61 (3) “the fact that I didn’t leave with m y son on m y custody day”; 62 [and] [(4)] “the fact that Sergeant Gaudet [] assured m e that he would send the file over to the District Attorney’s Office from the J uly 7th incident.”63 By pointing to Plaintiff’s deposition testim ony that is in the record, 64 Brandon Donahue argues that he has dem onstrated the absen ce of any eviden ce indicating Defendants agreed to protect him from prosecution, thereby violating Plaintiff’s right to equal protection. Plaintiff’s testim ony does n ot support an inference that there was an agreem ent between Defendants. The burden, therefore, shifts to Plaintiff to direct the Court’s attention to evidence sufficient to establish that a genuine issue of m aterial fact does in deed exist. 65 56 Id. at 83. Id. 58 R. Doc. 90 -3 at 16; R. Doc. 91-3 at 12; R. Doc. 93-1 at 5. 59 R. Doc. 93-2. 60 Id. (citing Sarah Donahue Dep. 250 :1– 9, 13-21, J uly 18, 20 17). 61 Id. (citing Sarah Donahue Dep. 250 :22– 5, J uly 18 , 20 17). 62 Id. (citing Sarah Donahue Dep. 251:6– 7, J uly 18 , 20 17). 63 Id. (citing Sarah Donahue Dep. 251:9– 12, J uly 18, 20 17). 64 See Celotex, 477 U.S. at 331. 65 Id. at 322– 25. 57 10 In her oppositions to Defendants’ m otions for sum m ary judgm ent, Plaintiff points to five overt acts she contends are circum stantial eviden ce of Defendants’ agreem ent to violate her right to equal protection. 66 In a prior ruling on Defendants’ m otions to dism iss, 67 the Court determ ined that all but one of the alleged overt acts had prescribed, leaving only Plaintiff’s J une 24, 20 15 interaction with Gaudet, in which Plaintiff sought to press charges against Brandon Don ahue for the alleged J uly 20 13 battery, as the basis for her cause of action. 68 Although the prior alleged overt acts have prescribed, “[i]t does not follow, however, that the statute of lim itations excludes those sam e allegations from the determ ination of whether an agreem ent existed.”69 Accordingly, the Court m ay consider the other alleged overt acts that took place before Plaintiff’s J une 24, 20 15 interaction with Gaudet as relevant background eviden ce. 70 As explained above, the four prescribed overt acts m ay be considered to determ ine whether an agreem en t existed. With respect to these overt acts, Plaintiff offers the following com m unications between Brandon Donahue and the Deputies as circum stantial eviden ce that an agreem ent existed: (1) Gaudet’s phone call with Brandon Donahue during his investigation into the J uly 20 13 alleged dom estic violence incident, 71 (2) Ripoll’s interview with Brandon regarding Plaintiff’s m ental health after Plaintiff 66 R. Doc. 114 at 17– 23; and R. Doc. 10 3 at 7– 12. R. Doc. 88 . 68 R. Doc. 35 at 12, ¶ 38 . 69 Scherer v. Balkem a, 840 F.2d 437, 442 (7th Cir. 1988 ) (“To perm it the statute of lim itations to bar consideration of allegation s from which a jury could infer an agreem ent would prevent recovery for dam ages suffered within the lim itations period m erely because the defendants form ed their agreem ent too early.”); see also Mizell v. N . Brow art Hosp. Dist., 427 F.2d 468 , 475 (5th Cir. 1970 ), abrogated on other grounds by Blair v . Page Aircraft Maintenance, Inc., 467 F.2d 815 (5th Cir. 1972). 70 See Mizell, 427 F.2d at 475 (“[A]ny acts causing dam age that m ight have occurred subsequent to the first one alleged could have been the basis of a recovery, even though charged as an overt act in a single continuing conspiracy, if the subsequent act had not itself also been barred.”). 71 R. Doc. 10 3 at 7. 67 11 com plained about her lawyer’s m isconduct, 72 and (3) Dantagnan’s interaction with both Plaintiff and Brandon Donahue following the Novem ber 20 13 child custody incident. 73 These com m unications occurred during the course of routine police investigations and, m ost often, were accom panied by com m unications with Plaintiff. Plaintiff has offered no eviden ce of private m eetings or secret conversations in which Defendants discussed an agreem ent to deprive Plaintiff of her constitutional rights. With respect to the overt act on J une 24, 20 15, which has not prescribed, Plaintiff describes no com m unications that would provide circum stantial evidence of an agreem ent. 74 Finally, Plaintiff offers as circum stantial evidence of an agreem ent to violate her constitutional rights that “Brandon served as a reserve officer of the St. Tam m any Parish Sheriff’s Office from 20 0 4 to 20 14 and had personal friendships with various Sheriff’s Office em ployees. His role as a Reserve Deputy Sheriff was kn own by each of the Defendant Deputies involved in any investigation of [Plaintiff’s] claim s.”75 That Brandon Donahue served as a reserve deputy sheriff is undisputed. To support her assertion that Brandon Donahue had form ed “personal friendships with various officers,” Plaintiff points to Brandon Donahue’s and Scott Lee’s depositions. 76 The Court’s review of these depositions reveals that they either do not support Plaintiff’s assertions or do not raise a m aterial factual dispute. For exam ple, in his deposition, 77 Brandon Don ahue testified that “the only people current or form er at the sheriff’s office 72 Id. at 9. Id. at 11. The other circum stances surrounding the four prescribed overt acts are not evidence, even circum stantial, of the existence of an agreem ent. 74 R. Doc. 114 at 22; R. Doc 10 3 at 11-12. 75 R. Doc. 114 at 17 (citations om itted). 76 Id. 77 R. Doc. 114-7. 73 12 who [he had] spent any tim e outside of the sheriff’s office with . . . are J eff J ardine and Scott Lee,” neither of whom is a defendant in this case and neither of whom is alleged to be part of the conspiracy. 78 Lee states in his deposition that, although he and Brandon Donahue are friends, “[i]t’s been years” sin ce he has seen him . 79 No testim ony from J eff J ardine was introduced. Neither Lee nor J ardine is a defendant in this case and there is no evidence that either of them com m unicated with Brandon Donahue about his divorce case or with the Deputies or the Sheriff about Brandon Donahue. There is no evidence in the record that Brandon Donahue was Steven Gaudet’s friend. In Gaudet’s deposition, he testified that, other than speaking to Brandon Donahue on the phone once in 20 13, Gaudet had “[n]ever m et the gentlem an before,”80 a statem ent Plaintiff does not dispute. Plaintiff’s circum stantial eviden ce with respect to the existence of an agreem ent is (1) that Brandon Donahue was a reserve deputy at the St. Tam m any Parish Sheriff’s Office from 20 12 until 20 14, (2) that Defendants worked at the St. Tam m any Parish Sheriff’s Office, (3) that Defendants were aware of Brandon Donahue’s “role as a Reserve Deputy Sheriff,”81 and (4) that Brandon Donahue is friends with Lee and J ardine, neither of whom is a defendant. Although “determ ining whether a conspiracy existed . . . ‘m ay involve questions of motive or intent,’”82 Plain tiff’s bare assertion of the existen ce of a conspiracy is insufficient to create a factual dispute. “[A] m ere possibility, based upon speculation, is insufficient to preclude the entry of sum m ary judgm ent.”83 Plaintiff offers 78 Id. at 4. R. Doc. 114-8 . 80 R. Doc. 114-9 at 3. 81 R. Doc. 114 at 17. 82 Montgom ery v. Hughes, 716 F. Supp. 261, 263 (S.D. Miss. 198 8). 83 Id. (citing Brow n v. Scott Paper Co., 684 F. Supp. 1392, 1396 (S.D. Miss. 1987)). 79 13 no evidence that Defendants held private m eetings, 84 had secret com m unications, 85 or that Brandon Donahue asked the Deputies for assistance with his divorce. 86 Plaintiff has failed to provide the Court with “specific facts to show an agreem ent”87 and, therefore, has not dem onstrated a genuine factual dispute with respect to whether Defendants agreed to conspire against her. 88 Even construing this evidence in the light m ost favorable to Plaintiff, the Court finds no reasonable trier of fact could conclude Defendants agreed to prevent Brandon Donahue’s arrest and protect him from prosecution, thereby violating Plaintiff’s right to equal protection. 89 Sim ply stated, Plaintiff fails to create a reasonable inference that an agreem ent existed between Defendants to deprive her of her right to equal protection. 90 Defendants are entitled to sum m ary judgm ent on this basis alone. Nevertheless, the Court also will exam ine whether Defendants are entitled to sum m ary judgm ent because Plaintiff has not dem onstrated a factual dispute as to whether Defendants’ ill will towards Plaintiff caused them intentionally to treat her differently from the way they treated other alleged victim s of dom estic violence. 91 84 Jabary , 547 F. App’x at 611; Thom as, 687 F.2d at 83. Montgom ery , 716 F. Supp. at 263. 86 See Tebo v. Tebo, 550 F.3d 492, 497 (5th Cir. 20 0 8); Crow e v. Lucas, 595 F.2d 98 5 (5th Cir. 1979); E.G. v. Bond, No. 16-0 68, 20 17 WL 1290 19, at *5 (N.D. Tex. Feb. 13, 20 17). 87 See Priester, 354 F.3d at 412. 88 Id. 89 See Tebo, 550 F.3d at 497 (affirm in g the district court’s grant of sum m ary judgm ent because “[the plaintiff’s] allegation that Defendants were en gaged in a conspiracy to violate her civil rights is conclusory. She offers no evidence of an agreem ent to com m it an illegal act between the [Defendants]”); Rodriguez v. N eeley , 169 F.3d 220 , 221– 23 (5th Cir. 1999) (dism issing § 1983 conspiracy claim s because the existence of a conspiracy agreem ent was supported through “conclusory allegations”). 90 See Jabary , 547 F. App’x at 611. 91 See Shipp, 234 F.3d at 916. 85 14 D e libe rate D e p rivatio n o f Co n s titu tio n al Righ t fo r N o Ratio n al Re as o n As the underlying constitutional violation in her § 1983 conspiracy claim , Plaintiff contends “she, as a ‘class of one,’ was ‘intentionally treated differently from others sim ilarly situated’ for no ‘rational’ reason.”92 In Village of W illow brook v. Olech, the Suprem e Court held that “the Equal Protection Clause can give rise to a cause of action on behalf of a ‘class of one’ even when the plaintiff does not allege m em bership in a protected class or group.”93 “To state a claim sufficient for relief, a single plain tiff m ust allege that an illegitim ate anim us or ill-will m otivated her intentionally different treatm ent from others sim ilarly situated and that no rational basis existed for such treatm ent.”94 At trial Plaintiff m ust establish “that the unequal police protection had no rational basis,” which requires Plaintiff to show “that the defendant deliberately sought to deprive [her] of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant’s position.”95 Eviden ce of ill intent is critical—“its absence will defeat an Equal Protection challenge to unequal police protection.”96 Plaintiff, belatedly in her surreply, identified Brittany Torregano as a sim ilarly situated com parator. 97 Plaintiff identifies the different treatm ent of form er St. Tam m any Parish Deputy Torregano, who she argues com m itted dom estic abuse battery on his spouse and, as support, attaches an April 27, 20 15 article in the N ew Orleans Advocate, titled “St. Tam m any Sheriff’s Deputy, wife arrested in dom estic disturbance.”98 Plaintiff 92 R. Doc. 60 at 25. Shipp, 234 F.3d at 916. 94 Id. 95 Id. (quoting Hilton v. City of W heeling, 20 9 F.3d 10 0 5, 10 0 8 (7th Cir. 20 0 0 )) (internal quotation m arks om itted). 96 Id. 97 R. Doc. 124. 98 R. Doc. 124-1. 93 15 argues that in 20 15, then Sheriff Strain’s office arrested Deputy Derrick Torregano for dom estic abuse battery and fired him following an altercation with his wife, who stabbed him during the incident, 99 but failed to arrest or fire Brandon Donahue following an altercation with his wife in 20 13. Plaintiff characterizes her “class of one” claim as one based on personal vindictiveness and acknowledges that, in addition to identifying a com parator, she m ust show im proper m otive, anim us or ill will. 10 0 To show ill intent, a plaintiff m ust put forth “proof that the cause of the differential treatm ent of which the plaintiff com plains was a totally illegitim ate anim us towards the plaintiff by the defendant.”10 1 In Mata v. City of Kingsville, 10 2 the facts of which are substantially sim ilar to the facts of this case, the plaintiff alleged that following a physical altercation with her husband, a police officer, “she was unjustifiably stopped on five or m ore occasions by police officers . . . and that [her husband] stalked her in his patrol car.”10 3 The district court granted sum m ary judgm ent in favor of the defendants, and the Fifth Circuit affirm ed the dism issal, explain ing that While it is certainly conceivable that m em bers of the police departm ent m ay have harbored ill will towards [the plaintiff] since [her husband] was em ployed as an officer of the departm ent, this Court has repeatedly acknowledged that “conclusory statem ents in an affidavit do not provide facts that will counter sum m ary judgm ent evidence, and testim ony based on conjecture alone is insufficient to raise an issue to defeat sum m ary judgm ent.”10 4 99 R. Doc. 124 at 3. Id. at 2 (citing Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 38 8 n .2 (5th Cir. 20 0 8)). 10 1 Mata v. City of Kingsville, 275 F. App’x 412, 415 (5th Cir. 20 0 8) (quoting Hilton v. City of W heeling, 20 9 F.3d 10 0 5, 10 0 8 (7th Cir. 20 0 0 ) (internal quotation m arks and citation om itted)). 10 2 Id. 10 3 Id. at 414. 10 4 Id. (citing Roberts v. Cardinal Servs., 266 F.3d 368 , 376 n.33 (5th Cir. 20 0 1) (internal citation om itted)). 10 0 16 In contrast, in Shipp v. Mahon, 10 5 the plaintiff alleged she was the victim of a long, increasingly violent pattern of spousal abuse that culm inated in her husband’s kidnapping, raping, and shooting her in the chest with a shotgun. 10 6 The plaintiff, who fortunately survived the assault, claim ed that the local sheriff’s departm ent ignored her reports of dom estic violence because her m other-in-law was a sheriff’s deputy and also happen ed to be the dispatcher who received the plaintiff’s call reporting the abuse. 10 7 The Fifth Circuit concluded It is undisputed that Betty Shipp’s son engaged in reprehensible behavior against her daughter-in-law that finally resulted in law enforcem ent and judicial intervention. It is not im probable that Betty Shipp developed som e anim osity against her daughter-in-law durin g her volatile relationship with Dalton or after Shipp fled when Dalton’s escalated abuse prom pted crim inal charges against him . If deputy Betty Shipp did foster ill-will against her daughter-in -law that ultim ately influenced the level of protection Shipp received from the [Sheriff's Office], Shipp m ay be able to establish an unequal police protection claim . 10 8 The court vacated and rem anded the case, concluding that with this circum stantial eviden ce of ill-will the plaintiff “m ay be able to establish an unequal police protection claim within the fram ework elucidated in Village of W illow brook v. Olech.”10 9 In this case, Defendants point to the affidavit and deposition of Steven Gaudet as dem onstrating that “any differential treatm ent Plaintiff m ay have received was rationally based upon investigative judgm ent and discretion.”110 In his affidavit, Steven Gaudet states that he did not attem pt to dissuade or intim idate Plaintiff from m oving forward with crim in al charges against her husband, but did tell her that the decision whether or 10 5 234 F.3d 90 7 (5th Cir. 20 0 0 ), overruled on other grounds as recognized in McClendon v. City of Colum bia, 30 5 F.3d 314 (5th Cir. 20 0 2). 10 6 Shipp, 234 F.3d at 916. 10 7 Id. 10 8 Id. at 916– 17. 10 9 Id. at 917. 110 R. Docs. 91-3, -5, -12. 17 not to bring the case to trial rests with the District Attorney. He further told Plaintiff that he would speak with the District Attorney’s Office about the J uly 7, 20 13 incident. 111 In his deposition, Steven Gaudet testified that Plaintiff did not approach him until two years after the initial inciden t. 112 Gaudet testified that he did contact the district attorney’s office to inform them about Plaintiff’s desire to press charges. 113 The Sheriff and the Deputies, by subm itting “affirm ative evidence that negates an essential elem ent of [Plaintiff’s] claim ,” have shifted the burden of production to Plaintiff. 114 The plaintiff responds that “she, as a ‘class of one,’ was ‘intentionally treated differently from others sim ilarly situated’ for no ‘rational’ reason.”115 With respect to whether Plaintiff was treated differently from other sim ilar situated individuals, Plaintiff correctly points out that the “requirem ent that a class-ofone plaintiff’s com parators be ‘sim ilarly situated’ is not a requirem en t susceptible to rigid, m echanical application—‘[t]here is no precise form ula to determ ine whether an individual is sim ilarly situated to com parators.’”116 Instead, the determ ination is case specific and depends on the facts and context of the case. 117 To state a class of one claim under the equal protection clause, a plaintiff m ust dem onstrate that she has been treated differently from others sim ilarly situated and there was no rational basis for the disparate treatm ent. 118 The two page newspaper article represents that the deputy was stabbed in the back during the dom estic disturbance and that both form er Deputy Torregano an d his 111 R. Doc. 91-5 at 3– 4. Doc. 91-3 at 20 (citing Gaudet Aff. at ¶ 11). 113 R. Doc. 114-9 at 15– 19. 114 See Celotex, 477 U.S. at 325. 115 R. Doc. 60 at 25. 116 Lindquist, 669 F.3d at 233. 117 Id. at 234 (quoting J ennin gs v. City of Stillw ater, 383 F.3d 1199, 1214 (10 th Cir. 20 0 4)). 118 Stotter v. University of Tex. at San Antonio, 50 8 F.3d 812, 8 24 (5th Cir. 20 0 7). 112 R. 18 wife were arrested the following m orning. 119 By contrast, neither Sarah Donahue nor Brandon Donahue wished to pursue charges after the J uly 7, 20 13 incident and neither one was arrested. 120 Plaintiff did not approach Gaudet about arresting Brandon Donahue until two years after the incident occurred. 121 The Court finds that, after considering the facts an d context of this case as contrasted with the Torregano case, Plaintiff has not put forward evidence that she was treated differently from a sim ilarly situated individual. Although the lack of a com parative is sufficient to defeat Plaintiff’s claim , the Court will exam in e whether Plaintiff has created a disputed issue of fact with respect to whether an illegitim ate anim us or ill-will m otivated Defendants’ treatm ent of her and whether any rational basis existed for such treatm ent Plaintiff points to five overt acts, claim ing that this circum stantial evidence, when viewed as a whole, dem onstrates Defendants’ coordinated effort to underm ine Plaintiff and assist Brandon Donahue in the upcom ing divorce and child custody proceedings. 122 The bulk of Plaintiff’s evidence stem s from overt acts that have prescribed. Because in the context of a conspiracy claim under § 1983, “the actionable civil injury to a plaintiff results from the overt acts of the defendants, not from the m ere continuation of a conspiracy,”123 the Court evaluates only Plaintiff’s J une 20 15 interaction with Gaudet to determ ine whether Plaintiff has established a genuine issue of m aterial fact with respect to whether Defendants “deliberately sought to deprive [Plaintiff] of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defen dant’s position.”124 119 R. Doc. 124-1. R. Doc. 35 at 4, ¶ 15. 121 R. Doc. 91-3 at 20 (citing Gaudet Aff. at ¶ 11). 122 R. Doc. 10 3 at 7– 11; R. Doc. 35 at 13. 123 Helton v. Clem ents, 832 F.2d 332, 335 (5th Cir. 1987). 124 Shipp, 234 F.3d at 916 (internal quotation m arks om itted) (quotin g Hilton v. City of W heeling, 20 9 F.3d 10 0 5, 10 0 8 (7th Cir. 20 0 0 )). 120 19 To show Defendants’ ill intent and lack of a rational basis for the actions of Gaudet in J une 20 15, Plaintiff points to the fact that, after she approached Gaudet about pressing charges against Brandon Donahue for the J uly 20 13 in cident of alleged dom estic violence, “he was unsupportive of charges being filed . . . and forwarded no docum ents (including the photos of [Plaintiff’s] injuries) to the D.A. for evaluation.”125 Plaintiff claim s that, in furtherance of the conspiracy to protect Brandon Donahue from arrest and prosecution, Gaudet attem pted to intim idate and discourage Plaintiff from pursuing charges against Brandon Donahue by inform ing Plaintiff that any crim inal charge against Brandon Donahue had “probably prescribed.”126 According to Plaintiff, Gaudet’s actions dem onstrate he “was underm ining efforts to prosecute Brandon Donahue for dom estic violence in furtherance of a conspiracy to protect Brandon Donahue from prosecution and aid him in his divorce and custody proceedings.”127 Gaudet explains his actions by testifying in his deposition that Plaintiff did not approach him until two years after the initial in cident. 128 Gaudet adm its he did not forward any m aterials to the district attorney’s office, but states he did contact the district attorney’s office to inform them about Plaintiff’s desire to press charges, 129 and Brandon Donahue was charged thirteen days after Plaintiff contacted Gaudet about her desire to press charges. 130 Given these facts, it is im plausible that Gaudet’s actions stem m ed from “a totally illegitim ate anim us toward[]” Plaintiff or that they had no rational basis. 131 “[C]onclusory statem ents in an affidavit do not provide facts that will counter sum m ary judgm ent evidence, and 125 R. Doc. 10 3 at 11. R. Doc. 35 at 12. 127 Id. at 12. 128 R. Doc. 91-3 at 20 (citing Gaudet Aff. at ¶ 11). 129 R. Doc. 114-9 at 15– 19. 130 R. Doc. 91-11 at 11:20 – 24. 131 Mata, 275 F. App’x at 415. 126 20 testim ony based on conjecture alone is insufficient to raise an issue to defeat sum m ary judgm ent.”132 A reasonable jury could not conclude, without m ore, that Gaudet’s J une 20 15 interaction with Plain tiff dem onstrates his anim us towards her or that there was no rational basis for his conduct during their interaction. Because Plaintiff has not put forth any eviden ce dem onstrating Defendants’ m alicious intent to violate her right to equal protection, she has failed to create an issue of disputed fact with respect to whether an y perceived differential treatm ent was m otivated by illegitim ate anim us or ill will. 133 Further, Plaintiff has not created a m aterial factual dispute with respect to whether Defendants had a rational basis for treating her differently from any other alleged victim of dom estic violence. Plaintiff has not m ade out the elem ents necessary for a “class of one” claim . Defendants are entitled to sum m ary judgm ent on Plaintiff’s § 1983 claim s on this basis. STATE LAW CLAIMS The Deputies 134 and the Sheriff 135 m ove for sum m ary judgm ent dism issing Plaintiff's state law causes of action. 136 The Court in its Order and Reasons on Defendants’ m otions to dism iss 137 has dism issed Plaintiff’s state law causes of action for abuse of rights against Donahue, the Deputies, and the Sheriff, 138 as well as her negligence claim again st 132 Id. (citing Roberts, 266 F.3d at 376 n.33 (internal citation om itted)). See F ED. R. CIV. P. 56; Celotex, 477 U.S. at 322– 23. 134 R. Doc. 91. 135 R. Doc. 90 . 136 R. Doc. 35 at 15– 16, ¶¶ 54– 60 . 137 R. Doc 8 8. In footnote 223 of the Court’s Order and Reasons, the Court listed the claim s that survived Defendants m oved to dism iss. Id. at 43. The Court did not rule on Plaintiff’s rem aining state law claim s as set forth above. Nevertheless, Plaintiff states in her oppositions to the Deputies and the Sheriff’s Motions to Dism iss that the Court “appears to have dism issed Plaintiff's Louisiana constitutional claim s.” R. Doc. 113 at 4 n.2; R. Doc. 114 at 4 n.2. 138 R. Doc. 88 at 38. 133 21 Brandon Donahue. 139 For the reasons expressed in the Court’s Order an d Reasons on the m otions to dism iss, the Court now dism isses Plaintiff’s causes of action under the Louisiana Constitution for violations of her right to petition, to free speech an d association, 140 and to privacy, 141 as well as for violations of her due process rights. 142 Plaintiff’s rem aining cause of action for a state constitutional violation is based on equal protection for violations occurring after J une 24, 20 15. 143 “Louisiana jurisprudence does not recognize an equal protection claim in the context of only a single m em ber, or a classof-one plaintiff.”144 Defendants’ m otion for sum m ary judgm ent on Plaintiff’s state constitutional claim s is granted. Because the claim s for constitutional violations have been dism issed, Plaintiff’s claim against the Sheriff for respondent superior liability based upon the actions of Brandon Donahue an d the Deputies 145 also is dism issed. M ON ELL CLAIM Plaintiff claims the Sheriff’s alleged failure to adequately train “his officers in the handling of domestic violence com plaints”146 “amounts to a deliberate indifference to the 139 Id. at 41. Id. at 32 n.175; see e.g., Davis v. Allen Parish Serv. Dist., 210 F. App’x 40 4, 413 (5th Cir. 20 0 6) (“Inasm uch as we have determ in ed that sum m ary judgm ent in favor of Allen Parish Hospital was proper on Davis’s § 1983 First Am endm ent claim , it was also proper on her claim brought under the Louisiana Constitution.”); Law son v. City of Monroe, No. 12-2233, 20 13 WL 3967161, at *5 (M.D. La. J uly 31, 20 13), aff’d, 579 F. App’x 30 5 (5th Cir. 20 14) (notin g Louisian a right to petition, free speech, and free association has been interpreted to be the sam e as federally protected rights); H y m es v . City of N atchitoches, No. 10 1167, 20 12 WL 4855444, at *11 (W.D. La. Oct. 10 , 20 12) (sam e). 141 Although the Louisiana Constitution’s affirm ative right to privacy creates a higher standard of liberty than the U.S. Constitution , both protect only reasonable expectations of privacy. Banks v . Dep’t of Pub. Safety & Corr., Louisiana Training Inst.-E. Baton Rouge, 598 So. 2d 515, 518 n.3 (La. App. 1 Cir. 1992) (citing State v. H ernandez, 410 So. 2d 1381, 1385 (La. 1982)); see also Bry ant v. City of Mon roe, No. 122378 , 20 13 WL 5924731, at *12 (W.D. La. Oct. 31, 20 13). 142 Doc. 88 at 32. 143 Id. at 21, 26. 144 Ray v. City of Bossier City , 37-70 8 (La. App. 2 Cir. 10 / 24/ 0 3); 859 So. 2d 264, 274. 145 R. Doc. 11 at 13– 14, ¶¶ 46– 52. 146 R. Doc. 113 at 14. 140 22 rights of persons with whom the police com e in contact.”147 In his motion for summary judgm ent, the Sheriff seeks dism issal of this Monell claim against him. Municipal liability under § 1983 has three elements: (1) a policy maker, (2) an official policy, and (3) “a violation of constitutional rights whose ‘moving force’ is the policy or custom.”148 Having found no underlying constitutional violation in this case, the Court dismisses this claim. “If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the department regulations might have authorized the [alleged violation] is quite beside the point.”149 CON CLU SION IT IS ORD ERED that the m otions for sum m ary judgm ent filed by Bran don Donahue; 150 Sergeants Michael Ripoll, J r., Alex Dantagnan, J r., and Steven Gaudet; 151 and Sheriff Rodney J . Strain, J r. 152 are GRAN TED . Plaintiff’s claim s against all Defendants are D ISMISSED with prejudice. 153 N e w Orle an s , Lo u is ian a, th is 11th d ay o f Se pte m be r, 2 0 17. ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 147 Id. at 7 (quotin g City of Canton v. Harris, 489 U.S. 378, 38 8 (1989)). Piotrow ski v. City of Houst., 237 F.3d 567, 578 (5th Cir. 20 0 1). 149 City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). 150 R. Doc. 93. 151 R. Doc. 91. 152 R. Doc. 90 . 153 Because Plaintiff is not the prevailin g party on any of her claim s, her request for attorney’s fees pursuant to 42 U.S.C. § 1988 also is dism issed. 148 23
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