KAREN L. HAYES, Magistrate Judge.
Pending before the court are two motions filed by defendants City of Ruston, Officer Jason Burnham, Officer Slade Darden, Officer Tyler Davidson, and Chief Steve Rogers: 1) motion for summary judgment [doc. # 49]; and 2) motion to compel discovery responses, plus associated request for fees, [doc. # 28]. For reasons assigned below, the motion for summary judgment is GRANTED, and the motion to compel is DENIED, as moot.
On the evening of May 31, 2015, Jyone Cottingham, a black female, was standing in line to purchase groceries at the Ruston Wal-Mart store, when she was accosted by three black males (later identified as Tyler Ward, Nicholas Stringfellow, and Julian Tellis). After asking the males to cease and desist — without success — Cottingham called the police.
City of Ruston police officers, Slade Darden, Jason Burnham, and Tyler Davidson (all white males) were dispatched to the call, and quickly arrived on scene. The officers proceeded to register 6 where they encountered Ms. Cottingham and one of the three men, Nicholas Stringfellow, who was standing in line behind her. Julian Tellis briefly had left to use the restroom, but returned while the officers were engaged with Cottingham and Stringfellow.
After listening to Cottingham and Stringfellow's versions of the encounter, the officers separated Stringfellow and Tellis from Ms. Cottingham. As the officers attempted to obtain identity information from the men, both Stringfellow and Tellis informed the officers that they were not following proper procedures and stepped towards the officers. This prompted the officers to handcuff Stringfellow. Meanwhile, one of the officers grabbed Tellis to escort him outside. However, Tellis became rigid and would not move, thereby prompting the officer to take Tellis to the ground to handcuff him.
The officers transported Stringfellow and Tellis to the detention center where the men were booked on various charges. The men bonded out later that morning. On July 7, 2015, the City of Ruston filed bills of information against Stringfellow and Tellis on charges of resisting an officer (violence) in violation of Ruston Ordinance 11:108B(1)(b). On January 21, 2016, the prosecutor dismissed the charge against Stringfellow and "nolle prossed" the charge against Tellis.
On May 31, 2016, Stringfellow and Tellis filed the instant civil rights complaint under 42 U.S.C. § 1983 against the City of Ruston, Chief Steve Rogers, and Officers Jason Burnham, Slade Darden, and Tyler Davidson. Plaintiffs alleged violations of their rights under the 4th, 5th, 6th, 9th, and 14th amendments to the U.S. Constitution. They also asserted a state law tort claim and claims for violation of rights under Article I, Sections 2, 3, 4, and 13 of the Louisiana Constitution.
As a result of the incident, Tellis alleged that he suffered abrasions to his wrists, and had to undergo hernia repair surgery. Moreover, both Stringfellow and Tellis's photographs were placed on the front page of the local newspaper. Stringfellow also had to defer military enlistment. Plaintiffs seek compensatory damages for mental distress, loss of liberty, invasion of privacy, pain and suffering, loss of earning capacity, loss of enjoyment of life, embarrassment, and humiliation. They also seek punitive damages against the officers, plus an award of attorney's fees and costs.
On April 3, 2017, all defendants joined in the instant motion for summary judgment seeking dismissal of plaintiffs' claims in their entirety. Plaintiffs filed an opposition brief on May 5; defendants filed a reply on June, 2, 2017. Thus, the matter is ripe.
Summary judgment is appropriate when the evidence before the court shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). "The moving party may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that the record contains no support for the non-moving party's claim." Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is unable to identify anything in the record to support its claim, summary judgment is appropriate. Id.
In evaluating the evidence tendered by the parties, the court must accept the evidence of the non-movant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255. While courts will "resolve factual controversies in favor of the non-moving party," an actual controversy exists only "when both parties have submitted evidence of contradictory facts." Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). There can be no genuine dispute as to a material fact when a party fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322-323. The non-moving party may not rely merely on the allegations and conclusions contained within the pleadings; rather, the nonmovant "must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial." Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). The non-movant does not satisfy his burden merely by demonstrating some metaphysical doubt as to the material facts, by setting forth conclusory allegations and unsubstantiated assertions, or by presenting but a scintilla of evidence. Little, 37 F.3d at 1075 (citations omitted).
Moreover, "summary judgment is appropriate in any case `where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.'" Little, supra (citation omitted) (emphasis in original). In sum, "[a]fter the nonmovant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted." Mississippi River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000) (citation omitted).
On May 31, 2015, at approximately 11:40 p.m., Jyone Cottingham was standing in line to purchase groceries at the Ruston Wal-Mart store, when she was accosted by Tyler Ward, Nicholas Stringfellow, and Julian Tellis. (Deposition of J. Cottingham, pgs. 7-12; Pl. Opp. Exh. 10). According to Cottingham, the three men were loud, disrespectful, and saying sexual things to her. Id.
The transcript from Cottingham's 9-1-1 call reflects that the conversation occurred at 11:46:45 p.m. on May 31, 2015, and went as follows,
(9-1-1 Transcript; Pl. Opp., Exh. 1) (in pertinent part).
City of Ruston police officers, Slade Darden, Jason Burnham, and Tyler Davidson were dispatched to the scene.
The sequence of events that transpired at the Wal-Mart store (and outside) is compiled from the following:
[Julian Tellis returns from the restroom around this time.]
[The Wal-Mart overhead camera for register 6 reveals at least one of the officers resting his hands on his belt.]
[Tellis and Stringfellow slowly walked towards the officers.]
[Stringfellow and Officer Darden are facing one other and standing inside both sets of doors at the Wal-Mart store's east entrance.]
[Burnham walks into camera view and is standing facing Stringfellow and Darden.]
[Tellis walked into camera view, with Officer Davidson behind him.]
[During this time, Tellis is talking to Darden and Burnham, but it is inaudible.]
The party of five are standing facing inward, as follows:
[Stringfellow took a single, long step towards the officers, while Tellis contemporaneously took a small step forward. Stringfellow stepped inside Davidson and came close to Burnham.]
At that point, they looked like this:
[Officer Burnham placed Stringfellow in handcuffs without incident Meanwhile, Officer Darden reached forward and grabbed Tellis's left arm, which caused Tellis's right shoulder to swing around and make contact with Darden.]
[Darden briefly tried to escort Tellis toward the exit, but Tellis immediately stopped moving and became rigid. (Stringfellow Deposition, pgs. 114-117; MSJ, Exh. N; Tellis Deposition, pgs. 110-111).
[While on the ground, Tellis squirmed and moved his limbs about. See Fobbs Depo., pgs. 97-98, 110-111; Pl. Opp., Exh. 12. Davidson assisted Darden with immobilizing Tellis so Darden could handcuff him. In so doing, Darden placed his knee on Tellis' back. Once Darden secured Tellis with handcuffs, he roughly jerked him to his feet.]
[The officers quickly walked Stringfellow and Tellis to the squad cars parked outside. Stringfellow and Tellis appeared to be walking at a slower pace than the officers, thus prompting the officers to push them along from behind].
[The officers and Stringfellow briefly appeared behind the police unit on its rear-facing camera.]
[The officers and Stringfellow again appeared behind the police unit on its rear-facing camera.]
[The video depicted Officer Burnham gripping Stringfellow's neck and forcing it down towards the trunk of the car.]
[The video showed Burnham, with his arm wrapped around Stringfellow's neck, pulling his head down towards the trunk as he yelled in Stringfellow's ear.]
[Burnham pulled Stringfellow back from the trunk.]
[sound of car door opening]
[Tyler Ward arrived and starting talking to the officers.]
[sound of car door opening]
[One of the officers removed Tellis from the adjacent vehicle, and pushed him against the trunk of the car that Stringfellow was in.]
[Ward departed. Officers Burnham and Davidson sat down in the squad car with Stringfellow. They departed for the detention center.]
[cell phone ringing]
[The officers and Stringfellow entered the detention center through the sally port]
On the evening of May 31/June 1, 2015, Sarah Love-Campbell, a Lincoln Parish Sheriff's deputy, was the booking officer at the Lincoln Parish Detention Center when Stringfellow and Tellis arrived. (Love-Campbell Affidavit, MSJ, Exh. R). She documented in the booking records that both Stringfellow and Tellis appeared to be under the influence of alcohol. Id. (LPDC Booking Records, pgs. 000368, 370, 377, & 379). In addition, Stringfellow exhibited slurred speech. Id. Tellis's booking record further reflects that two weeks earlier, he had been hospitalized or treated by a doctor for hernia. Id. The records indicate that both Stringfellow and Tellis were assigned "Detox" cells. Id., LPDC pgs. 000372 & 000381.
The booking charges for Tellis included, disturbing the peace — simple drunk, in violation of "103 SD," La. R.S. 14:103A(3), and resisting an officer in violation of "108," La. R.S. 14:108. (LPDC pg. 000372; Def. MSJ, Exh. R). The booking charges for Stringfellow included, disturbing the peace — simple drunk, in violation of "103 SD," La. R.S. 14:103A(3), resisting an officer in violation of "108," La. R.S. 14:108, and possession of marijuana in violation of "966E," La. R.S. 40:966E. (LPDC pg. 000381; Def. MSJ, Exh. R).
On June 1, 2015, Officers Darden and Burnham each executed nearly identical sworn affidavits of probable cause for arrest without a warrant for Tellis and Stringfellow, respectively. (Aff.s of Prob. Cause; Def. MSJ, Exh. F).
Id.
The affidavits charged Tellis and Stringfellow with violations of City of Ruston ordinances for disturbing the peace (appearing intoxicated), 11:103; and resisting an officer (violence) 11:108; (plus, as to Stringfellow, an additional charge for simple possession of marijuana, 11:300). Id.
Booking records confirm that Stringfellow and Tellis's personal items were returned to them at 3:41 a.m. and 3:46 a.m., respectively,
On July 7, 2015, the City of Ruston filed bills of information against Stringfellow and Tellis on charges of resisting an officer (violence) in violation of Ruston Ordinance 11:108B(1)(b). (Bills of Information; Pl. Opp., Exh. 8). On December 17, 2015, Cottingham testified in the criminal proceedings against Stringfellow and Tellis. City of Ruston v. Tellis, No. S-22610, S-22611, consolidated with, City of Ruston v. Stringfellow, S-22605, S-22607 (Dec. 17, 2015 Ruston); Pl. Opp., Exh. 6. She said that neither Stringfellow nor Tellis said anything to her at the Wal-Mart store on the night in question. Id. She further testified that she did not smell any alcohol on either of them. Id.
At her deposition, Cottingham reaffirmed that she did not smell any alcohol on Stringfellow or Tellis, despite standing five to six feet away from them. (Cottingham Depo., pg. 83). However, she reaffirmed that Stringfellow had harassed her verbally. Id., pgs. 101-102. Cottingham explained that the two individuals (i.e., Tellis and Stringfellow) who appeared in the register 6 overhead camera were the same persons that she had called the police about. (Cottingham Depo., pgs. 33, 56; Pl. Opp. Exh. 10). She stated that she told the police about the sexual comments that the individuals had made to her. Id., pg. 53. Cottingham added that Ward and Stringfellow were the ones doing the talking. Id., pg. 94. She believed that Tellis had fallen in with a bad group of people. Id., pg. 72.
Cottingham explained that as the squad cars were driving away, the car that had the man in dreads (i.e. Tellis) stopped and the officer (likely Darden) asked her for her I.D. (Cottingham Depo., pg. 62). She advised the officer that the individual in his car (Tellis) did not say anything to her. Id. The officer replied that, "[w]ell it's not because of that. It's something else." Id., pgs. 62, 72, 80-81, 86.
Shondra Fobbs was standing in the check out line at Wal-Mart behind Ward, Stringfellow, and Tellis on the night in question. (Fobbs Depo., pgs. 44; Pl. Opp., Exh. 12). She knew all three of the young men from her days as a substitute teacher at Grambling High School. Id., pg. 26-27. As Ms. Fobbs arrived at the checkout line, Tyler Ward was leaving. Id., pg. 55. Fobbs heard Stringfellow say, "[t]his woman is crazy." Id., pg. 56. She also heard Cottingham 550 U.S. 372, 380, 127 S.Ct. 1769 (2007) (when testimony is "blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of facts for purposes of ruling on a motion for summary judgment."). tell Ward that she had just called the police, and that they were on their way. Id., pg. 57. Fobbs added that Cottingham said that the men were sexually harassing her. Id., pg. 60. She also overheard Cottingham tell the cashier that Stringfellow (plus Ward) had said something to her. Id., pg. 66. Stringfellow replied, "I gave you a compliment." Id., pg. 67. Tellis told Cottingham, "I didn't say anything to you." Id. Cottingham replied, "I know. I'm not talking about you." Id. Ms. Fobbs did not smell any alcohol on Stringfellow or Tellis despite standing but an arm's length away from them. Id., pgs. 78, 163.
Section 1983 provides that any person who, under color of state law, deprives another of "any rights, privileges or immunities 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. . . ." Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citing 42 U.S.C. § 1983). Section 1983, however, does not create any substantive rights; it simply provides a remedy for the rights designated therein. Id. "Thus, an underlying constitutional or statutory violation is a predicate to liability under § 1983." Id. (citation omitted).
"To state a claim under § 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Leffall v. Dallas Independent School District, 28 F.3d 521, 525 (5th Cir. 1994). The first inquiry is whether plaintiff has alleged a violation of a constitutional right at all. Id. Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995).
Plaintiffs asserted jurisdiction, inter alia, pursuant to the Fifth, Sixth, and Ninth Amendments to the U.S. Constitution. (Compl., ¶ 1.1). Aside from this initial invocation, however, plaintiffs never again mention these constitutional provisions. Indeed, the court discerns no actionable grounds under these amendments. For example, "[t]he Fifth Amendment applies only to violations of constitutional rights by the United States or a federal actor." Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir.2000) (citation omitted). Here, however, there are no allegations or evidence that any defendant acted under the authority of the federal government.
Furthermore, while the Sixth Amendment provides the accused the right inter alia "to be informed of the nature and cause of the accusation" against him, plaintiffs have not set forth any facts to support a claim that they were materially harmed by any unarticulated violation of the Sixth Amendment. See Burkett v. City of El Paso, 513 F.Supp.2d 800, 813-14 (W.D. Tex.2007).
Finally, plaintiffs are unable to assert a viable claim for relief under the Ninth Amendment. The Ninth Amendment provides that, "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST. AMEND. IX. However, courts have recognized that the Ninth Amendment does not specify any rights of the people and is not a vehicle for bringing civil rights claims. Mitchell v. Town of Lake Arthur, No. 16-0064, 2016 WL 2726561, at *2 (W.D. La. May 9, 2016); Ned v. Eunice Police Dep't, No. 16-1035, 2017 WL 369128, at *1 (W.D. La. Jan. 23, 2017).
Plaintiffs sued defendants, Burnham, Darden, Davison, and Chief Rogers, in their individual and official capacities. (Compl., ¶¶ 2.4-2.7). It is manifest, however, that official capacity suits, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985) (citing, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55 (1978)). Thus, "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Id.
When, as in this case, the local government entity itself is a defendant (i.e., the City of Ruston) then official capacity claims against specific individuals employed by, or managers of, that entity are redundant and subject to dismissal. Hicks v. Tarrant Cnty. Sheriff's Dep't, 352 F. App'x 876, 877 (5th Cir. 2009) (citations omitted) (because local government entity was a named defendant, district court did not err in dismissing official capacity claims against its commissioners); Mason v. Lafayette City-Par. Consol. Gov't, 806 F.3d 268 (5th Cir.2015) (claim against mayor in his official capacity was treated as claim against the municipality itself); see also Butler v. Craft, No. 16-1158, 2017 WL 1366897, at *6 (W.D. La. Apr. 11, 2017) (collecting cases).
When, as here, plaintiffs seek money damages from government officials in their individual capacities under § 1983, the affirmative defense of qualified immunity is available to protect defendants "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)). The qualified immunity doctrine balances two often conflicting interests — "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Id. As such, "[t]he protection of qualified immunity applies regardless of whether the government official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Id. (citations omitted). In effect, qualified immunity "gives ample room for mistaken judgments by protecting "all but the plainly incompetent or those who knowingly violate the law." Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir.2000) (citing Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092 (1986) (internal quotation marks omitted).
Qualified immunity is nominally characterized as an affirmative defense. However, once raised by defendants, it devolves upon plaintiffs to negate the defense by showing that the officials' conduct violated clearly established law. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008) (citation omitted). Plaintiffs' burden is two-pronged. Club Retro LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (quoted sources omitted). First, plaintiffs must demonstrate that the defendant violated a constitutional right under current law. Id. "Second, [plaintiffs] must claim that the defendant[s'] actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of." Id. (quoted source and internal quotation marks omitted). The courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citation omitted).
In the peculiar context of a motion for summary judgment, "once [the court has] determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record, the reasonableness of [a police officer's] actions . . . is a pure question of law." Scott, 550 U.S. at 397, 127 S.Ct. at 1776 n.8 (2007). Consequently, the Fifth Circuit has recognized that,
Lytle v. Bexar Cty., Tex., 560 F.3d 404, 411-12 (5th Cir.2009) (internal citation omitted). In other words, there is no constitutional violation if — even after crediting the version of facts most favorable to plaintiff — the officer's conduct was objectively reasonable. Id.
In the case at bar, plaintiffs asserted claims for wrongful arrest and excessive force. Also pertinent to the inquiry, however, is whether the officers unlawfully detained plaintiffs initially. All of these rights are analyzed under the Fourth Amendment,
"A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied." Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 2405 (2007) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868 (1968) (internal quotation marks omitted).
Under Terry v. Ohio, a law enforcement officer may temporarily detain a person when the "officer has a reasonable, articulable suspicion that a person has committed or is about to commit a crime." United States v. Chavez, 281 F.3d 479, 485 (5th Cir. 2002) (citation omitted). Reasonable suspicion may be described as "`a particularized and objective basis' for suspecting the person stopped of criminal activity." Id. (citing Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657 (1996)). To satisfy the Fourth Amendment, the stopping or detaining officer must be able to "articulate more than an `inchoate and unparticularized suspicion or hunch of criminal activity." Id. (citation and internal quotation marks omitted).
The Fourth Amendment requires but a "minimal level of objective justification for making the stop," and requires "a showing considerably less than preponderance of the evidence." Id. (citation omitted). The validity of the stop is determined under "the totality of the circumstances-the whole picture." Id. (citing United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581 (1989)). Therefore, in assessing the legality of a detention, "courts are first to evaluate whether the stop was lawful at the outset and second to determine whether the officers conducted the stop in a manner reasonably related in scope to the circumstances which justified the interference in the first place." Brown v. Lynch, 524 Fed. Appx. 69, 75 (5th Cir.2013) (citation and internal quotation marks omitted).
Viewing the evidence in the light most favorable to plaintiffs, the officers had reasonable suspicion to detain Stringfellow and Tellis pursuant to Cottingham's complaint.
Upon arriving at the scene, the officers encountered Cottingham who led the officers reasonably to believe that Stringfellow and Tellis were two of three males whom she had called about. In fact, the MVR audio captured Stringfellow acknowledging that he spoke to Cottingham, albeit, according to him, only to tell her that she was beautiful. When Tellis returned from the restroom, he took up position beside Stringfellow, thereby implicating himself as another member of the trio that Cottingham had called about. Cottingham did not tell the officers — at that time — that Tellis was merely a silent participant in his friends' verbal harassment.
Furthermore, no reasonable jury could conclude that the officers' decision to separate Stringfellow and Tellis from Cottingham was not reasonably related in scope to the circumstances that led to the initial detention. The officers wanted to obtain Stringfellow and Tellis's identities before proceeding further.
To be sure, probable cause is a defense to a § 1983 claim for false arrest. Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990) (citation omitted). Further, even if there is no probable cause to arrest the plaintiff for the crime charged, proof of probable cause to arrest the plaintiff for a related offense also constitutes a defense. Id. (citation omitted). Indeed, the officer's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Devenpeck v. Alford, 543 U.S. 146, 152-154, 125 S.Ct. 588, 593-594 (2004). The offense establishing probable cause need not even be "closely related" to, or based on the same conduct that motivated the arresting officer. Id.
"Probable cause exists when the facts and circumstances within the arresting officer's personal knowledge, or of which he has reasonably trustworthy information, are sufficient to occasion a person of reasonable prudence to believe an offense has been committed." Evett, 330 F.3d at 688 (citation omitted). In addition, "[p]robable cause is determined on the basis of facts available to the officer at the time of the arrest, and an officer may be shielded from liability even if he reasonably but mistakenly conclude[s] that probable cause is present." Id. (citations and internal quotation marks omitted). Thus, "an acquittal does not necessarily signal an absence of probable cause for an arrest, for the standards for a determination of probable cause and for a criminal conviction markedly differ." Brumfield v. Jones, 849 F.2d 152, 155 (5th Cir.1988) (citation omitted).
The probable cause standard "applie[s] to all arrests, without the need to balance the interests and circumstances involved in particular situations." Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557 (2001) (citation and internal quotation marks omitted). Thus, once "an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Id.
In this case, defendants contend that, by the time they placed hands on Stringfellow and Tellis, they had probable cause to arrest the individuals on multiple charges. Initially, they contend that they had probable cause to arrest plaintiffs for two separate violations of the disturbing the peace statute:
La. R. S. § 14:103(A)(2)-(3).
As already discussed, Cottingham called 9-1-1 and reported that three men were sexually harassing her at Wal-Mart. When the officers arrived on scene, Cottingham provided grounds for the officers reasonably to believe that Stringfellow and Tellis were two of the three men involved. She described to the officers the nature of the unwanted advances made by the men. She also advised 9-1-1 that she had asked the men to stop their unwanted solicitation and commentary.
At no time prior to Stringfellow and Tellis's arrests, did Cottingham disclose to the officers that the three men exhibited varying degrees of participation in the harassment.
In addition, the officers had probable cause to arrest Stringfellow for the additional offense of appearing in an intoxicated condition such that he foreseeably could disturb or alarm the public. The officers observed both Stringfellow and Tellis to exhibit symptoms and odors consistent with alcohol consumption. While Cottingham and Fobbs denied smelling alcohol emanating from Stringfellow or Tellis, their testimony does not undermine the officers' observations as to Stringfellow because he confirmed in his deposition that he had been drinking that day. (Stringfellow Depo., pg. 216). Furthermore, the audio recording from the MVR establishes that Stringfellow's speech was slurred at times, disjointed, and less than pellucid.
As to Tellis, however, Cottingham and Fobbs' testimony does suffice to create a fact issue as to whether he was intoxicated. In contrast to Stringfellow, there is no corroborating evidence to support the officers' observations.
The officers further contend that they had probable cause to arrest Stringfellow and Tellis for resisting an officer. The statute provides in pertinent part:
La. R.S. § 14:108(A) & (B)(1)(b)-(c).
Here, the officers had lawfully detained Stringfellow and Tellis on suspicion of disturbing the peace. The officers directed the men to step forward and accompany them. However, Stringfellow and Tellis hesitated to do so, thus necessitating several loud commands to compel compliance.
After Stringfellow and Tellis reluctantly complied with the officers' order to follow them to the front of the store, the officers endeavored, with mixed success, to obtain identity information from both men. While Stringfellow eventually disclosed his personal information, Tellis proved more evasive. Instead of assisting the investigation, Tellis advised the officers that they were doing things wrong. Stringfellow and Tellis emphasized to the officers that, in contrast to the officers' impressions, the two men were aware of proper police procedures. In so doing, Stringfellow raised his voice and took a long step that brought him in close proximity to the officers. Tellis simultaneously took a small step towards another officer.
Under the totality of these circumstances, a person of reasonable prudence could conclude that Stringfellow and Tellis's actions intentionally interfered with, opposed, or resisted their lawful detention. These same movements by Stringfellow and Tellis towards the officers reasonably could be interpreted by the officers as "threatening force or violence" by someone detained,
In sum, the defendant-officers had probable cause to arrest Stringfellow and Tellis for myriad offenses at the time that they laid hands on them. Even if the officers were mistaken in their probable cause assessment, their belief was reasonable. Therefore, the officers are entitled to qualified immunity from plaintiffs' claim for wrongful arrest as a matter of law. See Lock v. Torres, ___ Fed. Appx. ____, 2017 WL 2643957, at *3 (5th Cir. June 19, 2017) (officer is entitled to qualified immunity even if she "reasonably but mistakenly conclude[d] that probable cause [was] present").
Having determined that the officers not only had reasonable suspicion to detain plaintiffs, but also probable cause to arrest them, the court must consider plaintiffs' claim for excessive force.
Applying the foregoing considerations here, the court initially finds that the officers, and Officer Burnham in particular, reasonably opted to handcuff Stringfellow in response to Stringfellow's escalating tone and aggressive move towards the officers. Although the crime that the officers were investigating initially was not that severe, the encounter escalated pursuant to Stringfellow's subsequent conduct. Burnham also had probable cause at that time to arrest Stringfellow. See discussion, supra.
The court viewed the video depicting Burnham's forced-march of Stringfellow to the car, and his efforts to compel Stringfellow to lean over the trunk.
Furthermore, at best, Stringfellow has asserted no more than fleeting injury to his wrist from the handcuffs and rough handling by the officer. However, the Fifth Circuit has held that "minor, incidental injuries that occur in connection with the use of handcuffs to effectuate an arrest do not give rise to a constitutional claim for excessive force." Freeman v. Gore, 483 F.3d 404, 417 (5th Cir.2007) (citations omitted). The same result obtains as to any claim for rough handling.
As for Tellis, Officer Darden was confronted with two increasingly agitated suspects who made simultaneous moves towards the officers. Darden initially grabbed Tellis's arm and tried to gain compliance. He then attempted to walk Tellis out the door, but both plaintiffs admitted that Tellis tensed up and braced himself against further movement. (Stringfellow Depo., pg. 117; Tellis Depo., pgs. 110-111). In a controlled move, Darden took Tellis to the ground where Tellis continued to wiggle about. Officer Davidson held Tellis's legs as Darden used his knee to pin Tellis down while he handcuffed him. Darden then roughly jerked Tellis up, forced-marched him to the car, and placed him inside. Darden later had to remove Tellis and re-handcuff his hands behind his back after Tellis moved his hands to the front of his body.
Under these circumstances, it was objectively reasonable for Darden to restrain Tellis once he and Stringfellow moved towards the officers (i.e., once they posed an immediate threat). Moreover, Tellis's refusal to be escorted outside (i.e., actively resisting arrest), reasonably compelled Darden to take him to the ground to handcuff him, with Davidson's assistance. See Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013) (suspect's attempt to shut the door on the officers reasonably could be viewed as resisting arrest which provided support for the officers' decision to tackle the suspect while he remained in sight, especially where a reasonable officer could consider that tackling a suspect was unlikely to cause serious injury); Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir.2012) (plaintiff ignored repeated commands to turn around and give up his arm, thus necessitating taser deployment and take down after plaintiff kicked and screamed); see also Poole v. Russell, No. 14-0611, 2016 WL 6082041, at *6 (W.D. La. Oct. 18, 2016) (placing a knee on plaintiff's back while another officer held him down until handcuffs could be secured was objectively reasonable).
In Collier v. Montgomery, an officer stopped the plaintiff motorist for a seatbelt infraction. Collier v. Montgomery, 569 F.3d 214, 218 (5th Cir.2009). When the plaintiff attempted to grab the officer's pen, the officer advised him that he was under arrest and reached for his wrist. Id. The plaintiff pulled away, and a struggle ensued. Id. The officer pushed the plaintiff onto the hood of the car and forced his arm behind his back, eventually obtaining compliance. Id. Plaintiff suffered abdominal bruising, other bruises, plus chest pain stemming from the encounter. Id. However, the court concluded that given plaintiff's physical resistance, the use of force was reasonable under the circumstances. Id.
The foregoing authority impels the same result here. Although Tellis alleged in his complaint that he suffered a hernia from the encounter, the uncontroverted summary judgment evidence establishes that his hernia was a preexisting condition. In fact, the only evidence of injury suffered by Tellis uncovered by the court was in Ms. Fobbs' deposition where she stated that she had observed bruising around Tellis's torso. However, the use of force remained proportionate and reasonable, give Tellis's non-compliance. See Collier, supra.
In his report, defendants' expert, George J. Armbruster, explained that Tellis, by moving his handcuffed hands from behind his back to the front of his body, made it possible to use his hands offensively. (Defs. MSJ, Exh. G).
In sum, even after crediting the version of facts most favorable to plaintiff, no reasonable juror could conclude that the officers' use of force was not objectively reasonable.
A law is clearly established when there exists "controlling authority—or a `robust consensus of persuasive authority'—that defines the contours of the right in question with a high degree of particularity." Id. Although a case directly on point is not required, "existing precedent must have placed the statutory or constitutional question beyond debate." Id. (citations and internal quotation marks omitted). Thus, the question becomes whether the right is "sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right." Id. (citations and internal quotation marks omitted).
Here, plaintiffs have not identified controlling authority that satisfies the foregoing criteria.
In their brief, plaintiffs argued that they were engaged in protected speech when they questioned the officers' procedures. The First Amendment "prohibits not only direct limits on individual speech but also adverse governmental action against an individual in retaliation for the exercise of protected speech activities." Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (internal citations omitted). To prevail on a First Amendment retaliation claim plaintiffs must show that
Id. (citations omitted).
Nevertheless, the Supreme Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause. Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093 (2012).
Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir.2008).
Accordingly, qualified immunity shields defendants from plaintiffs' retaliatory arrest claim under the First Amendment.
Plaintiffs alleged in their complaint that Chief Rogers was liable for his failure to supervise and/or discipline Officers Darden, Burnham, and Davidson. However, supervisory officials are not liable under § 1983 for the actions of subordinates under any theory of vicarious liability. Turner v. Lieutenant Driver, 848 F.3d 678, 695 (5th Cir.2017) (citation omitted). Rather, to be liable under § 1983, the supervisor
Id.
Plaintiffs did not allege or adduce any evidence to show that Chief Rogers was personally involved in any alleged constitutional violation.
Nevertheless, a supervisor not personally involved in the acts that purportedly deprived plaintiffs of their constitutional rights is subject to liability under § 1983 if: "1) the [supervisor] failed to train or supervise the officers involved; 2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's rights; and 3) the failure to train or supervise constituted deliberate indifference to the plaintiff's constitutional rights." Thompson v. Upshur Cty., TX, 245 F.3d 447, 459 (5th Cir.2001) (citations omitted). However, proof of more than one instance of lack of training or supervision resulting in a deprivation of constitutional rights is required before it may arise to the level of deliberate indifference. Id.; see also Brown, supra.
Plaintiffs have not made the requisite showing in this case. In any event, supervisors cannot be held liable for alleged constitutional violations by their subordinates, when, as here, plaintiffs failed to establish any constitutional transgressions by the subordinates. Estate of Pollard v. Hood Cty., Tex., 579 Fed. Appx. 260, 266 (5th Cir.2014) (citations omitted).
A local government entity or municipality is not subject to liability under § 1983 by virtue of the doctrine of respondeat superior. O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985). Instead, to impose § 1983 liability against a government entity for the misconduct of one of its employees or officers, plaintiffs must demonstrate that the constitutional deprivation was caused by a policy or custom of the entity. Kohler v. Englade, 470 F.3d 1104, 1115 (5th Cir. 2006) (citing Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690-691, 98 S.Ct. 2018, 2036 (1978)). Specifically, a plaintiff must identify (a) a policymaker, (b) an official policy or custom or widespread practice, and (c) a violation of constitutional rights whose "moving force" is the policy or custom. Monell, 436 U.S. at 694.
Stringfellow and Tellis did not adduce evidence to meet the requirements for a Monell claim against the city. Moreover, plaintiffs have not established an underlying constitutional violation by the individual defendants. A fortiori, they have not identified a precipitating unconstitutional custom or policy enacted by the government entity. See Bustos v. Martini Club Inc., 599 F.3d 458, 467 (5th Cir. 2010) (because the officers did not violate plaintiff's constitutional rights, neither did the city).
Plaintiffs asserted state law claims for excessive force, unlawful arrest, failure to train, negligent hiring, and respondeat superior. In support of their claims, they invoked, inter alia, Article I, § 5 of the Louisiana Constitution and Louisiana Civil Code Article 2315.
The Fifth Circuit has recognized that Louisiana's excessive force tort mirrors its federal employee a final policymaker." Lee v. Morial, No. 99-2952, 2000 WL 726882, at *2 (E.D. La. June 2, 2000). constitutional counterpart. Deville v. Marcantel, 567 F.3d 156, 172-73 (5th Cir.2009).
Under Louisiana law, "[f]alse arrest and imprisonment occur when one arrests and restrains another against his will without a warrant or other statutory authority." Deville, 567 F.3d at 172 (citation omitted). An arrest is unlawful and actionable when the arresting officer lacks probable cause for the arrest. Thomas, supra (citation omitted). Here, the court has determined that the officers had probable cause to arrest plaintiffs, which undermines any basis for a false arrest claim under state law.
Insofar as plaintiffs advanced a claim against the city and Chief Rogers for negligent hiring, they must satisfy the five elements for a negligence claim under Louisiana law:
Roberts v. Benoit, 605 So.2d 1032, 1051 (La.1991), on reh'g (May 28, 1992).
Apparently in an effort to show that the city and Chief Rogers breached a duty to hire competent officers, plaintiffs point to other § 1983 cases filed against Slade Darden in this district. See Jakob v. Darden, No. 15-0085 (W.D. La.) and Antley v. Darden, No. 14-3307 (W.D. La.). Although the plaintiffs in Jacob and Antley included allegations of excessive force committed by Darden, the allegations have not been substantiated. The Jacob suit settled prior to trial. Jacob, supra. Moreover, the Antley case has yet to go to trial. In the absence of any findings that Darden violated any civil rights in those cases, they do not establish that the city and Chief Rogers breached any duty owed to plaintiffs.
Moreover, even if plaintiffs had shown that the city's hiring practices breached a duty owed to plaintiffs, any such breach was not a cause-in-fact of plaintiffs' injuries, where, as here, the court has determined that the officers' actions were objectively reasonable. See Thomas, supra (plaintiff cannot show causation between alleged breach and harm suffered where plaintiff cannot establish a constitutional violation by the officer).
Finally, in their complaint, plaintiffs invoked Article I, Sections 2,
For the foregoing reasons, the court finds that there is no genuine dispute as to any material fact, and that movants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Therefore,
IT IS ORDERED that the motion for summary judgment [doc. # 49] filed by defendants City of Ruston, Officer Jason Burnham, Officer Slade Darden, Officer Tyler Davidson, and Chief Steve Rogers is hereby GRANTED. Judgment shall issue accordingly.
IT IS FURTHER ORDERED that defendants' motion to compel discovery responses and associated request for fees [doc. # 28] is DENIED, as moot.
Jason Burnham worked for the Ruston Police Department from March 2009 until January 2017. (Burnham Deposition, pgs. 7-8; Pl. Opp., Exh. 5-1). Prior to that, he worked for the Louisiana Tech University Police Department for three years. Id. In January 2017, he was hired as a deputy with the Ouachita Parish Sheriff. Id.
Tyler Davidson began his law enforcement career with the Ruston Police Department in November 2014. (Davidson Deposition, pgs. 8-10; Pl. Opp., Exh. 9). He attended basic police academy for approximately four months. Id. On May 31, 2015, he was in the field officer training program, assigned to Officer Burnham. Id.
Defendants' objection is overruled. Defendants were not materially prejudiced by the late submission of the video. They were aware of it, and extensively questioned Ms. Fobbs about the video at her January 17, 2017, deposition. See Fobbs Deposition; Pl. Opp., Exh. 12. Moreover, the court only considered the recording for what is depicted visually, not for anything uttered by an unknown third person.
A party cannot rely on an affidavit that impeaches, without explanation, prior sworn testimony. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.1996) (citations omitted). Here, however, it is not apparent hat Darden and Burnham's affidavits are inconsistent with their deposition testimony. Nevertheless, the court will rely on, and cite to the officers' depositions in lieu of their affidavits.
The officers later completed incident detail reports that elaborated upon their probable cause affidavits. (Incident Detail Reports; Def. MSJ, Exh. F, COR 000393, 000397).
Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177, 186, 124 S.Ct. 2451, 2458 (2004).
Brown, 524 Fed. Appx. at 75-76 (citations and internal quotation marks omitted). Also, investigative detention may constitute a de facto arrest. United States v. Shabazz, 993 F.2d 431, 437 (5
Hanks, 853 F.3d at 747.
However, the circumstances of this case are materially distinct. Tellis physically impeded Darden's efforts to escort him outside. Moreover, the officers did not strike either plaintiff.
