PATRICK J. HANNA, Magistrate Judge.
Currently pending is the motion for summary judgment (Rec. Doc. 30), which was filed on behalf of defendant Paul Mouton, the duly elected City Marshal of the City of Opelousas, Louisiana, and defendant Frank Angelle, individually and in his capacity as Deputy Marshal of the City of Opelousas. The motion is opposed. Oral argument was held on June 23, 2015. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, the motion is GRANTED.
This lawsuit was brought on behalf of Michael Ahart, individually and acting on behalf of his minor daughter, Alexis Ahart. According to the complaint, Opelousas Deputy Marshal Frank Angelle entered the Aharts' home on August 22, 2013, without a search warrant and without consent of the owner of the property. It is alleged that Deputy Marshal Angelle searched and photographed the residence in violation of Mr. Ahart's constitutional rights. It is also alleged that, after he observed Alexis videotaping him while he was in the Aharts' home, Angelle injured her wrist while taking her phone out of her hand to delete the video, using force that was excessive under the circumstances and amounted to both a violation of her Constitutional rights and state-law assault and battery.
The plaintiff claims that he was harmed in two ways. First, Mr. Ahart alleges that he is aggrieved by Deputy Marshal Angelle entering his home and searching it without his consent. Second, Mr. Ahart alleges that his daughter was injured when Deputy Marshal Angelle used excessive force in stopping her from taking photos of him during the search.
The defendants' motion for summary judgment seeks to have this Court dismiss the claims asserted against Deputy Marshal Angelle on the basis of qualified immunity, dismiss the claims asserted against Marshal Mouton, and decline jurisdiction over the state-law claims.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable governing law.
The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those parts of the record that demonstrate the absence of genuine issues of material fact.
All facts and inferences are construed in the light most favorable to the nonmoving party,
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that there is insufficient proof concerning an essential element of the nonmoving party's claim.
When, as in this case, the defendants advance the affirmative defense of qualified immunity, the usual summary judgment burden shifts to the plaintiffs to show that the defense is not available.
The complaint states that the plaintiff's claims are brought pursuant to 42 U.S.C. § 1983 and 1988 as well as under Louisiana law. Section 1983 provides a cause of action against anyone who "under color of any statute, ordinance, regulation, custom, or usage, of any State" violates another person's Constitutional rights. Section 1983 is not itself a source of substantive rights; it merely provides a method for vindicating federal rights conferred elsewhere.
Qualified immunity, an affirmative defense to a suit under 42 U.S.C. § 1983, protects government officials in their personal capacity, while performing discretionary functions, not only from suit, but 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."
Although qualified immunity is "nominally an affirmative defense, the plaintiff has the burden to negate the defense once properly raised."
Because the defendants have raised the qualified immunity defense in this case, Deputy Marshal Angelle is entitled to qualified immunity on summary judgment unless (1) the plaintiff has adduced sufficient evidence to raise a genuine dispute of material fact suggesting that Deputy Marshal Angelle's conduct violated an actual constitutional right, and (2) Deputy Marshal Angelle's actions were objectively unreasonable in light of clearly established law at the time of the conduct in question.
Recently, the United States Supreme Court clarified the role of the courts in deciding a qualified immunity defense at the summary judgment stage. Specifically, the Court held that the Court of Appeals failed to view the evidence in a light most favorable to the nonmoving party, and in so doing, provided a roadmap for the district court to follow in its analysis:
Furthermore, as the Fifth Circuit has stated:
In this case, as will be fully explained below, the plaintiff has not presented sufficient evidence to negate the assertion of qualified immunity. Accordingly, Deputy Angelle is entitled to qualified immunity.
The defendants supported their factual assertions with references to deposition testimony. In response, the plaintiff argued that, at the summary judgment stage of such a lawsuit, the nonmovant's evidence is to be believed and all justified inferences must be drawn in favor of the plaintiff. In his briefing, the plaintiff described what he claims occurred at the Ahart residence on the day in question. According to the plaintiff's memorandum, Alexis Ahart was at home babysitting her siblings when Deputy Marshal Angelle entered the home without consent or a warrant, knocked down a box of personal belongings, then photographed the mess. The plaintiffs claim that she called her father, who instructed her to videotape the intruder. They claim that Deputy Marshal Angelle became "worked up," raised his voice, gripped Alexis's wrist, seized her telephone, then made her erase the video, spraining Alexis's right wrist and causing her emotional distress and fear. (Rec. Doc. 39 at 6). These allegations are set forth in the plaintiff's briefing — but in opposing the defendants' motion for summary judgment, the plaintiff did not present any affidavits or deposition testimony to support these allegations. In fact, the plaintiff offered no competent evidence supporting his version of the alleged events.
Fed. R. Civ. P. 56(c)(1)(A) states that a party asserting that a fact is either disputed or cannot be disputed must support that assertion by "citing to particular parts of materials in the record" such as depositions, affidavits, stipulations, admissions, or answers to interrogatories. Thus, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings or on unsubstantiated assertions.
Numerous statements are made in the plaintiff's opposition memorandum that purport to set forth facts, but unsworn memoranda are not competent summary judgment evidence.
The unsworn statements were attached as exhibits to an affidavit by Officer Herbert Levier. (Rec. Doc. 30-7). While an affidavit is competent summary judgment evidence, Officer Levier has no personal knowledge of the events described in the unsworn statements. To be used in supporting a motion for summary judgment, an affidavit "must be made on personal knowledge."
Thus, the plaintiff has not offered any competent evidence supporting his alleged version of events.
Based on the competent evidence presented, the Court makes the following factual findings.
At the relevant time in August of 2013, Michael Ahart, his wife Holly, his daughter Alexis, his other children, and his mother Cynthia Ahart were all living in a home on East North Street in Opelousas, Louisiana. Cynthia Ahart had not lived in the house for approximately a decade until about ten days before the incident, when she moved back in. Cynthia Ahart initiated eviction proceedings against her son and his family. Deputy Marshal Angelle served the eviction notice on Mr. Ahart. A day or so later, Cynthia Ahart returned to the Opelousas City Marshal's office and requested that a marshal escort her to the home so that she could get some clothes and other items so she could stay in a hotel until the eviction process was completed. Deputy Marshal Angelle was assigned this task, and he went to the house with Cynthia Ahart. Upon arrival at the residence, Mrs. Ahart put her key in the lock, Deputy Angelle turned the key, and they walked into the house. Deputy Marshal Angelle stood only in the hall and in the kitchen, did not move anything, and took some photographs at Mrs. Ahart's request. When he observed Alexis Ahart filming him with her cell phone, he asked what she was doing. She replied that she was filming him to put it on YouTube. Deputy Marshal Angelle told Alexis that she did not have his permission to do so, and he asked her to stop and to delete the pictures she had taken. Alexis attempted to hand him her telephone, but Deputy Marshal Angelle declined to touch her phone because he did not know how to operate it, and he asked her to delete the photographs and video. He watched as she did so. He did not raise his voice, he did not touch Alexis's phone, and he did not touch Alexis.
The plaintiff alleges that Deputy Marshal Angelle conducted an unconstitutional search of his residence. There are two reasons why this allegation has no merit.
First, there was no search. The United States Supreme Court has held that merely looking at what is in plain view without disturbing it is not a search.
Second, Cynthia Ahart consented to Deputy Marshal Angelle's entrance into the house. In fact, she invited him in. "[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable, [but] what is reasonable depends on the context within which a search takes place."
Therefore, because Mrs. Ahart consented to Deputy Marshal Angelle entering the house, his presence there did not constitute an unreasonable search.
Even if Michael Ahart had objected to Deputy Marshal Angelle being in the house, his objection would not have counterbalanced Mrs. Ahart's consent because Mr. Ahart was not physically present. "[T]he objection of an absent cotenant does not vitiate the consent of a physically present cotenant."
Finally, even if there was a search, it was reasonable. "The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations."
Viewing the summary judgment evidence in the light most favorable to the plaintiff, as is required, the Court concludes that there is no evidence that Deputy Marshal Angelle violated the plaintiff's constitutional right to be free of unreasonable searches. Accordingly, Deputy Marshal Angelle is entitled to qualified immunity with regard to the alleged search of the Aharts' residence.
The plaintiff's second claim is that, while he was in the Aharts' residence, Deputy Marshal Angelle wrested a cellphone from Alexis Ahart's hands, using force that was excessive under the circumstances, and injuring her wrist.
To prevail on a Fourth Amendment excessive force claim, a plaintiff must establish "(1) injury (2) which resulted directly and only from the use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable."
In this case, viewing the summary judgment evidence in the light most favorable to the plaintiff, as is required, the Court concludes that the plaintiff presented no evidence that Deputy Marshal Angelle actually touched Alexis. Therefore, there is no evidence that any amount of force was used and no evidence that excessive force was used. Consequently, there is no evidence of a constitutional violation. Accordingly, Deputy Marshal Angelle is entitled to qualified immunity with regard to the excessive force claim.
In addition to his claims against Deputy Marshal Angelle, the plaintiff also asserts claims against Opelousas City Marshal Paul Mouton. "Under section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability."
In this case, there is no allegation that Marshal Mouton was present at the Aharts' residence on the day in question. Furthermore, no evidence was presented to show that Marshal Mouton instituted an unconstitutional policy that was being followed by Deputy Marshal Angelle when he accompanied Cynthia Ahart to her home that day. Finally, there is no evidence that Marshal Mouton acted or failed to act with deliberate indifference to the constitutional violations allegedly committed by Deputy Marshal Angelle. "A complete failure of proof concerning an essential element of the nonmoving party's case is fatal and entitles the moving party to judgment as a matter of law."
The plaintiff asserted state law claims of assault and battery against Deputy Marshal Angelle, based on the allegation that he injured Alexis's arm when removing the cellphone from her hand. In the motion for summary judgment, the defendants seek to have this Court decline jurisdiction over those claims. Having concluded that the plaintiff's federal-law claims against the Marshal Mouton and Deputy Marshal Angelle should be dismissed, there is no remaining federal question before the court. Although this fact alone does not divest the court of jurisdiction, "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims."
For the foregoing reasons, the defendants' motion for summary judgment is GRANTED. The motion is granted with regard to the plaintiffs' Section 1983 claims against defendant Deputy Marshal Frank Angelle because he is entitled to qualified immunity, and those claims are dismissed with prejudice. The motion is GRANTED with regard to the Section 1983 claims against Marshal Paul Mouton because the plaintiff failed to prove that a constitutional violation occurred, and those claims are dismissed with prejudice. The court declines to exercise supplemental jurisdiction over the plaintiff's state-law claims, and those claims are dismissed without prejudice.
