REBECCA F. DOHERTY, District Judge.
Pending before this Court is the "Motion for Summary Judgment" [Doc. 18] filed by defendants Louis Ackal (in his official and individual capacities as the Sheriff of New Iberia) and Sergeant Carmen Garcia (in her official and individual capacities as a police officer for the City of New Iberia) (hereinafter, collectively, "the defendants"). By way of their motion, defendants seek "dismissal of the plaintiffs' [sic] claims against them," on grounds Sheriff Ackal and Deputy Garcia "are entitled to qualified immunity from [the] constitutional claims brought under 42 U.S.C. § 1983."
For the following reasons, defendants' motion for summary judgment is GRANTED.
The parties largely agree on the factual scenario which places this matter before the Court. The undisputed facts are as follows:
The plaintiffs filed suit against Sheriff Ackal, Sgt. Garcia, and an individual identified only as "Deputy Broussard"
The defendants filed the instant motion for summary judgment on September 16, 2013, arguing all claims of the plaintiffs should be dismissed, as the defendants are qualifiedly immune from suit under the circumstances of this case.
A party claiming relief, or a party against whom relief is sought, may move, with or without supporting affidavits, for summary judgment on all or part of the claim. Fed. R. Civ. Proc. 56(a) and (b). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c)(1)(2).
Fed. R. Civ. Proc. 56(e). In general, as summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994):
The Supreme Court has instructed:
Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The Court later states:
Id. at 888-89, 110 S.Ct. 3177 (1990)(internal quotations and citations omitted). The Fifth Circuit has further elaborated:
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citations and internal quotations omitted).
Finally, in evaluating evidence to determine whether a factual dispute exists, "credibility determinations are not part of the summary judgment analysis." Id. To the contrary, in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached. Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001).
The usual summary judgment burden of proof is altered in the case of a qualified immunity defense, as follows:
Johnson v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 301-302 (5th Cir.2004) (emphasis added) (citations and quotations omitted).
It is well-settled the performance of official duties creates two potential liabilities: individual-capacity liability for the person and official-capacity liability for the municipality. See, e.g., Turner v. Houma Mun. Fire and Police Civil Serv. Bd., 229 F.3d 478, 484 (5th Cir.2000). The Turner court noted:
Id. at 484 (emphasis added).
In the instant case, the municipality of New Iberia is not a defendant. Nevertheless, "a suit against a state official in his ... official capacity is not a suit against the official but rather is a suit against the official's office," and thus is "no different from a suit against the State itself." Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985); Will v. Michigan Dept' of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Section 1983 does not provide for a remedy against the state; such an action is barred by the Eleventh Amendment. Kentucky v. Graham, 473 U.S. at 165-66, 105 S.Ct. 3099; Will, 491 U.S. at 71, 109 S.Ct. at 2312. Thus, to the extent the plaintiffs' claims against Sheriff Ackal and Deputy Garcia are asserted against these defendants in their official capacities, such claims are barred by the Eleventh Amendment and are DISMISSED WITHOUT PREJUDICE
The Court now turns to the defendants' defense of qualified immunity in their individuals capacities. See, generally, Kentucky v. Graham, 473 U.S. at 166-67, 105 S.Ct. 3099 (holding officials in their individual capacities "may ... be able to assert personal immunity defenses," including qualified immunity, that are
The court's first inquiry in the examination of a defendant's claim of qualified immunity is whether the plaintiff has "alleg[ed] the violation of a clearly established constitutional right." King v. Chide, 974 F.2d 653, 656-57 (5th Cir.1992), citing Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). The next step is to determine the standard by which to judge the reasonableness of the officers' behavior. Qualified immunity cloaks a police officer from liability if a reasonably competent law enforcement agent would not have known that his actions violated clearly established law. Jackson v. Beaumont Police Dept., 958 F.2d 616, 620 (5th Cir.1992), citing James v. Sadler, 909 F.2d 834, 838 (5th Cir.1990). "Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action." Id.; see also Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir.1997) ("Qualified immunity shields government officials performing discretionary functions from civil damage liability if their actions were objectively reasonable in light of clearly established law.") "[Q]ualified immunity ... provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Rocha v. Schroeder, 283 Fed.Appx. 305, 306 (5th Cir.2008). There is no immunity if no reasonably competent officer would have thought his conduct was lawful, "but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Id. In excessive force cases, the reasonableness of the official use of force, for purpose of the Fourth Amendment, turns on a careful balancing of the nature and quality of the intrusion on individual's Fourth Amendment interests against the countervailing governmental interests at stake. Martinez-Aguero v. Gonzalez, 459 F.3d 618, 626 (5th Cir.2006).
The court applies "current law to the first step [in the qualified immunity analysis] and the law at the time of the incident to the second step, which may sometimes result in applying different tests to the two steps." Bush v. Strain, 513 F.3d 492, 500 (5th Cir.2008), citing Flores v. City of Palacios, 381 F.3d 391, 395 n. 3 (5th Cir.2004).
For summary judgment purposes, once the defendant initially pleads his good faith immunity and establish that he was acting within the scope of his discretionary authority, Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.2001), the burden then shifts to the
Under Siegert, the court's first inquiry in the examination of a defendant's claim of qualified immunity is whether the plaintiff has "alleg[ed] the violation of a clearly established constitutional right." See King v. Chide, 974 F.2d 653, 656-57 (5th Cir.1992), citing Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Thus, the threshold inquiry is whether the plaintiffs allege they have been deprived of rights secured by the First Amendment. Despite a bare-bones allegation in their First Amended Complaint that their First Amendment rights were violated, this Court notes the plaintiffs fail to address or otherwise allege how, specifically, their First Amendment rights were violated.
The First Amendment provides, in relevant part, that "Congress shall make no law ... abridging the freedom of speech... or the right of the people peaceably to assemble." U.S. CONST. amend. I, cited in Club Retro, LLC v. Hilton, 568 F.3d 181, 211 (5th Cir.2009). In Ellsworth v. City of Lansing, 34 F.Supp.2d 571, 579 (W.D.Mich.1998), a case involving the use of tear gas by police officers to control and disperse an unruly crowd of protestors, the court noted in order to make out a First Amendment violation, "the motivation for the release of tear gas" must be "an intent to restrict plaintiffs speech." Here, there are no allegations that the deputies on the scene deployed tear gas with an intent to interfere with the First Amendment rights of either festival-goers or nearby residents, including the plaintiffs. The uncontroverted evidence shows the tear gas was deployed to disperse the crowd that was blocking a public roadway.
In Hill v. Sheriff's Office Iberia Parish, 2009 WL 928080 (W.D.La.2009) (Walter, J.), the court addressed the question of the reasonableness of deployment of tear gas into a crowd in circumstances almost identical
As in Hill, in the instant case, no one disputes the crowd needed to be dispersed and that under Louisiana law, it was lawful for the deputies to attempt to clear the streets. Moreover, the plaintiffs simply have not alleged that their "speech" was entitled to protection, and that in clearing the roadways by using tears gas, the deputies violated the free speech or free association rights of the plaintiffs under the First Amendment. Thus, this Court concludes the plaintiffs' allegations do not state a cognizable First Amendment claim, and this Court need not proceed to the second step of the analysis under Siegert. The defendants are entitled to dismissal with prejudice of the plaintiffs' First Amendment claims for these reasons.
The most liberal and expansive interpretation of the plaintiffs' second claim is that the plaintiffs allege the defendants' use of tear gas violated their Fourth Amendment right to be free from the use of excessive force. Notwithstanding their couching of the claim in terms of a Fourth Amendment violation, the plaintiffs nevertheless allege — throughout their First Amended Complaint — the actions of Sheriff Ackal and Sgt. Garcia in violating the plaintiffs' constitutional rights were "negligent."
474 U.S. 327, 332, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). Thus, to the extent the plaintiffs' "Fourth Amendment" claims can be read to allege negligent acts on the part of Sheriff Ackal, there is no remedy for such claims under 1983, and the claims must be dismissed.
To the extent the claims can be interpreted to allege true violations of the Fourth Amendment, under Siegert, the next step in the analysis is to determine whether the plaintiffs have sufficiently alleged that they have been deprived of rights secured by the Fourth Amendment. To state a violation of the Fourth Amendment prohibition on excessive force, a plaintiff must allege: (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need, and (3) the use of force that was objectively unreasonable. Bush v. Strain, 513 F.3d 492, 500-01 (5th Cir.2008), citing Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir.2004). The Fifth Circuit has noted that although some injuries are so minor they are insufficient to satisfy the injury element as a matter of law, Flores, 381 F.3d at 397-98, citing Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001) (handcuffing too tightly, without more, is not a constitutionally significant injury), an injury is generally legally cognizable when it results from a degree of force that is constitutionally impermissible — that is, objectively unreasonable under the circumstances. Bush, 513 F.3d at 501. The Bush court stated:
Id. at 501 (internal citations omitted).
In the instant case, Sheriff Ackal is alleged to have dispatched his deputies to the scene of the blocked roadway, as follows:
Courts have held an unreasonable use of tear gas can violate an individual's right to be free from the use of excessive force under the Fourth Amendment. See, e.g., Escobedo v. City of Fort Wayne, 2008 WL 1971405 (N.D.Ind. May 5, 2008) (excessive force claims under the Fourth Amendment for use of tear gas survived summary judgment stage). See also Fogarty v. Gallegos, 523 F.3d 1147, 1163 (10th Cir.2008) (genuine issues of fact existed regarding whether the use of tear gas was reasonable under the circumstances, and issue was preserved for trial; appeal of denial of motion for summary judgment filed by defendant officers upheld on interlocutory appeal). Thus, assuming the veracity of the plaintiffs' allegations for purposes of this motion, the Court concludes the use of tear gas on the plaintiffs, and their resulting physical and psychological injuries, alleges injuries resulting "directly and solely from force that was excessive to the need and objectively unreasonable under the circumstances." Thus, the Court concludes the plaintiffs have sufficiently alleged a constitutional violation against Sheriff Ackal for violation of their Fourth Amendment rights.
At the next step in a qualified immunity analysis, the Court considers whether Sheriff Ackal's "use of force" was nevertheless objectively reasonable in light of clearly established law at the time the challenged conduct occurred. As an initial matter, this Court reiterates Sheriff Ackal is not alleged to have personally participated in the use of the tear gas. To be liable under section § 1983, a supervisory official must be either personally involved in the acts causing the deprivation of a person's constitutional rights, or there must be a causal connection between an act of the sheriff and the constitutional violation sought to be redressed. Gates v. Texas Dep't of Protective and Regulatory Serv., 537 F.3d 404, 435 (5th Cir.2008). See also Lozano v. Smith, 718 F.2d 756, 768 (5th Cir.1983), citing Douthit v. Jones, 641 F.2d 345, 346 (5th Cir.1981). Thus, supervisors, in their supervisory role, can be held liable under 1983 in their individual capacity for their participation in the deprivation of a constitutional right if there is a causal connection between the supervisor's wrongful conduct and the constitutional violation. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir.1983), citing Douthit v. Jones, 641 F.2d 345, 346 (5th Cir.1981). A causal connection may be established, for section 1983 purposes, where the constitutional deprivation and practices occur as a result of the implementation of the sheriffs affirmative wrongful policies by his subordinates, Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir.1980), or where the sheriff wrongfully breaches an affirmative duty specially imposed upon him by state law, and as a result thereof, the complained of constitutional tort occurs. Barksdale v. King, 699 F.2d 744, 746 (5th Cir.1983). Douthit, 641 F.2d at 346; Sims v. Adams, 537 F.2d 829, 831 (5th Cir.1976).
In Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 289 (5th Cir.2002), the court stated:
citing Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.1987) (internal quotations and citations omitted) (additional citations omitted) and Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.1992).
In the instant case, Sheriff Ackal's involvement in the use of the tear gas is his alleged "dispatching" of deputies to the scene to use tear gas to disperse the crowd. In support of his motion, Sheriff Ackal attests in his Affidavit that all officers who are authorized to use tear gas are trained to do so. In response, the plaintiffs have not demonstrated that Sheriff Ackal has promulgated an official policy that is "so deficient that the policy itself is a repudiation of constitutional rights."
Furthermore, the Fourth Amendment permits law enforcement officers to use force which is "objectively reasonable" under the circumstances. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight. The test of "reasonableness" must make allowance for the fact that the police are often forced to make immediate judgments, in circumstances that are tense, uncertain and rapidly evolving about the amount of force that is necessary in a particular situation. Id. at 396-97, 109 S.Ct. 1865.
In the instant case, the defendants have attached the Affidavit of Sergeant Jeffery Schmidt of the Iberia Parish Sheriffs Office, who attests as follows:
In the instant case, the plaintiff presents no evidence to rebut the defendants' evidence showing that the circumstances surrounding the deployment of tear gas on September 25, 2011 were tense and uncertain, and that the tear gas was only deployed after officers attempted to disperse the crowd in numerous ways that did not involve tear gas, including — according to the Affidavit of Jeffery Schmidt — "using verbal instructions, enlisting the assistance of members of the crowd, requesting assistance from event organizers and participants, and other nonphysical tactics." None of the foregoing tactics were successful. Additional evidence — uncontroverted by the plaintiffs — shows the increasingly violent nature of the crowed on the night in question.
The plaintiffs do not dispute the evidence offered by the defendants nor do they plaintiffs offer any evidence to controvert the nature of the incident in question as characterized by the defendants. The only argument set forth by the plaintiffs in their opposition brief is that the defendants were on notice that the use of tear gas could constitute excessive force by virtue of the Ninth Circuit's decision in Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125 (9th Cir.2002). The issue in Humboldt — a case out of the 9th Circuit — was whether the use of pepper spray on non-violent environmental activists during a peaceful protest against the logging of redwood trees constituted excessive force in violation of the Fourth Amendment. The police officers used the pepper spray to cause the protestors to release themselves from devices they used to chain themselves together. Humboldt,
The facts of Humboldt are readily distinguishable from the facts of the instant case. In Humboldt, the pepper spray in question was sprayed into the eyes and faces of non-violent peaceful protestors by the defendant police officers. In the instant case, unnamed deputies sprayed tear gas into an unruly crowd of festival-goers who ignored the pleas of police officers to disperse and continued to block public roadways in violation of Louisiana law despite numerous non-physical attempts to disperse the crowd. No one specific individual was targeted, and the use of the tear gas was used as a measure of last resort. Under these circumstances, this Court concludes the use of tear gas in the instant case was "objectively reasonable." Given the crowd's refusal to adhere to the officers' warnings, this Court concludes the deputies acted within their authority to disperse the crowd with tear gas in order to unblock the streets and remove the hazards to others.
Considering the foregoing, Sheriff Ackal is entitled to qualified immunity on the plaintiffs' Fourth Amendment claim of excessive force, and plaintiffs' § 1983 claims against Sheriff Ackal based on the Forth Amendment are, therefore, DENIED AND DISMISSED WITH PREJUDICE.
The Court now examines the plaintiffs Fourth Amendment claim against Sgt. Garcia. Review of the record in this matter shows the plaintiffs have not alleged a Fourth Amendment violation against Sgt. Garcia. The plaintiffs do not allege that Sgt. Garcia personally used tear gas or that she directed or dispatched anyone to use tear gas. Despite being conflated into the "defendants" who are alleged to have violated the plaintiffs' Fourth Amendment right against the use of excessive force, no facts are alleged that Sgt. Garcia committed any violation of the Fourth Amendment, either personally or by way of supervisory authority. Consequently, the Court concludes the plaintiffs have failed to allege a constitutional violation against Sgt. Garcia under the Fourth Amendment, and plaintiffs' § 1983 claims against Sgt. Garcia based on the Fourth Amendment are DENIED AND DISMISSED WITH PREJUDICE.
Summary judgment is also proper on plaintiffs' Fourteenth Amendment claims against Sheriff Ackal and Sgt. Garcia. First, the Court notes the plaintiffs have not specifically alleged whether they assert claims of procedural or substantive due process, or both, in their complaint, only that the defendants' actions are a "clear violation" of the "14th Amendment."
In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court held "all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a
In the instant case, the plaintiffs' excessive force claims fall squarely within the scope of the Fourth Amendment, and therefore must be analyzed according to its principles, and not under the generalized notion of Fourteenth Amendment substantive due process.
To the extent the plaintiffs allege a claim for procedural due process, such claim is not cognizable under § 1983 in the instant case. Procedural due process concerns the fundamental fairness of a state's procedures. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Procedural due process claims require a two-part analysis: (1) whether the plaintiff has a liberty or property interest that is entitled to procedural due process protection; and (2) if so, what process is due. Id. at 332-33, 96 S.Ct. 893. However, claims of procedural due process violations are not cognizable in federal court if adequate post-deprivation state tort remedies exist. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir.1995) (same).
Applying this precept to the instant case, it is clear a claim of deprivation of procedural due process cannot proceed, because the plaintiffs have adequate post-deprivation state tort remedies to pursue a recovery for their alleged injuries, that is, plaintiffs may bring state tort actions against the deputies in question to attempt to recover for the injuries they allege. See, e.g., Deshotels v. Norsworthy, 721 F.Supp.2d 525, 535-36 (W.D.La.2010) (J. Trimble.) (discussing state law claims of negligence/excessive force against police officers and noting that, unlike federal law under § 1983, the "employer of a police officer is liable for the tort committed by the officer during the performance of his official duties."), citing Jenkins v. Jefferson Parish Sheriff's Office, 402 So.2d 669 (La.1981). Accordingly, because there is are adequate post-deprivation remedies available to plaintiffs under Louisiana state law, the plaintiffs' § 1983 claims based on alleged violations of the 14th Amendment's guarantee of procedural due process must be dismissed.
Considering the foregoing, the plaintiffs' § 1983 claims based on alleged violations of the 14th Amendment's guarantees of both procedural and substantive due process are DENIED AND DISMISSED WITH PREJUDICE.
The plaintiffs' third cause of action alleges a "failure to oversee, supervise, train, control, and/or equip" the deputies who violated the plaintiffs' constitutional rights. This failure to train and/or supervise is alleged against both Sheriff Ackal and Sgt. Garcia.
The defendants allege Sgt. Garcia has no authority to establish policy or the training regimen for the Iberia Parish Sheriffs deputies. In an Affidavit submitted with the instant motion, Sheriff Ackal attests "[Sgt.] Garcia.....had [no] responsibility for developing, requiring, or directing the training of other deputies of the Iberia
It is well-settled that in a § 1983 action, a public supervisory official cannot be held liable under § 1983 for the acts of his or her employees under a theory of respondeat superior. Oklahoma City v. Tuttle, 471 U.S. 808, 817-18, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell v. Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). In a § 1983 claim for failure to supervise or train, the plaintiff must show that: "(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiffs rights; and (3) the failure to train or supervise amounts to deliberate indifference." Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir.2009), citing Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir.1998). Noted the court in Goodman:
571 F.3d at 395 (emphasis added) (internal citations omitted). See also Porter v. Epps, 659 F.3d 440, 446 (5th Cir.2011), citing Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir.2009). In Porter, the court added:
(internal citations omitted).
In Ellsworth v. City of Lansing, 34 F.Supp.2d 571 (W.D.Mich.1998) (J. Hillman), the plaintiffs — who included both picketers and area residents who alleged personal and psychological injuries after being exposed to tear gas deployed by police to break up a union's picketing action — alleged municipal liability for unconstitutional conduct on the basis of the city's alleged failure to train its officers in the appropriate use of tear gas in the circumstances of a demonstration or picketing.
In rejecting the plaintiffs' claim of failure to supervise and/or train, the court stated:
Ellsworth, 34 F.Supp.2d at 577 (internal citations omitted).
In the instant case, although the defendants have not produced copies of the Department's internal procedures for the use of force, in his Affidavit, Sheriff Ackal attests that pursuant to Department policy, deputies who are authorized to use Clear-Out tear gas are trained in its proper use as a crowd control device.
Here, no pattern of the unconstitutional use of tear gas is alleged. Nor does this
Considering the foregoing, both defendants are entitled to qualified immunity on the plaintiffs' § 1983 claims of failure to train and/or supervise, and the foregoing claims are DENIED AND DISMISSED WITH PREJUDICE.
The remaining claims in this lawsuit are the plaintiffs' state law negligence claims alleged against both defendants pursuant to Louisiana Civil Code Article 2315. The Court has subject matter jurisdiction over the foregoing claims by virtue of its supplemental jurisdiction, 28 U.S.C. § 1367, which states:
28 U.S.C. § 1367(a) & (c).
In the instant case, this Court has dismissed all claims over which it has original jurisdiction, concluding the defendants in this matter are entitled to qualified immunity on all of the federal claims alleged. Considering the foregoing, this Court declines to exercise its supplemental jurisdiction over the Louisiana state law claims of the plaintiffs alleging negligence on the part of Sheriff Ackal and Sgt. Garcia, and the foregoing claims are DISMISSED WITHOUT PREJUDICE.
Considering the foregoing,
IT IS ORDERED that the "Motion for Summary Judgment" [Doc. 18] filed by defendants Sheriff Louis Ackal and Sergeant Carmen Garcia is GRANTED. All of the plaintiffs' federal § 1983 claims are DENIED AND DISMISSED WITH PREJUDICE on the basis of qualified immunity. The Court declines to exercise its supplemental jurisdiction over the Louisiana state law claims of the plaintiffs alleging negligence on the part of Sheriff Ackal and Sgt. Garcia, and the foregoing claims are DISMISSED WITHOUT PREJUDICE.
A show cause hearing was conducted on April 30, 2012, at which time plaintiffs' counsel requested that they be permitted to file an amended complaint. The magistrate judge granted plaintiffs' request and issued the following order:
[Doc. 11].
In a case where summary judgment was denied on the basis of qualified immunity by deputies using pepper spray on unlawful protestors in the Ninth Circuit Court of Appeals noted as to the issue of whether a constitutional right had been violated
Humboldt [Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125 (9th Cir. 2002) addresses this as well and says that it would be "... clear to a reasonable officer that using pepper spray against the protestors was excessive" ... the Fourth Amendment permits law enforcement officers only to use such force as is objectively reasonable under the circumstances. Humboldt was decided in 2002, thus putting law enforcement all over the country on notice that gas applied to peaceful individuals was a violation of the Fourth Amendment. The Court also stated in Humboldt that "spraying the protestors with pepper spray and then allowing them to suffer without providing them water is clearly excessive under the circumstances."
Of course Lanier [United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) ] says that the establishment of the Constitutional right can be in the conscience of the man himself with no need of a particular date, but Humboldt was decided in 2002 well before this unwarranted attack on children and adults, on citizens spontaneously enjoying themselves barbecuing in the trust that they would be protected.
These rights were clearly established prior to this unlawful attack, and if the officers needed a reminder that innocent children and peaceful adults deserve better treatment, Humboldt provided it. [Doc. 24].
In the instant case, the plaintiffs' first, second and third "causes of action" — to the extent all three can properly be termed "causes of action" — are alleged under § 1983 for the alleged violation of plaintiffs' First, Fourth, and Fourteenth Amendment rights, and essentially involve the plaintiffs' right to be free from the use of excessive force in the form of tear gas used by the police officers on the date in question.
XVIII.
Doc. 20 (emphasis added).
