DEE D. DRELL, Chief Judge.
Before the Court are the Motions for Summary Judgment filed by Defendants Officer Clifton Fairbanks, the City of Alexandria, and former Chief of the Alexandria Police Department Darren Coutee. (Docs. 77, 79). Also before the Court is a Motion to Strike filed by Defendants regarding the expert testimony of Dr. Charles Kelly. (Doc. 86). All responses have been filed, and these matters are ready for disposition. For the following reasons, the Motions for Summary Judgment and the Motion to Strike will be GRANTED IN PART AND DENIED IN PART as set forth in detail below.
On May 12, 2009, Nikki McCoy Small, as natural tutrix for her minor children, R.G. and K.G., filed a Complaint on their behalf to recover damages for the death of the children's father, Richard Goss. The Complaint alleges violations of the Fourth and Fourteenth Amendments of the United States Constitution under 42 U.S.C. § 1983. (Doc. 1). It also makes claims under the Louisiana State Constitution, Article I §§ 2 and 5. (Doc. 1). Finally, there are allegations under general tort law principles from La. Civ. Code Articles 2315 and 2320, and "common law" tort principles adopted by Louisiana courts. (Doc. 1).
Before his death on November 26, 2008, Goss was drinking hard grain alcohol in a room at the Greenbrier Motel in Rapides Parish. (Docs. 1; 76-10). He was accompanied by a female, Darnell Willis, who called Acadian Ambulance Service when Goss became so intoxicated that she "couldn't do nothing with him anymore." (Docs. 76-8; 76-10). The call notes reflect Goss was not trying to hurt himself or anyone else at the time of the requested ambulance dispatch. (Doc. 76-10).
Based on protocol, the ambulance service called for police backup. Id. Police Officer Clifton Fairbanks, a corporal and patrol officer with the Alexandria Police Department, heard a call on the dispatch radio during his lunch break requesting an officer to meet Acadian Ambulance at the Greenbrier Motel, which was in his patrol zone, to assist with a suicidal subject. (Doc. 76-8). When Fairbanks arrived at the Greenbrier, he encountered Willis walking quickly away from Room 16 where Goss was located. Fairbanks initiated a conversation with Willis as the two passed one another; Willis told him she was not the reason for the ambulance call, and that Goss was "tripping and drinking." Id.
During the conversation between Fairbanks and Goss, Goss began to move to his right; toward the left front of the bed near the headboard. (Docs. 76-8; 76-10). This movement occurred as Boney exited the room to speak with Willis in the parking lot because he wanted more information about Goss's condition. (Doc. 76-10). Fairbanks did not want to take his eyes off of Goss or leave the room because he did not know what was in the room or whether the room was safe. (Doc. 76-8).
Sometime during the interaction between Fairbanks and Goss, Fairbanks asked Willis if Goss had a weapon. (Doc. 76-8). Fairbanks did not hear an answer from Willis, but did hear Goss respond "yeah I've got mine right here." (Doc. 76-8). Fairbanks saw Goss reach with his right hand to his right in a downward motion toward the area between the mattress and the boxspring. (Doc. 76-8).
Fairbanks had no formal training in suicide prevention. (Docs. 76-8; 76-11). According to uncontested record filings, Fairbanks's police training met or exceeded all Louisiana Peace Officers Standards and Training (POST)
Defendants claim Plaintiff agreed to dismiss the claims made against Coutee. (Doc. 85). However, to date there has been no record filing of a pleading seeking to dismiss those claims. Therefore, the following will analyze Plaintiff's claims against Fairbanks, Coutee, and the City of Alexandria.
A court "shall grant summary judgment if the movant 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). Although Rule 56 was amended effective December 1, 2010, "the amended rule contains no substantive change to the standard." Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675, 680, n. 8 (5th Cir.2011). An issue as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We consider all "evidence in the light most favorable to the party resisting the motion." Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th Cir.1983). It is important to note that the standard for a summary judgment is two-fold: (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to judgment as a matter of law.
Plaintiff alleges Fairbanks, in his official and individual capacities, used excessive force when he shot Goss. Excessive force claims are analyzed under the Fourth Amendment reasonableness standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "An officer's use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm to the officer or to others." Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.2009).
In Graham, the United States Supreme Court listed factors to help determine whether a police officer's use of force was reasonable under the Fourth Amendment.
Graham, 490 U.S. at 396-97, 109 S.Ct. 1865 (internal citations and quotations omitted).
"To prevail on an excessive force claim, a plaintiff must show: (1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable." Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir.2005). Excessive force claims are fact-intensive, and a final determination of whether force was excessive depends on the facts and circumstances of each case. Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.2009).
The United States Fifth Circuit "has found an officer's use of deadly force to be reasonable when a suspect moves out of the officer's line of sight such that the officer could reasonably believe the suspect was reaching for a weapon." Manis, 585 F.3d at 844. In Reese v. Anderson, 926 F.2d 494 (5th Cir.1991), the Fifth Circuit reversed a denial of summary judgment and found as a matter of law that shooting a suspect was reasonable when the officer repeatedly warned the suspect to raise his hands and the suspect ignored the warnings and continued to reach downward toward the floor of his vehicle in defiance of the officer's orders. Id. at 500-01. In Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379 (5th Cir.2009), the Fifth Circuit affirmed a grant of summary judgment when an officer, who was the only witness, shot and killed a suspect after ordering him to show his hands. Id. at 381, 383. Similarly, in Manis, the Fifth Circuit granted summary judgment in favor of a police officer who shot and killed a suspect because the suspect ignored commands to show his hands and continuously reached underneath the front seat of his vehicle. 585 F.3d at 842. In all three cases, the court found as a matter of law that the police officers could reasonably believe the suspects' actions posed a risk of serious harm to officers or others at the scene.
The facts in the present case are similar to the facts in Reese, Ontiveros, and Manis because Fairbanks repeatedly warned Goss to show his hands and Goss failed to comply. (Docs. 76-8; 76-10). When Goss continued to "reach with his right hand to the right side of that bed to his right in a downward motion," coupled with his verbal rambling that implied threats to safety, it was reasonable for Fairbanks to believe these actions were to acquire a weapon. (Doc. 76-8). Fairbanks could not see any object for which Goss might be reaching, and the officer could not get Goss to obey his commands. (Docs. 76-8; 76-10).
Plaintiff asserts no facts contradicting Fairbanks's statement regarding Goss's actions prior to the shooting. Plaintiff argues there is a factual dispute about the events before Fairbanks interacted with Goss when Fairbanks and Willis made initial contact in the Greenbrier parking lot. (Docs. 76-8; 76-10).
Plaintiff alleges Coutee is liable in his official and individual capacities for the improper and inadequate training of Fairbanks and inadequate supervision of Fairbanks under 42 U.S.C. § 1983. (Doc. 1).
Baker v. Putnal, 75 F.3d 190, 199 (5th Cir.1996) (internal citations omitted). "A plaintiff seeking recovery under a failure to train or supervise rationale must prove that the police chief failed to control an officer's known propensity for the improper use of force." Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (internal quotations omitted).
There is no indication in the record that Coutee failed to supervise or train Fairbanks. Coutee was not responsible for Fairbanks's training; rather, the Alexandria Police Department Training Academy was responsible for his training. (Doc. 77-6). In addition, nothing in the record shows Fairbanks had a known propensity for the improper use of force. Therefore, summary judgment will be granted for the claims of inadequate supervision and training against Coutee in his official and personal capacities.
Plaintiff also asserts a claim against the City of Alexandria for inadequate police training. "[T]here are limited circumstances in which an allegation of failure to train can be the basis for liability under § 1983." City of Canton, Ohio v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Plaintiff's claims against the City for inadequate police training "may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id. at 388, 109 S.Ct. 1197. Municipal liability only exists "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury...." Monell v. Dept. of Soc. Services of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The alleged failure to train must be closely related to the ultimate injury. City of Canton, 489 U.S. at 385, 109 S.Ct. 1197. In order to prevail in a claim for inadequate training, a plaintiff must demonstrate specific inadequacies with the training program. Id. at 390, 109 S.Ct. 1197. Once inadequacies are shown, "the question becomes whether such inadequate training can justifiably be said to represent `city policy.'" Id.
Negligent training does not, on its own, give rise to a § 1983 claim against a municipality. Id. at 391, 109 S.Ct. 1197. It is also insufficient to show "injury or accident could have been avoided if an officer had had better or more training." Id. "[F]or liability to attach ... the identified deficiency in a city's training program must be closely related to the ultimate injury." Id. Federal courts will not second-guess municipal employee training programs and will only find municipalities liable when a failure to train reflects a deliberate or conscious municipal choice. Id. at 392, 109 S.Ct. 1197.
Fairbanks is POST certified, and his training fully complies with the State of Louisiana's requirements for police officers. (Doc. 76-11). Plaintiff does not provide a single fact showing the City's policies or procedures for training police officers were inadequate. Therefore, we will grant summary judgment in favor of the City on the claim of inadequate training.
Plaintiff claims punitive damages from Defendants Fairbanks and Coutee to the extent each is sued in his individual capacity. Under § 1983, punitive damages are discretionary and "may be awarded only if the official conduct is motivated by evil intent or demonstrates reckless or callous indifference to a person's constitutional rights." Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir.1994) (internal quotations omitted). Plaintiff shows no facts demonstrating evil intent or reckless or callous indifference to Goss. The facts presented to this Court show Fairbanks acted in an objectively reasonable manner under the circumstances in the record. Therefore, summary judgment will be granted to preclude all claims for punitive damages against Fairbanks and Coutee.
Plaintiff alleges Fairbanks used excessive force on Goss as defined under Louisiana state law. Louisiana courts evaluate use of force with the duty/risk analysis applicable to negligence claims. Mathieu v. Imperial Toy Corp., 646 So.2d 318, 321-22 (La.1994). The duty/risk analysis consists of the following factors:
See Williams v. Domino's Pizza, Inc., 2001 WL 6724, at *4 (E.D.La. Jan. 2, 2001); Roberts v. Benoit, 605 So.2d 1032, 1041 (La.1991); see also Wiltz v. Bayer CropScience, Ltd. P'ship, 645 F.3d 690, 698 (5th Cir.2011). In order for liability to exist, Plaintiff must prove all five separate factors. Mathieu, 646 So.2d at 322.
First, we consider whether Fairbanks owed a duty to Goss. "Whether a duty is owed is a question of law." Hardy v. Bowie, 744 So.2d 606, 614 (La.1999). Duties are imposed on governmental actors, such as police officers, based on the services performed or provided to the public. See Smith v. Lafayette Parish Sheriff's Dept., 874 So.2d 863, 869 (La.App. 3d Cir.2004).
Justin v. City of New Orleans Through Morial, 499 So.2d 629, 631 (La.App. 4th Cir.1986). Based on the broad duty imposed as a matter of law on police officers towards all citizens, we conclude Fairbanks had a duty to act reasonably to investigate Goss's situation and to protect others who could have been harmed by Goss.
The next inquiry is whether Fairbanks breached the duty when he shot Goss. The breach factor of the duty/risk analysis considers the reasonableness of the action taken. Westmoreland v. City of Natchitoches, 771 So.2d 715, 717 (La.App. 3d Cir.2000). Reasonableness is determined by examining the totality of the circumstances. Kyle v. City of New Orleans, 353 So.2d 969, 973 (La.1977).
Id. at 973.
Kyle lists several elements which courts are free to consider when evaluating the totality of the circumstances to determine whether a police officer used reasonable force. These elements are:
Kyle, 353 So.2d at 973; see also Deville, 567 F.3d at 172-73.
Considering the totality of the circumstances, we find Fairbanks was reasonable given the unpredictable and rapidly evolving situation with Goss. A consideration of the Kyle elements supports this finding. Goss's exhibited persona was that of a highly intoxicated and suicidal man. (Docs. 76-8; 76-10). The risks and dangers faced by Fairbanks were significant because he was dealing with an inebriated person who made multiple military-related and weapon-related statements. (Doc. 76-8). Finally, Goss refused to obey Fairbanks's multiple commands to show his hands and to stop reaching downward. (Docs. 76-8; 76-10). Given the undisputed uncertain circumstances confronting Fairbanks apparently created by Goss's actions, Fairbanks behaved reasonably to protect himself and those around him.
Because Fairbanks did not breach his duty to Goss, we need not consider the remaining three factors of the duty/risk analysis. Therefore, we will also grant Defendants' motion for summary judgment as to the state law excessive force claim.
Plaintiff alleges Coutee is vicariously liable for Fairbanks's tortious acts and omissions toward Goss. Plaintiff also contends the City is vicariously liable for Fairbanks's and Coutee's tortious acts and omissions. Under § 1983, supervisory officials and municipalities cannot be held liable on any theory of vicarious liability for the actions of subordinates. Collins v.
However, there may be a cognizable state law claim against Fairbanks and Coutee to allow for the maintenance of a vicarious liability action.
La. Civ. Code art. 2320. Similarly, "the employer of a police officer is liable for wrongful injury inflicted while performing his official duties." Bourque v. Lohr, 248 So.2d 901, 904 (La.App. 3d Cir.1971); see also Thomas v. Frederick, 766 F.Supp. 540, 559 (W.D.La.1991).
In order to have a claim for vicarious liability against an employer under Louisiana law, there must be a claim against a culpable employee. Here, we cannot say as a matter of law there is no cognizable state law claim against Fairbanks, because the state law constitutional and false arrest claims were not addressed in Defendants' summary judgment motions. We have a hard time seeing how this case will have anything to do with false arrest, but we will not dismiss this case until all claims and issues have been briefed in full. Therefore, for the present time, we will deny summary judgment on the vicarious liability claims until the remaining state law claims are briefed in full by both parties.
Plaintiff claims Fairbanks acted intentionally to inflict emotional distress when he shot and killed Goss. (Doc. 1). In an abundance of caution, Defendants also discuss this claim as relating to Coutee. (Doc. 77-4). "One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).
Id. "The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id.; see also Deus v. Allstate Ins. Co., 15 F.3d 506, 514 (5th Cir.1994).
There is nothing in the record showing the conduct of Fairbanks or Coutee was extreme or outrageous. Above, we found Fairbanks was objectively reasonable when he shot Goss based on Goss's statements and failure to comply with the commands. (Docs. 76-8; 76-10). In addition, there are no facts showing Coutee acted in an extreme or outrageous manner at any
Defendant discusses Plaintiff's punitive damages claims in the pending motions. (Docs. 77; 79). Louisiana has a strong public policy against punitive damages and does not award punitive damages unless expressly authorized by statute. Ross v. Conoco, Inc., 828 So.2d 546, 555 (La.2002). Here, no punitive damages are authorized by any state law relating to the present causes of action. Therefore summary judgment will be granted in favor of Defendants on this issue.
Plaintiff claims Fairbanks committed assault and battery on Goss. (Doc. 1). "A battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such contact[.]" Landry v. Bellanger, 851 So.2d 943, 949 (La.2003) (internal citations and quotations omitted). Assault is "a combination of threats, present ability to carry out the threats, and reasonable apprehension of harmful or offensive contact." Groff v. Southwest Beverage Co., Inc., 997 So.2d 782, 787 (La.App. 3d Cir. 2008).
Law enforcement officers occasionally have to use force to apprehend or arrest an individual. The law allows police officers to use force when it is necessary to make an arrest. Kyle, 353 So.2d at 972.
As set forth above, we find Fairbanks acted reasonably when he shot Goss secondary to Goss's undisputed statements about having a weapon and his failure to comply with police orders to show his hands. (Docs. 76-8; 76-10). Fairbanks did nothing more than attempt to control Goss's person following suspicious and threatening behavior. When Goss refused to comply with Fairbanks's orders, Fairbanks acted to prevent Goss from potentially harming himself and those at the scene. Therefore, we will grant summary judgment in favor of Defendants on the claims for assault and battery.
In addition to the allegations outlined previously, Plaintiff also generally asserts Fairbanks was negligent when he shot and killed Goss. (Doc. 1). Plaintiff also contends Coutee was negligent in supervising Fairbanks under state law and asserts general negligence claims against Coutee. (Doc. 1). As we have already addressed in detail, Louisiana applies a duty-risk analysis to negligence claims.
Our determination that Fairbanks was reasonable when he shot Goss negates any potential negligence claim against the officer, because he did not breach his duty of care. Since Plaintiff cannot prove the breach of duty element of the duty/risk analysis, summary judgment will be granted for all claims of negligence asserted against Fairbanks.
As for Coutee, Plaintiff provides no facts showing negligent supervision. Coutee was not present at the Greenbrier on the day of the shooting and was not responsible for training Alexandria police officers. (Doc. 77-4). There is nothing in the record to suggest the slightest inference of negligent supervision or unreasonable behavior from Coutee. Therefore, summary judgment on the issues of negligent supervision and general negligence will be granted in favor of Coutee.
In a footnote, Defendants acknowledge Plaintiff's claims of obstruction and civil conspiracy against Coutee. (Doc. 77-4). Other than three unsupported sentences, Defendants do not provide the Court with any additional basis for dismissing these claims.
Plaintiff alleges Coutee obstructed justice and misrepresented facts regarding the nature of the investigation and the identity of the investigative body. Contrary to Plaintiff's assertion, there is no evidence in the record showing Coutee obstructed justice. Therefore, summary judgment will be granted in favor of Defendants on this issue secondary to the lack of any factual basis for the claim.
The United States Fifth Circuit recognizes a cause of action for civil conspiracy under § 1983. In order to prove a civil conspiracy, Plaintiff must show "(1) an actual violation of a right protected under § 1983 and (2) actions taken in concert by defendants with the specific intent to violate the aforementioned right." Paternostro v. Crescent City Connection Police Dept., 2002 WL 34476319, at *14 (E.D.La. Apr. 2, 2002). Plaintiff fails to provide any evidence showing a violation of a constitutional right or of actions taken by Defendants with the specific intent of violating a constitutional right. Therefore we will also grant summary judgment in favor of Defendant Coutee on this issue.
In light of the rulings rendered herein, issues about discretionary act immunity under La. R.S. 9:2798.1 do not need to be discussed.
Defendants also move to strike the report and opinions of Plaintiff's expert Dr. Charles Kelly. (Doc. 86). Dr. Kelly is described as an expert in police policy and procedures. (Doc. 86-1).
Fed.R.Evid. 702.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), trial courts are to act as "gatekeepers," making a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." The gatekeeping function is meant to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but [also] reliable." Id. at 589, 113 S.Ct. 2786.
The party offering expert testimony is not obligated to prove the testimony is correct. Rather, the party bears the burden of establishing "by a preponderance of the evidence that the testimony is reliable." Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.1998). In analyzing reliability, the trial court must assess whether the reasoning or methodology supporting the expert's testimony is valid. The point is to exclude expert testimony
As to the admissibility of Dr. Kelly's report, there is nothing in the record for this Court to strike, because neither party submitted the report at issue. Therefore, the motion to strike pertaining to Dr. Kelly's report will be denied as unripe.
Dr. Kelly's opinions, as expressed in his deposition, are inadmissible based on authority from the United States Fifth Circuit excluding expert testimony in a § 1983 case consisting of nothing more than "credentials and a subjective opinion." Benavides v. County of Wilson, 955 F.2d 968, 974 (5th Cir.1992). Dr. Kelly provides simply his credentials and his subjective opinion that he would have acted differently than Fairbanks based on the facts presented. (Doc. 90-1). Under the Fourth Amendment, an opinion that one would have acted differently does not negate the officer's reasonableness at the time of the act. See United States v. Sokolow, 490 U.S. 1, 11, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Illinois v. Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). Therefore, Dr. Kelly's opinions about alternative methods he believes Fairbanks should have used are irrelevant and inadmissible.
Dr. Kelly's opinions are also inadmissible to the extent they contain legal conclusions or factual findings. Expert opinions cannot unduly infringe on the factfinding functions of the jury, and are inadmissible to the extent that such opinions assert factual findings. Brown v. Strain, 2010 WL 3523026 (E.D.La.2010); Toomer v. Florida Parishes Juvenile Justice Comm'n, 2005 WL 5974570 (E.D.La. 2005). Dr. Kelly's deposition contains nothing more than his legal conclusions based on factual findings presented to him before and during the deposition. (Doc. 90-1). Any conclusions made by Dr. Kelly cannot be the subject of expert testimony because these fall within the province of the fact finder, who is charged with hearing the facts, weighing the reliability and credibility of witnesses and evidence, and deciding the outcome of the case at issue.
Both parties failed to address the following claims made in the Complaint for summary judgment:
Because of the parties' failure to address these claims, we cannot at this time grant summary judgment as to them. However, based on the record presented to us, we have a difficult time finding a basis for Plaintiff's claims. For the present time, we will deny Defendants' motion as to all of the unaddressed claims.
For the reasons detailed above, Defendants' Motions for Summary Judgment (Docs. 77, 79) will be granted in part and denied in part, and Defendants' and Motion
