Mobley v. City of DeRidder

128 So. 3d 1014, 12 La.App. 3 Cir. 1069, 2013 WL 811645, 2013 La. App. LEXIS 402
CourtLouisiana Court of Appeal
DecidedMarch 6, 2013
DocketNo. 12-1069
StatusPublished

This text of 128 So. 3d 1014 (Mobley v. City of DeRidder) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mobley v. City of DeRidder, 128 So. 3d 1014, 12 La.App. 3 Cir. 1069, 2013 WL 811645, 2013 La. App. LEXIS 402 (La. Ct. App. 2013).

Opinion

GENOVESE, Judge.

| plaintiff, Bryan E. Mobley, filed suit for damages against Defendants, the City of DeRidder, Jose Chapa (Officer Chapa), Lance Grant (Deputy Grant), Derek Smith (Deputy Smith), Beauregard Memorial Hospital, and Kim Lamitina (Nurse Lami-tina).1 Mr. Mobley alleges he sustained personal injury when Beauregard Parish Sheriff Deputies Grant and Smith, DeRid-der City Police Officer Chapa, and Beauregard Memorial Hospital Nurse Lamitina forcibly obtained a urine sample from him through the use of a catheter subsequent to his arrest for driving while intoxicated. Defendants, the City of DeRidder, Officer Chapa, Deputy Grant, and Deputy Smith, filed motions for summary judgment which were granted by the trial court. Mr. Mob-ley appeals the trial court’s grant of these motions for summary judgment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 24, 2010, Deputies Grant and Smith arrested Mr. Mobley for driving while intoxicated. Before his arrest, Mr. Mobley refused to submit to a field sobriety test. After his arrest, Mr. Mobley also refused to submit to a breathalyzer test. A search warrant was procured to obtain bodily fluids — both blood and urine — from Mr. Mobley. In order to effectuate the search warrant, Mr. Mobley was taken to Beauregard Memorial Hospital. Though he initially resisted efforts to execute the search warrant, Mr. Mobley ultimately complied and permitted the withdrawal of a blood sample by medical personnel; however, he forcefully refused to render a urine sample. A urine sample was obtained from Mr. Mobley through the use of [1016]*1016a catheter by medical personnel and the use of physical restraint by law enforcement officers.

| ?Mr. Mobley filed a Petition for Damages pro se2 on May 23, 2011. In his petition, Mr. Mobley alleged that he “was restrained by excessive force” while medical personnel and law enforcement officers “used a catheter to forcefully take [his] urine[.]” His pleading requested damages for the physical and psychological injuries he claims he suffered from the alleged use of excessive force.

On December 9, 2011, Deputies Grant and Smith filed a motion for summary judgment, asserting that they “used only that force reasonable and necessary against [Mr. Mobley] in order to effectuate the execution of the search warrant for [his] bodily fluids.” Deputies Grant and Smith sought summary judgment pursuant to La.Code Civ.P. art. 966(C)(2) on the basis that Mr. Mobley “cannot establish lack of probable cause for the issuance of the warrant or the use of unreasonable force in its execution^ therefore], he cannot prove essential elements necessary for him to prevail at a trial in this case[.]”

On January 13, 2012, the City of DeRid-der and Officer Chapa also filed a motion for summary judgment, asserting that Mr. Mobley “has not and cannot present sufficient factual support showing that [Officer] Chapa used force, much less excessive force, in assisting [Deputies Grant and Smith] in obtaining blood and urine samples from [him] pursuant to the valid warrant obtained by the Deputies.” Therefore, the City of DeRidder and Officer Chapa joined Deputies Grant and Smith in seeking summary judgment pursuant to La.Code Civ.P. art. 966(C)(2).

The evidence before the trial court in support of the motions for summary judgment included affidavits of Officer Chapa, Deputy Smith, and Deputy Grant, with each disputing the use of unreasonable or excessive force in the execution of [3the search warrant. Also offered were the Search Warrant Application and the Order of Search signed by the trial court judge.

In opposition to the motion for summary judgment, Mr. Mobley offered: Exhibit A, Incident Report Number E-00686-10; and, Exhibit B, an in globo offering which contained the Search Warrant Application, the Order of Search, the report from Southwest Louisiana Criminalistics Laboratory, and a document entitled “Urinalysis to Determine Blood Alcohol in DUI Investigations” to which Mr. Mobley refers in his opposition memorandum as “Learned Treatises.”

The matter was heard on March 12, 2012, at which time both motions for summary judgment were granted. On May 10, 2012, the trial court issued written Reasons for Judgment, wherein he stated:

A judge may issue a search warrant authorizing the search of a person for bodily samples. La.C.Cr.P. Art. 163.1. In order to execute a search warrant, a peace officer may use such means and force as are authorized for arrest. La. C.Cr.P. Art. 164. A person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained. La.C.Cr.P. Art. 220. Therefore, it follows that a peace officer executing a search warrant may use reasonable force to execute the search, and also to overcome any resistance or threatened resistance of the person being searched.
Of particular note is that in the underlying criminal matter entitled “State of [1017]*1017Louisiana v. Bryan E. Mobley”, Docket No. CR-2010-0462 in this court, the defense asserted that the search warrant violated Mr. Mobley’s constitutional rights. The trial court upheld the issuance of the search warrant and writs to the Third Circuit Court of Appeal were denied[,] and the trial court’s judgment was upheld.
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The use of excessive force by the defendants is an essential element in ... Mr. Mobley’s case. Defendants have submitted affidavits which attest that Defendants used only the level of force necessary to execute the search and to overcome the resistance of Mr. Mobley. These affidavits, along with the defendants’ pleadings and briefs, point out a lack of factual support for Mr. Mobley’s claims. At this point in the proceedings, the burden shifted to Mr. Mobley to produce factual support sufficient to establish that he |4would be able to satisfy his evidentiary burden at trial of proving the use of excessive force. Mr. Mobley failed to produce any factual support of this claim. There was no evidence offered, other than the mere allegations of Mr. Mobley’s pleadings, to show that defendants struck, choked, or otherwise used force disproportionate to Mr. Mob-ley’s resistance. Additionally, Mr. Mob-ley has offered no evidence of physical injury as a result of being restrained by police. Therefore, the Court concludes that Mr. Mobley has failed to produce factual support sufficient to establish that he will be able to satisfy his eviden-tiary burden at trial.

On the same day, the trial court signed two judgments granting the motions for summary judgment, and Mr. Mobley’s claims against the City of DeRidder, Officer Chapa, Deputy Smith, and Deputy Grant were dismissed. It is from these judgments that Mr. Mobley appeals.

ASSIGNMENT OF ERROR

In his sole assignment of error, Mr. Mobley asserts that “[t]he trial court committed an abuse of discretion in failing to consider expert treatises, which address! ] the inappropriate use of urinalysis for determining an arrestee’s blood alcohol concentration at time of arrest.”

LAW

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

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Bluebook (online)
128 So. 3d 1014, 12 La.App. 3 Cir. 1069, 2013 WL 811645, 2013 La. App. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobley-v-city-of-deridder-lactapp-2013.