Wagoner v. Dyson

704 So. 2d 346, 97 La.App. 3 Cir. 0606, 1997 La. App. LEXIS 2895, 1997 WL 757924
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
DocketNo. 97-606
StatusPublished
Cited by1 cases

This text of 704 So. 2d 346 (Wagoner v. Dyson) 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
Wagoner v. Dyson, 704 So. 2d 346, 97 La.App. 3 Cir. 0606, 1997 La. App. LEXIS 2895, 1997 WL 757924 (La. Ct. App. 1997).

Opinion

| iPETERS, Judge.

The plaintiffs, Ronald D. Wagoner and Carolyn Rae Wagoner, appeal the trial court’s granting of motions for summary judgment in favor of two defendants, the Vermilion Parish Police Jury and Vermilion Parish Sheriff Raywood J. LeMaire. The sole issue before us is whether the trial court erred in.granting those motions for summary judgment and dismissing the plaintiffs’ claims under 42 U.S.C. § 1983.

DISCUSSION OF THE RECORD

Ronald D. Wagoner and his wife, Carolyn Rae Wagoner, filed suit individually and as administrators of the estates of their minor sons to recover damages in connection with the alleged sexual molestation of their children by Walter Dyson, who had been commissioned as a special deputy by the sheriff of Vermilion Parish. The Wagoners named several defendants, including the Vermilion Parish Police Jury and ^Raywood LeMaire, the Sheriff of Vermilion Parish. This litigation was previously before this court in connection with the trial court’s granting of an exception of no cause of action, an exception of prescription, and a motion for summary judgment in favor of Sheriff LeMaire. See Wagoner v. Dyson, 94-728 (La.12/7/94); 647 So.2d 493, writ not considered, 95-0129 (La.3/10/95); 650 So.2d 1171. In that appeal, we affirmed the judgment granting Sheriff LeMaire’s motion for summary judgment on the issues of vicarious liability and independent negligence, reversed the judgment granting the exception of prescription, and found it unnecessary to consider the judgment granting the exception of no cause of action. See id. We remanded for further proceedings on the claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1988. See id. The § 1983 claim is now before us on appeal from the trial court’s granting of Sheriff LeMaire’s and the Vermilion Parish Police Jury’s motions for summary judgment.

The Wagoners alleged that their two minor sons were sexually molested by Dyson while with him on a camping trip at a hunting camp in Vermilion Parish. They also alleged that for many months prior to the sexual molestation, Dyson specifically used his status as a special deputy sheriff, identification card, and badge to gain their trust and confidence in order to deceive, trick, manipulate, seduce, and coerce them into his tortious scheme to molest the children. The acts of sexual molestation allegedly occurred between July 1,1991 and July 4,1991.

The undisputed facts show that both before and during July, 1991, Dyson maintained and ran a hunting club for a private individual at Pecan Island, Vermilion Parish, Louisiana. Dyson would go to the camp to inspect the facilities about three times a year. Dyson asked for a special deputy’s commission so that he could carry a weapon because at times he was required to carry large sums of money and because |3at times there were poachers on the property. He was given a special deputy’s commission and a plastic identification card. However, the sheriff told Dyson that he had no authority as a law enforcement official in Vermilion Parish. Although Dyson did have a badge, handcuffs, and radio, he purchased these with his own money, and they were his personal property. He was never given a uniform, any equipment, or a payroll check by the Vermilion Parish Sheriff’s Department.

The Wagoners and Dyson became neighbors in May of 1991, when the Wagoners rented a house next door to Dyson. Sometime in June of 1991, Dyson asked if he could take the boys with him to check on the camp. Dyson told the Wagoners that he wanted to take the boys to the camp to show them how to shoot a gun and fish and “just the aspects of marsh life.” The Wagoners allowed the children to go. Dyson did not go to the camp on business for the sheriff or for Vermilion Parish but for inspection and maintenance purposes. It was on this trip that Dyson allegedly sexually molested the boys.

OPINION

A motion for summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment procedure is favored and [348]*348must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La.Code Civ.P. art. 969. La.Code Civ.P. art. 966(A)(2).

42 U.S.C. § 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the | jurisdiction thereof to the deprivation 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....

To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person who acted under color of state law. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2260, 101 L.Ed.2d 40 (1988). “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law.” United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). “[A]ets of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945).

In Becerra v. Asher, 105 F.3d 1042 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 82, 139 L.Ed.2d 40 (1997), a case presenting a closer issue than the one at hand, a teacher sexually molested a former student. The molestation first took place over five months after the student had withdrawn from school and occurred when the teacher spent time with the student with the permission of the student’s mother. The Fifth Circuit concluded that the teacher’s sexual assaults on the student did not occur under color of state law, noting that the teacher’s contacts with the student after the student had withdrawn from school were in no way part of his duties as a state employee, were not school-sponsored, and were not reported to any school official. The court explained that while there was evidence that the teacher had first befriended and shown a special interest in the student at school, there was no competent summary judgment evidence Rof physical sexual abuse at the school.

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Bluebook (online)
704 So. 2d 346, 97 La.App. 3 Cir. 0606, 1997 La. App. LEXIS 2895, 1997 WL 757924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagoner-v-dyson-lactapp-1997.