Willie Clark, Et Ux. v. Jennings Police Department

• Court: Louisiana Court of Appeal
• Decided: March 5, 2014
• Docket: CA-0013-1023
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-1022 consolidated with 13-1023

WILLIE CLARK, ET UX.

VERSUS

JENNINGS POLICE DEPARTMENT, ET AL.

**********

APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-781-11 HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

JOHN D. SAUNDERS JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Jimmie C. Peters, Judges.

AFFIRMED.

Karl W. Bengtson Bengtson Law Firm P. O. Drawer 51147-1147 Lafayette, LA 70505-1147 (337) 291-9119 COUNSEL FOR PLAINTIFF/APPELLANT: Willie Clark Melinda Clark John F. Wilkes, III Ray F. Lucas, III Borne, Wilkes, etc. P. O. Box 4305 Lafayette, LA 70502-4305 (337) 232-1604 COUNSEL FOR DEFENDANT/APPELLEE: City of Jennings Chief Todd D'Albor, City of Jennings

L. Frederick Schroeder II Craig E. French Usry & Weeks 1615 Poydras, Suite 1250 New Orleans, LA 70112 (504) 592-4600 COUNSEL FOR DEFENDANT/APPELLEE: Richard E. Edwards, Jr., Sheriff of Jefferson Davis Parish SAUNDERS, Judge.

Plaintiffs, Willie and Melinda Clark, appeal the grant of summary judgment

in favor of Defendants, former Jefferson Davis Parish Sheriff Richard Edwards, Jr.,

the City of Jennings, and Chief Todd D‟Albor in his official capacity as Chief of

Police of the City of Jennings. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 19, 2010, Melinda Clark requested an order of protective

custody from the Jefferson Davis Parish Coroner over her husband, Willie Clark,

who suffers from mental illness. The coroner issued the order that morning. Mrs.

Clark advised the Jefferson Davis Parish Sheriff‟s Office that Mr. Clark was at the

Union Baptist Church in Jennings, Louisiana. The sheriff‟s office dispatched

deputies to the church, who attempted to take Mr. Clark into protective custody.

Mr. Clark testified at his deposition that he was called out to the lobby of the

church, where he encountered an officer. He shouted back into the church, at

which point an officer from the sheriff‟s department “wrestled [him] down on the

floor, choking [him].” Mr. Clark testified that an officer shackled his legs, and he

kicked the officer; he also admitted to biting an officer on the arm. Plaintiffs

acknowledge that Mr. Clark resisted being taken into custody. Mr. Clark testified,

“I was fighting to keep from getting in that car,” and that he hit officers with his

hands during the struggle. When Mr. Clark refused to cooperate, the sheriff‟s

office deputies called the Jennings City Police Department for assistance, and

officers arrived at the church shortly thereafter. It is undisputed that a Jennings

police officer used a Taser on Mr. Clark, and Defendants admit that Mr. Clark may

have been kicked in the back while being put back in the patrol car after attempting

to escape the car. After the altercation, the officers transported Willie Clark to

Moss O. Regional Hospital pursuant to the order. Plaintiffs filed suit against the City of Jennings, Chief Todd D‟Albor in his

official capacity as Chief of Police of the City of Jennings, the Jefferson Davis

Parish Sheriff, as well as the individual Jennings police officers and Jefferson

Davis Parish sheriff‟s deputies involved in the incident, whom Plaintiffs could not

initially identify by name. Plaintiffs asserted causes of action under 42 U.S.C. §

1983, under the Louisiana Constitution, and under Louisiana tort law.

On July 18, 2012, the trial court granted a declinatory exception, dismissing

the three individual officers from the suit because they were not timely served.

The City of Jennings and Chief D‟albor filed a motion for summary

judgment, moving to dismiss all of Plaintiffs‟ claims against them. The sheriff also

filed a motion for summary judgment. Plaintiffs opposed summary judgment,

arguing that material facts remained in dispute, specifically that the parties did not

agree on a description of the officers‟ conduct.

The trial court granted summary judgment in favor of the City of Jennings

and Chief D‟Albor. In its written reasons for ruling, the trial court noted that the

only claims for which the Plaintiffs provided opposition were under the theories of

excessive force and vicarious liability. It stated that “municipal liability under

federal civil rights law cannot be based on respondeat superior” and found that

because Clark had not named any officers, the City of Jennings could not be held

liable under vicarious liability. The trial court granted the motion for summary

judgment in favor of the city and Chief D‟Albor in regard to the Plaintiffs‟ federal

claims. As to the Plaintiffs‟ state law claims, the trial court granted summary

judgment with regards to the loss of constortium claim, as the Plaintiffs provided

no opposition on that issue. Finally, the trial court also granted summary judgment

as to the state law claims for damages under the theory of vicarious liability

because Plaintiffs failed to name the individual officers on the scene whose 2 tortious behavior gave rise to this cause of action. The trial court signed a

judgment on April 12, 2013, granting the motion for summary judgment and

dismissing all of the Clarks‟ federal and state law claims against the City of

Jennings and Chief D‟albor in his official capacity.

The Clarks filed a motion for a new trial on April 23, 2013. After a hearing

on the motion for a new trial as well as on Richard Edwards, Jr./Jefferson Davis

Parish Sheriff‟s Office‟s motion for summary judgment, the trial court denied the

Clarks‟ motion and granted the sheriff‟s office‟s motion for summary judgment,

dismissing former Sheriff Richard Edwards, Jr. That judgment was signed on June

10, 2013. The trial court supplied reasoning from the bench, stating that it granted

Sheriff Edwards‟ motion for summary judgment for the same reasons as its grant

of summary judgment in favor of the city and chief of police.

The Clarks appealed all three decisions of the trial court. On October 8,

2013, this court granted a motion to consolidate the summary judgments of all

remaining Defendants into the instant case.

ASSIGNMENTS OF ERROR

On appeal, Plaintiffs assert the following assignments of error:

1. The Trial Court erred in concluding that La.R.S. 28:63D(1) immunizes law enforcement officers from damages for any method or means which they use to effect a detention, regardless of the reasonableness.

2. The Trial Court erred in concluding that it is necessary to name individual law enforcement officers in an action brought under State law against their employer for damages caused by their unreasonable conduct while in the course of the [sic] employment.

3. The Trial Court erred in concluding that the facts properly in evidence eliminated all issues in dispute and established that the law enforcement officers acted reasonably in effecting the detention of Willie Clark.

LAW AND ANALYSIS

3 This court reviews summary judgments de novo. Thibodeaux v. Lafayette

Gen. Surgical Hosp. LLC, 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544.

Summary judgment “is designed to secure the just, speedy, and inexpensive

determination of every action[.]” La.Code Civ.P. art. 966(A)(2). “The procedure is

favored and shall be construed to accomplish these ends.” Id. A motion for

summary judgment “shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to material fact, and that mover is

entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

This court has stated, and the supreme court agreed, “[p]rovided that

sufficient time for discovery has been allowed, we will assess the proof submitted

by the parties in order to weed out meritless litigation, and to secure the just,

speedy, and inexpensive determination of every action submitted for summary

judgment.” Hardy v. Bowie, 98-2821, pp. 5-6 (La. 9/8/99), 744 So. 2d 606, 610

(quoting Hayes v. Autin, 96-287, p. 7 (La. App. 3 Cir. 12/26/96), 685 So. 2d 691,

695, writ denied, 97-0281 (La. 3/14/97), 690 So. 2d 41).

The burden of proof for a summary judgment motion lies on the movant.

However, as here, where the movant will not bear the burden of proof at trial, the

movant‟s burden on the motion does not require him to negate all essential

elements of the adverse party‟s claim. La.Code Civ.P. art. 966(C)(2). Instead, the

movant need only establish an absence of factual support for one or more elements

essential to the adverse party‟s claim. Id. Thereafter, if the adverse party fails to

produce factual support sufficient to establish that he will be able to meet his

evidentiary burden of proof at trial, no genuine issue of material fact exists. Id.

Regarding Plaintiffs‟ claims under federal law, “[q]ualified or „good faith‟

immunity is an affirmative defense that must be pleaded by a defendant official.” 4 Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736 (1982). In the

instant case, each remaining Defendant has asserted this affirmative defense. To

assess qualified immunity, courts utilize a two-part analysis. First, courts must

“determine whether the plaintiff has „allege[d] the violation of a clearly established

constitutional right.‟” Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993)

(quoting Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 1793 (1991)). If the first

part is met, courts must then “decide if the defendant‟s conduct was objectively

„reasonable,‟ because “„[e]ven‟ if an official‟s conduct violates a constitutional

right, he is entitled to qualified immunity if the conduct was objectively

reasonable.‟” Id. (quoting Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993)

(quoting Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992)). In the context of

summary judgment, as here, such a review is „“plenary‟ accepting the facts in the

light most favorable to the nonmoving party.‟” Id (quoting Salas, 980 F. 2d at 304).

If a court finds that the officer‟s alleged conduct violated no constitutional right,

the officer is entitled to qualified immunity and the court need not inquire further.

Chavez v. Martinez, 538 U.S. 760, 766, 123 S.Ct. 1994, 2000 (2003).

Thus, to survive Defendants‟ motions for summary judgment, the Clarks‟

burden was to present facts, through affidavits, deposition testimony, or other

means permissible under La.Code Civ.P. arts. 966 and 967, indicating that they

would be able to satisfy their burden at trial of proving that the Defendants violated

a constitutional right of Mr. Clark. If such a burden was not met, there was no

genuine issue of material fact to overcome summary judgment. See La.Code Civ.P.

art. 966(C)(2). Although Plaintiffs contend that material facts remained in dispute

because the parties did not agree on a specific characterization of the nature of the

officers‟ conduct, the parties do not dispute the conduct itself, nor do the parties

dispute the sequence of events. On the contrary, the record clearly demonstrates 5 that Plaintiffs acknowledge that Mr. Clark physically attempted to resist arrest and

did not cooperate with the officers, who were acting under a valid protective order,

and that the officers, therefore, used additional force in order to execute the order.

All remaining Defendants concede that the officers used a Taser on Mr. Clark and

that the officers may have kicked him. Plaintiffs point to no genuine issue of

material fact, and we see no such issue upon review of the record.

We need not determine whether the use of a Taser in order to gain control

over a noncooperative subject of arrest by trained police officers is reasonable to

carry out law enforcement officers‟ function and preserve their own safety. Our

inquiry ends because Plaintiffs have failed to demonstrate that any constitutional

right was violated. Well over a year passed between the filing date of the

Plaintiff‟s complaint and the Defendants‟ motions for summary judgment, and the

parties had conducted discovery, including depositions. The Plaintiffs had ample

opportunity to assemble facts to support their claim that Mr. Clark‟s rights were

violated such that statutory immunity should not apply, if such facts were to exist.

However, the Plaintiffs have failed to allege facts sufficient to indicate there is a

reasonable likelihood that any one of their claims could succeed at trial. Because

of this, we need not reach the merits of Plaintiffs‟ assignments of error, nor of the

trial court‟s reasoning in granting summary judgment.

Similarly, regarding Plaintiffs‟ claims under state law, La.R.S. 28:63(D)(1)

states:

Any apprehension or taking into protective custody and confinement made by law enforcement officers, pursuant to any authorized procedure provided in this Title, is hereby declared to be an administrative act relative to the functions of their office, as required by law, and for which act they are specifically granted personal immunity.

6 Plaintiffs submit in brief a short argument regarding the constitutionality of this

statute. We need not address the merits of that argument because “[w]hen the

unconstitutionality of a statute is specifically pled, the claim must be raised in a

petition, exception, motion, or answer. The unconstitutionality of a statute cannot

be raised in a memorandum, opposition, or brief, as those documents do not

constitute pleadings.” In re Succ. of McKay, 05-603, p. 4 (La. App. 3 Cir. 2/1/06),

921 So. 2d 1219, 1222 (internal citation omitted), writs denied, 06-504, 06-631 (La.

6/2/06), 929 So. 2d 1252, 1253.

Furthermore, La.R.S. 9:2798.1(B) provides:

Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

In their summary judgment motion, Defendants City and Chief D‟albor argue that

Plaintiffs did not sue and have failed to name the individual officers and, therefore,

cannot make out a valid excessive force claim. Defendants fail to acknowledge in

this argument that three individual officers were identified and dismissed from the

suit by the trial court when it granted a declinatory exception in the officers‟ favor.

However, we need not address whether there is merit to Defendants‟ argument

regarding the individual officers and respondeat superior, given that statutory

immunity applies in this case. Accordingly, we affirm the trial court‟s grants of

summary judgment.

We find that Mr. Clark‟s allegations fail to state a violation of his

constitutional rights and fail to demonstrate any reason the Defendants should not

be immune from the Plaintiffs‟ state law claims under the above statutes. The

Defendants are entitled to qualified immunity, and both summary judgments on

appeal are affirmed. 7 We note that Defendant Richard Edwards, Jr. has filed a supplemental brief

regarding recent amendments to La.Code Civ.P. art. 966. Because we affirm

summary judgment dismissing Mr. Edwards, we need not reach a discussion of this

issue.

Summary judgment is affirmed on the grounds of statutory immunity. All

costs associated with this appeal are assessed to Plaintiffs Willie and Melinda

Clark.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-Courts of Appeal, Rule 2-16.3.