The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRELL THOMPSON CIVIL ACTION
VERSUS NO. 18-10658-WBV-JVM
HAMMOND CITY, ET AL. SECTION: “D” (1)
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment, filed by defendants, the
City of Hammond, Officer Leo Barthelemy and Sergeant Quinn Bivona (collectively,
“Defendants”).1 The Motion is opposed,2 Defendants have filed a Reply,3 and Plaintiff
has filed a Sur-Reply4 and a Supplemental Memorandum in Opposition to the
Motion.5 After careful consideration of the parties’ memoranda and the applicable
law, the Motion is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from Terrell Thompson’s claim that members of the Hammond
Police Department falsely arrested and imprisoned him after a physical altercation
with his daughter’s former boyfriend. Plaintiff alleges that on November 7, 2017,
Hunter L. Musacchia, a former boyfriend of Plaintiff’s minor daughter, J.E.T.,
traveled to Plaintiff’s residence in Hammond, Louisiana to pick up his boat, which
1 R. Doc. 17.
2 R. Doc. 20.
3 R. Doc. 30.
4 R. Doc. 40.
5 R. Doc. 59.
Hunter had been keeping at Plaintiff’s residence.6 Plaintiff claims that when he
arrived home after work in his law enforcement uniform,7 armed, he noticed Hunter’s
vehicle parked at his residence and became concerned because he believed that
Hunter had previously used illegal drugs and had physically abused and stalked
J.E.T.8 Plaintiff asserts that he exited his vehicle and approached Hunter’s vehicle,
whereupon he tapped on the tailgate, but received no response. Plaintiff claims he
then approached the passenger side of Hunter’s vehicle, peered into the window, and
observed two people, whom Plaintiff identified as J.E.T. and Hunter, struggling.
Plaintiff claims that he tried to open the vehicle door, but it was locked, so he tapped
on the passenger-side window using his flashlight. At that point, Plaintiff asserts
that Hunter exited the driver-side of the vehicle.
Plaintiff alleges that Hunter walked to the front of his vehicle and began
angrily screaming and cursing at Plaintiff, flailing his arms, and putting his hands
within arms’ reach of the Plaintiff’s head, all while J.E.T. remained in the vehicle.9
Plaintiff claims that Hunter then aggressively charged toward him, causing Plaintiff
to believe that he was in imminent danger of receiving a battery.10 In response,
Plaintiff claims that he struck Hunter in the left common peroneal of his leg with his
mag flashlight in self-defense, in accordance with his 26 years of law enforcement
training. 11 Plaintiff asserts that Hunter momentarily retreated, but then
6 R. Doc. 1 at ¶ 8.
7 Plaintiff claims that he is a United States Custom and Border Patrol agent. Id. at ¶ 7.
8 Id. at ¶ 12.
9 Id. at ¶ 16.
10 Id. at ¶ 17.
11 Id. at ¶ 17.
aggressively charged at Plaintiff a second time, whereupon Plaintiff again struck
Hunter in the leg with his flashlight in self-defense.12 Plaintiff alleges that Hunter
then grabbed him and the two men fell to the ground in a struggle. Plaintiff claims
that he freed himself, proceeded to Hunter’s vehicle, turned the ignition off and took
possession of Hunter’s keys. Plaintiff alleges that J.E.T. then exited the vehicle while
Plaintiff called the Hammond Police Department and Hunter called his father, Brad
Mussachia. Plaintiff asserts that, at some point, he recorded a statement on his cell
phone wherein J.E.T. stated that Hunter struck her.13 Brad Mussachia subsequently
arrived at Plaintiff’s home, and Plaintiff told Mr. Mussachia that Hunter was not
permitted to be at his home other than to obtain his boat, and that Hunter was not
allowed to speak to J.E.T.
Hammond Police Department officers arrived at Plaintiff’s home shortly
thereafter, with defendant, Sergeant Quinn Bivona, being one of the first officers to
arrive.14 Plaintiff claims that Sgt. Bivona spoke to Hunter and J.E.T., and that when
Plaintiff offered Sgt. Bivona the recorded statement on his cellphone, Sgt. Bivona
refused it and ordered Plaintiff to remain inside his home.15 Plaintiff asserts that at
some point, his wife, Lisa Thompson, and her minor daughter, S.T., entered the front
yard of Plaintiff’s home. 16 Plaintiff alleges that two more Hammond Police
Department officers arrived at his home – defendant, Officer Leo Barthelemy, Jr.,
12 Id. at ¶ 18.
13 Id. at ¶ 21.
14 Id. at ¶ 24.
15 Id.
16 Id. at ¶ 25.
and Officer Mary Ellis. Plaintiff claims that he tried to give them a statement and
told Officer Barthelemy that he had been collecting information on Hunter to obtain
a restraining order against him, but that Officer Barthelemy and Sgt. Bivona refused
to speak to Plaintiff about what had transpired.17 Plaintiff also claims that the
officers refused to obtain Plaintiff’s statement and denied his request that a
Hammond Police Department Shift Lieutenant come to the scene. Plaintiff alleges
that Officer Barthelemy and Sgt. Bivona then received Plaintiff’s duty weapon and a
back-up weapon, which were both on his person. Although Hunter was allowed to
leave the scene, Plaintiff claims that he was arrested for aggravated battery under
La. R.S. 14:34, possession of Schedule IV drugs under La. R.S. 40:969, possession of
legend drugs under La. R.S. 40:971(B)(1)(h), and illegal possession of a firearm under
La. R.S. 14:95, and taken to jail.18
Plaintiff alleges that Sgt. Bivona and/or Officer Barthelemy authored a police
report containing several false and/or misleading statements, including that Plaintiff
approached Hunter’s vehicle in an aggressive manner and attacked Hunter when he
stepped out of the vehicle, striking Hunter in the left leg and twice in the face, and
that Sgt. Bivona and Officer Barthelemy searched Plaintiff’s person and found an
unlabeled orange pill bottle containing several tablets.19 Plaintiff claims that these
misstatements are defamatory per se, as Defendants made these statements with
knowledge of their falsity, or with reckless disregard for whether they were false or
17 Id. at ¶¶ 26-28.
18 Id. at ¶ 31.
19 Id. at ¶ 32.
not, and without having reasonable grounds for believing in their truth.20 According
to Plaintiff, he removed the pill bottle from his possession and offered it to Sgt. Bivona
and/or Officer Barthelemy after he was taken into custody at the Hammond Police
Department jail.
On November 7, 2018, Plaintiff filed a Complaint in this Court, asserting three
claims: (1) a 42 U.S.C. § 1983 claim against Sgt. Bivona and Officer Barthelemy,
asserting that he was arrested without probable cause in violation of his Fourth
Amendment rights; (2) state law claims for false arrest and false imprisonment
against Sgt. Bivona and Officer Barthelemy; and (3) a state law claim for defamation
per se against Sgt. Bivona and Officer Barthelemy.21 Plaintiff further alleged that
the City of Hammond is liable under respondeat superior for the actions of Sgt. Bivona
and Officer Barthelemy during the course and scope of their employment as police
officers for the Hamond Police Department.22
On May 23, 2019, Defendants filed the instant Motion for Summary Judgment,
asserting that Plaintiff’s claims for false arrest and false imprisonment fail as a
matter of law because Plaintiff’s arrest was based on probable cause and, therefore,
there was no violation of his Fourth Amendment rights.23 Defendants argue that
probable cause existed for the arrest based on the verbal statements of Hunter, J.E.T.
and Plaintiff, given to the officers at the time of the arrest, which were confirmed by
20 Id. at ¶ 33.
21 R. Doc. 1 at ¶¶ 34-38.
22 Id. at ¶ 39.
23 R. Doc. 17.
Hunter’s written statement, which was also given at the time of the arrest.24
Defendants argue that probable cause existed for the arrest because a victim’s
statement alone is sufficient to create probable cause for an arrest on the grounds of
battery.25 Defendants contend that upon arriving at the scene, Officer Barthelemy
met with Sgt. Bivona and then spoke to the victim, Hunter, who said that he wanted
to file charges against Plaintiff.26 Defendants allege that Hunter told Officer
Barthelemy that he was in his vehicle with Plaintiff’s daughter when Plaintiff
approached the vehicle in an aggressive manner and struck the window of the vehicle
with a Maglite flashlight.27 Defendants claim that Hunter told Officer Barthelemy
that when he exited the vehicle, Plaintiff struck him on the left leg and struck him
twice in the facial area.28 Defendants assert that Officer Barthelemy then spoke to
Plaintiff, who admitted that he struck the victim with his flashlight.29 Defendants
claim that Officer Barthelemy secured two weapons located on Plaintiff’s person, and
found a pill bottle in connection with the arrest. Defendants maintain that they had
probable cause to arrest Plaintiff.
Even if Plaintiff could establish a Fourth Amendment violation, Defendants
assert that they are entitled to qualified immunity from such claims.30 Defendants
argue that the officers acted with objective reasonableness in arresting Plaintiff,
24 R. Doc. 17-1 at pp. 1-2.
25 Id. at p. 7 (citing Shepack v. Tanner, Civ. A. Nos. 96-2405, 96-2711, 1999 WL 280443 (E.D. La. May
4, 1999)).
26 R. Doc. 17-1 at p. 2 (citing R. Doc. 17-2).
27 Id.
28 Id.
29 R. Doc. 17-1 at pp. 2-3 (citing R. Doc. 17-2 at pp. 3-9)
30 R. Doc. 17-1 at pp. 7-10.
based upon the victim’s statement and Plaintiff’s confirmation that he struck Hunter.
Defendants emphasize that Plaintiff’s actual motives at the time of the incident are
irrelevant.31 Defendants further assert that Plaintiff’s state law claims for false
arrest and false imprisonment are duplicative of the federal law claims, and should
be dismissed on the same basis.32 Defendants also claim that they are entitled to
summary judgment on the defamation claims because the statements contained
within the police report were obtained from Hunter and J.E.T. and, therefore, are not
false, as required for a defamation action.33 Even if the police report contains false
statements, Defendants argue that there was no unprivileged publication to a third-
party, and if there was, the information in the report is protected by qualified
privilege as statements of criminal conduct.34 Finally, Defendants assert that they
are entitled to summary judgment on all claims against the City of Hammond because
Plaintiff failed to identify any policy or procedure that purportedly led to the alleged
constitutional violation.35
Plaintiff opposes the Motion, reaffirming the version of events set forth in the
Complaint, and asserting that genuine issues of material fact exist as to whether
Defendants had probable cause to arrest him.36 Plaintiff maintains that Defendants
lacked probable cause to arrest him because they refused to listen to his version of
31 Id. at p.10.
32 Id. at pp. 10-11.
33 Id. at p. 11.
34 Id. at p. 11 (citing Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La. 7/10/06), 935 So.2d 669).
35 R. Doc. 17-1 at pp. 13-14 (citations omitted).
36 R. Doc. 20. Plaintiff claims that the Motion contains several misstatements and/or omits certain
critical facts, including where the incident occurred, whether the prescription bottle was found at the
time of arrest or at the time of booking, the fact that the defendant officers never interviewed or spoke
to Plaintiff about what transpired and that Plaintiff acted in self-defense. Id. at pp. 1-2.
events, refused to take his statement at the time of the arrest, and relied upon his
daughter’s statement and inconsistent statements from victim Hunter.37 Plaintiff
argues that the cases cited by Defendants on the issue of probable cause are
distinguishable from the facts of this case because Defendants did not question any
eyewitnesses prior to the arrest and refused to take a statement from Plaintiff, who
was an eyewitness.38 Plaintiff also disputes Defendants’ assertion that a witness
statement is sufficient to establish probable cause, asserting that in the case relied
upon by Defendants, the Court clarified that other factors were considered in making
the probable cause determination, including corroborating statements from
eyewitnesses, which do not exist in this case.39 Plaintiff also notes that the police
report fails to articulate any facts suggesting that Hunter sustained any facial
injuries or needed medical attention, which would corroborate Plaintiff’s arrest for
aggravated battery.40 Plaintiff asserts that, contrary to the police report, he never
struck Hunter in the face. Plaintiff relies heavily upon a Declaration by J.E.T.,
attached as an exhibit to his opposition brief, to support this assertion.41
Plaintiff further asserts that Defendants are not entitled to qualified immunity
because they ignored his justification that he acted in self-defense when he struck
Hunter.42 Relying heavily upon a Sixth Circuit case, Plaintiff argues that Defendants
37 Id. at pp. 9-10.
38 Id. at p. 11 (citing Babin v. Par. Of Jefferson, Civ. A. No. 16-2954, 2018 WL 794535 (E.D. La. Feb. 8,
2018) (Feldman, J.); Cooper v. City of La Porte Police Dep’t, 608 Fed.Appx. 195 (5th Cir. 2015)).
39 R. Doc. 20 at pp. 11-12 (citing Shepack v. Tanner, Civ. A. Nos. 96-2405, 96-2711, 1999 WL 280443
(E.D. La. May 4, 1999)).
40 R. Doc. 20 at p. 12.
41 Id. at p. 5 (citing R. Doc. 20-2).
42 Id. at pp. 12-13 (citing Painter v. Robertson, 185 F.3d 557 (6th Cir. 1999)).
failed to accept or acknowledge the evidence he attempted to present to show Hunter’s
abusive history against J.E.T., Defendants failed to acknowledge that Plaintiff was
in his full United States Customs and Border Patrol uniform, which explains why he
was authorized to be armed, Defendants failed to inquire into whether the
medications offered to them by Plaintiff were obtained by prescriptions or were over
the counter medications, and Defendants made no attempt to talk to Plaintiff or
consult other witnesses beyond Hunter and J.E.T., regarding what had transpired,
such as Lisa Thompson, Plaintiff’s wife.43 As such, Plaintiff contends there are
questions of fact in dispute regarding the Defendants’ actions leading up to the arrest
that preclude summary judgment in this case.44
Plaintiff similarly claims that genuine issues of material fact exist regarding
his defamation claim and whether Defendants deliberately and/or recklessly falsified
the police report when they intentionally ignored facts and evidence that was
available to them.45 Plaintiff maintains that Defendants communicated false and
defamatory statements regarding his arrest, including the police report, to his
employer, which constitutes a publication of statements to a third party that were
defamatory per se.46 Plaintiff argues that qualified privilege does not apply in this
case because it was arguably abused. Plaintiff explains that the information used by
Defendants to establish probable cause was recklessly, if not purposefully, deficient
43 R. Doc. 20 at p. 14.
44 The Court notes that although Plaintiff sets forth the burden of proof for a plaintiff to overcome
summary judgment based on qualified immunity (R. Doc. 20 at pp. 14-16), Plaintiff does not provide
any argument or analysis as to how he satisfies that burden of proof.
45 R. Doc. 20 at p. 18.
46 R. Doc. 20 at p. 17.
because Defendants failed to verify any of the statements made by Hunter and they
deliberately ignored Plaintiff’s explanation of what had transpired.47 Plaintiff claims
that a report of events that is deliberately incomplete is an abuse of privilege.48
Plaintiff argues that Defendants had “obvious reasons to doubt the accuracy of their
reports” because statements by Hunter and Plaintiff, without consideration of all the
facts and statements available, would make any reasonable officer doubt the accuracy
of his report.49 Plaintiff also asserts that if his arrest is actionable under § 1983 for
lack of arguable probable cause, then his defamation claims are also actionable and
qualified immunity is not available.50
Additionally, Plaintiff asserts that the City of Hammond is not entitled to
summary judgment on his state law claims for false arrest and imprisonment and
defamation per se because Defendants moved for summary judgment on these claims
under federal law.51 Plaintiff argues that the Louisiana Supreme Court has
recognized that a municipality may be liable for torts committed by their police
officers acting within the course and scope of their employment.52 Thus, Plaintiff
claims genuine issues of material fact exist as to the claims against the City of
Hammond. Plaintiff further asserts that Defendants are not entitled to qualified
immunity on his state law claims because genuine issues of material fact exist as to
47 Id. at p. 18.
48 Id. (citing Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552, 564).
49 R. Doc. 20 at p. 19.
50 Id. (citing Roche v. Aetna Cas. & Sur. Co., 303 So.2d 888, 890 (La. Ct. App. 1974)).
51 R. Doc. 20 at p. 20.
52 Id. (citing Lamkin v. Brooks, 498 So.2d 1068, 1070 (La. 1986)).
both claims, particularly regarding the information Defendants used in determining
probable cause for his arrest.53
In reply, Defendants argue that Plaintiff has not shown that probable cause
did not exist for the arrest, nor has Plaintiff shown that qualified immunity does not
apply.54 Defendants assert that in determining whether probable cause existed for
Plaintiff’s arrest, the Court must consider whether the facts and circumstances
within the arresting officer’s knowledge raised a fair probability that a crime had
been committed.55 While Plaintiff points to facts learned after the arrest, Defendants
claim that such information, obtained with the benefit of hindsight, is immaterial,
such as the location of the strike, how many times Plaintiff struck Hunter or whether
the strike was justified. Defendants argue probable cause existed for the arrest
because Hunter stated that Plaintiff struck him, J.E.T. confirmed that Plaintiff
struck Hunter, and Plaintiff admitted at the scene that he struck Hunter.56 Although
Plaintiff claims probable cause was lacking because he was in his law enforcement
uniform at the time of his arrest, Defendants argue that wearing a uniform does not
require them to turn a blind eye to a reported battery, does not allow Plaintiff to carry
a secondary weapon while off-duty, and does not permit Plaintiff to carry pills in an
unmarked pill bottle on his person. 57 Defendants further assert that under
53 R. Doc. 20 at pp. 20-21.
54 R. Doc. 30.
55 Id. at p. 2 (citing Fillios v. Harahan Police Dep’t, Civ. A. No. 19-45, 2019 WL 2009241 (E.D. La. May
7, 2019)).
56 R. Doc. 30 at pp. 2-3.
57 Id. at pp. 3-4.
controlling law, they had no duty to investigate Plaintiff’s claims of self-defense prior
to the arrest.58
Defendants further assert that qualified immunity applies, that the cases cited
by Plaintiff in support of his arguments are distinguishable, and that the Court
should instead follow Babin, wherein this Court found it immaterial whether a
plaintiff complained that an arresting officer refused to hear her side of the story at
the scene after speaking with the witnesses.59 With respect to Plaintiff’s defamation
claim, Defendants assert that Plaintiff failed to produce any evidence showing that
Defendants sent the police report to Plaintiff’s employer, noting that Plaintiff
produced a video during discovery demonstrating that Plaintiff’s wife caused the
report to be sent to Plaintiff’s employer.60 Finally, citing again to Babin, Defendants
assert that the City of Hammond can only be liable for its own acts under § 1983, and
cannot be held liable under a theory of respondeat superior.61 Defendants argue that
a municipality will only be held liable where a policy or procedure was the moving
force behind the constitutional violation, and Plaintiff has failed to cite any policy or
procedure that the City of Hammond implemented that purportedly contributed to
the alleged constitutional violation.62 Defendants claim that the case relied upon by
58 Id. at p. 5 (citing McCoy v. Hous. Auth. Of New Orleans, Civ. A. No. 15-398, 2016 WL 2992528 (E.D.
La. May 24, 2016)).
59 R. Doc. 30 at pp. 6-7 (citing Painter v. Robertson, 185 F.3d 557 (6th Cir. 1999); Blake v. Lambert, 921
F.3d 215 (5th Cir. 2019); Babin v. Par. Of Jefferson, Civ. A. No. 16-2954, 2018 WL 794535 (E.D. La.
Feb. 8, 2018)).
60 R. Doc. 30 at p. 8 (citing R. Doc. 30-1, filed under seal).
61 R. Doc. 30 at p. 9 (citing Babin, Civ. A. No. 16-2954, 2018 WL 794535, at *12).
62 R. Doc. 30 at p. 9 (citing Babin,
Plaintiff concerned only an intentional tort committed by a police officer outside of
the city’s jurisdiction and, therefore, is inapplicable to the facts of this case.63
In a Sur-Reply brief, Plaintiff seeks to correct several alleged misstatements
made by Defendants in their Reply brief, and maintains that genuine issues of
material fact exist regarding (1) whether probable cause existed at the time of his
arrest and (2) whether qualified immunity applies.64 Plaintiff also maintains that
Defendants failed to consider all of the information that was available at the time of
his arrest, including whether Plaintiff acted in self-defense.65 Plaintiff asserts that
qualified immunity does not apply because he was arrested without probable cause
and his arrest was objectively unreasonable in light of clearly established law.66
While conceding that it is undisputed that he struck Hunter,67 Plaintiff maintains
that material issues of fact exist regarding whether he acted in self-defense, which is
critical to the probable cause analysis. Plaintiff reasserts the arguments raised in
his opposition brief regarding his defamation claim and his state law claims against
the City of Hammond.68
On October 22, 2019, Plaintiff filed a Supplemental Memorandum in
Opposition to the Motion for Summary Judgment, to apprise the Court of the Fifth
Circuit’s recent decision in Cole v. Carson, wherein the Fifth Circuit concluded that
summary judgment is inappropriate where an excessive force claim turns on two
63 R. Doc. 30 at pp. 9-10 (citing Lamkin v. Brooks, 498 So.2d 1068 (La. 1986)).
64 R. Doc. 40.
65 Id. at pp. 1-2.
66 Id. at pp. 7-8.
67 Id. at p. 7.
68 R. Doc. 40 at pp. 9-10.
conflicting stories of what transpired.69 Plaintiff points out that the Fifth Circuit in
Cole further held that the district court did not err in denying the defendant police
officers qualified immunity at the summary judgment stage.70
II. LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 if
there is no genuine dispute as to any material fact such that the moving party is
entitled to judgment as a matter of law.71 No genuine issue of material fact exists if
the record, taken as a whole, could not lead a rational trier of fact to find for the non-
moving party.72 A genuine issue of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”73 Additionally, the
mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.74 While all reasonable
inferences are drawn in favor of the non-moving party, the non-moving party cannot
defeat summary judgment with conclusory allegations, unsubstantiated assertions,
or only a scintilla of evidence.75
Summary judgment is also proper if the non-moving party fails to establish an
essential element of a claim, upon which that party will bear the burden of proof at
69 R. Doc. 59 (citing Cole v. Carson, 935 F.3d 444, 455-56 (5th Cir. 2019)).
70 R. Doc. 59 at p. 1 (quoting Cole, 935 F.3d at 457).
71 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986).
72 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986).
73 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
74 Anderson, 477 U.S. at 247-47, 106 S.Ct. at 2510.
75 Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quotation and quotation marks omitted).
trial.76 The non-moving party must, therefore, direct the Court’s attention to specific
evidence in the record which demonstrates that he can satisfy a reasonable jury that
he is entitled to a favorable verdict.77 In determining whether a fact issue exists,
courts must view the facts and draw reasonable inferences in the light most favorable
to the non-moving party.78 The Court may not evaluate the credibility of witnesses,
weigh the evidence, or resolve factual disputes.79 Although the Court must “resolve
factual controversies in favor of the nonmoving party,” it must do so, “only where
there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.”80
III. LAW AND ANALYSIS
A. Section 1983 Liability of Sgt. Bivona and Officer Barthelemy and
Qualified Immunity.
Title 42 U.S.C. § 1983 creates a damages remedy for the violation of federal
constitutional or statutory rights under color of state law. Specifically, it provides as
follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any . . . 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.81
76 Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552.
77 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
78 Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 1774-75, 167 L.Ed.2d 686 (2007).
79 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
80 Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (quotation and quotation marks
omitted).
81 42 U.S.C. § 1983.
Because § 1983 merely provides a remedy for designated rights, rather than creating
any substantive rights, “an underlying constitutional or statutory violation is a
predicate to liability.”82 To establish § 1983 liability, the plaintiff must establish the
following three elements: (1) deprivation of a right secured by the United States
Constitution or federal law; (2) that occurred under color of state law; and (3) was
caused by a state actor.83
As a defense to § 1983 claims, government officials may invoke qualified
immunity, which “shields government officials performing discretionary functions . .
. from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.”84 The Supreme Court has made clear that qualified immunity
functions as an immunity from suit, rather than a mere defense to liability.85 “[T]he
qualified immunity standard ‘gives ample room for mistaken judgments’ by
protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”86
“This means that even law enforcement officials who reasonably but mistakenly
commit a constitutional violation are entitled to immunity.”87 Once the government
82 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).
83 Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).
84 Mabry v. Lee County, 100 F.Supp.3d 568, 572 (N.D. Miss. 2015) (quoting Luna v. Mullenix, 773 F.3d
712, 718 (5th Cir. 2014), cert. granted, decision rev’d on other grounds, 136 S.Ct. 305, 193 L.Ed.2d 255
(2015)).
85 Pearson v. Callahan, 555 U.S. 223, 237, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (quoting Mitchell
v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (internal quotation marks
omitted).
86 Brumfield v. Hollins, 551 F.3d 322, 326-27 (5th Cir. 2008) (quoting Mendenhall v. Riser, 213 F.3d
226, 230 (5th Cir. 2000).
87 Bazan v. Hidalgo County, 246 F.3d 481, 488 (5th Cir. 2001) (quoting Glenn v. City of Tyler, 242 F.3d
307, 312 (5th Cir. 2001) (internal quotation marks omitted).
official asserts the defense of qualified immunity, the burden shifts to the plaintiff to
negate the defense.88 To overcome a claim of qualified immunity, a plaintiff must
demonstrate: (1) that the official violated a statutory or constitutional right; and (2)
that the right was “clearly established” at the time of the challenged conduct.89 It is
up to the district courts’ sound discretion to decide which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in
the particular case.90
In his § 1983 claim, Plaintiff alleges that Sgt. Bivona and Officer Barthelemy
violated his Fourth Amendment rights to be free from false arrest and false
imprisonment. The Fourth Amendment to the United States Constitution provides
that citizens have the right to be free from arrests made without probable cause.91
Thus, to prevail on a § 1983 claim based on false arrest Plaintiff must show the
arresting officers lacked probable cause to arrest him.92 “Probable cause exists when
the totality of the facts and circumstances within a police officer’s knowledge at the
moment of arrest are sufficient for a reasonable person to conclude that the suspect
had committed or was committing an offense.”93 This Court has held that probable
cause means a “fair probability” that a crime has been committed.94 According to the
88 Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citation omitted).
89 Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citation
omitted).
90 Pearson, 555 U.S. at 236, 129 S.Ct. at 818.
91 Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994).
92 Haggerty v. Texas Southern University, 391 F.3d 653, 655 (5th Cir. 2004).
93 Id. at 655-56 (quoting Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001) (internal quotation
marks omitted).
94 See Fillios v. Harahan Police Department, Civ. A. No. 19-45, 2019 WL 2009241 (E.D. La. May 7,
2019) (citing United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999)); Babin v. Par. Of Jefferson,
Civ. A. No. 16-2954, 2018 WL 794535, at *8 (E.D. La. Feb. 8, 2018) (citing Haggerty, 391 F.3d at 656
Fifth Circuit, Plaintiff must clear a significant hurdle to defeat Defendants’ assertion
of qualified immunity because, “[T]here must not even arguably be probable cause for
the . . . arrest for immunity to be lost.”95 Additionally, although “the requisite ‘fair
probability’ is something more than a bare suspicion, [it] need not reach the fifty
percent mark.”96
Here, Plaintiff was arrested for (1) aggravated battery against Hunter, in
violation of La. R.S. 14:34; (2) aggravated battery against J.E.T., in violation of La.
R.S. 14:34; (3) possession of a Schedule IV drug, in violation of La. R.S. 40:969; (4)
possession of legend drugs, in violation of La. R.S. 40:971(1)(H); and (5) illegal
possession of a firearm in violation of La. R.S. 14:95.97 The summary judgment briefs,
however, focus on Plaintiff’s arrest for aggravated battery against Hunter. As
Defendants point out,98 the Fifth Circuit has clarified that, “Claims for false arrest
focus on the validity of the arrest, not on the validity of each individual charge made
during the course of the arrest.”99 The Fifth Circuit has further explained that, “If
there was probable cause for any of the charges made . . . then the arrest was
supported by probable cause, and the claim for false arrest fails.”100 Accordingly, the
(noting that “fair probability” requires more than a bare suspicion but less than a preponderance of
evidence).
95 Haggerty, 391 F.3d at 656 (citation omitted).
96 Garcia, 179 F.3d at 269.
97 R. Doc. 17-2 at p. 3.
98 R. Doc. 17-1 at pp. 6-7.
99 Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (citing Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.
1995)).
100 Price, 256 F.3d at 369 (quoting Wells, 45 F.3d at 95) (internal quotation marks omitted) (emphasis
in original).
Court will focus on whether there was probable cause to arrest Plaintiff for
aggravated battery against Hunter.
Under Louisiana law, aggravated battery is defined as the intentional use of
force or violence upon the person of another with a dangerous weapon.101 Defendants
argue that they had probable cause to arrest Plaintiff for aggravated battery against
Plaintiff because Hunter gave an oral and written statement to the arresting officers
at the scene, stating that Plaintiff struck him twice in the leg and twice in the face
with a flashlight,102 J.E.T. gave an oral statement to the arresting officers at the
scene confirming that Plaintiff struck Hunter,103 and Plaintiff himself admitted to
officers at the scene that he struck Hunter in the leg.104 Defendants claim that it is
immaterial where Plaintiff struck Hunter, how many times he struck Hunter, or
whether the strike was justified, and that probable cause existed for the arrest
because Plaintiff admitted at the scene that he committed a battery on Hunter.105 In
contrast, Plaintiff claims that Hunter was the aggressor and that he struck Hunter
in self-defense. Plaintiff argues that if the Defendants had obtained a statement from
Plaintiff or any eyewitness at the scene of the altercation, no reasonably competent
101 La. R.S. 14:33; La. R.S. 14:34.
102 R. Doc. 17-2 at pp. 6, 10.
103 The Court notes that while Defendants assert that J.E.T. gave an oral statement to Officer
Barthelemy at the scene (R. Doc. 17-1 at p. 7; R. Doc. 30 at p. 3), neither Officer Barthelemy’s police
report nor Sgt. Bivona’s Affidavit, both attached to the Motion for Summary Judgment, mention that
the officers obtained a verbal statement from J.E.T. at the scene. See R. Doc. 17-2 at pp. 6-7; R. Doc.
17-3.
104 R. Doc. 30 at p. 3 (citing R. Doc. 17-2 at pp. 3-9; R. Doc. 17-3).
105 R. Doc. 30 at p. 3.
officer could have found probable cause to arrest Plaintiff for aggravated battery
against Hunter.106
As this Court previously explained, “A police officer faced with conflicting facts
and eyewitness testimony does not necessarily lack probable cause for arrest simply
because one party insists that her version of the facts is correct – even if that party
claims at the time that she acted in self-defense.”107 The Fifth Circuit has expressly
declined to address whether evidence of an affirmative defense, such as self-defense,
is relevant to a determination of probable cause.108 However, “District courts within
the Fifth Circuit, as well as other Circuits that have considered this issue have held
that an affirmative defense is relevant to the probable cause inquiry, but that an
official is under no duty to investigate a plaintiff’s claimed defense.”109 “In other
words, a police officer may not ignore conclusively established evidence of the
existence of an affirmative defense, but the officer has no duty to investigate the
validity of any defense.”110
Here, Plaintiff attempts to support his self-defense argument with a
Declaration of J.E.T., dated June 16, 2019, and submitted with Plaintiff’s opposition
106 R. Doc. 20 at pp. 7, 9-11.
107 McCoy v. Housing Auth. Of New Orleans, Civ. A. No. 15-398, 2016 WL 2992528, at *17 (E.D. La.
May 24, 2016).
108 Mabry v. Lee County, 100 F.Supp.3d 568, 573 (N.D. Miss. 2015) (citing Piazza v. Mayne 217 F.3d
239, 246-47 (5th Cir. 2000); United States v. Craig, 381 Fed.Appx. 459, 461 (5th Cir. 2010)); McCoy,
Civ. A. No. 15-398, 2016 WL 2992528, at *17 (citing Piazza, 217 F.3d at 246-47; Craig, 381 Fed.Appx.
at 461).
109 Mabry, 100 F.Supp.3d at 574 (citing Dressner v. Crowe, Civ. A. No. 13-81, 2013 WL 5236658, at *3
(E.D. La. Sept. 16, 2013; Thomas v City of Galveston, Tex, 800 F.Supp.2d 826, 835 (S.D Tex. 2011));
McCoy, Civ. A. No. 15-398, 2016 WL 2992528, at *17 (quoting Mabry, 100 F.Supp.3d at 574).
110 Mabry, 100 F.Supp.3d at 574 (quoting Thomas, 800 F.Supp.2d at 835) (internal quotation marks
omitted); McCoy, Civ. A. No. 15-398, 2016 WL 2992528, at *17 (quoting Thomas, 800 F.Supp.2d at
835).
brief to the Motion.111 In it, J.E.T. states that Hunter “angrily charged at Mr.
Thompson while screaming obscenities at Mr. Thompson, appearing as if he wanted
to fight him,” and that, “In response, Mr. Thompson then struck Hunter somewhere
on the leg, after which time they came at each other and grabbed each other’s
shirts.”112 Plaintiff, however, has not pointed the Court to any evidence showing that
J.E.T. gave similar statements to Sgt. Bivona or Officer Barthelemy at the scene of
the altercation regarding who initiated the altercation. While both parties assert that
J.E.T. spoke to officers on the scene,113 and Defendants have provided a police report
reflecting a statement from J.E.T. to a police officer concerning other allegations,
neither side has presented evidence to show what J.E.T. told the officers regarding
the altercation which led to Plaintiff’s arrest.114 Because Plaintiff has provided no
evidence from which the Court can ascertain that Sgt. Bivona and Officer Barthelemy
faced “conclusively established evidence” at the time of the arrest that Plaintiff had
an affirmative defense, the Court declines to find that the officers lacked probable
cause for arrest solely based on Plaintiff’s assertions that Hunter was the aggressor
and Plaintiff was merely trying to shield himself from Hunter’s attack.
Further, while Plaintiff disputes the written and oral statements given by
Hunter to Defendants, Plaintiff does not dispute that Hunter gave these statements
to the officers at the time of his arrest. Instead, Plaintiff argues that his own account
111 See R. Doc. 20-2.
112 Id. at p. 2.
113 See R. Doc. 20 at p. 7 (citing R. Doc. 20-2 at p. 2, ¶ 26); R. Doc. 17-1 at p. 7; R. Doc. 30 at p. 3 (citing
R. Doc. 17-2 at pp. 3-9; R. Doc. 17-3).
114 See R. Doc. 17-2 at pp. 3-9; R. Doc. 17-3; R. Doc. 20.
of what happened, as well as J.E.T.’s unsworn declaration after the fact, are sufficient
to create an issue of fact regarding whether Defendants had probable cause to arrest
Plaintiff. The Court finds, however, that it is immaterial to the probable cause
determination in this case whether Plaintiff was the aggressor or whether Plaintiff
actually committed the crimes for which he was arrested.115 The determinative issue
is whether the totality of facts and circumstances within the arresting officer’s
knowledge at the moment of arrest are sufficient to establish probable cause to
believe that a crime was committed and that Plaintiff committed the crime.116 The
Court notes that Plaintiff was granted leave to file a Supplemental Memorandum in
Opposition to Defendant’s Motion for Summary Judgment in which he drew the
Court’s attention to a recent Fifth Circuit decision, Cole v. Carson, 935 F.3d 455 (5th
Cir. 2019).117 The Court notes that, while the facts of that case vary greatly from
those in the matter before the Court, that decision confirms “We consider only what
the officers knew at the time of their challenged conduct. ‘Facts which an officer
learns after the incident ends—whether those facts would support granting immunity
or denying it—are not relevant.’”118
Here, it is undisputed that Plaintiff struck Hunter during the underlying
altercation and that that fact was communicated to the officers. Defendants assert
115 Cooper v. City of La Porte Police Dept., 608 Fed.Appx. 195, 200 (5th Cir. 2015); Shepack v. Tanner,
Civ. A. Nos. 96-2405, 96-2711, 1999 WL 280445, at *4 (E.D. La. May 4, 1999).
116 Cooper v. City of La Porte Police Dept., 608 Fed.Appx. 195, 200 (5th Cir. 2015) (quotation and
internal quotation marks omitted); Shepack v. Tanner, 1999 WL 280443 (E.D. La. May 4, 1999).
117 R. Doc. 56.
118 Cole v. Carson, 935 F.3d 455 (5th Circuit, 2019), citing Hernandez v. Mesa, ___U.S. ____, 137 S. ct. 2003, 2007
(2017). See also Brown v. Callahan, 623 F.3d 249, 253 “”An officer’s actions must be judged in light of the
circumstances that confronted him, without the benefit of hindsight.”
that Plaintiff told officers at the scene that he struck Hunter in the leg,119 and
Plaintiff readily admits that he struck Hunter twice in the leg with a flashlight.120
Thus, Hunter’s written and oral statements given to officers at the time of the arrest
are corroborated by Plaintiff’s own statements given at the scene. This Court has
previously held that a victim’s statement, corroborated by other witnesses, is
sufficient to support probable cause for an arrest.121 While Plaintiff has raised
disputes of fact regarding who was the aggressor in the underlying altercation, these
are not disputes of material fact that preclude summary judgment.122 The Court
finds that Hunter’s written and oral statements to Defendants at the time of the
arrest, stating that Plaintiff struck him in the leg with a flashlight, along with
Plaintiff’s confirmation that he struck Hunter twice in the leg with a flashlight, gave
Sgt. Bivona and Officer Barthelemy reasonable grounds to believe that Plaintiff
intentionally used force upon Hunter’s person with a dangerous weapon and provided
probable cause for Plaintiff’s arrest for aggravated battery. Accordingly, Sgt. Bivona
and Officer Barthelemy are both entitled to qualified immunity with regard to
Plaintiff’s § 1983 claim based on an alleged Fourth Amendment violation.
B. Plaintiff’s State Law Claims of False arrest, False Imprisonment,
and Defamation.
In addition to the 42 U.S.C. § 1983 claim asserted against Sgt. Bivona and
Officer Barthelemy, Plaintiff has alleged state law claims against Sgt. Bivona, Officer
119 R. Doc. 17-1 at pp. 2-3 (citing R. Doc. 17-2 at pp. 6); See R. Doc. 17-3 at p. 2, ¶ 11.
120 R. Doc. 20 at p. 4;
121 Shepack v. Tanner, Civ. A. Nos. 96-2405, 96-2711, 1999 WL 280445, at *4 (E.D. La. May 4, 1999).
122 Cooper v. City of La Porte Police Dept., 608 Fed.Appx. 195, 200 (5th Cir. 2015).
Barthelemy and the City of Hammond for false arrest, false imprisonment and
defamation.123 Although the Complaint asserts these state law claims against
“Defendants” generally, Plaintiff’s opposition brief clarifies that, “Plaintiff asserted
claims against Defendant City of Hammond (“Hammond”) for violations of
Louisiana law for (1) false arrest and false imprisonment . . . as the actions of their
agents Defendants Bivona and Barthelemy caused Plaintiff to be arrested without
probable cause; and (ii) defamation per se . . . .”124
A district court may decline to exercise supplemental jurisdiction over state
law claims if it has dismissed all claims over which it has original jurisdiction.125
Because the Court has dismissed the only federal law claims asserted in this case,
Plaintiff’s § 1983 claims against Sgt. Bivona and Officer Barthelemy, the Court
declines to exercise supplemental jurisdiction over Plaintiff’s state law causes of
action for false arrest, false imprisonment and defamation.
For the reasons stated above, the Court finds that Defendants are entitled to
summary judgment on Plaintiff’s 42 U.S.C. § 1983 claims against Sgt. Bivona and
Officer Barthelemy based upon an alleged Fourth Amendment violation, and the
claims are hereby dismissed with prejudice. Because no federal law claims remain,
the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law
claims.
123 R. Doc. 1 at ¶¶ 37-39.
124 R. Doc. 20 at p. 19.
125 28 U.S.C. § 1367(c)(3).
IV. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Defendants’ Motion
for Summary Judgment !26 is GRANTED. IT IS FURTHER ORDERED that
Plaintiff's 42 U.S.C. § 1983 claims against Sergeant Quinn Bivona and Officer Leo
Barthelemy, Jr. are DISMISSED WITH PREJUDICE and Plaintiffs state law
claims for false arrest, false imprisonment, and defamation are DISMISSED
WITHOUT PREJUDICE.
New Orleans, Louisiana, December 30, 2019.
Clerd i-25 Vitter
WENDY B./VITTER
United States District Judge
26 R, Doc. 17.