# Muthuswamy v. Liberto

> District Court, E.D. Louisiana · September 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10185958

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MURTHY MUTHUSWAMY CIVIL ACTION

VERSUS NO. 19-112-WBV-DPC

MICHAEL EMMETT LIBERTO, ET AL. SECTION ‘D’ (2)

ORDER

Before the Court is a Motion for Summary Judgment, filed by defendants,
Laura E. Aucoin, Ryan Alexander Carruth, Stephen Culotta and the City of
Covington,1 and a Motion for Summary Judgment filed by defendant, Michael
Liberto.2 Both motions are opposed,3 and Defendants have filed a joint Reply.4 After
careful consideration of the parties’ memoranda and the applicable law, both Motions
for Summary Judgment are GRANTED.
I. FACTUAL BACKGROUND
This is an excessive force case. Murthy Muthuswamy (“Plaintiff”) alleges that
on January 7, 2018, he was near a Rock-N-Blues Café in Covington, Louisiana
attempting to retrieve personal items he had left inside of the establishment when he
was approached by City of Covington Police Officers Laura E. Aucoin and Michael
Emmett Liberto.5 Plaintiff claims that he was briefly questioned before being placed

1 R. Doc. 31.
2 R. Doc. 32.
3 R. Doc. 38.
4 R. Doc. 41.
5 R. Doc. 1 at p. 2.
in an “armbar hold” and thrown to the ground by the officers.6 Plaintiff asserts that
Officer Liberto repeatedly slammed his head into the pavement, causing severe
injuries.7 Upon information and belief, Plaintiff alleges that Officer Ryan Carruth

had also arrived at the scene, and was within visual distance of the attack. Plaintiff
alleges that Officer Liberto then escorted him to his patrol car to transport Plaintiff
to the Covington Police Department. Plaintiff claims that, in “his severely concussed
state” he fell to the ground and hit his head outside of the patrol vehicle.8 Plaintiff
claims that he suffered serious and permanent injuries as a result of the officers’
actions, including damage to his optic nerve and permanent vision loss.
On January 7, 2019, Plaintiff filed a Complaint in this Court, asserting a 42

U.S.C. § 1983 claim against Officer Liberto, Officer Aucoin, Officer Carruth, Chief of
Police Stephen Culotta and the City of Covington (collectively, “Defendants”), based
upon excessive force and unreasonable seizure in violation of his Fourth Amendment
rights.9 Plaintiff asserts that Defendants’ use of force was “objectively unreasonable,
excessive and conscience shocking.”10 He further claims that Chief of Police Culotta
is liable for his injuries due to improperly hiring, training, and supervising his

employees.11 Plaintiff alleges that the City of Covington is liable under respondeat
superior for the actions of the officers during the course and scope of their
employment as police officers for the City of Covington. Each defendant timely

6 Id. at p. 3.
7 Id.
8 Id.
9 R. Doc. 1.
10 Id. at p. 4.
11 Id. at p. 5.
answered and filed affirmative defenses asserting, among other things, qualified
immunity.12
Thereafter, Defendants filed motions to limit discovery to the issue of qualified

immunity,13 which Plaintiff opposed.14 The United States Magistrate Judge
ultimately granted the motions and issued a Qualified Immunity Scheduling Order.15
Pursuant to that Scheduling Order, Plaintiff was ordered to file a Federal Rule of
Civil Procedure Rule 7(a) Reply “specifically tailored to defendants’ assertion of
qualified immunity and allegations in support of this defense.”16
On June 11, 2019, Plaintiff filed a Rule 7(a) Reply, providing additional details
of what transpired on the evening of January 7, 2018.17 Plaintiff asserts that, on the

night in question, he was attempting to re-enter the Rock-N-Blues Café to retrieve
personal items he had left earlier, but that he was refused re-entry. Upon being
refused re-entry, Plaintiff claims that he became upset and flipped over a table.18
Plaintiff asserts that police were called to the scene, and that Officers Aucoin and
Liberto responded to the call. Plaintiff alleges that the police reports indicate that he
allegedly “jerked” his arm away from Officer Liberto’s grip, then “used his left hand

to push Officer Liberto’s right shoulder, causing Officer Liberto to lose balance” as
Plaintiff was being escorted away from the establishment.19 Plaintiff claims it was

12 R. Docs. 5, 6, & 8.
13 R. Docs. 7 & 9.
14 R. Doc. 11.
15 R. Docs. 23 & 24.
16 R. Doc. 24 at p. 4.
17 R. Doc. 27.
18 Id. at p. 2.
19 Id.
at this point that Officers Aucoin and Liberto participated in the “take down” of
Plaintiff, using an “armbar” takedown to get Plaintiff on the ground.20 Plaintiff
asserts that Officer Liberto repeatedly slammed his head into the pavement while he

was on the ground and the officers were trying to handcuff him. Plaintiff believes
that Officer Carruth had arrived at the scene at some point, and that Officers Carruth
and Aucoin witnessed this encounter.21 Upon escorting Plaintiff to the police car,
Plaintiff alleges that Officer Liberto again threw him to the ground, which is when
the officers noticed that he was unconscious.22 Plaintiff claims that, while he was
unconscious, Officer Liberto drove him to the Covington Police Department, where
he was then transported to St. Tammany Parish Hospital Emergency Room and

treated for his injuries.23 Plaintiff alleges that he was subsequently arrested for
violating La. R.S. 14:103, Disturbing the Peace, La. R.S. 14:108, Resisting an Officer,
and La. R.S. 14:34.2, Battery of a Police Officer.24 Plaintiff asserts that he pled guilty
to violating La. R.S. 14:108, Resisting an Officer, in November 2018.25
Plaintiff further argues in his Rule 7(a) Reply that Defendants are not entitled
to qualified immunity because the officers’ actions were objectively unreasonable.26

Plaintiff asserts that the force used by Defendants was excessive, as Plaintiff was
unarmed and nonthreatening during the entire evening and encounter.27 Plaintiff

20 Id.
21 Id.
22 Id. at p. 3.
23 Id.
24 Id.
25 Id.
26 Id. at pp. 5-6.
27 Id. at pp. 3 & 5.
argues that he posed no threat to the officers and that the force used was clearly
excessive and disproportionate to the need.28
On November 19, 2019, Defendants filed two Motions for Summary Judgment,

asserting that Plaintiff’s claims must be dismissed pursuant to Heck v. Humphrey,
512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).29 Defendants argue that
Plaintiff’s § 1983 claim of excessive force necessarily implies the invalidity of
Plaintiff’s conviction for violating La. R.S. 14:108, Resisting an Officer, which has not
been set aside. Defendants point to Plaintiff’s deposition testimony, wherein Plaintiff
testified that he did not believe he posed a threat to the officers and that he only pled
guilty to resisting an officer on the advice of his attorney to expedite resolution of the

criminal charges.30 Noting that Plaintiff pled guilty pursuant to Louisiana Code of
Criminal Procedure Article 894, Defendants assert that the deferred imposition of a
sentence under Article 894 does not impact the application of Heck.31 Defendants
claim that Plaintiff denied resisting the officers numerous times during his
deposition, and testified that he was compliant.32 Defendants contend that Plaintiff
specifically denied jerking his arm away from, and pushing, Officer Liberto.33

Defendants also argue that they are entitled to qualified immunity.
Defendants assert that Plaintiff bears the burden of establishing that the officers
violated a constitutional right that was clearly established at the time of its violation.

28 Id. at p. 6.
29 R. Docs. 31, 32.
30 R. Doc. 31-1 at p. 8 (citing R. Doc. 31-4).
31 R. Doc. 31-1 at p. 8.
32 Id.
33 Id.
Defendants argue that Plaintiff has failed to make any showing to satisfy this burden.
Defendants contend that an official’s conduct violates clearly established law when,
at the time of the challenged conduct, it is sufficiently clear that every reasonable

official would have understood that what the official was doing violated that right.34
Under such an analysis, Defendants argue that Plaintiff cannot establish that the
defendant-officers violated a clearly established right, as they were using reasonable
force to subdue what they perceived to be an intoxicated and combative individual.
Plaintiff opposes the Motions, asserting that Heck does not bar his excessive
force claim because the claim would not undermine his guilty plea to resisting
arrest.35 Looking at the nature of the offense and of the claim, Plaintiff emphasizes

the extent of damages he sustained as a result of Defendants’ actions. Plaintiff argues
that both the use of force and the alleged justification for the use of force are genuine
disputes of material fact and, therefore, his claims not barred under Heck.36
Alternatively, should the Court agree with Defendants’ application of Heck, Plaintiff
argues the Court should maintain his § 1983 claim concerning the use of excessive
force during his arrest for disturbing the peace and battery of a police officer, two

charges that were subsequently nolle prossed by the District Attorney.37 In addition,
Plaintiff asserts that the officers should not be entitled to qualified immunity because
a material issue of fact remains in dispute regarding its application in this case.
Plaintiff points to the Affidavits of Officers Liberto and Aucoin, noting that Officer

34 R. Doc. 31-1.
35 R. Doc. 38.
36 Id.
37 Id.
Liberto’s Affidavit states that, “Aucoin and Carruth proceeded to gain control of Mr.
Muthuswamy while on the ground and placed handcuffs on Mr. Muthuswamy.”38 In
contrast, Officer Aucoin’s Affidavit states that, “Plaintiff attempted to push himself

off the ground while Officer Liberto and I were instructing him to remain on the
ground and to place his hands on his back as he was under arrest and we were trying
to handcuff him.”39 Plaintiff claims those two statements show that Defendants are
not in agreement as to which officers were involved at key points in restraining and
arresting him and, thus, raise a genuine issue of material fact.40
In their joint Reply brief, Defendants point out that much of Plaintiff’s
Opposition brief is unsupported by reference to any evidence in the record and,

therefore, Plaintiff has not demonstrated a genuine issue of material fact for trial.41
Defendants respond that Plaintiff’s argument that he was arrested for other charges
that were subsequently nolle prossed by the District Attorney is of no moment when,
as here, Plaintiff pled guilty to resisting arrest.42 Defendants argue that Plaintiff has
failed to provide any evidence that the force used by the officers was unreasonable or
excessive in light of the facts established by the record. Those facts include that

Plaintiff was observed flipping a patio table over after being refused re-entry to the
establishment, was in an intoxicated condition, became combative, and repeatedly

38 Id.
39 Id.
40 The Court notes that Plaintiff’s “Statement of Genuine Issues of Material Fact,” as required by Local
Rule 56.2, is a verbatim regurgitation of the first three pages of Plaintiff’s Rule 7(a) Reply (R. Doc. 27),
and not a separate and concise statement of the material facts which he contends present a genuine
issue.
41 R. Doc. 41.
42 Id. at p. 3 (citing Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995)).
resisted arrest.43 Defendants re-assert that allowing Plaintiff to proceed with an
excessive force claim would impugn Plaintiff’s conviction for resisting an officer.44
Finally, Defendants argue that Plaintiff has failed to establish that Defendants

violated one of his constitutional rights and that the constitutional right was clearly
established at the time of the alleged violation.45 Defendants assert that Plaintiff’s
arguments regarding their use of excessive or unreasonable force fail to address the
officers’ specific conduct in the context of the facts established in this case, which is
required by law.46
II. LEGAL STANDARD
A. Summary Judgment Standard.

Summary judgment is appropriate under Federal Rule of Civil Procedure 56
where there is no genuine dispute as to any material fact, and the moving party is
entitled to judgment as a matter of law.47 A party moving for summary judgment
must inform the Court of the basis for the motion and identify those portions of the
pleadings, depositions, answers to interrogatories and admissions on file, together
with affidavits, if any, that show that there is no such genuine issue of material fact.48

If the moving party carries its burden of proof under Rule 56, the opposing party must
direct the Court’s attention to specific evidence in the record which demonstrates that
“the evidence is such that a reasonable jury could return a verdict for the non-moving

43 Id.
44 Id.
45 Id.
46 Id.
47 Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).
48 Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
party.”49 This burden is not satisfied by some metaphysical doubt as to alleged
material facts, by unsworn and unsubstantiated assertions, by conclusory
allegations, or by a mere scintilla of evidence.50 Nor is the mere existence of some

alleged factual dispute between the parties sufficient to defeat an otherwise properly
supported motion for summary judgment.51 Rather, Rule 56 mandates that summary
judgment shall be entered against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case and on which that
party will bear the burden of proof at trial.52 In resolving a motion for summary
judgment, the Court must review the facts and inferences in the light most favorable
to the non-moving party, and the Court may not evaluate the credibility of witnesses,

weigh the evidence, or resolve factual disputes.53
B. The Applicability of Heck v. Humphrey.
Title 42 U.S.C. § 1983 provides that:
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,

49 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
50 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
51 Anderson, 477 U.S. 242, 106 S.Ct. 2505.
52 Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
53 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.54

Section 1983 provides a remedy for the violation of federal constitutional or statutory
rights under color of state law; it does not create any substantive rights.55 “An
underlying constitutional or statutory violation is a predicate to liability under §
1983.”56 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.57
In Heck v. Humphrey, an inmate brought a § 1983 action against county
prosecutors and a state police investigator alleging that his conviction for voluntary
manslaughter violated his constitutional rights because it was based on an unlawful
investigation, an illegal identification procedure, and the unlawful destruction of

evidence.58 The question before the Supreme Court was whether a state prisoner
may challenge the constitutionality of his conviction in a suit for damages under 42
U.S.C. § 1983.59 The Supreme Court held that, in order to recover damages for an
allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct

54 42 U.S.C. § 1983.
55 Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quotation omitted);
Hernandez ex rel. Hernandez v. Texas Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 879-80
(5th Cir. 2004) (citation omitted).
56 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).
57 Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).
58 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
59 512 U.S. at 478, 114 S.Ct. at 2368.
appeal, expunged by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.60 The Supreme Court instructed that, “[W]hen a state prisoner

seeks damages in a § 1983 suit, the district court must consider whether a judgment
in favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence.”61 If it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.62
However, if the district court determines that the § 1983 claim, even if successful,
will not demonstrate the invalidity of any outstanding criminal judgment against the
plaintiff, the Supreme Court held that the action should be allowed to proceed, in the

absence of some other bar to the suit.63
In Arnold v. Town of Slaughter, the United States Court of Appeals for the
Fifth Circuit held that Heck does not act as a bar to all excessive force claims.64 The
Fifth Circuit explained that, “By proving an excessive force claim, a plaintiff will not
invariably invalidate his conviction.”65 According to the Fifth Circuit, whether Heck
bars a plaintiff from bringing a § 1983 claim “depends on the nature of the offense

and of the claim.”66

60 512 U.S. at 486-87, 114 S.Ct. at 2372 (citations omitted).
61 512 U.S. at 487; 114 S.Ct. at 2372.
62 Id.
63 512 U.S. at 487, 114 S.Ct. at 2372-73 (citations omitted).
64 100 Fed.Appx. 321, 323 (5th Cir. 2004).
65 Id. (citing Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996)).
66 100 Fed.Appx. at 323 (citing Hudson, 98 F.3d at 873).
C. Burden of Proof for Municipal Liability.
Governmental entities “are not vicariously liable for the actions of their
employees under § 1983.”67 To determine whether municipal liability attaches, the

Court looks to whether unconstitutional conduct is directly attributable to the
municipality through some official custom or policy, as “isolated unconstitutional
actions by municipal employees will almost never trigger liability.”68 Plaintiff must
therefore prove, “(1) an official policy or custom of which (2) a policymaker can be
charged with actual or constructive knowledge, and (3) a constitutional violation
whose ‘moving force’ is that policy or custom.’”69 Actions of officers of a municipality
do not render the municipality liable under § 1983 unless they execute official

policy.70 Moreover, where, as here, “the alleged policy is one of inadequate police
training, the plaintiff can only satisfy the first element of municipal liability if the
failure to train satisfies the ‘deliberate indifference’ standard that applies to
supervisor liability.”71
D. Qualified Immunity and 42 U.S.C. § 1983 Claims.
Government officials may invoke qualified immunity as a defense to § 1983

claims, 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

67 Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978).
68 Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
69 Pineda v. City of Houston, 291 F. 3d 325 (5th Cir. 2002).
70 Id.
71 Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996).
have known.”72 The Supreme Court has made clear that qualified immunity
functions as an immunity from suit, rather than a mere defense to liability.73 “[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.’”74
“This means that even law enforcement officials who reasonably but mistakenly
commit a constitutional violation are entitled to immunity.”75 Qualified immunity
balances two important interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.”76
Once the government official asserts the defense of qualified immunity, the

burden shifts to the plaintiff to negate the defense.77 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.78 It is up to the district court’s sound discretion to decide which

72 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)).
73 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).
74 Brumfield v. Hollins, 551 F.3d 322, 326-27 (5th Cir. 2008) (quoting Mendenhall v. Riser, 213 F.3d
226, 230 (5th Cir. 2000)).
75 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).
76 Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808.
77 Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citation omitted).
78 Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citation
omitted).
of the two prongs of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.79
III. ANALYSIS

A. Plaintiff’s § 1983 claim is barred by Heck v. Humphrey.
In their Motions for Summary Judgment, Defendants argue that Plaintiff’s §
1983 claim is barred by Heck v. Humphrey.80 As previously discussed, the Supreme
Court in Heck held that when a plaintiff seeks damages under § 1983, “the district
court must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has

already been invalidated.”81 The Fifth Circuit has further instructed that, “Heck’s bar
extends to convictions obtained through guilty pleas.”82
Here, Plaintiff was charged with, and pled guilty to, violating La. R.S. 14:108,
Resisting an Officer. That statute provides, in pertinent part:
A. Resisting an officer is the intentional interference with, opposition or
resistance to, or obstruction of an individual acting in his official
capacity and authorized by law to make a lawful arrest, lawful
detention, or seizure of property or to serve any lawful process or
court order when the offender knows or has reason to know that the
person arresting, detaining, seizing property, or serving process is
acting in his official capacity.

B. (1) The phrase “obstruction of” as used herein shall, in addition to its
common meaning, signification, and connotation mean the following:
(a) Flight by one sought to be arrested before the arresting officer
can restrain him and after notice is given that he is under arrest.

79 Pearson, 555 U.S. at 236, 129 S.Ct. at 818.
80 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
81 512 U.S. at 486-87, 114 S.Ct. at 2372.
82Thomas v. Pohlmann, 681 Fed.Appx. 401, 406 (5th Cir. 2017) (citation omitted).
(b) Any violence toward or any resistance or opposition to the
arresting officer after the arrested party is actually placed under
arrest and before he is incarcerated in jail.83

Plaintiff correctly points out, and Defendants acknowledge, that Heck does not act as
a bar to all excessive force claims. Whether Heck bars a § 1983 claim “depends on the
nature of the offense and of the claim.”84 As such, it entails a fact-specific inquiry.
Defendants contend that Plaintiff’s allegations and deposition testimony
challenge the factual basis of the crime of resisting arrest, and that success on these
claims would necessarily impugn his conviction for resisting arrest. Specifically,
Defendants point to Plaintiff’s testimony where he denied resisting the officers and
testified that he believed he was compliant.85 They further highlight Plaintiff’s
testimony that he did not jerk his arm away from one officer, nor attempt to push an
officer. Plaintiff further testified that he was not struggling with the officers. As
such, Defendants argue that success on Plaintiff’s excessive force claims would
necessarily undermine his guilty plea to resisting an officer. The Court agrees.
Reviewing the facts in evidence in this case, Defendants contend that Plaintiff
resisted arrest by being combative, pushing an officer, and refusing to comply with

the officers’ commands while they attempted to handcuff him.86 Officers Aucoin and
Liberto provided Affidavits stating that they were on patrol in the area of Rock-N-
Blues Café at approximately 2:00 a.m. on January 7, 2018, when they encountered
Plaintiff, who had been refused re-entry into the establishment. The officers observed

83 La. R.S. 14:108.
84 Arnold v. Town of Slaughter, 100 Fed.Appx. 321, 323 (5th Cir. 2004).
85 R. Doc. 31-1.
86 R. Doc. 31-5, Affidavit of Officer Laura Aucoin; R. Doc. 32-3, Affidavit of Officer Michael Liberto.
Plaintiff trying to flip over a piece of furniture.87 When the officers approached and
attempted to engage Plaintiff in conversation, they noticed that his breath smelled of
alcohol and he was slurring his speech and swaying.88 As the officers attempted to

escort Plaintiff from the area, Plaintiff jerked his arm away from the officers, cursed
the officers, and pushed one of the officers.89 As a result, the officers utilized an
“armbar takedown” of Plaintiff to put him on the ground.90
The evidence further shows that Plaintiff continued to resist the officers while
on the ground by attempting to push himself up off of the ground and refusing to
place his arms behind his back.91 The officers eventually were able to handcuff
Plaintiff and led him to the patrol car. Officer Liberto stated that he placed Plaintiff

against the patrol car to perform a pat down when Plaintiff began to use his body to
push away from the patrol car and threw his head back in an attempt to head butt
the officer.92 Officer Liberto again took Plaintiff to the ground, where it appeared
that Plaintiff lost consciousness.93 Plaintiff was taken to the Covington Police Station
where, he was examined by medical personnel and subsequently transported to the
hospital.

During his deposition, Plaintiff was questioned regarding the events of that
night. He testified that he had been with friends at a parade since earlier in the
evening, and that they subsequently went to several bars together. Plaintiff

87 R. Doc. 31-5 at ¶ 5; R. Doc. 32-3 at ¶ 8.
88 R. Doc. 31-5 at ¶ 7; R. Doc. 32-3 at ¶ 9.
89 R. Doc. 31-5 at ¶ 8; R. Doc. 32-3 at ¶ 11.
90 R. Doc. 31-5 at ¶ 8. R. Doc. 32-3 at ¶ 12.
91 R. Doc. 31-5 at ¶ 8; R. Doc. 32-3 at ¶ 12.
92 R. Doc. 32-3 at ¶ 14.
93 Id.
estimated that he had consumed approximately four drinks that evening.94 At some
point later in the evening, Plaintiff’s friends went home. Plaintiff remained at the
bar until around 2:00 a.m., when the bar closed.

Plaintiff recalls returning and attempting to enter Rock-n-Blues to retrieve his
glasses, which he believed he had left in the establishment, and being denied re-entry.
He recalls the officers approaching him, and he believes they may have tried to walk
him away from the establishment.95 Plaintiff denied jerking his arm away from the
officers.96 He further denied pushing the officers as they attempted to move him.97
Plaintiff testified that he was forced “fairly violently” to the ground, and when he
turned his head to ask a question, his head was forced into the concrete very violently,

causing injuries.98 Plaintiff also stated that he was not struggling with the officers
when they attempted to handcuff him, and that he was being as compliant as
possible.99 Plaintiff admitted that he lifted his head and shoulders up when he was
on the ground and tried to ask the officers why he was being arrested.100 He further
acknowledged that he cannot recall the events that occurred at the patrol car, which
he attributes to having sustained a concussion, but stated that he did not believe he

was struggling with the officer.101 In his Complaint Plaintiff alleges that “After
briefly questioning him, Officer Liberto placed Dr. Muthuswamy in an arm-bar hold

94 R. Doc. 31-4 at p. 10.
95 Id at p. 13.
96 Id.
97 Id.
98 R. Doc. 32-4 at p. 9.
99 Id. at 14.
100 Id. at pp. 15-16.
101 Id.
and threw him to the ground. After getting Dr. Muthuswamy to the ground, Officer
Liberto repeatedly slammed Dr. Muthuswamy’s head into the pavement, causing
severe injuries.”102 On November 27, 2018, Plaintiff pled guilty under La. Code Crim.

P. art. 894 to violating La. R.S. 14:108, Resisting an Officer, and was placed on
unsupervised probation for a term of six months and ordered to pay a $50 fine.103
The Court finds that Plaintiff voluntarily pled guilty to resisting an officer, but
now claims that he did so on the advice of his attorney to resolve the criminal charges.
Viewing the evidence in a light most favorable to Plaintiff, the non-mover in this
matter, the Court finds that the evidence supports Defendants’ position that success
on Plaintiff’s § 1983 excessive force claim would undermine his guilty plea for

resisting arrest. Plaintiff contends both in his Complaint and in his deposition
testimony that he did nothing wrong before being thrown to the ground by the officers
and incurring significant injuries. Plaintiff testified that he did not pull away from
the officer, nor attempt to push an officer, nor do anything to incur what he claims
was excessive force used in his takedown. His claims are not that the officers used
excessive force to address his resistance; instead, he insists that he did not perform

any action which prompted the use of force. The Court, therefore, finds that success
on his § 1983 claim would challenge the validity of his conviction for violating La.
R.S. 14:108, Resisting an Officer. Accordingly, Plaintiff’s claims are barred by Heck
v. Humphrey.

102 R. Doc. 1.
103 R. Doc. 32-6.
B. Plaintiff has Not Established Liability Regarding the Municipal
Defendants, the City of Covington and the Covington Chief of Police
Sued in his Official Capacity.
In his Complaint, Plaintiff alleges the following:
[A] proximate cause of the above-described injuries sustained by Dr.
Muthuswamy was the negligence and/or fault of Culotta, in his official
capacity as the Chief of Police of the City of Covington, including, but
not limited to improperly hiring, training, and supervising his
employees, failing to act with the required degree of care commensurate
with the above described situation, and other acts of negligence and/or
fault to be shown more fully at trial of this case.
At all times pertinent hereto, Defendants Officers Liberto,
Aucoin, and Carruth were employees acting in the course and scope of
their employment with Defendants Covington and Culotta, in his official
capacity as the Chief of Police of the City of Covington, liable for the
wrongful acts of his employees, defendants Officers Liberto, Aucoin,
and/or Carruth.104
As noted by the Supreme Court, “a suit against a governmental officer ‘in his official
capacity’ is the same as a suit against [the] entity of which the officer is an agent.”105
The initial inquiry before the Court is whether the Plaintiff has established
any official custom or policy in place by the Covington Police Department or the City
of Covington. Plaintiff provides no support for the allegations in his Complaint
regarding improper training and does not address his claims against the Chief of
Police or the City of Covington in his Rule 7(a) Reply at all.106 Plaintiff has not
provided any facts whatsoever to support his claims against the Chief of Police or the
City of Covington, much less facts sufficient to support his claims. Plaintiff’s
Complaint and subsequent Rule 7(a) Reply are entirely silent regarding any policies
104 R. Doc. 1 at p. 5.
105 McMillian v. Monroe Cty., 520 U.S. 781, 785 n.2, 117 S.Ct. 1734, 1737, 138 L.Ed.2d 1 (quoting
Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)).
106 R. Doc. 27.
or customs. They are also silent regarding any negligence in hiring, training, or
supervising. The sparse statements in Plaintiff's Complaint alleging improper hiring,
training, and supervising, are nothing more than legal conclusions masked as facts.
The Court finds that Plaintiff has failed to raise a genuine issue of material fact as to
inadequate hiring, training, or supervising the officers.!°7 Therefore, Plaintiff's claims
against the Chief of Police and the City of Covington fail.
Having found that Plaintiff's claims are barred by Heck v. Humphrey and that
Plaintiff's claims against the City and the Chief of Police fail, the Court need not
reach the issue of qualified immunity.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the Motion For
Summary Judgment filed by Laura Aucoin, Ryan Carruth, Stephen Culotta and the
City of Covington! and the Motion For Summary Judgment filed by Michael
Liberto!%are both GRANTED and all of Plaintiff's claims are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana this September 29, 2020.

WENDY B. VITTER
United States District Judge
107 Plaintiff's sole contention of material fact in his opposition is that Officer Liberto’s Affidavit states
that, “Officers Aucoin and Carruth proceeded to gain control of Mr. Muthuswamy while on the ground
and placed handcuffs on” him, while the Affidavit of Officer Aucoin states, “Officer Liberto and I were
instructing him [Plaintiff] to remain on the ground and to place his hands on his back as he was under
arrest and we were trying to handcuff him.” The Court does not find those statements to be genuine
issues of material fact.
108 R, Doc. 31.
109 R, Doc, 32.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185958. Public record. Not legal advice.