Rogers v. Jefferson Parish Sheriff's Office

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NATHANIEL ROGERS CIVIL ACTION

VERSUS NO. 18-11164

JEFFERSON PARISH SHERIFF’S SECTION “R” (1)

OFFICE, ET AL.

ORDER AND REASONS

Before the Court is a motion to dismiss, or in the alternative, motion

for summary judgment, filed by defendants Sheriff Joseph Lopinto, III, and

Deputies Joseph Gasquet, Marcus Bergeron, John Wiebelt, and Justin

Brister.1 Plaintiff opposes this motion.2 For the following reasons, the Court

grants in part and denies in part defendants’ motion.

I. BACKGROUND

This case arises out of an arrest that occurred on the afternoon of

November 25, 2017. Defendants Wiebelt and Brister, officers with the

Jefferson Parish Sheriff’s Office (“JPSO”), were conducting surveillance on a

home in Marrero, Louisiana, where they had established that Nathaniel

1 R. Doc. 49.

2 R. Doc. 57.

Rogers’s car was parked.3 The officers had an arrest warrant for plaintiff

based on charges that he was a felon in possession of a firearm, and for

possession of a firearm with an obliterated serial number.4 Once Wiebelt

observed plaintiff depart the house in his vehicle, he requested fully-marked

JPSO patrol cars to assist in conducting a traffic stop and effectuating the

arrest warrant on Rogers.5 JPSO sent two marked vehicles to assist, one

driven by Jeffery Verdin, and one by defendant Marcus Bergeron with

defendant Joseph Gasquest as a passenger.6 The marked JPSO patrol

vehicles proceeded to follow plaintiff’s vehicle while activating their

emergency lights and sirens.7 Plaintiff then accelerated his vehicle in an

attempt to flee.8 Officers were able to complete a box-in maneuver around

plaintiff’s vehicle, bringing it to a stop.9

The parties dispute what happened next. Plaintiff asserts that, once

the officers pulled him over, he did not resist arrest or further attempt to

flee.10 He alleges that defendants pulled him out of his vehicle, and then

3 R. Doc. 49-1 at 2-3.

4 R. Doc. 49-4 at 7 (Exhibit 1).

5 R. Doc. 49-1 at 3.

6 Id.

7 Id.

8 Id.

9 Id. at 3.

10 R. Doc. 1 ¶ 10; R. Doc. 57 at 1-2.

“began beating [him] while he was handcuffed and on the ground in the

prone position.”11 Defendants represent that Brister, Bergeron, and Gasquet

had to “forcefully remove Rogers from his vehicle,” and that a “struggle

continued outside [the vehicle], due to Rogers’s violent resistance.”12

Defendants also represent that, during this physical struggle with Rogers, the

officers performed “counterstrikes” to “overcome Rogers[’s] violent

resistance.”13 Both parties agree that emergency medical services were called

to the scene to treat plaintiff’s injuries that resulted from his encounter with

defendants, and that Rogers was eventually transported to the University

Medical Center for treatment.14 After his release from the hospital, Brister

and Wiebelt transported plaintiff to the Jefferson Parish Correctional Center,

where he was booked on the following charges: resisting an officer, felon

carrying an illegal weapon, possession of an obliterated serial number, and

aggravated flight from an officer.15

On January 31, 2018, the District Attorney’s Office for the Parish of

Jefferson filed a bill of information charging Rogers with two counts. Count

one charged Rogers with violating Louisiana Revised Statute § 14:108.1(C)

11 R. Doc. 57 at 1.

12 R. Doc. 49-1 at 3.

13 Id. at 4.

14 Id.; R. Doc. 1 ¶ 13.

15 R. Doc. 49-4 at 2, 8 (Exhibit 1).

for “intentionally refus[ing] to bring a vehicle to a stop, under circumstances

wherein human life was endangered, knowing he had been given a visual and

audible signal to stop.”16 Count two charged him with violating Louisiana

Revised Statute § 14:108.2 for “resist[ing] a police officer . . . with the use of

violence or threats of violence.”17

On November 21, 2018, Rogers filed a complaint in this Court.18

Rogers alleges that the arresting officers used excessive force and unlawfully

arrested him under color of state law, in violation of 42 U.S.C. § 1983.19

Rogers also claims that the arresting officers assaulted, battered, and falsely

arrested him, in violation of Louisiana state law.20 Plaintiff also brings a

section 1983 claim against Sheriff Lopinton in his personal and official

capacity for failure to property train and supervise the arresting officers, and

for permitting a custom of excessive force in the department.21

On May 24, 2021, plaintiff pleaded guilty in state court to count one,

pursuant to an amended bill of information.22 In the amended bill of

information, count two was nolle prosequi. Count one was amended as a

16 R. Doc. 49-5 at 2 (Exhibit 2).

17 Id.

18 R. Doc. 1.

19 Id. ¶¶ 15-21.

20 Id. ¶¶ 21-24.

21 Id. ¶¶ 18-21.

22 R. Doc. 49-6 at 1 (Exhibit 3).

violation of section 14:108, and the language “under circumstances wherein

human life was endangered” was omitted.23

Following plaintiff’s guilty plea, defendants filed a motion to dismiss,

or in the alternative, a motion for summary judgment, contending that

plaintiff’s claims are barred by the Supreme Court’s decision in Heck v.

Humphrey, or, in the alternative, that defendants are entitled to qualified

immunity.24 Defendants attached to their motion the following: (1) a crime

report from the Jefferson Parish Sheriff’s Office detailing plaintiff’s arrest;25

(2) plaintiff’s original and amended bill of information filed by the District

Attorney’s Office for Jefferson Parish;26 (3) plaintiff’s fingerprints taken by

the deputy sheriff;27 and (4) plaintiff’s guilty plea.28 Plaintiff opposes the

motion, attaching these same documents to his opposition, which he asserts

create an issue of material fact as to whether his claims are barred by Heck,

and whether the arresting officers are entitled to qualified immunity.29

In considering a motion to dismiss, a court typically must limit itself to

the pleadings and their attachments. Collins v. Morgan Stanley Dean

23 R. Doc. 49-5 at 1 (Exhibit 2).

24 R. Doc. 49.

25 R. Doc. 49-4 (Exhibit 1).

26 R. Doc. 49-5 at 1-2 (Exhibit 2).

27 Id. at 3-4.

28 R. Doc. 49-6 (Exhibit 3).

29 R. Doc. 57.

Witter, 224 F.3d 496, 498 (5th Cir. 2000). “If, on a motion under 12(b)(6)

or 12(c), matters outside the pleadings are presented to and not excluded by

the court, the motion must be treated as one for summary judgment under

Rule 56.” Fed. R. Civ. P. 12(d). But a court may also consider documents

attached to a motion to dismiss without converting it to a summary judgment

motion if the documents are referred to in the complaint and are central to

the plaintiff’s claim. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d

285, 288 (5th Cir. 2004) (citation omitted). Because defendants have

submitted materials outside the pleadings that were not explicitly referred to

in plaintiff’s complaint, the Court will treat defendants’ motion as one for

summary judgment. The Court informed the parties in Orders dated

December 17, 2021 and January 3, 2022, of its decision to take up the motion

on summary judgment, and provided both parties with an opportunity to file

responses.30

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

30 R. Docs. 56 & 59.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence

which would ‘entitle it to a directed verdict if the evidence went

uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,

951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a

genuine dispute of material fact,” or by “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to

return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

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.’” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION

A. Federal Claims Under Section 1983 Against Brister,

Bergeron, Gasquet, and Weibelt

Title 42, United States Code, section 1983 provides a cause of action

for plaintiffs whose federal rights are violated under the color of state law.

42 U.S.C. § 1983; Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir.

1998). To state a claim under section 1983, a plaintiff must first show a

violation of the Constitution or of federal law, and then show that the

violation was committed by someone acting “under color of state law.” Id.

Plaintiff brings his section 1983 claims against deputies Brister,

Bergeron, Gasquet, and Weibelt (the “arresting officers”) for using excessive

force while arresting him, and for arresting him without probable cause, in

violation of his Fourth Amendment rights.31 Defendants initially argued that

both of plaintiff’s section 1983 claims are barred under the Supreme Court’s

decision in Heck v. Humphrey, 512 U.S. 477 (1994), because a ruling in favor

of the plaintiff would imply the invalidity of his state-court conviction.32

Defendants also argued that, to the extent plaintiff’s section 1983 claims

31 R. Doc. 1 ¶ 16.

32 R. Doc. 49 at 8-12.

against the arresting officers are not barred by Heck, they should be

dismissed on grounds of qualified immunity.33

In their reply memorandum, defendants assert that plaintiff’s

excessive force claim “does not appear to be Heck barred per se,” despite

contending elsewhere in their brief that “Plaintiff’s state claims . . . [are]

barred for the same reason as Plaintiff’s excessive force claim under federal

law.”34 Defendants maintain that plaintiff’s false-arrest claim is barred by

Heck.35 Additionally, defendants now represent that, because no meaningful

discovery has been conducted, they no longer move for summary judgment

on plaintiff’s excessive-force claim on grounds of qualified immunity.36

Defendants note that they reserve the right to file for summary judgment on

this issue after discovery has been conducted.37

1. Heck v. Humphrey

In Heck v. Humphrey, a prisoner who had been convicted of voluntary

manslaughter brought an action under section 1983 against police and

prosecutors while his appeal, arguing that his arrest and conviction were

33 Id. at 6-8.

34 R. Doc. 60 at 6.

35 Id. at 3-5.

36 R. Doc. 60 at 2.

37 Id. at 3 n.1.

unlawful, was still pending. 512 U.S. 477 at 478-79. The suit sought

compensatory and punitive monetary damages, but did not request

injunctive relief or release from custody. Id. at 479. The Court noted that

section 1983 created “a species of tort liability” analogous to the common-

law tort action of malicious prosecution. Id. at 483-84. It noted that an

action for malicious prosecution requires that the criminal proceeding be

terminated in favor of the accused. Id. at 484. Otherwise, a convicted

defendant could mount a collateral attack on his conviction in the guise of a

civil suit. Id. at 483-85.

Accordingly, the Court stated that section 1983 claims for damages are

“not appropriate vehicles for challenging the validity of outstanding criminal

judgments.” Id. at 486. A plaintiff may bring a section 1983 action that

would necessarily require the unlawfulness of his conviction, but only in

particular circumstances. The Court held that,

[i]n order to recover damages for 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 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, 28 U.S.C. § 2254. A

claim for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable under

§ 1983.

Id. at 486-87. When a district court confronts a section 1983 action for

damages that implicates a conviction or sentence, it must determine whether

a ruling for the plaintiff “would necessarily imply the invalidity” of the

conviction or sentence. Id. at 487. If the court determines that it would, the

action cannot proceed unless the conviction has been vacated, invalidated,

or overturned. Id. at 497 & n.8. An action that would not demonstrate the

invalidity of the conviction should be allowed to proceed. Id.

As to plaintiff’s excessive-force claim, the Fifth Circuit has explained

that, “[a]lthough the Heck principle applies to § 1983 excessive force claims,

the determination of whether such claims are barred is analytical and fact-

intensive,” requiring an inquiry into “whether success on the excessive force

claim requires negation of an element of the criminal offense or proof of a

fact that is inherently inconsistent with one underlying the criminal

conviction.” Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008). The Fifth

Circuit has further elaborated that “a § 1983 claim would not necessarily

imply the invalidity of a resisting arrest conviction, and therefore would not

be barred by Heck, if the factual basis for the conviction is temporally and

conceptually distinct from the excessive force claim.” Id.

The Court first examines plaintiff’s civil cause of action wherein he

alleges that defendants, “while acting under color of state law, deprived

plaintiff of rights secured to him under the Fourth Amendment to the United

States Constitution by using excessive force on him while arresting him.”38

In Louisiana, an officer making a “lawful arrest may use reasonable force to

effect the arrest and detention, and also to overcome any resistance or

threatened resistance of the person being arrested or detained.” La. Code

Crim. P. art. 220. Courts consider the following factors in determining

whether the force exerted was “reasonable” in a particular situation:

the known character of the arrestee; the risks and dangers faced

by the officer; the nature of the offense or behavior involved; the

chance of escape if the particular means are not employed; the

existence of alternative methods of arrest or subduing the

arrestee; the physical strength, size and weaponry of the officers

as compared to that of the arrestee; and the exigencies of the

moment.

Penn v. St. Tammany Parish Sheriff’s Off., 843 So. 2d 1157, 1161 (La. App. 1

Cir. 2003) (citing Kyle v. City of New Orleans, 353 So. 2d 969, 973 (La.

1977)). If a court determines, after considering the above factors, that

excessive force was used, that finding “transforms ordinarily protected use

of force into an actionable battery.” Id. (citing Ross v. Sheriff of Lafourche

Parish, 479 So. 2d 506, 511 (La. App. 1 Cir. 1985)).

The Court next looks to the statutory language underlying Rogers’s

state-court conviction for resisting an officer. Plaintiff pleaded guilty to one

38 R. Doc. 1 ¶ 16.

count in a bill of information for violating La. R.S. 14:108 by “intentionally

refus[ing] to bring a vehicle to a stop, knowing he had been given a visual

and audible signal to stop.”39 Under Louisiana law, resisting an officer

requires a finding that there was

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 . . . when the offender knows or has reason to

know that the person arresting . . . is acting in his official capacity.

La. R.S. § 14:108. The second count in plaintiff’s bill of information, for

resisting an officer “with the use of violence or threats of violence,” was nolle

prosequi.40

After examining the elements of each claim, the Court must determine

whether a finding that the officers’ use of force was objectively unreasonable

would call into question Rogers’s conviction for resistance. The Court finds

that plaintiff’s claim for excessive force is “temporally and conceptually

distinct” from his conviction for resisting an officer by failing to bring his

vehicle to a stop. See Bush, 513 F.3d at 498 (“[A] claim that excessive force

occurred after the arrestee has ceased his or her resistance would not

necessarily imply the invalidity of a conviction for the earlier resistance.”).

39 R. Doc. 49-5 at 1 (Exhibit 2).

40 Id.

Plaintiff alleges that the officers used excessive force when removing him

from the vehicle and beating him after he was already handcuffed. He also

represents that, at this point, he was no longer resisting arrest.41 Although

defendants dispute that the force was excessive, and relatedly, whether

plaintiff was resisting arrest, both parties agree that defendants used force

against plaintiff only after plaintiff’s vehicle was stopped. It is also

undisputed that plaintiff only pleaded guilty to resisting an officer for

“intentionally refusing to bring [his] vehicle to a stop.”42 The count charging

him with resisting arrest beyond his initial flight was dismissed by the

State.43 Thus, because plaintiff did not plead guilty to resisting arrest beyond

his initial flight in his vehicle, plaintiff’s excessive-force claim is “temporally

and conceptually distinct” from his resisting an officer conviction. See Idel

v. LeBlanc, No. 17-1553, 2019 WL 1903285, at *10 (E.D. La. Apr. 29, 2019)

(noting that it “is possible both for Plaintiff to have [disobeyed orders to stop

fighting] and for Defendant to have applied excessive force after Plaintiff had

ceased these actions”).

Further, it is well established that there is “no Heck bar if the alleged

violation occurred ‘after’ the cessation of the plaintiff’s misconduct that gave

41 R. Doc. 57 at 10-12.

42 R. Doc. 49-5 at 1 (Exhibit 2).

43 Id.

rise to his prior conviction.” Aucoin v. Cupil, 958 F.3d 379, 382 (5th Cir.

2020). This principle is best illustrated by the case Bush v. Strain, where the

plaintiff was convicted of resisting arrest under Louisiana Revised Statute

section 14:108, and subsequently brought a section 1983 claim for excessive

force against the officers who arrested her. 515 F.3d at 496-98. Plaintiff

specifically alleged that the arresting officer unreasonably pushed her face

into the back of an automobile after she was handcuffed and was no longer

resisting arrest. Id. at 496. The Magistrate Judge granted defendant’s

motion for summary judgment after determining that Heck barred plaintiff’s

excessive-force claim. Id. at 496-97. The Fifth Circuit reversed, finding that

because plaintiff had “produced evidence that the alleged excessive force

occurred after she stopped resisting arrest, and the fact findings essential to

her criminal conviction are not inherently at odds with the claim, a favorable

verdict on her excessive force claims will not undermine her criminal

conviction.” Id. at 500.

The Court finds that, given the factual similarities between this case

and Bush, plaintiff’s excessive-force claim is not Heck-barred. Although the

parties dispute whether plaintiff was resisting arrest when the officers

forcibly removed him from the vehicle,44 plaintiff pleaded guilty only for

“resisting an officer by flight.”45 Thus, plaintiff’s assertion in his complaint

that he was not resisting arrest after bringing his vehicle to a stop is not in

conflict with his underlying conviction. See Holmes v. Reddoch, No. 19-

12749, 2021 WL 1063069, at *10 (E.D. La. Mar. 18, 2021) (noting that the

Fifth Circuit “applies Heck to bar claims based on underlying factual

allegations if they necessarily contradict facts supporting the criminal

conviction” (citing Bush, 513 F.3d at 498)); see also Daigre v. City of

Waveland, 549 F. App’x 283, 286-87 (5th Cir. 2013) (per curiam) (finding

plaintiff’s excessive-force claim Heck-barred because, “[u]nlike the

allegations in Bush, [plaintiff’s] broad claims of innocence relate to the entire

arrest encounter, and not merely a discrete part of it”).

Because plaintiff’s conviction relates to events that occurred during the

police chase, and because his excessive-force claim relates to events that

occurred after the officers had already pulled him over, the Court finds that

44 Compare R. Doc. 1 ¶ 10 (Complaint) (“Plaintiff offered no resistance to

officers as they approached [his vehicle], detained, and ultimately

arrested plaintiff.”), with R. Doc. 49-4 at 8 (Crime Report) (“After a

period of time, they were able to remove him, as the struggle continued

outside of the vehicle. Agent Wiebelt assisted in escorting Rogers into

a prone position, at which time, he continued to pull away from

investigators and attempted to roll on the ground to avoid being

detained.”).

45 R. Doc. 49-6 at 2 (Exhibit 3).

plaintiff’s excessive-force claim does not risk undermining his conviction,

Therefore, his excessive force claim is not barred by Heck.

As with excessive-force claims, the Fifth Circuit has also applied Heck

to bar claims for false arrest where such claims “challenge the existence of

probable cause and, thus, by their essence are collateral attacks on a criminal

judgment’s validity.” Cormier v. Lafayette City-Parish Consol. Gov’t, 493 F.

App’x 578, 583-84 (5th Cir. 2012) (per curiam) (citing Wells v. Bonner, 45

F.3d 90, 94-96 (5th Cir. 1995)). Here, plaintiff pleaded guilty to one count

in a bill of information for violating Louisiana Revised Statute section 14:108

by “intentionally refus[ing] to bring a vehicle to a stop, knowing he had been

given a visual and audible signal to stop.”46 Under Louisiana law, resisting

an officer requires a finding that there was “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.” La. R.S. § 14:108 (emphasis added). But

in order for plaintiff to prevail on his false-arrest claim, he must show that

he was arrested without probable cause. Burge v. Parish of St. Tammany,

187 F.3d 452, 480 (5th Cir. 1999).

46 R. Doc. 49-5 at 1 (Exhibit 2).

Because plaintiff’s state-court conviction “necessarily implies that

there was probable cause for the arrest,” permitting plaintiff to proceed with

his false-arrest claim under section 1983 would implicate the validity of his

conviction. Walter v. Horseshoe Entertainment, 483 F. App’x 884, 887 (5th

Cir. 2012) (citing Sappington v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999));

see also Foster v. City of Addis, No. 13-702, 2014 WL 5778922, at *2 (M.D.

La. Nov. 3, 2014) (“Plaintiff’s claim of false arrest under § 1983 would directly

contradict her conviction because part of the conviction of resisting an officer

requires that there be a lawful arrest[, and to] succeed under this claim,

Plaintiff would have to prove the arrest was unlawful, casting doubt on the

subsequent conviction of resisting arrest.”). Accordingly, the Court grants

summary judgment on plaintiff’s claim for false arrest, and dismisses the

claim.

2. Qualified Immunity

Defendants initially argued that Rogers’s section 1983 claims against

them should be dismissed because they are entitled to qualified immunity.47

In response, plaintiff argued that, based on the crimes that he was ultimately

charged with and pleaded guilty to, a genuine issue of material fact remains

47 R. Doc. 49 at 1.

as to whether the arresting officers’ use of force was reasonable under the

circumstances.48 Defendants now represent that plaintiff’s excessive-force

claim “is not ripe for a proper qualified immunity or summary judgment

analysis.”49 Accordingly, the Court denies summary judgment as to whether

the arresting officers are entitled to qualified immunity on plaintiff’s

excessive-force claim. Summary judgment is denied without prejudice,

permitting defendants to move for summary judgment on this issue after

discovery.

B. State Law Claims Against Brister, Gasquet, Bergeron,

and Liebelt

Plaintiff also brings several state-law claims against the arresting

officers, including for assault, battery, and false arrest.50 Defendants argue

that plaintiff’s state law claims are also barred under Heck because Louisiana

48 R. Doc. 57 at 8-9. Plaintiff’s response does not address his false arrest

claim vis-à-vis his argument that defendants are not entitled to

qualified immunity.

49 R. Doc. 60 at 9-10.

50 R. Doc. 1 ¶ 22.

does not permit plaintiffs to sustain state-law claims that challenge the

validity of an underlying criminal conviction.51

As to plaintiff’s claims for assault and battery, “[u]nder Louisiana law,

the torts of assault and battery, when raised against a law enforcement officer

acting in the course of employment, require a showing that the law

enforcement officer acted with unreasonable or excessive force.” Elphage v.

Gautreaux, 969 F. Supp. 2d 493, 515 (M.D. La. 2013) (citing Gerard v.

Parish of Jefferson, 424 So. 2d 440, 444 (La. App. 5 Cir. 1982)). Stated

differently, if the court determines that excessive force was not used, then “a

law enforcement officer cannot be held liable for assault and battery if the

assault and battery occurred during a lawful arrest.” Taylor v. United States,

No. 89-4332, 1991 WL 28066, at *11 (E.D. La. Dec. 19, 1991) (citing Gerard

v. Parrish of Jefferson, 424 So. 2d 440, 444 (La. App. 5 Cir. 1982)).

Defendants contend that plaintiff’s assault and battery claims are

barred by Heck.52 But under Louisiana law, “the same standard is used in

analyzing a state law claim of excessive force [and by extension claims of

assault and battery] as a constitutional claim, namely reasonableness under

the circumstances.” Reneau v. City of New Orleans, No. 03-1410, 2004 WL

51 R. Doc. 49-1 at 12.

52 R. Doc. 60 at 6-7.

1497711, at *4 (E.D. La. July 2, 2004) (citing Kyle v. City of New Orleans,

353 So. 2d 969, 973 (La. 1977)); see also Jones v. City of Shreveport, No. 17-

0298, 2018 WL 4088789, at *11 (W.D. La. Aug. 24, 2018) (“[A]ssault and

battery claims under Louisiana law involve similar elements to excessive

force claims.”); Deville, 567 F.3d at 172-73 (noting that Louisiana’s state-law

offenses of excessive force and battery “mirror[] its federal constitutional

counterpart”).

Accordingly, for the same reasons that the Court gave in denying

defendants’ motion for summary judgment as to plaintiff’s excessive-force

claim under section 1983, the Court similarly denies defendants’ motion on

the assault and battery claims under Louisiana law. See Curran v. Aleshire,

67 F. Supp. 3d 741, 753 (E.D. La. 2014) (denying summary judgment as to

plaintiff’s state-law claims of excessive force, battery, and assault, “[f]or the

same reasons that summary judgment is denied as to the excessive force

claims under 42 U.S.C. § 1983”); Thomas v. Pohlmann, 681 F. App’x 401,

406 (5th Cir. 2017) (per curiam) (reversing a district court’s grant of

summary judgment on plaintiff’s state-court claims, finding that these

claims, as with plaintiff’s excessive-force claim, were not Heck-barred and

were not inconsistent with their convictions for resisting an officer).

As to plaintiff’s state false-arrest claim, the Court finds that plaintiff is

unable to establish the elements of his claim. Under Louisiana law, a claim

of false arrest requires a showing that (1) the plaintiff was detained, and (2)

that the detention was unlawful. Richard v. Richard, 74 So. 3d 1156, 1159

(La. 2011) (per curiam). “If a plaintiff is convicted of a crime for which he

was arrested and indicted, and the conviction is affirmed, his detention is not

unlawful as a matter of law.” Slaydon v. State Dep’t of Wildlife & Fisheries,

636 So. 2d 1151, 1152 (La. Ct. App. 1994). Here, Rogers’s conviction for

resisting an officer negates the second element of a false-arrest claim.

Accordingly, plaintiff cannot establish that his arrest was unlawful without

challenging the validity of his conviction.

Therefore, the Court grants defendants’ motion for summary judgment

on plaintiff’s state unlawful arrest claim, but denies it as to plaintiff’s assault

and battery claims.

C. Federal Claims Under Section 1983 Against Sheriff

Joseph Lopinto, III in his Official Capacity

Plaintiff additionally brings a claim under section 1983 against Sheriff

Joseph Lopinto, III, in his personal and official capacities, as a policymaker

for the department and supervisor of the arresting officers.53 Plaintiff

contends that Lopinto and the JPSO failed to adequately train the arresting

officers “in the proper use of force and proper arrest procedures.”54 He

further alleges that the policies and customs of JPSO “created a permissive

environment for police brutality,” as shown by its failure to supervise,

investigate, or terminate the arresting officers who plaintiff asserts have been

involved in other lawsuits or investigations for unnecessary force.55

Defendants move to dismiss plaintiff’s claim against Lopinto in his

official capacity, arguing that plaintiff has “not plead a single fact, nor is there

any record evidence to support any theory of liability against the Sheriff in

his official capacity.”56 In response, plaintiff contends that, because “one of

the same officers named as a defendant in the current lawsuit is also named

as the defendant in t[wo] other suits involving use of force[, this] creates a

material issue of fact.”57 Plaintiff further argues that he should be given an

53 R. Doc. 1 ¶¶ 2, 19.

54 R. Doc. 1 ¶ 19.

55 Id.

56 R. Doc. 49-1 at 16.

57 R. Doc. 57 at 13. Specifically, plaintiff points to two other cases in the

Eastern District of Louisiana where Brister and Lopinto are named

defendants in alleged excessive use of force cases.57 See DeRouen v.

Jefferson Parish Sheriff’s Off., No. 18-7809, 2021 WL 928027, at *1

(E.D. La. Mar. 11, 2021) (Milazzo, J.); Boutte v. Lopinto, Nos. 19-9613

& 19-10327, 2021 WL 5961313, at *1 (E.D. La. Dec. 16, 2021) (Brown,

J.).

opportunity to “conduct meaningful discovery in this matter” prior to

dismissal of the Sheriff in his official capacity.58 Specifically, plaintiff asserts

that discovery is necessary to determine, beyond the cases already cited by

plaintiff, “just how widespread the practice of using unnecessary force is

within the JPSO.”59

Federal Rule of Civil Procedure 56(d) permits a district court to deny

or defer consideration of a motion for summary judgment, allow time to take

discovery, or “issue any other appropriate order,” when a “nonmovant shows

by affidavit or declaration60 that, for specified reasons, it cannot present facts

essential to justify its opposition.” Fed. R. Civ. P. 56(d). Requests for

additional discovery under Rule 56(d) “are generally favored and should be

liberally granted, but the movant must demonstrate (1) why [it] needs

additional discovery, and (2) how the additional discovery will likely create a

genuine issue of material fact.” Chenevert v. Springer, 431 F. App’x 284, 287

(5th Cir. 2011) (per curiam); see also Raby v. Livingston, 600 F.3d 552, 561

(5th Cir. 2010) (stating that the party opposing summary judgment “may not

58 R. Doc. 57 at 14.

59 Id.

60 “Although it is preferred that non-movants present an affidavit to

support a continuance of discovery, there is no stringent procedure

that will bar litigants access to further discovery.” Wichita Falls Off.

Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992).

simply rely on vague assertions that additional discovery will produce

needed, but unspecified, facts.” (quoting SEC v. Spence & Green Chem. Co.,

612 F.2d 896, 801 (5th Cir. 1980))).

Plaintiff satisfies this standard. First, he points out that discovery has

yet to occur in this case. See Taylor v. Hartley, 488 F. Supp. 3d 517, 528

(S.D. Tex. 2020) (noting that the Fifth Circuit has counseled against granting

a “motion for summary judgment without affording the adversary ‘an

opportunity to conduct discovery’” (quoting Benchmark Electronics Inc. v.

J.M. Huber Corp., 343 F.3d 719, 725 (5th Cir. 2003))). Moreover, plaintiff

has indicated the subject on which he seeks discovery—evidence of a pattern

or practice of using excessive force is within the JPSO—and how that

discovery is likely to create an issue of fact, by demonstrating that there was

a pattern of similar complaints against the arresting officers, and that

Lopinto was deliberately indifferent to the need to fire, discipline, or train

the officers. See Connick v. Thompson, 563 U.S. 51, 61-62 (2011) (noting that

for a plaintiff to establish a claim under section 1983 for an officer in their

official capacity for failure to train or supervise, it is “ordinarily necessary”

to demonstrate a pattern of similar violations).

Accordingly, the Court denies without prejudice defendants’ motion

for summary judgment as to plaintiffs section 1983 claim against Lopinto in

his official capacity.

IV. CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment

is GRANTED IN PART and DENIED IN PART. Plaintiffs claims for false

arrest under section 1983 and Louisiana law are DISMISSED WITH

PREJUDICE. Summary judgment is DENIED WITHOUT PREJUDICE as to

plaintiffs claims for excessive force under section 1983 and for battery and

assault under Louisiana law against Brister, Bergeron, Gasquet, and Weibelt.

Summary judgment is also DENIED WITHOUT PREJUDICE as to plaintiff's

claims against Sheriff Lopinto in his official capacity.

New Orleans, Louisiana, this_13th_ day of January, 2022.

derak Varner

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

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