# Wilkins v. Liberto

> District Court, E.D. Louisiana · June 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10187935

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** June 28, 2022
- **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

ALEX WILKINS CIVIL ACTION

VERSUS NO: 20-2728

MICHAEL LIBERTO, ET AL. SECTION: "A" (4)
ORDER AND REASONS
The following motion is before the Court: Motion for Summary Judgment
(Rec. Doc. 39) filed by Defendants, Michael Liberto, Matthew Severns, and Jonathon
Cook. The plaintiff, Alex Wilkins, opposes the motion. The motion, submitted on June 8,
2022, is before the Court on the briefs without oral argument. For the following reasons,
the motion is GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Alex Wilkins has brought this complaint pursuant to 42 U.S.C. § 1983 and state
law arising out of an encounter with officers of the St. Tammany Parish Sheriff’s Office.
The incident occurred at the home of his parents, where Alex Wilkins (then thirty years
old) was residing at the time. Alex Wilkins claims that the officers broke his jaw when
they removed him from the home, which constituted excessive force.
On October 7, 2019, the deputy-defendants Michael Liberto, Matthew Severns,
and Jonathon Cook were dispatched to the home of Shirley and Harvey Wilkins, in
response to an Order of Protective Custody (“OPC”), for their son, Alex Wilkins
(hereinafter “Plaintiff” or “Alex”). Plaintiff’s mother, Ms. Shirley Wilkins, had applied to
the Coroner’s Office earlier that morning to obtain the OPC and in support of the OPC
wrote the following narrative:
Alex is trying to kill himself with drugs and drinking he said he want [sic]
to die by taking drugs it will allow him to end this sooner or later he said
he take ever [sic] kind of drugs he don’t care what it is go days no sleep

(Rec. Doc. 39-7, Request for Protective Custody).1
According to Ms. Wilkins, her son began having significant mental health issues
and substance abuse problems following the death of a sibling in 2004.2 (Rec. Doc. 39-
8, Shirley Wilkins deposition at 17). Although Plaintiff had battled addiction and mental
health issues for years, Ms. Wilkins applied for the OPC on the morning of October 7,
2019, because Plaintiff had been getting progressively worse, “wilding out on drugs” and
had been found passed out (suspected as dead) in a friend’s front yard the night before.
(Id. at 22, 25). Ms. Wilkins called her husband, who was at home with Plaintiff, from the
Coroner’s Office to let him know what she had done (obtained the OPC) and to let him
know that officers would be coming to get Alex. (Id. at 23). Mr. Wilkins told her that the
officers were already at the house, that Alex was still sleeping, and that the officers were
getting ready to wake him up. (Id. at 31-32). Ms. Wilkins was not present when the
officers executed the OPC at the home so she has no first-hand personal knowledge
regarding the events that occurred at the house.3

1 The record also includes two OPCs that the Coroner authorized for Alex Wilkins in 2021
after the incident that forms the basis of this lawsuit. Those OPCs are not directly at issue in
this case. These subsequent OPCs were raised at Mrs. Wilkins’s deposition when she
expressed the sentiment that she would not have gone to the Coroner had she known what
was going to happen when the officers executed the OPC involved in this case. (Rec. Doc.
39-8, S. Wilkins deposition at 46). This assertion notwithstanding, Ms. Wilkins had sought
at least two additional OPCs after the incident that forms the basis of this lawsuit.

2 Significant may be too mild a term to describe both the mental health problems that
Plaintiff has exhibited since the death of his sister (including bipolar disorder,
schizophrenia, depression, paranoia, and hallucinations) and his substance abuse problem,
which includes daily use of any and every kind of illegal drug that Plaintiff could obtain.

3 Ms. Wilkins did speak to one of the officers on the telephone while the officers were at the
house with Mr. Wilkins and Alex. It is not clear to whom she spoke but she was adamant
Mr. Wilkins was the only person at the home with Plaintiff when the officers
arrived. (Rec. Doc. 39-9, Harvey Wilkins deposition at 14, 23). Two officers, Liberto and
Severns, came into the home—Cook had not yet arrived on the scene. (Id. at 23-24);
(Rec. Docs. 39-4, 39-5, & 39-6, Affidavits of Liberto, Severns, & Cook). Mr. Wilkins
identified the officers simply as the tall one and the short one. (Id. at 29). While Plaintiff

remained sleeping on the sofa, Liberto and Severns asked Mr. Wilkins if he thought that
Plaintiff was going to try to run. (Id. at 24). Mr. Wilkins told them that he didn’t know
whether Alex would try to run away. (Id.). The talking woke Alex up and the officers put
him in handcuffs. (Id. at 25). Mr. Wilkins assured Alex that “[i]t’s nothing going on
except your momma trying to save your life.” (Id. at 28).
Continuing with Mr. Wilkins’s version of events, at one point after he was
handcuffed, Plaintiff told the officers something to the effect that he wasn’t going
anywhere. (Id. at 29). The officers began to walk him out toward the front of the house
but according to Mr. Wilkins Plaintiff just stopped. It was at this point that Mr. Wilkins
turned away because he was going to get Plaintiff’s shoes and then everyone just
disappeared without saying anything. (Id. at 31-32). When Mr. Wilkins stepped up to

have a look he saw Plaintiff lying on the floor with his head and face against the door.
The short officer had his hand pressing down on Plaintiff’s face, and told him something
to the effect of “okay, if I let you up, are you going to get up and walk out the door?” (Id.
at 32). According to Mr. Wilkins, Plaintiff told the officer that they had just broken his
jaw. (Id. at 33). But Mr. Wilkins was clear insofar as he did not see what led up to

that the deputy was rude, disrespectful, and nasty to her. (S. Wilkins deposition at 32, 33).
The conversation between the officer and Ms. Wilkins pertained to whether Plaintiff would
be brought to North Shore Hospital or Slidell Memorial.
Plaintiff being on the floor with his face against the door and he did not see the manner
in which the officers brought Alex to the floor—the only thing that Mr. Wilkins saw was
when Plaintiff stopped walking, after which Mr. Wilkins had turned away and
completely missed seeing what happened next. (Id. at 35).
According to Plaintiff, he recalls waking on the sofa in the living room when one

of the officers told him to stand up and put his hands behind his back. (Rec. Doc. 39-11,
Alex Wilkins deposition at 89). He claims that he complied. When the officers asked
Plaintiff if he wanted his shoes he told them no. (Id. at 90). It is Plaintiff’s testimony
that he and the officers started walking toward the front door but when Plaintiff got to
the front door he said that he did not want to go. That’s “when all hell broke loose,” and
someone picked Plaintiff up and slammed him on the head. Plaintiff ended up with two
police officers on his back. (Id. at 97). Plaintiff expressly denies that he resisted or got
loud or “cut up, none of that.” (Id.). Rather, he simply said “I don’t want to go,” and the
officers reaction was “they slammed [him] right in front the front door.” (Id. at 98).
According to Plaintiff, they slammed him down, they were on his back and he told them
that he heard his jaw “pop.” (Id. at 99). They didn’t keep Plaintiff down long then they

walked him out to the car. (Id. at 100).
Deputies Liberto and Severns have submitted affidavits that describe a different
version of what happened at the Wilkins home, and those differences go to material
issues in this case. According to the deputies, after they woke him, Plaintiff immediately
began to scream that he was not going to go with them and that he did not need help.
Plaintiff attempted to walk away so they handcuffed him after which he became calm.
(Rec. Doc. 39-4 & 39-5, Liberto and Severns Affidavits ¶¶ 8). The deputies claim that at
this point Plaintiff asked Deputy Liberto to take a look at the left side of his face and
inquired whether the hospital would take an X-ray of his jaw because it might be
broken. (Id. ¶¶ 9). The deputies contend that this conversation about the possibility of a
broken jaw occurred before any of the excessive force being alleged in this case occurred
thereby confirming their contention that they had nothing to do with the injured jaw.
According to both deputies, Plaintiff then asked for a cigarette and when they told

him that he could not have one, he became irate and began to scream again that he
wasn’t going to go.4 (Id. ¶¶ 10). Deputy Liberto then began to walk Plaintiff out of the
house when Plaintiff attempted to break away from the officer’s grasp. (Id.). As they
walked to the front of the residence Plaintiff continued to scream that he was not going
to go and he attempted to use his body weight to resist from being escorted out of the
house. (Id. ¶¶ 10). Deputy Severns then assumed the escort position on the left side in
order to assist Deputy Liberto but Plaintiff continued to resist by swinging his legs,
forcing the deputies to “escort” Plaintiff to the ground in an attempt to deescalate his
behavior. (Id.). When Plaintiff became calm again they picked him up by the arms and
escorted him to Liberto’s patrol unit. While being escorted Plaintiff stated “clearly and
with no issue” that the deputies had broken his jaw. (Id. ¶¶ 11).

Deputy Jonathon Cook, a deputy with the St. Tammany Parish Sheriff’s Office
Crisis Intervention Team, then arrived on the scene to take custody of Plaintiff and to
transport him to the hospital. Plaintiff told Cook that he believed his jaw was broken.
(Rec. Doc. 39-6, Cook Affidavit ¶ 7). After Plaintiff was admitted to the hospital, Cook

4 The medical records indicate that Plaintiff is a smoker. Plaintiff does not dispute that he
asked for a cigarette although he does not specifically recall asking for one. (A. Wilkins
deposition at 100). Mr. Wilkins, however, seemed to recall that Alex had asked one of the
officers for a cigarette. (H. Wilkins deposition at 46).
met with Plaintiff to discuss access to mental health resources in the community. Cook
recalled that Plaintiff was eating food that did not appear to be soft without any issues
and he was speaking clearly. (Id. ¶ 11).
Deputy Cook was never in the residence and was not present when Plaintiff
claims to have been injured. Since Deputy Cook was not present when the officers

executed the OPC inside the home, he has no first-hand personal knowledge regarding
the events that occurred inside the house before he arrived. Also, since Deputy Cook was
not present when Plaintiff claims to have been injured, the record would allow for no
inference of liability on his part under any legal theory.
It is undisputed that Plaintiff underwent a surgical procedure to repair a
fractured jaw shortly after the incident with Defendants, while he remained under care
pursuant to the OPC.
The crux of the complaint, clarified through Plaintiff’s deposition testimony, is
that Officers Liberto and Severns broke his jaw when they slammed his head into the
front door or its frame or the floor when they were removing Plaintiff from the house.
Notwithstanding the panoply of legal citations included in the complaint, this is a

Fourth Amendment excessive force claim under federal law with a related state law tort
claim.5
Earlier this year the Court granted Defendants’ motion to dismiss Plaintiff’s claim
for mental health damages based on Plaintiff’s refusal to cooperate in completing an

5 For some reason the complaint does not mention the Fourth Amendment but instead
repeatedly invokes the inapplicable Eighth Amendment, as well as parts of Title 42 that are
not implicated by the facts of this case. Plaintiff made no attempt to defend these claims in
his opposition, or any of the several inapplicable state law citations included in his
complaint.
independent psychological examination. (Rec. Doc. 38, Order). Plaintiff did not oppose
that motion.
A jury trial is scheduled for July 25, 2022. (Rec. Doc. 24, Minute Entry
1/6/2022).
Defendants now move for summary judgment on all claims as explained below.

II. DISCUSSION
Defendants motion for summary judgment is grounded on the assertion that they
had no choice but to bring Plaintiff to the ground in response to his failure to adhere to
lawful orders and due to his continued physical resistance. In other words, Defendants
contend that their actions in bringing Plaintiff to the ground were justified, and that
such a minor use of force was clearly not excessive or unreasonable and was warranted
under the circumstances. Thus, Defendants contend that their use of force in removing
Plaintiff did not violate the Fourth Amendment, or in the alternative, they are entitled to
qualified immunity on this issue.
Defendants also argue that Plaintiff cannot establish causation for his injuries
because he lacks expert medical causation evidence. Defendants argue that Plaintiff’s

state law claims fail for the same reasons that his federal excessive force claims fail so
the Court should dismiss those too. But if the Court were to grant summary judgment as
to the federal claims and deny summary judgment as to the state law claims, Defendants
request that the Court decline to exercise supplemental jurisdiction.
Governing Standards
Summary judgment is appropriate only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” when viewed
in the light most favorable to the non-movant, “show that there is no genuine issue as to
any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a
material fact is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must
draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson,

477 U.S. at 255). Once the moving party has initially shown “that there is an absence of
evidence to support the non-moving party’s cause,” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986), the non-movant must come forward with “specific facts” showing a
genuine factual issue for trial. Id. (citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
When faced with a well-supported motion for summary judgment, Rule 56 places
the burden on the non-movant to designate the specific facts in the record that create
genuine issues precluding summary judgment. Jones .v Sheehan, Young, & Culp, P.C.,

82 F.3d 1334, 1338 (5th Cir. 1996). The district court has no duty to survey the entire
record in search of evidence to support a non-movant’s position.6 Id. (citing Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300,
1307 (5th Cir. 1988)).

6 The Court pauses here to reject Defendants’ contention that Plaintiff is relying on
unverified pleadings as opposed to sworn evidence in order to defeat summary judgment.
Sworn deposition testimony constitutes competent summary judgment evidence. Plaintiff’s
testimony regarding what occurred in the house is based on personal knowledge of the facts.
Plaintiff’s testimony is no more self-serving than the assertions that Defendants make in
their affidavits, and this Court cannot determine credibility on summary judgment.
The right to make an arrest necessarily carries with it the right to use “some
degree of physical coercion or threat” to effect it. Buehler v. Dear, 27 F. 4th 969, 980-81
(5th Cir. 2022) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). But the Fourth
Amendment prohibits police from using more force than is reasonably necessary to
effect an arrest. Id. (citing Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020)). A

plaintiff arguing that a police officer has used excessive force in violation of the Fourth
Amendment must show 1) injury, 2) which resulted directly and only from a use of force
that was clearly excessive, and 3) the excessiveness of which was clearly unreasonable.
Id. (citing Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)). The injury must be
more than de minimis so as to constitute “some injury.” Id. (citing Freeman v. Gore,
483 F.3d 404, 416 (5th Cir. 2007); Alexander v. City of Round Rock, 854 F.3d 298, 309
(5th Cir. 2017)).
But even if the plaintiff establishes that the police violated the Fourth
Amendment, his claims against them cannot proceed unless he overcomes qualified
immunity, which shields officials performing discretionary junctions “from liability for
civil damages insofar as their conduct does not violate clearly established . . .

constitutional rights of which a reasonable person would have known.” Buehler, 27
F.4th at 981 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The qualified
immunity analysis in an excessive force case involves two distinct reasonableness
inquiries: 1) whether the officer’s use of force was objectively reasonable in light of
Fourth Amendment standards, and 2) whether the right was clearly established such
that a reasonable officer would know that the particular level of force used was
excessive. Id. (citing Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015)). It is
the plaintiff’s burden to show that the unlawfulness of the defendant’s conduct was
clearly established at the time it occurred. Id. Thus, the two prongs of the qualified
immunity analysis, which may be addressed in any order, are whether the facts alleged
make out a violation of a constitutional right, and if they do, whether the right at issue
was “clearly established” at the time of the defendant’s misconduct. Id. (citing Pearson
v. Callahan, 555 U.S. 223, 232 (2009)).

Analysis
The Court begins with the element of injury as part of the § 1983 excessive force
claim. It is beyond cavil that the injury claimed in this case—a broken jaw—is well
beyond a de minimis injury. It is also undisputed that Plaintiff had a broken or fractured
jaw after the October 7, 2019 incident because he had surgery to repair it, in close
temporal proximity to the incident. The first point of contention to be addressed is
whether the broken jaw resulted from the encounter with the officers or whether it pre-
existed that encounter. If the broken jaw pre-existed the encounter, then all of Plaintiff’s
claims, whether based on state law or federal law, fail.7
Plaintiff’s father was asked at his deposition whether Plaintiff had ever
complained about his jaw prior to the October 7, 2019 incident. Mr. Wilkins said yes,

that Plaintiff had been in a fight “probably four days or something before that.” (H.
Wilkins deposition at 36). Mr. Wilkins had not been present for the alleged fight and he
wasn’t sure how he had come to know about Alex getting hit on his jaw. (Id. at 36, 50).
He had just heard rumors to that effect. (Id. at 52).

7 It is clear under the controlling law that if the claimed jaw injury is not related to the use
of the alleged excessive force then the “minor incidental injuries” such as transient pain and
bruises that Plaintiff alleges as a result of being handcuffed do not rise to the level of injury
sufficient to support a § 1983 claim. See Buehler, 27 F.4th at 982 (quoting Freeman, 483
F.3d at 417). Plaintiff has not argued otherwise in his opposition.
Plaintiff’s mother denied that Plaintiff’s jaw had been broken prior to the October
7, 2019 incident. (S. Wilkins deposition at 58). She also doubted that Alex had
complained to her husband about the jaw prior to the incident with the officers. (Id. at
40).
Plaintiff was questioned at his deposition whether a few days before the October

7, 2019 incident he had gotten into a fight and been punched in the jaw. Plaintiff was
adamant that no such fight had occurred and no blow to the jaw had occurred. (A.
Wilkins deposition at 85). Plaintiff denied that he had told his father anything to the
contrary. (Id.). Plaintiff did confirm, however, that he had been to the dentist to get a
tooth pulled the day before the October 7, 2019 incident but his jaw did not hurt
afterward and the dentist had said nothing about his jaw. (Id. at 85-87).
Of course, as noted above, both Deputies Liberto and Severns have stated in their
affidavits that Plaintiff mentioned the possibility of a broken jaw before the alleged
excessive force even occurred. (Liberto and Severns Affidavits ¶¶ 9).
Plaintiff’s testimony and that of the contradicting assertions contained in
Liberto’s and Severns’ affidavits create an issue of fact as to whether the jaw injury that

necessitated the surgery occurred before or after the alleged excessive force occurred.
The parties have not shown the Court any medical evidence from Plaintiff’s dentist that
would show one way or the other whether the jaw was injured at the time that the tooth
was extracted the day before the incident.8

8 X-ray evidence showing that the fracture was present on the day before the incident would
be dispositive of this whole case. The same cannot be said of X-ray evidence showing no
fracture the day before the incident because even if an X-ray was taken on the day before the
October 7, 2019 incident and it showed no fracture, the possibility would remain that
Plaintiff sustained the jaw injury in whatever “activities” led up to him being found
(suspected as dead) on a friend’s lawn the night before the officers came to the home to
In order to overcome the clear “he said/they said” contradiction in the evidence
as presented by the only parties who have firsthand knowledge of what occurred,
Defendants have retained a dentist to serve as their expert in this case, Craig J.
Brandner, B.A., D.D.S. Dr. Brandner reviewed Plaintiff’s dental records and medical
records, and he evaluated Plaintiff in March of this year. Dr. Brandner opined that

Plaintiff’s jaw injury is inconsistent with contact with the ground. (Rec. Doc. 39-14,
Brandner affidavit ¶ 12). Such an injury “requires pointed release of kinetic energy
directly over the fracture site, such as a punch, foot to the face, or both.” (Id.). Dr.
Brandner therefore opines that Plaintiff’s jaw fracture pre-existed the October 7, 2019
incident. (Id. ¶ 14). The doctor further states that “the radiograph from Lacombe Dental
dated October 4, 2019 reveals a widened PDL mesial to tooth of #29 with a diastasis
extending inferiorly through the mandibular body consistent with a fractured
mandible.” (Id. ¶ 13). Unfortunately, the doctor has chosen terms not to be understood
by lay persons and has not explained the foregoing statement. If the doctor is trying to
communicate that an X-ray from the dental visit that occurred the day before the
incident occurred conclusively shows a fractured jaw, then the Court assumes that the

doctor would have stressed this in his report and would not have relegated that “fact” to
paragraph 13 of his affidavit.9

execute the OPC. Given that Plaintiff’s father retrieved him from that lawn and brought him
home to sleep it off, and given that Plaintiff had been sleeping continuously from that point
until the officers were brought in to take him to the hospital, it is certainly possible that
Plaintiff sustained the jaw injury at some point during the evening’s “activities” and didn’t
even realize he had sustained an injury until the officers began talking to him. This scenario
would of course be completely consistent with the officers’ contentions.

9 The Court points out that at trial an expert will not be allowed to testify beyond what is
contained in the “four corners” of his report.
Given that Defendants’ expert has opined that Plaintiff’s jaw injury predated the
October 7, 2019 incident, and given that the deadline to produce expert evidence has
expired with Plaintiff having produced none, Defendants contend that notwithstanding
the contradiction in Plaintiff’s and the officers’ testimony, Plaintiff cannot create an
issue of fact as to his injury having been caused by the encounter with the officers.

Defendants contend that expert medical causation testimony is a required part of
Plaintiff’s case and that without it he cannot meet his burden of proof as to causation.
The issue in this case is not whether or not the jaw was broken—it is undisputed
that it was broken or at least fractured and that it was discovered to be so in very close
temporal proximity to the incident. Plaintiff denies that the jaw was injured or even
pained him before the incident. Plaintiff’s contention is that the officers slammed his
head down and he heard his jaw pop at that time. It is certainly within the
understanding of lay persons of ordinary knowledge and experience, if they choose to
credit Plaintiff’s version of events, to draw a reasonable inference (without the benefit of
expert testimony) that the jaw fracture that was identified in the immediate aftermath of
that incident occurred during the encounter with the officers.10 Apparently, there is no

medical evidence in the record that unequivocally refutes Plaintiff’s contention that his
jaw was not broken before the incident. Dr. Brandner has opined that the medical
record supports his conclusion that the injury was pre-existing, and his opinion will

10 The Court is not persuaded that the state court cases cited in Defendants’ motion hold
otherwise. For instance, Giavotella v. Mitchell, 289 So. 3d 1058, 1077 (La. App. 1st Cir.
2019), expressly notes that medical testimony is required in a tort action when a conclusion
regarding medical causation is not one within the common knowledge. That case involved a
plaintiff who had been in two auto accidents several months apart who was trying to link her
injuries to one of the two accidents, and therefore medical causation testimony would be
necessary to do that.
surely be persuasive, but the fact-finder may give whatever credit it chooses to Dr.
Brandner’s opinion.11
Based on the foregoing, there is a genuine issue of material fact as to whether the
force used in the October 7, 2019 incident caused Plaintiff’s injury. But the injury itself is
not all that is in dispute because Defendants have made this case about the right to take

Plaintiff to the floor—which the Court agrees is not in dispute and which in and of itself
was not excessive to the need—while Plaintiff has testified that they slammed him on the
head hard enough to break his jaw, a contention that Defendants have essentially
ignored. Also, Defendants’ and Plaintiff’s (and Mr. Wilkins’s) version of the amount of
resistance that Plaintiff was exhibiting leading up to the incident on the floor, is also in
dispute, and this fact is certainly material because it drives the level of force that’s
reasonable under the circumstances. Defendants were well within the law in using some
force to take Plaintiff out of the house—that use of force, including taking him to the
ground, is not in question and cannot be deemed excessive. But the Court is persuaded
that if Plaintiff ‘s testimony regarding the mild amount of resistance that he exhibited
and the amount of force that was used, i.e., slamming his head hard enough to fracture

his jaw, is credited, then it is not so clear that the amount of force used was reasonable
and not excessive. What is clear is that a reasonable officer would have known that using

11 Defendants’ characterization of Dr. Brandner as an “independent” witness is inaccurate.
Dr. Brandner is a retained expert who charges significant expert fees, all of which go to bias
and credibility when the fact-finder weighs the evidence.
The Court will add, however, that expert testimony would be required to recover for
any of the longer term pain and dental issues that Plaintiff and his mother attributed to the
October 7, 2019 incident in their depositions. Dr. Brandner noted that Plaintiff’s dental
health was essentially deplorable and that Plaintiff had already had 11 teeth pulled by the
time that Dr. Brandner examined him. Thus, without expert testimony in this case, there
can be no recovery for anything beyond the fractured jaw itself, certainly not for shifting
teeth and some of the other issues Plaintiff and his mother described.
such force would be excessive and would violate the Fourth Amendment. Therefore,
disputed issues of material fact preclude summary judgment on qualified immunity for
the Fourth Amendment claim.12
Defendants moved for summary judgment on all causes of action asserted but
Plaintiff made no attempt to defend any claims brought under the litany of statutes and

Civil Code articles cited in the complaint. The motion for summary judgment will
therefore be granted as to all claims except for the Fourth Amendment § 1983 claim, the
§ 1988 claim for attorney’s fees, and the state law claim brought pursuant to Civil Code
article 2315.13
Summary judgment will be granted in favor of Cook as to all claims. When claims
are brought against multiple officers in connection with a single arrest each officer’s
conduct must be analyzed separately. See Buehler, 27 F.4th at 985 (citing Darden v. City
of Fort Worth, 880 F.3d 722, 731 (5th Cir. 2018)). Officer Cook arrived after the incident
that Plaintiff alleges injured him. There is no evidence whatsoever to establish fault
against him.
Accordingly, and for the foregoing reasons;

IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 39)
filed by Defendants, Michael Liberto, Matthew Severns, and Jonathon Cook is
GRANTED IN PART AND DENIED IN PART as explained above. The complaint is

12 The Court also notes that while Defendants have gone to great lengths to make the Court
aware of Plaintiffs’ extensive criminal record, their affidavits make no mention whatsoever
of what they knew about Plaintiff before they attempted to remove him from the home.

13 The tort claim is viable because if the jury were to determine that the fractured jaw did
result from the October 7, 2019 incident, the jury might nonetheless be persuaded that the
injury resulted from mere negligence in the manner in which the takedown occurred as
opposed to a constitutional violation.
dismissed in its entirety as to Jonathon Cook only.
June 27, 2022 C C t
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UNIREDSTATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187935. Public record. Not legal advice.