The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAUREN LARPENTER and CIVIL ACTION
KEVIN P. LARPENTER
VERSUS NO: 21-376
NICHOLAS VERA, ET AL. SECTION: “J” (2)
ORDER & REASONS
Before the Court are two Motions for Summary Judgment (Rec. Docs. 44 &
45) filed by Defendant, Nicholas Vera. The first motion seeks to dismiss the claims of
Plaintiff, Lauren Larpenter (“Mrs. Larpenter”), and she opposes this motion (Rec.
Doc. 49). The second motion seeks to dismiss the claims of Plaintiff, Kevin Larpenter
(“Mr. Larpenter”), and he opposes this motion (Rec. Doc. 50). Vera has filed replies to
each (Rec. Docs. 57 & 60). Having consider the motions and legal memorandum, the
record, and the applicable law, the Court finds that both of Vera’s motions should be
granted.
FACTS AND PROCEDURAL BACKGROUND
This suit arises from an alleged 42 U.S.C. § 1983 violation brought by Mr. and
Mrs. Larpenter against Nicholas Vera, the Terrebonne Parish Consolidated
Government, the Houma-Terrebonne Parish Civic Center, the Houma Police
Department, and the Terre Carnival Club, Inc.
Plaintiffs were attendees at a Mardi Gras ball at the Houma-Terrebonne
Parish Civic Center on or about February 22-23, 2022 from 5:30p.m. to 1:30a.m. The
contract between Terre Carnival Club, Inc. and Terrebonne Parish Consolidated
Government states that the Houma Police Department shall provide security for
events held at the facilities, to be determined by Civic Center management in
consultation with the Houma Police Department. Vera is an officer with the
Louisiana Department of Probation and Parole and was hired as security detail for
Mardi Gras ball. Vera claims that at approximately 1:30 a.m., he was instructed by
management at the Civic Center to get everyone out so that they could lock the
building down. The exact details of the moments leading up to the incident at issue
are in dispute, but a few facts remain consistent in both Plaintiffs’ and Vera’s
accounts. Vera instructed everyone remaining in the Civic Center that they had to
get out. Mr. Larpenter and Vera had a brief exchange, and, after the group failed to
exit, Vera again stated that everyone had to leave, or he would have to escort them
out. Again, Mr. Larpenter and Vera had a brief exchange and, when, again, the group
did not leave, Vera repeated that if everyone did not leave, he would have to escort
them out. At this point, Vera alleges that he used a “transport wrist lock” to escort
Mr. Larpenter out of the Civic Center, and Plaintiffs allege that Vera “seized Mr.
Larpenter’s left hand at his wrist and ripped it to the back of his head.” Plaintiff claim
that Vera then took his right thumb and jabbed it inside Mr. Larpenter’s jawbone
where the nerve is and yanked Mr. Larpenter back, picked him off the ground and
drug him out of the Civic Center.” Both agree that Vera released Mr. Larpenter once
they were out of the Civic Center.
In response to this incident, Mr. Larpenter filed suit alleging a violation of his
civil rights under 42 U.S.C. § 1983 and state law claims, and Mrs. Larpenter filed
suit alleging claims of mental anguish, suffering, and loss of consortium as well as
LeJeune damages under Louisiana state law after witnessing the subject incident.
Subsequently, Defendant Nicholas Vera filed the instant motions for summary
judgment. Each will be addressed in turn.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56); see Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a
dispute as to any material fact exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but
a party cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be
satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
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). The nonmoving
party can then defeat the motion by either countering with sufficient evidence of its
own, or “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 merely 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 trial. See id. at 325; Little, 37 F.3d at 1075.
BYSTANDER CLAIMS
Vera argues that Mrs. Larpenter’s claims should be dismissed because (1) a
bystander who witnesses a police action, but who is not himself an object of that
action, cannot recover for any resulting emotional injuries under § 19831; and (2) Mrs.
Larpenter has not met her burden of proof for LeJeune damages under Louisiana
Civil Code article 2315.6. (Rec. Doc. 44-1, at 4–6).
1 Plaintiffs do not dispute that there is no claim for bystander damages under § 1983 so the Court will
not address this issue.
I. LOUISIANA BYSTANDER CLAIM
“The Legislature apparently intended to allow recovery of bystander damages
to compensate for the immediate shock of witnessing a traumatic event which caused
the direct victim immediate harm that is severe and apparent, but not to compensate
for the anguish and distress that normally accompany an injury to a loved one under
all circumstances.” Trahan v. McManus, 728 So. 2d 1273, 1279 (La. 1999) (citations
omitted). Pursuant to article 2315.6 of the Louisiana Civil Code, a claim for bystander
damages is an independent cause of action. Castille v. La. Med. Mut. Ins. Co., 150 So.
3d 614, 619 (La. App. 3 Cir. 2014).
To recover under this article, a plaintiff must show that: (1) they viewed
the event causing injury to the direct victim or came upon the scene soon
after; (2) the direct victim suffered such harm that it can reasonably be
expected that the plaintiff would suffer serious mental anguish from the
experience; (3) the emotional distress plaintiff sustained is both serious
and reasonably foreseeable; and (4) plaintiff and the direct victim have
the requisite familial relationship.
Id. (citing Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990)). Here, Vera does
not dispute that Mrs. Larpenter viewed the allegedly injury causing event to Mr.
Larpenter, and Vera does not dispute that Mrs. Larpenter has the requisite familial
relationship of spouse to Mr. Larpenter. (Rec. Doc. 44-1, at 8). However, Vera argues
that Mrs. Larpenter cannot satisfy the remaining two requirements. (Id.).
Vera contends that the alleged harm to Mr. Larpenter is not serious enough
that one could reasonably expect the observer, Mrs. Larpenter, to suffer serious
mental distress. (Id.). In opposition, Mrs. Larpenter asserts that her husband has
suffered injuries to his left arm, left shoulder, and cervical spine. (Rec. Doc. 49, at 7).
To satisfy this element, the plaintiff must show that he experienced severe and
debilitating distress specifically from “the shock caused by the perception of the
especially horrendous event.” Simmons v. Hartford Ins. Co., 786 F. Supp. 574, 578
(E.D. La. 1992) (quoting LeJeune, 556 So.2d at 570 n.11). “The claimant must realize,
at the time he witnessed the event, that the injuries are serious” because “[o]therwise
the distress would not arise from the perception of the event but rather from being
told of the seriousness of the event at some future time.” Id. (citations omitted). The
aim in allowing recovery for bystander damages is to compensate persons who have
witnessed harm that is both severe and apparent. Trahan, 728 So. 2d at 1279.
In Lejeune v. Rayne Branch Hospital, the court found the injuries to be of the
type that would reasonably be expected to cause mental pain and anguish because
the plaintiff witnessed her husband’s comatose body in a hospital bed with rate bites
on his face and legs. 556 So. 2d at 571. Moreover, in Dixon v. Mid-South Rail
Corporation, the plaintiff witnessed her son’s death when his vehicle was struck by a
train. 580 So. 2d 438, 442 (La. App. 2 Cir. 1991). The court found his injury to be of
the type that would reasonably be expected to cause mental pain and anguish because
the plaintiff “saw the membrane of his head laying down to the ground.” Id. In
contrast, in Simon v. Hartford Insurance Co., the court found that there was a
genuine issue of material fact as to whether the plaintiff knew the injuries were
severe. 786 F. Supp. 574, 578 (E.D La. 1992). At the accident scene, the plaintiff
stated that he “knew she was hurt and all, but I thought she was going to be okay. I
didn't know it was this serious.” Id. At his deposition, the plaintiff testified that it
was not until two-and-a-half hours after the accident at the medical center when the
doctor told him “that she was injured very badly and if we didn't get her somewhere
soon that she was going to die. That's the first time that the seriousness of this thing
really caught up with me. I had no idea that she was injured that bad.” Id. However,
the deposition of a witness at the accident scene described the plaintiff: “[h]e was
crying, and he got in the car. He was saying ‘Can you hear me? I'm right here for you.
I'm going to get you out.’ He appeared to have lots of adrenalin.” Id. Because there
was evidence that the plaintiff experienced distress at the accident scene, the court
found there was a genuine issue of material fact as to this element. Id.
Here, Vera argues that Mr. Larpenter allegedly suffered an injury to the
rotator cuff of his left shoulder when Vera allegedly “grabbed [Mr. Larpenter’s] arm
from behind, jerked it and pinned it behind [his] back.” (Rec. Doc. 44-1, at 9) (quoting
Rec. Doc. 1, at 4). This alleged injury, Vera contends does not rise to the requisite
level of “especially horrendous” because there was no blood, gore, or any other
aggravating factor. (Id.). In opposition, Mrs. Larpenter simply recites her husband’s
alleged injuries. (Rec. Doc. 49, at 7). Mrs. Larpenter fails to explain why an arm and
shoulder injury are “especially horrendous.” There is no allegation whatsoever that
she knew that her husband was injured at all during the event, let alone that he was
seriously injured. The aim in allowing recovery for bystander damages is to
compensate persons who have witnessed harm that is both severe and apparent, and
Mrs. Larpenter has failed to present any evidence that Mr. Larpenter’s shoulder
injury was severe and apparent at the time of the incident. Next, Mrs. Larpenter
described in her deposition hitting and yelling at Vera to let Mr. Larpenter go because
she did not know what was going on. She claimed that she was stunned that Vera
“dragg[ed] him out,” but she does not claim that she was stunned or shocked because
of his injury. Yet, like the father in Simon, Mrs. Larpenter was yelling “you’re hurting
him” while Vera removed Mr. Larpenter. (Rec. Doc. 49, at 17). Moreover, she alleges
that she was crying and screaming during the incident. (Id.). Therefore, the Court
finds there is a genuine issue of material fact as to whether Mrs. Larpenter
experienced shock caused by the perception of Mr. Larpenter’s removal from the Civic
Center.
Finally, Vera argues that the alleged emotional distress that Mrs. Larpenter
sustained is not severe, debilitating, and foreseeable. (Rec. Doc. 44-1, at 8). “Serious
emotional distress, of course, goes well beyond simple mental pain and anguish,” and
“[a] non-exhaustive list of examples of serious emotional distress includes neuroses,
psychoses, chronic depression, phobia and shock.” Lejeune, 556 So. 2d at 570
(citations omitted). However, a diagnosis of a psychiatric disorder is not required.
Blair v. Tynes, 621 So. 2d 591, 600 (La. 1993). In Blair v. Tynes, the court found that
the plaintiff met his burden of severe and debilitating emotional distress when, prior
to witnessing the accident, he “led an active life and had a good employment record[,
but that, after the accident, he] had not worked in the three (3) years that had passed
since the accident, and that he had become withdrawn and introverted.” Id. In
Craighead v. Preferred Risk Mutual Insurance Co., the court found that the plaintiff
suffered severe and debilitating mental anguish when she missed two weeks of work
and thereafter worked half days with a minimum workload and obtained counseling.
769 So. 2d 112, 123 (La. App. 2 Cir. 2000).
Here, Vera argues that Mrs. Larpenter has not provided any evidence showing
a substantial or dramatic change in her life as result of the incident. (Rec. Doc. 44-1,
at 10). In her deposition, she testified that she has not sought treatment with a
psychiatrist, counselor, or any other form of mental health specialist as a result of
the incident. (Rec. Doc. 44-3, at 6). Additionally, Mrs. Larpenter testified that she has
not taken any medication as a result of the incident, and she has not had any
nightmares. (Id.). She testified that she has not been diagnosed with a mental
disorder, contemplated suicide, or contemplated hurting herself. (Id. at 7). In
opposition, Mrs. Larpenter cites to her deposition testimony in which she stated that
the incident “added stress to our normal daily lives and added conversations about
things that both of us wish was not pertinent or part of our life.” (Rec. Doc. 49, at 17).
Additionally, she claims that she is feeling ostracized by her friends and family in the
Terreanians Carnival Club because Plaintiffs have been told they are prohibited from
any of the functions. Moreover, Mrs. Larpenter spends a great deal of her opposition
explaining the importance of the Terre Carnival Club to her family and how
distressing it is that they can no longer attend the events.
The Court finds that the majority of the emotional distress experienced by Mrs.
Larpenter is related to her no longer being a part of the Terre Carnival Club and no
longer being able to attend their functions. This prohibition results from the
President of the Terre Carnival Club prohibiting them from the functions due to Mr.
and Mrs. Larpenter bringing suit against the organization. The Court finds Mrs.
Larpenter has not created a genuine issue of material fact that her husband’s injury
caused her emotional distress. Her emotional distress was brought about by suing
the Terre Carnival Club and her exclusion from their events.
II. LOSS OF CONSORTIUM
Mrs. Larpenter argues that she is entitled to damages for loss of consortium.
(Rec. Doc. 49, at 10). Notably, all of her arguments focus on the “sufficiency of her
pleadings” and that she has a “cognizable claim.” (Id. at 11). However, the standard
she is referencing is used for Motions to Dismiss under Rule 12(b)(6), not Motions for
Summary Judgment under Rule 56. As the non-movant with the burden of proof at
trial for this issue, she had to submit or refer to evidence that set out specific facts to
show a genuine issue exists. Specifically, Mrs. Larpenter contends she is seeking
damages for (1) the stress and strain on her relationship with her husband; (2) her
heightened duties to care and assist her husband due to his disabling injuries while
also raising a child and working; and (3) the ostracization, anguish, and isolation from
not being welcomed in the Krewe of Terreanians. (Id. at 13–14). However, she
presents limited evidence, such as her answers to two interrogatories and several
sentences from her deposition. (Id. at 11–12); (Rec. Doc. 55, at 5).
Vera argues that in Mrs. Larpenter’s deposition, when asked what her
husband could not do after the incident that he could do before, she testified that “[h]e
cannot get the decorations out of the attic for me . . . [t]here are so many little things.
I’m just trying to – that’s it, off the top of my head.” (Rec. Doc. 55, at 5). When asked
if her husband spends less time with her since the incident, Mrs. Larpenter stated,
“[n]o. he’s a very good husband.” (Id.). Vera contends that Mrs. Larpenter cannot
point to anything that her husband cannot do around the house that he could do
beforehand or how his alleged injuries have negatively impacted their relationship
other than a generalized statement that it added stress to their lives. As the
nonmovant, Mrs. Larpenter simply had to submit evidence that set out specific facts
to show that a genuine issue exists. She has failed to do so. Therefore, the Court finds
that Mrs. Larpenter’s claim for loss of consortium should be dismissed.
§ 1983 CLAIMS
Vera argues that because he is entitled to qualified immunity regarding Mr.
Larpenter’s § 1983 claims and discretionary immunity regarding Mr. Larpenter’s
state law claims, Mr. Larpenter’s claims should be dismissed. (Rec. Doc. 45-1, at 6,
10). In opposition, Mr. Larpenter contends that Vera is not entitled to qualified
immunity or discretionary immunity. (Rec. Doc. 50, at 15, 17).
I. QUALIFIED IMMUNITY
To begin, it must be noted that “[a] qualified immunity defense alters the usual
summary judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir.
2010) (citation omitted). “Once a defendant properly invokes qualified immunity, the
plaintiff bears the burden of proving that the defendant is not entitled to the
doctrine's protection.” Howell v. Town of Ball, 827 F.3d 515, 525 (5th Cir. 2016). “To
defeat qualified immunity, the plaintiff must show that the official's conduct was
objectively unreasonable in light of a clearly established rule of law.” Vincent v. City
of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). “Even when an official is not entitled
to summary judgment on the merits – because the plaintiff has stated a proper claim
and genuine issues of fact exist – summary judgment can still be granted when the
law is not reasonably clear.” Jamison v. McClendon, 476 F. Supp. 3d 386, 405 (S.D.
Miss. 2020). This is a significant hurdle: qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502
U.S. 224, 229 (1991) (per curiam).
The Fifth Circuit applies the following legal standard: “[f]irst, a court must
decide whether the facts that a plaintiff has alleged or shown make out a violation of
a constitutional right. Second . . . the court must decide whether the right at issue
was clearly established at time of the defendant's alleged misconduct.” Heaney v.
Roberts, 846 F.3d 795, 801 (5th Cir. 2017). However, courts are not required to
address these steps in sequential order. Id.
In Fourth Amendment cases, determining whether an official violated clearly
established law necessarily involves a reasonableness inquiry.2 Id. In Pearson v.
Callahan, the Supreme Court explained that an officer is “entitled to qualified
immunity where clearly established law does not show that the conduct violated the
Fourth Amendment.” 555 U.S. 223, 232 (2009). This is a determination which “turns
on the objective legal reasonableness of the action, assessed in light of the legal rules
that were clearly established at the time it was taken.” Id. However, “a reasonably
2 Here, Mr. Larpenter alleges violations of his Fourth, Fifth, and Eighth Amendment rights. (Rec. Doc.
1, at 5). However, because he is alleging false arrest and excessive force, his claims are properly
analyzed under the Fourth Amendment.
competent public official should know the law governing his conduct.” Harlow v.
Fitzgerald, 457 U.S. 800, 818–19 (1982). In general, “the doctrine of qualified
immunity protects government officials from . . . liability when they reasonably could
have believed that their conduct was not barred by law, and immunity is not denied
unless existing precedent places the constitutional question beyond debate.” Wyatt v.
Fletcher, 718 F.3d 496, 503 (5th Cir. 2013).
Neither party disputes the constitutional principles underlying Mr.
Larpenter’s constitutional claims—the Fourth Amendment right to be free from
unlawful arrest and detention as well as the Fourth Amendment right to be free from
excessive force during a seizure. Because neither party disputes the clarity of the
underlying Fourth Amendment rights, both the first and the second prong of the
qualified immunity analysis “necessarily involves a reasonableness inquiry.” Heaney,
846 F.3d at 801. Mr. Larpenter must show that Vera acted unreasonably to
demonstrate a Fourth Amendment violation in the first place. See, e.g., Heien v. North
Carolina, 574 U.S. 54, 60 (2014) (“As the text indicates and we have repeatedly
affirmed, the ultimate touchstone of the Fourth Amendment is reasonableness.”).
Then, when determining whether a constitutional right was clearly established—that
is, whether Vera could have reasonably believed that his “conduct was not barred by
law,” Mr. Larpenter again has to demonstrate that Vera’s actions were unreasonable.
In each instance, the reasonableness inquiry is “an objective one.” Harlow, 457
U.S. at 818. “The relevant question . . . is whether a reasonable officer could have
believed” his actions “to be lawful” under the Fourth Amendment “in light of clearly
established law and the information the . . . officers possessed.” Anderson v.
Creighton, 483 U.S. 635, 641 (1987). Because of the central role that reasonableness
plays in the qualified immunity inquiry, Vera focuses his arguments on the
reasonableness of his actions in light of the information he had available to him at
the time of the incident.
Vera asserts that he was hired as security for the Mardi Gras ball, and, at the
end of the night, was instructed by the Civic Center’s management to remove all
remaining guests from the building so they could lock up. (Rec. Doc. 45-1, at 2).
However, Mr. Larpenter contends that there is no evidence other than Vera’s own
account that the Civic Center’s management instructed Vera to remove patrons or
tell them to leave. (Rec. Doc. 50, at 9–10). However, both Vera and another officer
testified that the Civic Center management asked them to get all of the patrons out
of the building. (Rec. Doc. 45-4, at 4–5); (Rec. Doc. 50-14, at 91–92). Nonetheless, what
Vera and Mr. Larpenter agree on is that Vera was present as security by virtue of a
contract of lease between the Terre Carnival Club and the Civic Center. (Id. at 4).
Additionally, the only consistency between Vera and Mr. Larpenter’s timeline of
events is that Vera told everyone to leave multiple times. (Id. at 19).
Vera alleges that he made an announcement in the main hall that everyone
needed to leave. (Rec. Doc. 45-1, at 3). Next, after a group remained, Vera claims that
he approached the group and asked them again to leave the building. (Id.). At this
point, Vera contends that Mr. Larpenter took an aggressive posture and called him
an asshole. (Id.). In response, Vera alleges that he repeated, for a third time, his
request that everyone leave, and Mr. Larpenter responded with a “fuck you.” (Id.).
Vera, believing Mr. Larpenter to be under the influence of alcohol, and now having
repeatedly ignored his requests to leave, used a “transport wrist lock” to escort him
out of the Civic Center. (Id. at 3–4).
Mr. Larpenter alleges that Vera used profanity when telling everyone to leave
(Rec. Doc. 50, at 4–5). When Vera removed Mr. Larpenter from the building, Mr.
Larpenter claims that Vera “ripped” his left hand to the back of his head and took his
right-hand thumb and “jabbed it inside Mr. Larpenter’s jawbone.” (Id. at 5). As he
was removed, Mr. Larpenter alleges that Vera picked him up off the ground and drug
him out. (Id. at 5–6). On a summary judgment motion, this Court must credit Mr.
Larpenter’s account of events as the nonmovant. Nonetheless, the plaintiff must show
that the official's conduct was objectively unreasonable in light of a clearly
established rule of law, and immunity is not denied unless existing precedent places
the constitutional question beyond debate. Mr. Larpenter claims that Vera was
cursing at patrons at the end of the evening while telling them that they needed to
leave. Mr. Larpenter alleges that he told Vera that he “didn’t need to speak to the
women in that tone of voice,” and Mr. Larpenter then turned to his wife and said,
“this is crazy.” Mr. Larpenter claims that he said to Vera “[w]e are leaving the Civic
Center, we are trying to get out of here, and we are being pressured to get out of here
now. We understand, we get it.” However, after stating all of this to Vera, Mr.
Larpenter alleges that he “turned around” to “grab something else from the table,”
and it was at this point that Vera grabbed him.
Vera relies upon Heaney v. Roberts to show that his actions were reasonable.
(Rec. Doc. 45-1, at 8). In Heaney, the Fifth Circuit held that an officer was entitled to
qualified immunity after escorting the plaintiff out of the room and briefly detaining
him. Heaney v. Roberts, 846 F.3d 795, 805 (5th Cir. 2017). At a parish council meeting,
the council president told the plaintiff that his time to talk was up, and he requested
that the plaintiff be removed from the meeting. Id. at 799. The defendant officer
responded to this request by the council president and approached the plaintiff and
indicated that he needed to move. Id. The plaintiff walked away up the aisle and
alleged that the defendant continued to force him from the council chambers. Id.
Moreover, he alleged that the defendant shoved him forward, causing him to fall to
the floor. Id. After getting up, the plaintiff claimed that the defendant seized him by
the arms and forcibly ejected him from the chambers. Id. The Fifth Circuit found that
the defendant was “responsible for responding to requests by the council president to
address disruptions.” Id. The defendant “also reasonably believed he had legal
authority to keep the peace at meetings and in the building.” Id. The court found that
it was “not objectively unreasonable for [the defendant] to respond to [the council
president’s] request and escort [the plaintiff] out of the room or to briefly detain [him]
while consulting with his supervisor.” Id. In response, Mr. Larpenter argues that
Heaney is distinguishable from the instant case, but he fails to assert any precedent
that establishes the contours of this right beyond debate. (Rec. Doc. 50, at 17).
First, Mr. Larpenter cites to Ikerd v. Blair, 101 F.3d 430 (5th Cir. 1996) for the
proposition that the force used by Vera was brutal, disproportionate, and clearly and
objectively unreasonable. (Id. at 15). In Ikerd, the Fifth Circuit held that the evidence
presented was sufficient for a reasonable jury to conclude that the officer used
objectively unreasonable force. 101 F.3d at 434. The court explained that the officer
“acknowledged that there was no need to use any physical force against [the
plaintiff],” and she was not under arrest or posing a threat to anyone. Id. Moreover,
the officer was a 300-pound man who violently jerked the plaintiff, a ten-year-old girl,
out of her living room chair and dragged her into another room. Id. The facts here are
not akin to those in Ikerd. Unlike the plaintiff in Ikerd, Mr. Larpenter is not a ten-
year-old girl. The evidence indicates that he is a full grown, adult man. Additionally,
unlike the plaintiff in Ikerd, Mr. Larpenter was talking back to Vera and ignoring
Vera’s request that everyone leave the Civic Center. Finally, unlike the office in Ikerd,
Vera does not acknowledge that he used objectively unreasonable force.
Next, Mr. Larpenter cites to Saenz v. G4S Secure Solutions (USA), Inc., 224 F.
Supp. 3d 477 (W.D. Tex. 2016). In Saenz, the court found that the prison guard used
excessive force on a pretrial detainee who died in custody because “[s]everal judicial
decisions suggest that tasing and beating a restrained detainee – resulting in head
lacerations and profuse bleeding – and subsequently dragging him is constitutionally
impermissible.” Id. at 484. Saenz, for many reasons, is not applicable to Mr.
Larpenter’s case. Finally, Mr. Larpenter does not cite a single case dealing with
security officers at private events. Instead, he simply compares the seizures in
Heaney, Ikerd, and Saenz with the alleged seizure here, and conclusively states that
Mr. Larpenter’s seizure was “brutal, unrelenting, humiliating, and completely
disproportionate.” (Id.).
The Court begins its analysis with the observation that it is not clear that Mr.
Larpenter’s conduct would rise to the level of constituting probable cause as required
under the Fourth Amendment for a seizure. However, the Court is not persuaded that
this particular seizure, like the seizure in Heaney, had to be supported by probable
cause pertaining to a crime because Vera was working as the security detail for a
private event in which the Terre Carnival Club rented the Civic Center. (Rec. Doc.
45-1, at 2). The rental agreement states that the Civic Center “reserves the right for
itself and for its agents or security to remove any objectionable person or persons from
the Facilities . . . the Lessor [Civic Center] may, at its sole option, remove such
person.” (Rec. Doc. 50-2, at 4). Vera contends that his supervisor at the time of the
incident was the Civic Center management. (Rec. Doc. 45-1, at 2–3). Moreover, both
Vera and another officer testified that the Civic Center management asked them to
get all of the patrons out of the building. (Rec. Doc. 45-4, at 4–5); (Rec. Doc. 50-14, at
91–92). Pursuant to the rental agreement, “[t]he Houma Police Department shall
provide required security for events held at the Facilities, to be determined by Civic
Center Management in consultation with the Houma Police Department.” (Rec. Doc.
50-2, at 3). The Civic Center contracted with the Houma Police Department for
security for events, but, the evening of the incident at issue, Vera was hired to work
a private security detail under the terms of the rental agreement. Pursuant to the
rental agreement, security could remove “objectionable person or persons from the
Facilities.” This is what Vera did when he removed Mr. Larpenter. Thus, probable
cause was not required under the Fourth Amendment.
Next, even if probable cause was required, and Vera lacked the requisite
probable cause to believe that Mr. Larpenter had broken the law, the Court is
persuaded that Vera acted reasonably in light of objective factors available to him.
Despite the differences in the events told by Vera and Mr. Larpenter, a few details
remain consistent. First, Vera instructed the group multiple times that the Civic
Center was closing, and they needed to leave. Second, the group did not leave after
being asked to do so multiple times. Third, the group had been drinking that evening.
And fourth, Mr. Larpenter both talked back to and turned his back to Vera after being
told to leave. Thus, Vera pulled Mr. Larpenter’s arm behind his back and removed
him. Mr. Larpenter was detained for a brief period as he was removed, according to
Mr. Larpenter, more than 400 feet from inside the Civic Center to just outside of it.
Mr. Larpenter was immediately released once outside. Once released, Mr. Larpenter
was free to leave. In light of the objective facts available to Vera, the Court finds that
the seizure was brief, minimally intrusive, and reasonable under the totality of the
circumstances when Vera was faced with, in his perception, inebriated and
uncooperative patrons. Moreover, Mr. Larpenter, as the party with the burden of
proof, has not shown that Vera’s conduct was objectively unreasonable in light of a
clearly established rule of law.
II. DISCRETIONARY IMMUNITY
Next, Mr. Larpenter asserts state law claims of assault, battery, and
negligence against Vera. (Rec. Doc. 1, at 8). In response, Vera argues that he is
entitled to discretionary immunity because his acts were not criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant. (Rec. Doc. 45-1, at
12). In opposition, Mr. Larpenter contends that Vera’s actions were just that. (Rec.
Doc. 50, at 17). Pursuant to Louisiana Revised Statute § 9:2798.1, “[l]iability shall
not be imposed on public entities or their officers or employees based upon the
exercise or performance or the failure to exercise or perform their policymaking or
discretionary acts when such acts are within the course and scope of their lawful
powers and duties.” However, discretionary immunity shall not apply when the acts
or omissions “constitute criminal, fraudulent, malicious, intentional, willful,
outrageous, reckless, or flagrant misconduct.” La. Rev. Stat. § 9:2798.1(C)(2).
As the Court has already found, Vera’s actions were reasonable under the
totality of the circumstances, and therefore, Vera’s acts did not constitute criminal,
fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant, Nicholas Vera’s, Motion for
Summary Judgment (Rec. Doc. 44) is GRANTED.
IT IS FURTHER ORDERED that all claims of Plaintiff, Lauren Larpenter,
against Defendants, Nicholas Vera; Houma Police Department; Terrebonne Parish
Consolidated Government; Terre Carnival Club, Inc.; and Houma-Terrebonne Civic
Center, are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendant, Nicholas Vera’s, Motion for
Summary Judgment (Rec. Doc. 45) is GRANTED.
IT IS FURTHER ORDERED that all claims of Plaintiff, Kevin P. Larpenter,
against Defendants, Nicholas Vera; Houma Police Department; Terrebonne Parish
Consolidated Government; Terre Carnival Club, Inc.; and Houma-Terrebonne Civic
Center, are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 12th day of August, 2022.
CARL J. BA R
UNITED ST S DISTRICT JUDGE
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