Opinion

Larpenter v. Vera

Court
District Court, E.D. Louisiana
Filed
Aug 12, 2022
Cited by
0 cases
Authority
More cited than 22.3%

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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