Von Derhaar v. Stalbert

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KARL VON DERHAAR CIVIL ACTION

VERSUS NO. 21-1653

MICHAEL STALBERT, ET AL. SECTION “B”(5)

ORDER AND REASONS

Before the Court are defendants the City of New Orleans and

Shaun Ferguson’s motion for judgment on the pleadings and, in the

alternative, motion for summary judgment (Rec. Doc. 74),

plaintiff’s opposition (Rec. Doc. 119), and defendants’ reply

(Rec. Doc. 172). For the following reasons,

IT IS ORDERED that defendants’ motion for summary judgment is

GRANTED (Rec. Doc. 74) and defendants’ motion for judgment on the

pleadings (Rec. Doc. 74) is DENIED as moot. Plaintiff’s claims

against defendant the City of New Orleans and Shaun Ferguson are

DISMISSED with prejudice.

I. FACTS

This case arises from an alleged illegal search and seizure.

Plaintiff Karl Von Derhaar is an adult resident of Louisiana who

was employed as a criminalist at the New Orleans Police Department

(“NOPD”). Rec. Doc. 53 at 2-3. While working at the NOPD, plaintiff

became increasingly concerned about the efficacy, accuracy, and

safety of the crime lab’s drug tests. Id. at 4. Specifically,

plaintiff believed that the NOPD’s equipment and tests could not

differentiate between marijuana, an illicit substance in

Louisiana, and hemp, a legal one. Id. Plaintiff was also concerned

that criminalists were no longer performing confirmatory tests on

drug samples, which ensured that testing is accurate. Id. at 5.

Because these drug tests are routinely used as the basis for

criminal drug convictions in New Orleans, plaintiff feared that

inaccurate tests could lead to innocent persons being convicted of

marijuana drug crimes. Id.

Plaintiff voiced his concerns to his immediate supervisor,

Jamie Alexander, the QC Manager. Id. Thereafter, defendant

Sergeant Michael Stalbert, NOPD crime lab supervisor and drug

chemistry and crime technician, and defendant Kim Williams, NOPD

crime lab supervisor, learned of plaintiff’s concerns. Id. at 2,

5. The crime lab supervisors allegedly ignored plaintiff’s

concerns, and soon after, mandated that employees undergo drug

testing as a condition of employment, using the drug testing

methods plaintiff claims to be substandard. Id. at 5-6.

On September 2, 2020, plaintiff asked defendant Sergeant

Stalbert to be placed on leave without pay. Id. at 6. The next

day, defendants Stalbert, Williams, and Khalid Watson, an officer

of the Third District of the NOPD, arrived at plaintiff’s residence

purportedly to conduct a “wellness check,” claiming that plaintiff

had been “displaying erratic behavior” in the weeks prior. Id.

According to plaintiff, defendants Stalbert, Williams, and Watson

“forced their way inside [plaintiff’s] residence” dressed in full

NOPD uniform, in front of plaintiff’s child, while plaintiff was

in his underwear, and without a warrant or probable cause. Id.

Defendants told plaintiff that he must go with them to submit to

a drug test, even though allegedly he was on sick leave and not on

duty. Id.

Plaintiff told defendants he did not want to speak with them

nor go with them anywhere, but defendant Williams insisted

plaintiff must go to the Public Integrity Bureau (“PIB”), while

defendants maintained possession of his cell phone. Id. at 6-7.

Plaintiff inquired as to whether he was under arrest and defendants

admitted he was not, but that he still must go to the PIB with

them. Id. at 7. When plaintiff asked for his cell phone, defendant

Williams replied, “you not gonna need it.” Id. at 8. At one point,

plaintiff overheard defendant Williams’ phone call with Lieutenant

Darryl Watson, another supervisor of the NOPD crime lab, where

Darryl Watson stated “do a urinalysis test and he’s being ordered.

Put him on the clock, he’s being ordered to come into work and

take his test.” Id. Defendant Stalbert then said to plaintiff,

you are now on the clock, you’re getting paid, you’re

being ordered to take a drug test and

blood/alcohol/urinalysis test at PIB. The reason we are

doing this is because of your behavior and we are

concerned that you are harming yourself and your

behavior and the acts that you have been exhibiting have

been unique and not of your normal character.

Id. Plaintiff asked “if I quit right, now, do I have to come with

you sir?” and defendant Williams replied affirmatively stating

that plaintiff needed “to go up and sign the paperwork.” Id.

Plaintiff was then transported to the toxicology and drug analysis

laboratory at the PIB. Id. at 8-9.

While at P.I.B., plaintiff and defendant Jones entered a room

at the testing facility while defendants Williams and Watson sat

in the waiting area. Id. at 9. Plaintiff avers he informed

defendant Jones that he was taken illegally from his home and he

did not want to do a drug test. Rec. Doc. 119 at 5. However,

defendant Jones informed plaintiff that because he worked for the

city, plaintiff had to take the drug test and he could not refuse.

Id. plaintiff then asked defendant Jones if he would still be

required to submit to a drug test if he resigned from his position,

defendant Jones informed plaintiff he would not be required if he

resigned, and plaintiff submitted his resignation. Id. at 5-6.

Plaintiff’s amended complaint alleges defendants violated the

Fourth and Fourteenth Amendments of the Constitution and 42 U.S.C.

§ 1983 by conducting an unlawful arrest, search, and seizure. Rec.

Doc. 53 at 9. With respect to the City and Shaun Ferguson,

plaintiff avers defendants acted under color of the statutes,

ordinances, customs, and usage of the State of Louisiana, City of

New Orleans, and the New Orleans Police Department. Id. at 2.

Plaintiff also alleges defendants violated Louisiana Civil Code

Article 2315 and other Louisiana state laws related to kidnapping

and false arrest. Id. at 9. Accordingly, plaintiff claims

defendants are liable for general and special damages and

attorney’s fees and costs. Id. at 10.

II. LAW AND ANALYSIS

A. Standards of Review

1. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment is appropriate when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (quoting Fed. R. Civ. P. 56(c)); see also TIG Ins. Co. v.

Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A

genuine issue of material fact exists if the evidence would allow

a reasonable jury to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

court should view all facts and evidence in the light most

favorable to the non-moving party. United Fire & Cas. Co. v. Hixson

Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory

allegations are insufficient to defeat summary judgment. Eason v.

Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

“Once the moving party has demonstrated the absence of a

material fact issue, the non-moving party must ‘go beyond the

pleadings and designate specific facts showing that there is a

genuine issue for trial.’” McCarty v. Hillstone Rest. Grp., Inc.,

864 F.3d 354, 357 (5th Cir. 2017) (quoting Boudreaux v. Swift

Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). However, “where

the non-movant bears the burden of proof at trial, the movant may

merely point to an absence of evidence, thus shifting to the non-

movant the burden of demonstrating by competent summary judgment

proof that there is an issue of material fact warranting trial.”

Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994).

“This court will not assume in the absence of any proof that the

nonmoving party could or would prove the necessary facts, and will

grant summary judgment in any case where critical evidence is so

weak or tenuous on an essential fact that it could not support a

judgment in favor of the non-movant.” McCarty 864 F.3d at 358

(internal quotations omitted).

2. Municipal Liability

To prevail against a municipality on a 42 U.S.C. § 1983 claim,

a plaintiff must prove three elements: (1) the municipality had a

policy or custom, of which (2) a policymaker can be charged with

actual or constructive knowledge, and (3) a constitutional

violation whose “moving force” is the policy or custom. Jackson v.

Valdez, 852 Fed. Appx. 129, 134-135 (5th Cir. 2021) (per curiam)

(citing World Wide Street Preachers Fellowship v. Town of Columbia,

591 F.3d 747, 753 (5th Cir. 2009); see also Monell v. Dept of Soc.

Servs., 436 U.S. 658, 694 (1978)).

Concerning the first prong, “[t]he existence of a policy can

be shown through evidence of an actual policy, regulation, or

decision that is officially adopted and promulgated by lawmakers

or others with policymaking authority.” Valle v. City of Houston,

613 F.3d 536, 542 (5th Cir. 2010); see also Burge v. St. Tammany

Par., 336 F.3d 363, 369 (5th Cir. 2003). An official policy can

also be demonstrated via “[a] persistent, widespread practice of

city officials or employees, which, although not authorized by

officially adopted and promulgated policy, is so common and well

settled as to constitute a custom that fairly represents municipal

policy.” Id. (citing Bennett v. City of Slidell, 735 F.2d 861, 862

(5th Cir.1984) (per curiam)). Finally, “a single decision by a

policy maker may, under certain circumstances, constitute a policy

for which a [municipality] may be liable.” Brown v. Bryan

County, 219 F.3d 450, 462 (5th Cir. 2000). However, this “single

incident exception” is extremely narrow and gives rise to municipal

liability only if the municipal actor is a final

policymaker. Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir.

2008) (citing Woodard v. Andrus, 419 F.3d 348, 352 (5th

Cir.2005)).

Second, “[a]ctual or constructive knowledge of [a] custom

must be attributable to the governing body of the municipality or

to an official to whom that body has delegated policy-making

authority. Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th

Cir. 2001) (citing Webster v. City of Houston, 735 F.2d 838, 842

(5th Cir.1984) (en banc)). A municipal policymaker possesses “the

responsibility for making law or setting policy in any given area

of a local government's business.” City of St. Louis v.

Praprotnik, 485 U.S. 112, 125 (1988). “Municipal liability

attaches only where the decisionmaker possesses final authority to

establish municipal policy with respect to the action ordered.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). “This

circuit has long distinguished between final decisionmaking

authority and final policymaking authority.” Valle, 613 F.3d at

542 (referring to the Fifth Circuit Court of Appeals). “The fact

that a particular official—even a policymaking official—has

discretion in the exercise of particular functions does not,

without more, give rise to municipal liability based on an exercise

of that discretion.” Pembaur, 475 U.S. at 481-82. “[W]hether an

official had final policymaking authority is a question of state

law.” Id. at 482.

The third prong requires a plaintiff to demonstrate “moving

force” causation, “that a municipal decision reflects deliberate

indifference to the risk that a violation of a particular

constitutional or statutory right will follow the decision.”

Valle, 613 F.3d at 542 (citing Bd. of Cnty. Comm'rs of Bryan Cnty.,

Okl. v. Brown, 520 U.S. 397, 411 (1997)). “Deliberate indifference

is a high standard.” Id. (citing Piotrowski v. City of Houston,

237 F.3d 567, 579 (5th Cir. 2001)) (“[A] showing of simple or even

heightened negligence will not suffice.”).

Another theory of municipal liability under § 1983 applies if

the City fails to train the officers. City of Canton v. Harris,

489 U.S. 378, 388 (1989). To state a cognizable failure-to-train

claim, a plaintiff must demonstrate that: (1) the municipality's

training procedures were inadequate; (2) the municipality was

deliberately indifferent in adopting its training policy; and (3)

the inadequate training policy directly caused the constitutional

violations in question. Valdez, 852 Fed. Appx. At 135 (citing World

Wide, 591 F.3d at 756); see also Zarnow v. City of Wichita Falls,

Tex., 614 F.3d 161, 170 (5th Cir. 2010).

B. Summary Judgment Analysis

Because plaintiff Von Derhaar fails to identify genuine

issues of material fact, defendants the City of New Orleans and

Shaun Ferguson are entitled to municipality immunity. Here,

plaintiff advances several theories of liability in his opposition

memorandum (Rec. Doc. 119-1): (1) The defendants have a practice,

or alternatively a custom, that led to his alleged constitutional

injuries, Rec. Doc. 119-1 at 9-10, 21-22, and (2) the defendants’

liability in plaintiff’s § 1983 claim is based in its failure to

have a wellness check policy or to train its employees in how to

conduct wellness checks. Rec. Doc. 119 at 10, 17. Each theory will

be handled in turn.

1. Municipal Liability

a. Policy and custom

There are generally three means to prove prong one of

municipality liability analysis: (1) “actual policy, regulation,

or decision that is officially adopted and promulgated by lawmakers

or others with policymaking authority;” (2) “[a] persistent,

widespread practice of city officials or employees, which,

although not authorized by officially adopted and promulgated

policy, is so common and well settled as to constitute a custom

that fairly represents municipal policy;” or (3) “a single decision

by a policy maker may, under certain circumstances, constitute a

policy for which a [municipality] may be liable.” Valle, 613 F.3d

at 542; see also Bryan County, 219 F.3d at 462.

Plaintiff asserts defendants have a policy or custom through

a policy decision by an official to whom the lawmakers have

delegated policy-making authority. Rec. Doc. 119 at 9-10; Valdez,

852 Fed. Appx. at 135 (citing Pineda, 291 F.3d at 328, and quoting

Webster, 735 F.2d at 841). Plaintiff argues that Lieutenant Darryl

Watson, a supervisor of the NOPD crime lab, is an official to whom

the lawmakers have delegated policy-making authority, and that his

decision to conduct the wellness check and allegedly decision to

mandate plaintiff to go to PIB to take a drug test is thus a policy

or custom of the city. Rec. Doc. 119 at 9-10.

“Where an action is directed by those who establish

governmental policy, the municipality is equally responsible

whether that action is to be taken only once or to be taken

repeatedly.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481

(1986). In Pembaur, the Court of Appeals concluded, and the Supreme

Court affirmed, that based upon its examination of Ohio law both

the County Sheriff and the County Prosecutor were officials with

policy-making authority because Ohio law gave them the power to

establish county policy under appropriate circumstances. Id. at

484-85. It is a stretch to suggest that Lieutenant Watson, a

supervisor of the NOPD crime lab, is an official whose acts or

edicts may fairly be said to represent official policy because

there does not appear to be any Louisiana law that indicating

defendant Watson, or someone in his position, possesses true

policymaking authority. See Pembaur, 475 U.S. at 481; Monell, 436

U.S. at 694.

Next, plaintiff pivots and argues the city has a custom and

practice of conducting illegal stops, searches, and seizures that

is such a persistent, widespread practice that it fairly represents

municipal policy. See Rec. Doc. 119 at 20; see also Bennett, 735

F.2d at 862. Plaintiff cites as evidence the NOPD-Department of

Justice Consent Decree, approved on January 11, 2013, which

recognizes that the NOPD has systemic issues related to civil

rights violations. Rec. Doc. at 20-21; Allen v. City of New

Orleans, No. 13-422, 2015 WL 6738529, at *3 (E.D. La. 2015).

Plaintiff argues that the Department of Justice investigation

revealed that there was “reasonable cause to believe” that NOPD

officers had engaged in a pattern of Fourth Amendment violations,

and that recent reports indicated that the department was still

having similar systemic issues. Id.

This pattern theory for municipal liability requires

similarity, specificity, and “sufficiently numerous prior

incidents” as opposed to “isolated instances.” Valdez, 852 Fed.

Appx. at 135 (citing Peterson v. City of Fort Worth, 588 F.3d 838,

851 (5th Cir. 2009), and quoting McConney v. City of Houston, 863

F.2d 1180, 1184 (5th Cir. 1989)). However, there is no rigid rule

regarding numerosity to prove a widespread pattern of

unconstitutional acts. Id. Here, similar to Allen, plaintiff fails

to demonstrate how the Consent Decree establishes a pattern of

conduct related to the specific type of violation at issue in this

case. No. 13-422, 2015 WL 6738529, at *4. Accordingly, plaintiff

cannot sustain his burden on prong one.

b. Policymaker

Under the second municipal liability prong, plaintiff must

point to a policymaker who can be charged with actual or

constructive knowledge. Jackson v. Valdez, 852 Fed. Appx. 129,

134-135 (5th Cir. 2021). Accordingly, plaintiff urges the Court to

find that Daryl Watson was the decisionmaker who instructed the

defendant officers to bring plaintiff to P.I.B. for a drug test.

Rec. Doc. 119 at 9-10. Plaintiff is mistaken.

Recall, “[m]unicipal liability attaches only where the

decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 481 (1986). However, “[t]his circuit has

long distinguished between final decisionmaking authority and

final policymaking authority.” Valle, 613 F.3d at 542. “The fact

that a particular official—even a policymaking official—has

discretion in the exercise of particular functions does not,

without more, give rise to municipal liability based on an exercise

of that discretion.” Pembaur, 475 U.S. at 481-82.

As clarified above, plaintiff erroneously conflates decision-

making and policymaking authority. Rec. Doc. 119 at 9-10. That is,

plaintiff avers that Darryl Watson made an isolated decision but

never clarified how Darryl Watson possessed final policymaking

authority pursuant to state law. Id.; see also Pembaur v. City of

Cincinnati, 475 U.S. 469, 481 (1986). Defendants clarify New

Orleans ordinances established the Superintendent of Police as the

head of the police department. NEW ORLEANS, LA., CODE OF ORDINANCES §

4-501. What’s more, Fifth Circuit authority has clarified that the

mayor, the city council, and the superintendent of police are

examples of permissible policymakers for Section 1983 municipal

liability. Webster v. City of Houston, 735 F.2d 838, 842 (5th

Cir.), on reh'g, 739 F.2d 993 (5th Cir. 1984) (noting “[t]he court

further erred in allowing the jury to consider whether ‘some

similarly ranked official’ maintained a custom . . . that overrode

city policy” and “[t]here was no proof in this record whatsoever

that any police officer subordinate to the Chief even possibly

could have occupied the role of a city policymaker.”). This alone

is dispositive. Accordingly, plaintiff fails on the second prong.

c. Moving force

Having concluded that plaintiff failed to meet the first and

second requirement to establish municipal liability, the Court now

addresses why plaintiff also fails to prove moving force causation

in the interest of thoroughness.

Under the final prong, plaintiff must prove “that a municipal

decision reflects deliberate indifference to the risk that a

violation of a particular constitutional or statutory right will

follow the decision.” Valle, 613 F.3d at 542 (citing Bd. of Cnty.

Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 411 (1997)).

“Deliberate indifference is a high standard” Id. (citing

Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001))

(“[A] showing of simple or even heightened negligence will not

suffice.”). Here, plaintiff fails to demonstrate how systemic

problems in NOPD were the necessary “moving force” behind the

alleged Fourth and Fourteenth Amendment violations that occurred

to plaintiff on September 3, 2020.

There are several issues with plaintiff’s reliance of the

Consent Decree. Notably, the Consent Decree focused upon stops,

searches, and arrests as opposed to wellness checks. Rec. Doc. 119

at 20-22. The Court declines plaintiff’s invitation to make the

broad inference that “[i]f NOPD was not compliant with the policies

pertaining to the general public, it is not surprising that

officers were freely violating an off-duty employees

constitutional rights against unlawful search and seizure.” Id. at

22. Moreover, if the Court accepted plaintiff’s Consent Decree

argument, the City would be civilly liable for every civil rights

violation committed by NOPD officers in the line of duty, which

would provide the respondeat superior liability that § 1983 does

not allow. Allen, 2015 WL 6738529 at *4, *n.5. Plaintiff argues

the City also has a custom of violating its drug testing policies,

but cites to no additional examples of this violation to constitute

a pattern of moving force causation. Plaintiff, therefore, fails

to identify a disputed material fact as to a municipal policy or

custom that was the moving force of defendants allegedly violating

his constitutional rights.

2. Failure to train and failure to adopt policy

Plaintiff’s next line of argument for municipal

liability shifts to an alleged failure to train officers on how

to conduct wellness checks. Rec. Doc. 119 at 10, 17. To state a

cognizable failure-to-train claim, a plaintiff must demonstrate

that: (1) the municipality's training procedures were

inadequate; (2) the municipality was deliberately indifferent

in adopting its training policy; and (3) the inadequate training

policy directly caused the constitutional violations in question.

Valdez, 852 Fed. Appx. at 135 (citing World Wide, 591 F.3d at

756). Plaintiff argues that defendants’ failure to adopt a policy

or train officers on wellness checks is evidence of deliberate

indifference. Rec. Doc. 119 at 10, 17, 18.

Deliberate indifference may be proven in one of two ways.

Littell v. Houston Indep. Sch. Dist., 894 F.3d 616, 624 (5th Cir.

2018). First, “municipal employees will violate constitutional

rights ‘so often’ that the factfinder can infer from the pattern

of violations that ‘the need for further training must have been

plainly obvious to the ... policymakers.’” Valdez, 852 Fed. Appx.

at 135 (citing Connick v. Thompson, 563 U.S. 51, 61 (2011), and

quoting Canton, 489 U.S. at 390 n.10)). Plaintiff does not cite to

a pattern (or even one other instance) of the NOPD violating

individuals’ Fourth and Fourteenth Amendment rights during

wellness checks. Without more, deliberate indifference cannot be

shown in this way.

Second, absent proof of a pattern, deliberate indifference

can be inferred where “evidence of a single violation of federal

rights, accompanied by a showing that a municipality has failed to

train its employees to handle recurring situations presenting an

obvious potential for such a violation, [can] trigger municipal

liability.” Valdez, 852 Fed. Appx. at 135 (citing Bd. of the City

Comm’rs v. Brown, 520 U.S. 397, 409 (1997), and then citing Canton,

489 U.S. at 390, 109 S.Ct. 1197). This “single-incident exception”

exists “where the facts giving rise to the violation are such that

it should have been apparent to the policymaker that a

constitutional violation was the highly predictable consequence of

a particular policy or failure to train.” Westfall v. Luna, 903

F.3d 534, 552-553 (5th Cir. 2018) (citing Burge v. St. Tammany

Par., 336 F.3d 363, 373 (5th Cir. 2003)).

In Brown v. Bryan County, 219 F.3d 450 (5th Cir. 2000), the

Fifth Circuit found municipal liability on the single-incident

exception because it determined that the county was deliberately

indifferent when it had not trained or supervised the officer who

committed the allegedly unconstitutional action. Bryan County, 219

F.3d at 462. The sheriff had recently hired the officer and knew

the officer was young, inexperienced, had a personal record of

recklessness and questionable judgment, and that forcible arrests

were inevitable for an officer–and yet provided no training to

him. Id. at 462-463.

The undisputed facts in in this case do not provide the same

cause for concern the Fifth Circuit recognized in Bryan County. As

seen in Bryan County, evidence of the background and proclivities

of the particular officer involved in the constitutional violation

is important for the application of the single incident exception.

See Bryan County, 219 F.3d at 462-463; Davidson v. City of

Stafford, Texas, 848 F.3d 384, 398 (5th Cir. 2017) (looking at

evidence of backgrounds of officers involved); Snyder v.

Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998) (noting the officer

was stressed, aggressive, and may have had a quick temper); Roberts

v. City of Shreveport, 397 F.3d 287, 295-296 (5th Cir. 2005)

(lacking evidence of officer being involved in prior cases of

improper use of deadly force). By contrast, plaintiff provided no

evidence that defendants Stalbert, Williams, and Khalid Watson

have been involved in any cases involving constitutional

violations stemming from a wellness check or drug testing

protocols. Plaintiff therefore fails to identify a dispute of a

material fact as to defendants’ alleged deliberate indifference

in not adopting a wellness check policy or training officers on

wellness checks. See Davidson, 848 F.3d at 398.

New Orleans, Louisiana this 4th day of November, 2022

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE