The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IVAN JOSUE RIVERA-COLON; CIVIL ACTION
HUSBAND OF, AND FEDMARIE
CALDERON SANTOS
VERSUS No. 20-1101
PARISH OF ST. BERNARD, ET AL. SECTION: “J”(5)
ORDER & REASONS
Before the Court are two Motions for Summary Judgment (Rec. Docs. 41, 42).
The first was filed by Defendant, Shanta Watkins. (Rec. Doc. 41). The second was
filed by Defendants, James Pohlmann in his official capacity as Sheriff of St. Bernard
Parish and Corey Bordelon. (Rec. Doc. 42). Plaintiffs have opposed both motions. (Rec.
Docs. 44, 45). Having considered the motions and legal memoranda, the record, and
the applicable law, the Court finds that the motions should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
On April 12, 2019, Plaintiff Rivera-Colon went to the OMV office in St. Bernard
Parish to obtain a Louisiana driver’s license. At the OMV, Rivera-Colon presented
his social security card, New York state driver’s license, Puerto Rican identification
card, and Puerto Rican birth certificate to Defendant Watkins, an OMV employee.
Watkins attempted to verify the authenticity of Rivera-Colon’s Puerto Rican
identification card but erroneously entered the card number as a driver’s license. As
a result, her system check determined the documents to a “No Match” to Plaintiff.
(Rec. Doc. 14, at 4). Watkins then contacted Mr. James McCullough, her supervisor
in Baton Rouge, and directed him to perform the same check. Mr. McCullough
confirmed that the documents were fraudulent and instructed Watkins to contact law
enforcement. Despite Rivera-Colon’s other documents being verified as legitimate,
Watkins called the St. Bernard Parish Sheriff’s Office, and Defendant, Deputy Corey
Bordelon went to the OMV. Deputy Bordelon placed Rivera-Colon under arrest for
“Unlawful production, manufacturing, or distribution of fraudulent documents for
identification purposes” in violation of La. R.S. 14:70.7(C)(2) and “Identity Theft
greater than $1,000.00” in violation of La. R.S. 14:67.16(C)(1)(a). Id. at 5. However,
on December 12, 2019, the St. Bernard Parish district attorney dismissed the charges
against Rivera-Colon nolle prosequi for insufficient evidence.
Rivera-Colon and his alleged wife, Plaintiff Calderon Santos, filed suit against
the OMV, Watkins, John Doe, Deputy Bordelon, St. Bernard Parish Sheriff James
Pohlmann, and the St. Bernard Parish Government on April 2, 2020. This Court
subsequently dismissed OMV from the suit, dismissed Watkins in her official
capacity, and dismissed all federal claims against Watkins. (Rec. Docs. 11, 16).
Defendant Watkins has moved for summary judgment as to the remaining state law
malicious prosecution claim against her. (Rec. Doc. 41). Defendants, James Pohlmann
and Corey Bordelon have also moved for summary judgment for the remaining claims
against them. (Rec. Doc. 42).
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 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.
DISCUSSION
Plaintiff alleges that he was falsely arrested and has sued for relief under 42
U.S.C. § 1983 for a violation of his Fourth, Fifth, and Fourteenth Amendment rights
against Deputy Corey Bordelon in his official and individual capacity and against
Sheriff James Pohlmann and by extension the municipality of St. Bernard Parish.
(Rec. Doc. 14). Plaintiff also has one remaining state law claim against OMV
employee Shanta Watkins for malicious prosecution. Id. Plaintiff also has brought a
state law malicious prosecution claim against Deputy Bordelon. Id.
I. State Law Malicious Prosecution Claim against Shanta Watkins
Under Louisiana law, a claim for malicious prosecution requires:
(1) the commencement or continuance of an original criminal or civil
judicial proceeding; (2) its legal causation by the present defendant
in the original proceeding; (3) its bona fide termination in favor of
the present plaintiff; (4) the absence of probable cause for such
proceeding; (5) the presence of malice therein; and (6) damage
conforming to legal standards resulting to plaintiff.
Lemoine v. Wolfe, 168 So.3d 362, 367 (La. 2015) (citing Jones v. Soileau, 448
So.2d 1268, 1271 (La. 1984). When the charges against a plaintiff are dismissed
prior to trial, including when the dismissal occurs nolle prosequi through the
discretion of the District Attorney, a lack of probable cause and malice are
presumed. Watson v. Church’s Fried Chicken, Inc., 527 So.2d 979, 981 (La. App. 4th
Cir., 1988). Malicious prosecution claims are never favored in Louisiana law. James
v. Woods, 899 F.3d 404, 409 (5th Cir. 2018) (citing Kennedy v. Sheriff of E. Baton
Rouge, 935 So.2d 669, 690 n.20 (La. 2006). There is a “conditional privilege
extended to the communication of alleged wrongful acts to the officials authorized to
protect the public. . . .” Kennedy, 935 So.2d, at 683. Public policy strongly supports
encouraging individuals to report suspected crimes, and “it would be self-defeating
for society to impose civil liability on a citizen for inaccurately reporting criminal
conduct with no intent to mislead.” Id. (citation omitted).
Watkins argues that Plaintiff’s claim fails as to the second element of the tort
of malicious prosecution because the chain of legal causation between her contacting
law enforcement and Mr. Rivera-Colon’s arrest was broken by the independent
investigation of Corey Bordelon. When an individual reports a suspected crime to
law enforcement, an independent investigation by law enforcement breaks the
chain of legal causation for a subsequent arrest. See James, 899 F.3d, at 409.
Merely reporting a crime is not enough to satisfy that the defendant caused a
subsequent prosecution. Id.
On a video taken by Plaintiff Fedmarie Calderon Santos, Officer Bordelon
states that he ran Mr. Rivera-Colon’s Puerto Rican driver’s license and that he ran
the same searches as Ms. Watkins and that both came back with a different name
to Mr. Rivera-Colon. (Rec. Doc. 41, Exhibits D, E by manual attachment).
Additionally in response to a Request for Admission, Deputy Bordelon admitted
that he “conducted an independent criminal history check on plaintiff.” (Rec. Doc.
41-6). Furthermore, in Defendant Bordelon’s Motion for Summary Judgment, he
again asserts that he “conducted his own criminal history check by running what he
reasonably believed was a Puerto Rican driver’s license which also did not come
back to Plaintiff’s name.” (Rec. Doc. 42, at 14).
Plaintiff does not submit any evidence to contradict Ms. Watkin’s assertions
that Deputy Bordelon conducted an independent investigation by running a search
on Mr. Rivera-Colon’s I.D. and running a background check. Therefore, because
there is no genuine issue of material fact as to element two, the legal cause of Mr.
Rivera-Colon’s arrest, Plaintiff’s malicious prosecution claim against Ms. Watkins
fails. Therefore, Ms. Watkin’s Motion for Summary Judgment (Rec. Doc. 41) is
GRANTED.
II. Claims against Deputy Corey Bordelon
Plaintiff has sued Deputy Bordelon in both his official and individual
capacity. As a preliminary matter, Plaintiff’s claims against Bordelon in his official
capacity must be dismissed. Bordelon does not possess “final policymaking
authority for the entity under state or local law.” Adams v. City of Shreveport, 269
F. Supp. 3d 743, 753 (W.D. La. 2017) (citing Burge v. Parish of St. Tammany, 187
F.3d 452, 468-70 (5th Cir. 1999)). Instead, “the sheriff in his official capacity is the
appropriate governmental entity on which to place responsibility for the torts of a
deputy sheriff.” Burge, 187 F.3d, at 470. Therefore, Plaintiff’s claims against Deputy
Bordelon in his official capacity are DISMISSED.
a. False Arrest
Plaintiff has also sued Deputy Bordelon in his individual capacity for false
arrest. Deputy Bordelon contends that he is entitled to qualified immunity and had
probable cause, as a matter of law, to arrest Plaintiff. (Rec. Doc. 42, at 8, 11). The
Court addressed the requirements of qualified immunity in light of a false arrest
claim in the April 21, 2021 order granting in part Defendant Shanta Watkin’s Motion
to Dismiss. (Rec. Doc. 16). To overcome qualified immunity, a plaintiff must establish
that (1) the defendant’s conduct violated the plaintiff’s constitutional rights, and (2)
the defendant’s conduct was objectively unreasonable in light of clearly established
law at the time of the incident. See Alexander v. Eeds, 392 F.3d 138, 144 (5th Cir.
2004). “The second prong of the qualified immunity test is better understood as two
separate inquiries: whether the allegedly violated constitutional rights were clearly
established at the time of the incident; and, if so, whether the conduct of the
defendants was objectively unreasonable in the light of that then clearly established
law.” Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998). Showing that the
right was clearly established requires a plaintiff to point out “a legislative directive
or case precedent that is sufficiently clear such that every reasonable official would
have understood that what he is doing violates the law.” Keller v. Fleming, 952 F.3d
216, 225 (5th Cir. 2020).
“The constitutional claim of false arrest requires a showing of no probable
cause.” Club Retro, LLC v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009). Thus, to
overcome qualified immunity for a claim of false arrest, “plaintiffs must allege facts
permitting an inference that defendants lacked arguable (that is, reasonable but
mistaken) probable cause for the arrests.” Id. at 207. Probable cause exists where the
facts and circumstances known to the officer at the time of arrest would warrant “a
reasonable belief that an offense was being committed, whether or not the officer
charged the arrestee with that specific offense.” Id. at 204. “Because probable cause
is an objective standard, an arrest is lawful if the officer had probable cause to arrest
for any offense, not just the offense cited at the time of arrest or booking.” District of
Columbia v. Wesby, 138 S. Ct. 577, 584 n.2 (2018).
Deputy Bordelon cites Velazquez v. City of Westwego, 531 F.Supp.3d 1142
(E.D. La. 2021) as an analogous case. In Velazquez, the plaintiff, an American
citizen from Puerto Rico, was arrested when her passport came up as “no match” in
the OMV system while trying to obtain a Louisiana driver’s license. Id. at 1148.
Just as in this case, the plaintiff in Velazquez was arrested, but her charges were
later dropped. Id. Judge Africk held that there was probable cause for the plaintiff’s
arrest, finding that even though the officer conducted no independent investigation,
he was justified in relying on the conclusion of the OMV employees that the
passport was fraudulent, stating that “officers may have probable cause to make an
arrest when they reasonably rely solely on first-hand information from third parties
who have specialized knowledge regarding the alleged criminal conduct.” Id. at
1158 (citing United States v. Hernandez, 825, F.2d 846, 849-50 (5th Cir. 1987)).
In this case, Deputy Bordelon had an even stronger basis for probable cause
than the officer in Velazquez. Deputy Bordelon relied not only on the conclusions of
the OMV employees and their specialized knowledge regarding identification
documents, but he also further conducted his own independent investigation by
running Plaintiff’s I.D. as part of a background check. (Rec. Doc. 42, at 11). Both
Ms. Watkins and Deputy Bordelon mistakenly ran Plaintiff’s Puerto Rican I.D. as a
driver’s license, causing it to appear fraudulent. However, “the Constitution does
not guarantee that only the guilty will be arrested, nor does it require officials to
perform an error-free investigation.” Neno v. Evans, 974 F.3d 571, 576 (5th Cir.
2020) (quoting Baker v. McCollan, 443 U.S. 137, 145-46 (1979)). Defendant Bordelon
reasonably relied on the assertions of Ms. Watkins and on the results of running the
I.D. himself. Therefore, because Mr. Rivera-Colon’s arrest occurred with probable
cause, Deputy Bordelon is entitled to qualified immunity.
b. Malicious Prosecution
As discussed above, an essential element of a malicious prosecution claim is
the absence of probable cause. See supra Part I. See also Lemoine, 168 So.3d, at 367.
Because Deputy Bordelon acted with probable cause, Plaintiff’s claim against him
for malicious prosecution fails as well. Therefore, Defendants’ Motion for Summary
Judgment (Rec. Doc. 44) is GRANTED as to the claims against Deputy Corey
Bordelon.
III. Claims Against Sheriff James Pohlmann
Plaintiff has also sued James Pohlmann in his official capacity as Sheriff of
St. Bernard Parish. A claim against an officer in his official capacity is treated as a
claim against the municipality. Brooks v. George Cty., 84 F.3d 157, 165 (5th Cir.
1996). Although municipalities may be found liable in § 1983 suits, their liability
cannot be predicated on respondeat superior for the isolated actions of an employee.
Webb v. Town of Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019). See also Monell v.
Dept. of Social Services, 436 U.S. 658, 694 (1978). “The unconstitutional conduct
must be directly attributable to the municipality through some sort of official action
or imprimatur; isolated unconstitutional actions by municipal employees will
almost never trigger liability.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001). Therefore, “[m]unicipal liability under § 1983 requires proof of 1) a
policymaker; 2) an official policy; 3) and a violation of constitutional rights whose
‘moving force’ is the policy or custom.” Rivera v. Houston Indep. Sch. Dist., 349 F.3d
244, 247 (5th Cir. 2003).
Plaintiff’s claims against Sheriff Pohlmann and by extension the municipality
of St. Bernard Parish fail because he can neither point to any official policy or
custom relevant to his claims and because this Court has already concluded that his
constitutional rights were not violated. Deputy Bordelon had probable cause to
arrest Mr. Rivera-Colon as discussed above. Therefore, Defendants’ Motion for
Summary Judgment (Rec. Doc. 42) is GRANTED as to Plaintiff’s claims against
Sheriff Pohlmann in his official capacity.
To the extent that Plaintiff’s First Amended Complaint (Rec. Doc. 14) makes
any claim against Sheriff Pohlmann in his individual capacity, these claims are also
DISMISSED. Plaintiff provides no evidence whatsoever that Sheriff Pohlmann was
involved in any way in the facts of this case or that he was informed after the fact
and ratified Deputy Bordelon’s actions. Furthermore, even if he did ratify these
actions, he would have been correct in doing so, as Officer Bordelon acted with
probable cause. Therefore, any claim against Sheriff Pohlmann individually is
without merit.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motions for Summary Judgment (Rec.
Docs. 41, 42) are hereby GRANTED.
New Orleans, Louisiana, this 19th day of December, 2022.
VK Sahu
MV
CARL J. yh RY
UNITED STAVES DISTRICT JUDGE
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