# Burke v. Lopinto

> District Court, E.D. Louisiana · March 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10189040

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THERESA BURKE, INDIVIDUALLY CIVIL ACTION
AND ON BEHALF OF HER MINOR
CHILD, F.B.

VERSUS NO. 21-1588

JOSEPH P. LOPINTO III, ET AL. SECTION “R” (5)

ORDER AND REASONS

Before the Court is a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(c) or, in the alternative, for summary judgment pursuant
to Rule 56, filed by Sheriff Joseph P. Lopinto, III, and Deputies Gary Kessel,
Chase Maffe, and Oscar Pacheco.1 Plaintiff opposes defendants’ motion.2
For the following reasons, the Court grants in part and denies in part
defendants’ motion.

I. BACKGROUND

This case arises out of an arrest that occurred on August 22, 2020.
Plaintiff filed a complaint related to the arrest in which she alleged the
following facts: 13-year-old F.B. and his several of his friends took a vehicle

1 R. Doc. 21.
2 R. Doc. 24.
owned by his friend’s grandmother for a ride that day.3 None of the teenagers
was armed.4 F.B. drove the car.5 During the ride, F.B. noticed police lights

approaching the car from behind.6 Rather than pulling over, F.B. continued
driving and eventually collided into reflective traffic markers on the street.7
At that point, all of the teenagers left the car and fled the scene by foot.8
Plaintiff further alleges that F.B. ran into the parking lot of Lakeside

Mall in Metairie, Louisiana, and hid from the defendant police officers in the
bushes.9 When the officers spotted F.B., he fled again, and the officers
chased him.10 One of the officers pointed his gun at F.B. and yelled, “[i]f you

don’t stop fucking running, you little shit, I’m going to shoot you!”11 Upon
hearing the officer’s threat, F.B. allegedly dropped to his knees, raised his
hands, and cried out, “[p]lease don’t shoot me!”12
Plaintiff alleges that when the officers reached F.B., they body

slammed him, grabbed him by the hair, and smashed his head into the

3 R. Doc. 1 ¶¶ 5-6.
4 Id. ¶ 11.
5 Id. ¶ 9.
6 Id. ¶ 7.
7 Id. ¶ 9
8 Id. ¶ 10.
9 Id. ¶¶ 13-14.
10 Id. ¶ 15.
11 Id.
12 Id. ¶ 16.
pavement.13 Officer Pacheco also repeatedly punched F.B. in the abdomen.
At the time of the incident, F.B. weighed 115 pounds, whereas Officer

Pacheco weighed nearly 200 pounds.14
As a result of the beating, F.B. allegedly suffered a gash on his face,
black eyes, a bloody nose, and lost consciousness once he was placed in the
back of the police car.15 He was brought to Children’s Hospital, where he

underwent CT scans and x-rays because of the head injuries he sustained.16
He was diagnosed with “major neurocognitive disorder,” and the differential
diagnoses listed on his discharge papers included concussion, corneal

abrasion, cervical spine fracture/dislocation, and paraspinal neck pain.17
After his initial visit to the hospital, he returned multiple times. Plaintiff
alleges that F.B. was later diagnosed with post-concussive syndrome, and
although “his symptoms should have significantly improved by that time,”

they “continued to persist.”18
Plaintiff also alleges that there was only one white teenager in the
group involved with taking the car the day F.B. was arrested. Although the

13 Id. ¶ 17.
14 R. Doc. 1 ¶ 18.
15 Id. ¶¶ 19, 22.
16 Id. ¶¶ 26, 29.
17 Id. ¶ 30.
18 Id. ¶ 32.
white teenager also fled from the stolen car, he allegedly was not harmed by
the police, and when the boy’s father arrived, the officer shook the father’s

hand and turned the boy over to his father.19 Conversely, when F.B.’s mother
arrived on the scene, the officers refused to permit her to speak with him,
and ultimately brought him from the hospital to the police station.20 The
other boys, all of whom were African American, were also arrested.21

Based on the foregoing allegations, plaintiff brought excessive-force
claims pursuant to 42 U.S.C. § 1983 against defendants Kessel, Pacheco, and
Maffe, the officers who arrested F.B.22 She brought a separate section 1983

excessive-force claim against Sheriff Lopinto in his capacity as Sheriff of
Jefferson Parish.23 She also brought state law claims for assault, battery,
aggravated battery, and intentional infliction of emotional distress against
all defendants,24 and state law claims for negligent hiring, negligent

retention, negligent supervision, and malfeasance in office against Sheriff
Lopinto.25

19 Id. ¶ 24.
20 Id. ¶¶ 25, 28.
21 Id. ¶ 42.
22 R. Doc. 1 ¶¶ 52-53.
23 Id. ¶¶ 54-71.
24 Id. ¶¶ 72-76.
25 Id. ¶ 77.
Defendants then moved for dismissal or, in the alternative, for
summary judgment.26 In their statement of uncontested material facts,

defendants contend that after F.B. wrecked the vehicle, he fled from the
deputies on foot, and that he ultimately fell while running, at which point he
was apprehended by the deputies.27 They further assert that once F.B. was
apprehended, he “continued to violently resist arrest until subdued.”28 In

support of these contentions, defendants cite to the police report from the
incident, which indicates that F.B. ran away from the officers, and that once
the deputies reached F.B., F.B. pulled his arms away from the them as they

attempted to handcuff him.29 The report indicates that in response to F.B.’s
resistance, one of the deputies gave verbal commands to F.B. to stop fighting
and punched F.B. in the abdomen.30 Defendants also provide evidence that
F.B. was charged in state court with theft of a motor vehicle in violation of

La. Rev. Stat. 14:67.26 and resisting arrest “by flight” in violation of La. Rev.
Stat. 14:108.31 After the charges were filed, F.B. agreed to participate in a six-

26 R. Doc. 21.
27 R. Doc. 21-3.
28 Id.
29 R. Doc. 21-4 at 4.
30 Id.
31 R. Doc. 21-5; R. Doc. 21-7.
month diversion program.32 After F.B. completed the program, the charges
against him were dismissed.33 Defendants contend that plaintiff’s claims for

excessive force, battery, aggravated battery, assault, and intentional
infliction of emotional distress are all barred by the Heck doctrine because
F.B. was ultimately charged with, and acknowledged responsibility for,
resisting arrest.34 They argue that plaintiff’s claim for excessive force against

Sheriff Lopinto must be dismissed because plaintiff has failed to establish an
unconstitutional policy or custom.35 They contend that Sheriff Lopinto is
immune from plaintiff’s claims for negligent hiring, negligent retention, and

negligent supervision pursuant to La. Rev. Stat. § 9:2798.1.36 Finally, they
argue that plaintiff has failed to establish malfeasance. Plaintiff opposes
defendants’ motion.37
The Court considers the parties’ arguments below.

II. LEGAL STANDARD

32 R. Doc. 21-6. The program was subsequently extended by six more
months. R. Doc. 21-8.
33 R. Doc. 21-9.
34 R. Doc. 21 at 7-18.
35 R. Doc. 21 at
36 R. Doc. 21 at 24.
37 R. Doc. 24.
In considering a motion to dismiss, a court typically must limit itself to
the pleadings and their attachments. Collins v. Morgan Stanley Dean

Witter, 224 F.3d 496, 498 (5th Cir. 2000). “If, on a motion under 12(b)(6)
or 12(c), matters outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary judgment under
Rule 56.” Fed. R. Civ. P. 12(d). But a court may also consider documents

attached to a motion to dismiss without converting it to a summary judgment
motion if the documents are referred to in the complaint and are central to
the plaintiff’s claim. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d

285, 288 (5th Cir. 2004) (citation omitted). Because defendants have
submitted materials outside the pleadings that were not explicitly referred to
in plaintiff’s complaint, the Court will treat defendants’ motion as one for
summary judgment.

Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute
of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
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) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact,” or by “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
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
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION

A. Claims Against Deputies Kessel, Pacheco, and Maffe

1. Section 1983 Excessive-Force Claims
Plaintiff brings section 1983 claims against Deputies Kessel, Pacheco,
and Maffe for their use of excessive force when they arrested F.B.38 Title 42,

United States Code, section 1983 provides a cause of action for plaintiffs
whose federal rights are violated under color of state law. 42 U.S.C. § 1983;
Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). To state a
claim under section 1983, a plaintiff must first show a violation of the

Constitution or of federal law, and then show that the violation was
committed by someone acting “under color of state law.” Id. A section 1983
claim cannot withstand summary judgment if it improperly challenges

convictions that arise from the same facts used as the basis for the section
1983 claim. Sheppard v. City of Alexandria, No. 10-1396, 2012 WL 3961820,
at *1 (W.D. La. Sept. 10, 2012).
Defendants contend that plaintiff’s section 1983 claims for excessive

force are barred pursuant to the Supreme Court’s decision in Heck v.

38 Plaintiff contends that the officers’ use of force violates both the Fourth
Amendment and the Fourteenth Amendment. The Court analyzes
plaintiff’s claims under the Fourth Amendment, as “[t]he Fourth
Amendment’s right to be free from unreasonable seizures governs
excessive-force claims.” Roque v. Harvel, 993 F.3d 325, 333 (5th Cir.
2021); see also Graham v. Connor, 490 U.S. 386, 395 (1989) (“[A]ll
claims that law enforcement officers have used excessive force . . . in
the course of an arrest . . . of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard, rather than
under a ‘substantive due process’ approach.” (emphasis in original)).
Humphrey, 512 U.S. 477 (1994). For purposes of this motion, it is
undisputed that F.B. initially ran from the police on foot; that once the police

reached him, he pulled his arms away from them, in response to which the
deputies punched him in the abdomen; that F.B. was charged with resisting
arrest “by flight;” and that the charges were dropped after F.B. completed a
pre-trial diversion program. In their motion, defendants argue that

plaintiff’s excessive-force claims are inconsistent with F.B.’s charge for
resisting arrest, and that they are thus procedurally barred by Heck.
In Heck v. Humphrey, a prisoner who had been convicted of voluntary

manslaughter brought an action under section 1983 against police and
prosecutors while his appeal challenging his arrest and conviction was still
pending. 512 U.S. at 478-79. The suit sought compensatory and punitive
monetary damages. Id. at 479. The Court noted that section 1983 created “a

species of tort liability” analogous to the common-law tort action of
malicious prosecution. Id. at 483-84. It further noted that an action for
malicious prosecution requires that the criminal proceeding be terminated
in favor of the accused. Id. at 484. Otherwise, a convicted defendant could

mount a collateral attack on his conviction in the guise of a civil suit. Id. at
484.
The Court concluded that section 1983 claims for damages are “not
appropriate vehicles for challenging the validity of outstanding criminal

judgments.” Id. at 486. A plaintiff may bring a section 1983 action that
would necessarily imply the invalidity of his conviction, but only in particular
circumstances:
[i]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.
Id. at 486-87.
Accordingly, when a district court confronts a section 1983 action for
damages that implicates a conviction or sentence, it must determine whether
a ruling for the plaintiff “would necessarily imply the invalidity” of the
plaintiff’s conviction or sentence. Id. at 487. If the court determines that it
would, the action cannot proceed unless the conviction has been vacated,
invalidated, or overturned. Id. at 487.
In this case, F.B. was not convicted of or sentenced for resisting arrest.
Rather, the charges against him were dropped after his completed a pre-trial
diversion program. Nevertheless, plaintiff does not dispute that the Heck
procedural bar can apply in cases in which a criminal defendant participates

in a pre-trial diversion program rather than pleading guilty or going to trial.
See Morris v. Mekdessie, 768 F. App’x 299 (5th Cir. 2019) (holding that Heck
applies to pre-trial diversion programs, which “essentially [are] a middle
ground between conviction and exoneration,” because “defendants entering

diversion programs acknowledge responsibility for their actions” (internal
quotation marks omitted)). Rather, plaintiff contends that the section 1983
excessive-force claim does not “necessarily imply the invalidity of” of F.B.’s

acknowledgment of responsibility for resisting arrest.
The Fifth Circuit has explained that “[a]lthough the Heck principle
applies to section 1983 excessive force claims, the determination of whether
such claims are barred is analytical and fact-intensive,” requiring an inquiry

into “whether success on the excessive force claim requires negation of an
element of the criminal offense or proof of a fact that is inherently
inconsistent with one underlying the criminal conviction.” Bush v. Strain,
513 F.3d 492, 498 (5th Cir. 2008). The Fifth Circuit has further elaborated

that “a § 1983 claim would not necessarily imply the invalidity of a resisting
arrest conviction, and therefore would not be barred by Heck, if the factual
basis for the conviction is temporally and conceptually distinct from the
excessive force claim.” Id.

The Court first examines plaintiff’s civil cause of action for excessive
force. To prevail on such a claim, a plaintiff must show “(1) an injury (2)
which resulted directly and only from the use of force that was clearly
excessive to the need and (3) the force used was objectively unreasonable.”

Orr v. Copeland, 844 F.3d 484, 492 (5th Cir. 2016). “The test used to
determine whether a use of force was reasonable under the Fourth
Amendment is not capable of precise definition or mechanical application.”

Trammel v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017) (internal quotation
marks omitted). “Rather, its proper application requires careful attention to
the facts and circumstances of each particular case, including (1) the severity
of the crime at issue, (2) whether the suspect poses an immediate threat to

the safety of the officers or others, and (3) whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. “Officers may consider a
suspect’s refusal to comply with instructions . . . in assessing whether
physical force is needed to effectuate the suspect’s compliance. However,

officers must assess not only the need for force, but also the relationship
between the need and the amount of force used.” Id.
The Court next looks to the statutory language underlying F.B.’s state-
court charge for resisting an officer. Under Louisiana law, resistance of an

officer is defined as
intentional interference with, opposition or resistance to, or
obstruction of an individual acting in his official capacity and
authorized by law to make a lawful arrest, lawful detention, or
seizure of property . . . when the offender knows or has reason to
know that the person arresting . . . is acting in his official capacity.
La. Rev. Stat. § 14:108. Section 14:108(B)(1) lists five different ways a person
can “obstruct[] an individual acting in his official capacity and authorized by
law to make a lawful arrest,” including:
(a) Flight by one sought to be arrested before the arresting
officer can restrain him and after notice is given that he is
under arrest,

(b) Any violence toward or any resistance or opposition to the
arresting officer after the arrested party is actually placed
under arrest and before he is incarcerated in jail,

(c) Refusal by the arrested or detained party to give his name .
. . or providing false information regarding the identify of
such party to the officer,

(d) Congregation with others on a public street and refusal to
move on when ordered by the officer, and

(e) Knowing interference with a police cordon resulting from
the intentional crossing or traversing of a police cordon by
an unauthorized person[.]
Id. §§ 14:108(B)(1)(a)-(e). F.B. was charged with “intentionally oppos[ing]
and resist[ing] an officer of the law by flight before the arresting officer can

restrain him and after notice is given that he is under arrest.”39

a. F.B.’s resistance of arrest by flight
Defendants acknowledge in their statement of uncontested facts that

F.B. ran from the deputies by foot before they ultimately reached him, and
the police report to which defendants cite indicates the same.40 Plaintiff was
charged with, and acknowledged responsibility for, resisting arrest “by

flight.”41
It is well established that there is “no Heck bar if the alleged violation
occurred ‘after’ the cessation of the plaintiff’s misconduct that gave rise to
his prior conviction.” Aucoin v. Cupil, 958 F.3d 379, 382 (5th Cir. 2020). In

Bush v. Strain, the plaintiff was convicted of resisting arrest under Louisiana
Revised Statute section 14:108, and subsequently brought a section 1983
claim for excessive force against the officers who arrested her. 515 F.3d at
496-98. The plaintiff specifically alleged that the arresting officer pushed

her face into the back of an automobile after she was handcuffed and was no

39 R. Doc. 21-7.
40 R. Doc. 21-4 at 4.
41 R. Doc. 21-7.
longer resisting arrest. Id. at 496. The Magistrate Judge granted defendant’s
motion for summary judgment, determining that Heck barred the plaintiff’s

claim. Id. at 496-97. The Fifth Circuit reversed, finding that because the
plaintiff had “produced evidence that the alleged excessive force occurred
after she stopped resisting arrest, and the fact findings essential to her
criminal conviction are not inherently at odds with the claim, a favorable

verdict on her excessive force claims [would] not undermine her criminal
conviction.” Id. at 500.
Upon examination of the elements of each claim, the Court finds that,

as in Bush, plaintiff’s claim for excessive force is “temporally and
conceptually distinct” from F.B.’s acknowledgment of responsibility for
resisting an officer “by flight.”42 See Bush, 513 F.3d at 498. A ruling in
plaintiff’s favor on her excessive-force claim, which is premised on the

officers’ conduct after they reached F.B., would create no conflict with F.B.’s
state-law charge, which was premised on his flight from the officers before
they reached him. See also Rogers v. Jefferson Parish Sheriff’s Office, No.
18-11164, 2022 WL 124028, at *6 (E.D. La. Jan. 13, 2022) (plaintiff’s claim

that officers used excessive force after he was handcuffed was not barred by
Heck because the claim did not imply the invalidity of his conviction for

42 R. Doc. 21-7.
resisting arrest by flight before he was handcuffed). In other words, “the fact
findings essential to” F.B.’s charge of resisting arrest “are not inherently at

odds with” plaintiff’s section 1983 claim. Bush, 513 F.3d at 498.
Defendants contend that the factual allegations in plaintiff’s complaint
are inconsistent with the state-law charge for resisting arrest. Although the
Fifth Circuit “applies Heck to bar claims based on underlying factual

allegations if they necessarily contradict facts supporting the criminal
conviction,” Rogers, 2022 WL 124028, at *6, here, the factual allegations do
not contradict facts supporting the charge. The only factual allegations that

defendants contend create conflict with the charge for resisting arrest are
plaintiff’s allegations that (1) F.B. dropped to his knees when one of the
officers threatened to shoot him, (2) F.B. complied with the command to stop
running, but the police nevertheless body slammed him and smashed his

head into the concrete, and (3) F.B. “never made any threatening or
aggressive movement towards the law enforcement deputies;” rather, he
“was terrified with a gun pointed at him, and complied with the officers’
commands.”43 None of these allegations is inconsistent with the charge for

which F.B. acknowledged responsibility: that before officers reached F.B., he
resisted arrest by flight.

43 R. Doc. 21-1 at 3.
In sum, because F.B. was not charged with resisting arrest beyond his
“flight” from the officers, plaintiff’s excessive-force claim is “temporally and

conceptually distinct” from the charge for which he accepted responsibility.
See Idel v. LeBlanc, No. 17-1553, 2019 WL 1903285, at *10 (E.D. La. Apr. 29,
2019) (noting that it “is possible both for Plaintiff to have [disobeyed orders
to stop fighting] and for Defendant to have applied excessive force after

Plaintiff had ceased these actions”). Defendants have thus failed to meet
their burden of establishing that they are entitled to judgment as a matter of
law on plaintiff’s excessive-force claims against Deputies Pacheco, Kessel,

and Maffe.

b. F.B.’s resistance of arrest by force
Throughout their motion, defendants focus on F.B.’s resistance after

the officers reached him. The state-court documents that defendants provide
show that F.B.’s charge was not related to this conduct. Rather, he was
charged with resisting arrest “by flight before the arresting officer can
restrain him and after notice is given that he is under arrest,”44 which tracks

the statutory language of La. Rev. Stat. 14:108(B)(1)(a). The Supreme Court
of Louisiana has clarified that subsection (B)(1)(a) applies to “flight only in

44 R. Doc. 21-7.
the narrow instance of one not yet restrained,” whereas (B)(1)(b) covers
“post-arrest . . . resistance and opposition, but not flight.” State v. Bullock,

576 So. 2d 453, 457 (1991). F.B.’s charge was not premised on, nor is there
any evidence that he acknowledged responsibility for, resisting arrest after
the officers reached him.
But even if F.B.’s charge were premised on his resistance after the

officers reached him rather than on his initial flight from the officers,
defendants have failed to establish that plaintiff’s claims would be barred by
Heck. See Arnold v. Town of Slaughter, 100 F. App’x 321, 323 (5th Cir.

2004). In Arnold, the plaintiff was convicted of resisting arrest, and in
connection with his conviction, the judge determined that the plaintiff had
initiated a physical confrontation with the police. Id. at 324. The plaintiff
later filed an excessive-force claim in which he alleged that he did nothing to

provoke the police. Id. The Fifth Circuit held that his claim was barred by
Heck because a finding in the plaintiff’s favor would necessarily contradict
the factual findings that supported his conviction for resisting arrest. In so
doing, the Fifth Circuit distinguished the facts of that case from cases in

which section 1983 plaintiffs did not deny facts underlying their state-court
convictions. Id. at 324-25. Other sections of this court have since relied on
Arnold to reject arguments that excessive-force claims are barred by Heck
when excessive-force claimants do not deny that they resisted arrest, but
rather, contend that the degree of force that officers used in response to their

resistance was unreasonable. See Champagne v. Martin, No. 18-1785, 2019
WL 3430457, at *5 (E.D. La. July 29, 2019) (defendants were not entitled to
summary judgment because “[t]he crux of the case at hand is whether the
force used to overcome [plaintiff’s] resistance was reasonable”); Perkins v.

Hart, No. 21-879, 2022 WL 2952992, at *6 (E.D. La. July 26, 2022)
(defendants were not entitled to summary judgment because the plaintiff
“[did] not deny that she resisted defendants’ attempts to arrest her,” but

rather argued that “defendants’ used of force during the arrest was
excessive”).
Here, plaintiff does not dispute that F.B. resisted arrest by pulling his
arms away from the police as they tried handcuffing him.45 Rather, she

contends the amount of force used to overcome his resistance was
excessive.46 Accordingly, “[t]he crux of the case at hand is whether the force
used to overcome [F.B.’s] resistance was reasonable.” Champagne, 2019 WL
3430457, at *5. Plaintiff has identified a genuine dispute of material fact as

to whether the force defendants used to overcome F.B.’s resistance was

45 R. Doc. 24 at 13.
46 Id.
reasonable—plaintiff has put forth medical records that indicate that F.B.
sustained a concussion and lost consciousness “during [his] altercation with

police,”47 and defendants do not deny that the arresting deputies slammed
F.B.’s head into the concrete and punched him repeatedly. Conversely, the
only evidence defendants have of F.B.’s resistance that supposedly
necessitated the use of force is that F.B. pulled his arms away from the

officers as they tried to handcuff him.48 Accordingly, even if F.B.’s charge for
resisting arrest were premised on his conduct after the police reached him,
defendants would not be entitled to summary judgment on plaintiff’s

excessive-force claims.

2. State-Law Claims

Plaintiff also brings state-law claims for assault, battery, aggravated
battery, and intentional infliction of emotional distress against Deputies
Kessel, Pacheco, and Maffe. Defendants contend that plaintiff’s state-law
claims must be dismissed for the same reason as plaintiff’s excessive-force
claims: they are barred in Heck. “Louisiana law follows the rule from Heck
and does not allow state law claims to withstand summary judgment if the

47 R. Doc. 24-2 at 3.
48 R. Doc. 21-4 at 4.
claims challenge the validity of the underlying criminal conviction.”
Sheppard, 2012 WL 3961820, at *2.

As to plaintiff’s claims for assault and battery, “[u]nder Louisiana law,
the torts of assault and battery, when raised against a law enforcement officer
acting in the course of employment, require a showing that the law
enforcement officer acted with unreasonable or excessive force.” Rogers,

2022 WL 124028, at *7 (internal quotation marks omitted). “[T]he same
standard is used in analyzing a state law claim for excessive force [and by
extension claims of assault and battery] as a constitutional claim, namely the

reasonableness under the circumstances.” Id. Accordingly, for the same
reasons that the Court denies defendants’ motion for summary judgment as
to plaintiff’s excessive-force claims under section 1983, the Court denies
defendants’ motion as to plaintiff’s state-law claims for assault and battery.

Id. (rejecting defendants’ argument that plaintiff’s state-law claims for
assault and battery, which were premised on excessive force used after
plaintiff resisted arrest, were barred by Heck).
Defendants’ motion is also denied as to plaintiff’s claim for intentional

infliction of emotional distress. To prevail on a claim of intentional infliction
of emotional distress, a plaintiff must establish “(1) that the conduct of the
defendant was extreme and outrageous; (2) that the emotional distress
suffered by the plaintiff was severe; and (3) that the defendant desired to
inflict severe emotional distress or knew that severe emotional distress

would be certain or substantially certain to result from his conduct.” White
v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). Defendants do not
contend that plaintiff has produced no evidence substantiating her claim;
rather, defendants merely argue that her intentional infliction of emotional

distress claim is barred by Heck. But, as with plaintiff’s other claims against
Deputies Kessel, Pacheco, and Maffe, “the fact findings essential to” F.B.’s
charge of resisting arrest “are not inherently at odds with” plaintiff’s claim

for intentional infliction of emotion distress, which does not require that
plaintiff establish that F.B. did not resist arrest. Bush, 513 F.3d at 498.
The Court thus denies defendant’s motion as to plaintiff’s state-law
claims against Deputies Kessel, Pacheco, and Maffe.

B. Claims Against Sheriff Lopinto

1. Section 1983 Excessive-Force Claim

Plaintiff sues Sheriff Lopinto in his official capacity. As the Fifth
Circuit has noted, “[o]fficial capacity suits generally represent another way
of pleading an action against an entity of which an officer is an agent.” Burge
v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Thus, plaintiff’s
official-capacity claims against Sheriff Lopinto are actually claims against the
Jefferson Parish Sheriff’s Office itself. See Bean v. Pittman, No. 14-2210,
2015 WL 350284, at *2 (E.D. La. Jan. 26, 2015). Because the Sheriff's Office

is a municipal entity, plaintiff’s section 1983 claim against Sheriff Lopinto
must satisfy the requirements outlined in Monell v. Department of Social
Services, 436 U.S. 658 (1978).
Under Monell, to establish a section 1983 claim against a municipality,

a plaintiff must demonstrate (1) an official 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 that policy or custom. Valle

v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010). As the Fifth Circuit
has noted, these elements are necessary “to distinguish individual violations
perpetrated by local government employees from those that can be fairly
identified as actions of the government itself.” Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citations omitted).
Defendants do not dispute that Sheriff Lopinto is a policymaker.
Rather, they contend that plaintiff has failed to establish an official policy or
custom that was the “moving force” behind plaintiff’s injury. A municipality

may be held liable under section 1983 if the constitutional violation was
inflicted through an official policy or custom. See Piotrowski, 237 F.3d at
579. The official policy requirement can be met in a number of different
ways. See Burge, 187 F.3d at 471. There may be an actual policy contained
in officially promulgated policy statements, ordinance, or regulations. See

Piotrowski, 237 F.3d at 579; Burge 187 F.3d at 471. Or there may be “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.” Lawson v. Dallas Cnty., 286 F.3d 257, 263 (5th Cir. 2002) (quoting
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)). A
plaintiff must demonstrate that the municipal policymaker had actual or

constructive knowledge of the custom. Pineda v. City of Houston, 291 F.3d
325, 328 (5th Cir. 2002). If there is no custom or policy, the “official policy”
requirement may be met when the action of the policymaker itself violated a
constitutional right. See Burge, 187 F.3d at 471. And finally, if a

policymaker’s failure to take some action evidences a “deliberate
indifference” to constitutional rights, this inaction can fulfill the “official
policy” requirement. See Burge, 187 F.3d at 471 (quoting City of Canton v.
Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In this

context, deliberate indifference is a “stringent test,” and “a showing of simple
or even heightened negligence will not suffice to prove municipal
culpability.” Piotrowski, 237 F.3d at 579 (quoting Bryan Cnty., 520 U.S. at
407).

In her opposition brief, plaintiff points to allegations in her complaint
that Jefferson Parish has “an overt policy and practice whereby people of
color are disproportionately stopped, detained, harassed, and subjected to
the use of force by JPSO deputies.”49 In her complaint, she also alleges that

the deputies’ conduct was “undertaken pursuant to de facto policies,
practices, and/or customs—both written and unwritten—of the [Jefferson
Parish Sheriff’s Office].”50 She further alleges that Sheriff Lopinto

“encouraged, tolerated, ratified, and has been deliberately indifferent” to
policies, practices, and customs of deputies using excessive force.51 In
support of her claim, she alleges that multiple complaints have been filed
against Sheriff Lopinto and others in the Jefferson Parish Sheriff’s Office for

using excessive force against African American boys and men.52
Even if these allegations were sufficient to state a claim under Monell,
plaintiff has failed to provide evidence substantiating these allegations. Cf.
Quatroy v. Jefferson Parish Sheriff’s Office, No. 04-451, 2009 WL 1380196,

49 R. Doc. 24 at 20.
50 R. Doc. 1 ¶ 50.
51 Id. ¶ 61.
52 Id. ¶ 43.
at *3 (E.D. La. May 14, 2009) (treating motion to dismiss or, in the
alternative, for summary judgment, as a motion to dismiss plaintiffs’ Monell

claims when defendants’ arguments went “to the legal sufficiency of
plaintiffs’ pleadings—not to whether plaintiffs have evidence that establishes
genuine issues of fact for trial”). To survive summary judgment, a plaintiff
must “present[] sufficient evidence to establish a fact question for municipal

liability on the basis that” the Jefferson Parish Sheriff’s Office maintained a
“policy that was permissive of excessive force.” Peterson v. City of Fort
Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009). For example, in Peterson,

the plaintiff brought a Monell claim against the City of Fort Worth for
adopting an unwritten policy that was permissive of excessive force. Id. at
851. At summary judgment, the plaintiff identified 27 complaints filed
against the city for use of excessive force from 2002 to 2005. The Fifth

Circuit held that, in light of the plaintiff’s failure to “provide context that
would show a pattern of establishing a municipal policy,” including the total
number of arrests made from 2002 to 2005, and the evidence indicating that
“only four of the 27 complaints were ‘sustained’ after investigation,” the

plaintiff had failed to identify “a pattern so common and well-settled as to
constitute a custom that fairly represents municipal policy.” Id. at 850
(internal quotation marks omitted).
Here, plaintiff relies on her allegations about other complaints of the
Jefferson Parish police’s use of excessive force against minorities from 2017

through 2021. She does not provide evidence of those complaints, nor does
she provide information regarding the disposition of each complaint or
context about the total number of arrests made by Jefferson Parish police.
Cf. id. at 851. Indeed, the only evidence she submits in connection with her

opposition to plaintiff’s motion are F.B.’s hospital records, which have no
bearing on plaintiff’s Monell claim. The Court thus grants defendants’
motion as to plaintiff’s 1983 claim for excessive force against Sheriff Lopinto.

2. State-Law Claims

In addition to her claim for excessive force, plaintiff brought claims for
assault, battery, aggravated assault, intentional infliction of emotional
distress, negligent hiring, negligent training, negligent retention, negligent
supervision, and malfeasance in office against Sheriff Lopinto in his official
capacity as sheriff of Livingston Parish.

a. Assault, battery, aggravated assault, intentional
infliction of emotional distress

As to plaintiff’s claims for assault, battery, aggravated assault, and
intentional infliction of emotional distress, defendants’ only argument
supporting dismissal is that these claims are barred by Heck. Defendants do
not argue that Sheriff Lopinto is not liable for the torts committed by his

deputies, and as a general matter, government entities “do not enjoy special
protection from vicarious liability under Louisiana law and are subject to
respondeat superior like every other employer.” Deville v. Marcantel, 567
F.3d 156, 174 (5th Cir. 2009). Nor do defendants contend that there is no

evidence supporting these claims. Because the only argument defendants
advance regarding Officer Lopinto’s liability as to these claims is premised
on Heck, the Court denies defendants’ motion as to these claims for the same

reason discussed in Section III.A.2, supra.

b. Plaintiff’s remaining state-law claims

Defendants argue, and in her opposition brief, plaintiff does not
contest, that defendant is entitled to summary judgment on plaintiff’s claims
for negligent hiring, negligent retention, negligent training, negligent
supervision, and malfeasance in office. Her claims for negligent hiring,
training, retention, and supervision are barred by La. Rev. Stat. § 9:2798.1,
which provides:
Liability 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.
La. Rev. Stat. § 9:2798.1(B). The provisions of La. Rev. Stat. § 9:2798.1(B)
are not applicable “(1) [t]o acts or omissions which are not reasonably related

to the legitimate governmental objective for which the policymaking or
discretionary power exists; or (2) [t]o acts or omissions which constitute
criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or
flagrant misconduct.” La. Rev. Stat. 9:2798.1(C).

“Louisiana courts have adopted a test analogous to the FTCA
discretionary function test in determining whether an official is protected by
the statute, namely, (1) whether a state law, regulation, or policy specifically

prescribes the officer’s course of action; and (2) whether the challenged
action is grounded in political, economic, or social policy.” Roberts v. City
of Shreveport, 397 F.3d 287, 298 (5th Cir. 2005). Louisiana courts and
federal courts applying Louisiana law have interpreted the statute to render

officers immune from liability for state-law claims for negligent training,
hiring, supervision, and retention. See id. (La. Rev. Stat. 9:2798.1(B) renders
police chief immune from state-law claims premised on his “training officers
under his command”); Smith v. Lafayette Parish Sheriff’s Dep’t, 874 So. 2d

863, 868 (La. App. 3 Cir. 2004) (sheriff’s “hiring/retention policy was a
discretionary act” for purposes of immunity under La. Rev. Stat. 9:2798.1);
Hoffpauir v. Columbia Cas. Co., No. 12-403, 2013 WL 5934699, at *12 (M.D.
La. Nov. 5, 2013) (“[T]he hiring, training, and supervision policy of the
Livingston Parish Sheriff’s Department is a discretionary function.”);

Skinner v. Ard, 519 F. Supp. 3d 301, 321 (M.D. La. Feb. 3, 2021) (sheriff’s
“duties to train, supervise, and hire are not prescribed by law or regulation,
and these duties are grounded in policy considerations”).
Defendants contend, and plaintiff does not dispute, that Sheriff

Lopinto is immune from liability pursuant to La. Rev. Stat. 9:2798.1.
Because plaintiff has “failed to point to a Louisiana statute mandating a
particular policy or procedure for hiring, training, supervising, or screening

officers,” the Court funds that “the sheriff’s department’s hiring, training,
retention, and supervision policy are discretionary functions, for which [La.
Rev. Stat. § 9:2798.1] grants the officers and the department immunity.”
Hoffpauir, 2013 WL 5934699, at *12.

Finally, defendants’ motion is likewise granted as to plaintiff’s claim
against Sheriff Lopinto for malfeasance in office. The “fountainhead of
Louisiana tort law,” Louisiana Civil Code article 2315, “has been interpreted
to permit a cause of action for malfeasance.” Jones v. Herlin, No. 12-1978,

2013 WL 5270547, at *7 (W.D. La. Sept. 17, 2013). That statute provides that
“[e]very act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.” La. Civ. Code art. 2315(A).
There is little modern law regarding the tort of malfeasance, but in
Ellett v. Newland, the Louisiana Supreme Court defined malfeasance as the

“doing of an act which is wholly wrongful and unlawful, . . . the doing of an
act which a person ought not to do at all.” 171 La. 1019, 1024 (La. 1931).
Federal courts have subsequently interpreted Ellett as generally requiring
defendants to have “knowingly committed a wrongful criminal act” to be

liable for malfeasance. Boyte v. Wooten, No. 04-1818, 2007 WL 3023935, at
*7 (W.D. La. Oct. 16, 2007); see also Scott v. Northern La. Med. Ctr., No. 16-
0376, 2016 WL 8470184, at *11 n.19 (W.D. La. Sept. 9, 2016) (plaintiffs failed

to “allege any facts to suggest that defendants were guilty of a criminal act”
in support of their malfeasance claim); Jones, 2013 WL 5270547, at *7
(“[M]alfeasance under Louisiana law appears to be reserved for extremely
egregious offenses, generally [rising] to the level of criminal conduct.”).

Defendants contend, and plaintiff does not deny, that plaintiff does not
articulate the basis of her claim for malfeasance, nor has she identified any
evidence in support of it. She has thus failed to identify a fact issue as to her
claim for malfeasance.

Defendant’s motion is thus granted as to plaintiff’s state-law claims for
negligent retention, negligent hiring, negligent training, negligent
supervision, and malfeasance in office.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion as to
plaintiffs claims for excessive force, malfeasance, negligent hiring, negligent
supervision, negligent retention, and negligent hiring as to Sheriff Lopinto.
The Court DENIES defendants’ motion as to plaintiffs other claims.

New Orleans, Louisiana, this__7th _ day of March, 2023.
_bernk Yoree_
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10189040. Public record. Not legal advice.