setting forth the common law factors
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- setting forth the common law factors
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The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIE LEVENS, II CIVIL ACTION
VERSUS NO. 21-35
DEXTER GASPARD, ET AL. SECTION: “J”(1)
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 87) filed by
Defendant Deputy Dexter Gaspard. Plaintiff opposed the motion; (Rec. Doc. 89); and
Gaspard replied; (Rec. Doc. 92). Having considered the motion and legal memoranda,
the record, and the applicable law, the Court finds that the Motion for Summary
Judgment (Rec. Doc. 87) shall be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
On February 22, 2020, Defendant Gaspard ate a meal at Honest Abe’s BBQ in
Houma, Louisiana, while waiting to pick up his daughter who worked there. At the
time, he was off-duty and wearing plain clothes, but Gaspard works as a sheriff’s
deputy for the Terrebonne Parish Sheriffs Office. Gaspard regularly eats at Honest
Abe’s, and he had previously met Plaintiff, who was a cook at the restaurant, while
Gaspard was in uniform. While Gaspard was eating his meal, a Mardi Gras party bus
pulled up to the restaurant, and Mr. Verdin (the co-owner of Honest Abe’s) and
Plaintiff departed the bus and entered the restaurant.
At that point, Plaintiff alleges that Gaspard was “grossly intoxicated” and
mistook Plaintiff for another individual. (Rec. Doc. 1, at 3). Plaintiff alleges that
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Gaspard pushed him out of the restaurant door, causing him to fall and fracture his
kneecap. Id. at 3-4. However, Defendant Gaspard alleges that Plaintiff was
intoxicated, because he observed Plaintiff staggering and spilling beer on the floor.
Rec. Doc. 87-1, at 3). Gaspard alleges that Plaintiff and Mr. Verdin began arguing,
and Mr. Verdin asked Plaintiff to leave. Id. Mr. Verdin attempted to push Plaintiff
toward the door, and Plaintiff pushed Mr. Verdin into a stack of high chairs. Id. at 4.
At that point, Gaspard stood up and grabbed Plaintiff, and “once Plaintiff was
through the front door, Gaspard let go of him.” Id. Gaspard states that security
footage shows that “Gaspard moved Plaintiff through the front door,” and “Plaintiff
stumbled and fell backwards” and tripped over a wheel stop in the parking lot. Id. at
5.
The security footage shows that Gaspard returned inside the restaurant and
paradegoers surrounded Plaintiff to keep him upright and prevent him from re-
entering the restaurant. Security Videos, Rec. Doc. 87-5. Plaintiff then returns to the
party bus, and Gaspard walks outside the restaurant door while talking on his cell
phone to dispatch to get additional help with the situation. Id. Plaintiff and another
man then exited the bus and approached Gaspard, and Gaspard held his arm up to
prevent Plaintiff from re-entering the restaurant. Id. Plaintiff, Gaspard, and the
other man then walk to the other side of the restaurant, disappearing out of view of
the cameras. Id.
Plaintiff alleges that Gaspard then forcibly restrained him by holding his elbow
against his neck and did not advise Plaintiff that he was a police officer or why he
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was being detained. (Rec. Doc. 1, at 3). Gaspard testified that he did hold Plaintiff’s
arm while Plaintiff leaned against a vehicle after Gaspard pulled Plaintiff out of
traffic, until other sheriff deputies arrived. (Rec. Doc. 87, at 7-8).
Plaintiff filed the instant suit on January 11, 2021, alleging that Gaspard used
excessive force and unlawfully detained him while acting in his capacity as a law
enforcement officer, violating Plaintiff’s civil rights. (Rec. Doc. 1, at 6). Plaintiff seeks
damages under § 1983. Id. Plaintiff also alleged state law tort and negligence claims
against Gaspard. Id. at 5. Defendant Gaspard has filed the present motion asking
this Court to dismiss Plaintiff’s claims on summary judgment based on his defense of
qualified immunity and because his actions constitute a reasonable use of force. (Rec.
Doc. 87-1). Plaintiff, who is now proceeding pro se, filed an opposition, stating in its
entirety: “Dexter Gaspard misused his authority by illegally detaining me and
preventing me and witness Tyler Verdin from leaving the premises, even after the
Defendant Dexter Gaspard caused me bodily injuries. Doing so constitutes a civil
rights violation based on the fourth amendment.” (Rec. Doc. 89). In reply, Gaspard
contends that Plaintiff’s response did not introduce a scintilla of evidence to support
his allegations nor negate Gaspard’s defense of qualified immunity, thus failing to
carry his burden of proof. (Rec. Doc. 92)
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.”
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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
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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
Defendant Gaspard argues that he has qualified immunity from suit in this
case because he acted reasonably and because Plaintiff cannot point to any clearly
established law to defeat qualified immunity. “Qualified immunity shields public
officials sued in their individual capacities from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Kokesh v. Curlee, 14 F.4th 382, 391
(5th Cir. 2021) (internal citations omitted). The qualified immunity defense has two
prongs: (1) whether an official’s conduct violated a constitutional right of the plaintiff
and (2) whether the right was clearly established at the time of the violation. Manis
v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). A qualified immunity defense alters the
usual summary judgment burden of proof; when an official pleads the defense of
qualified immunity, “the burden shifts to the plaintiff, who must rebut the defense
by establishing a genuine fact issue as to whether the official’s allegedly wrongful
conduct violated clearly established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th
Cir. 2010) (citing Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir.2005)). If the
official’s actions violated a clearly established law, the court then asks whether the
actions were objectively reasonable in light of “law which was clearly established at
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the time of the disputed action.” Id. (quoting Collins v. Ainsworth, 382 F.3d 529, 537
(5th Cir. 2004)).
Gaspard argues that he is entitled to qualified immunity because he was acting
under color of state law, even though he was off-duty at the time of the incident.
“Whether a police officer is acting under color of law does not depend on duty status
at the time of the alleged violation.” United States v. Tarpley, 945 F.2d 806, 809 (5th
Cir. 1991). Instead, the court must consider “(1) whether the officer misuse[d] or
abuse[d] his official power, and (2) if there is a nexus between the victim, the improper
conduct, and [the officer's] performance of official duties.” Bustos v. Martini Club Inc.,
599 F.3d 458, 464–65 (5th Cir. 2010) (internal quotations omitted). Thus, if an officer
uses his official power to facilitate his actions, the officer acts under the color of law.
Id. (citing Tarpley, 945 F.2d at 809; United States v. Causey, 185 F.3d 407, 415–16
(5th Cir.1999)). Although Gaspard was off-duty and out of uniform at the time of the
incident, both Gaspard and Plaintiff agree that he was acting in his official capacity
while interacting with Plaintiff. See (Rec. Docs. 1, at 6; 87-1, at 11-12). Because
Plaintiff admitted in his deposition that he knew Gaspard was a sheriff’s deputy and
because Gaspard called for other sheriffs as backup, the Court agrees with the parties
and finds that Gaspard was acting under color of state law. Because Gaspard was
responding to the fight between Plaintiff and the restaurant owner, there is a nexus
between Plaintiff, Gaspard’s conduct, and Gaspard’s duty to protect the public.
Because he was acting under color of law, Gaspard argues that he is entitled
to assert the defense of qualified immunity. To overcome Gaspard’s defense of
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qualified immunity, Plaintiff need not present absolute proof, but must offer more
than mere allegations. Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.
2009). Plaintiff has not met this threshold, because he has not provided any evidence
to overcome Gaspard’s qualified immunity defense. In fact, Plaintiff’s opposition
merely provides unsupported allegations that Gaspard illegally detained him and
violated his civil rights.
The first step of the qualified-immunity analysis asks whether there was a
violation of a constitutional right. Plaintiff’s § 1983 claim is for excessive force and
unlawful detention, in violation of his Fourth Amendment rights. To establish a claim
of excessive force, a plaintiff must demonstrate: “(1) injury, (2) which resulted directly
and only from a use of force that was clearly excessive, and (3) the excessiveness of
which was clearly unreasonable.” Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir.
2017). Excessive force claims are necessarily fact-intensive; whether the force used is
“excessive” or “unreasonable” depends on the facts and circumstances of each
particular case. Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009). That
inquiry requires consideration of three non-exclusive factors, including “the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Graham v. Connor, 490 U.S. 386 (1989).
Upon review of the record evidence in the light most favorable to Plaintiff, the
Court finds that Gaspard’s use of force was not unreasonable. The video surveillance
and deposition testimony shows that Plaintiff was stumbling and potentially
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intoxicated during Mardi Gras. He had previously posed a threat to the safety of the
public, including the owner of the restaurant, and he had attempted to evade arrest
by Gaspard’s colleagues by leaving the scene and walking into the street. Taken
together, the evidence demonstrates that Gaspard’s conduct in removing Plaintiff
from the restaurant and detaining him until backup arrived was reasonable.
Accordingly, Plaintiff cannot establish an essential element of his claim that a
constitutional violation occurred, and he can therefore not satisfy his burden at the
summary judgment stage.
Finally, Gaspard also contends that if the Court dismisses all of Plaintiff’s
federal claims, it should also dismiss Plaintiff’s state law tort claims against him. In
determining whether to relinquish jurisdiction over pendent state law claims, district
courts look to the statutory factors set forth by 28 U.S.C. § 1367(c) and to the common
law factors of judicial economy, convenience, fairness, and comity. Enochs v. Lampass
Cty., 641 F.3d 155, 158-59 (5th Cir. 2011); see also Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988) (setting forth the common law factors). The statutory factors
are: “(1) whether the state claims raise novel or complex issues of state law; (2)
whether the state claims substantially predominate over the federal claims; (3)
whether the federal claims have been dismissed; and (4) whether there are
exceptional circumstances or other compelling reasons for declining jurisdiction.” Id.
at 159 (citing 28 U.S.C. § 1367(c)). The “general rule” is to decline to exercise
jurisdiction when all federal claims are dismissed or otherwise eliminated from a case
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prior to trial; however, this rule is neither mandatory nor absolute. Smith v. Amedisys
Inc., 298 F.3d 434, 446-47 (5th Cir. 2002).
This case currently falls within § 1367(c)(3), as the Court has dismissed all of
Plaintiffs claims that initially gave the Court original jurisdiction. Thus, the general
rule would support declining to exercise supplemental jurisdiction because the
federal claims have been dismissed and state claims substantially predominate.
Furthermore, the common law factors of judicial economy and fairness also support
declining supplemental jurisdiction, and dismissal without prejudice will allow
Plaintiff to proceed in state court if he so chooses. The Court therefore concludes that
it is appropriate to decline the exercise of supplemental jurisdiction over Plaintiffs
state law claims.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant Dexter Gaspard’s Motion for
Summary Judgment (Rec. Doc. 87) is GRANTED. Plaintiffs § 1983 claims
against Gaspard are hereby DISMISSED with prejudice, and Plaintiff's state law
tort and negligence claims are hereby DISMISSED without prejudice.
New Orleans, Louisiana, this 10th day of March, 2023.
CARL J. BA R
UNITED ST S DISTRICT JUDGE