Lou v. Lopinto

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DONNA LOU, ET AL. CIVIL ACTION

VERSUS NO. 21-80

SHERIFF JOSEPH P. LOPINTO, III, ET AL. SECTION: D (2)

ORDER AND REASONS

Before the Court is Partial Motion to Dismiss the Federal Claims Against

Sheriff Lopinto in His Individual Capacity Pursuant to Fed. R. Civ. P. 12(c) or,

Alternatively, for Summary Judgment Pursuant to Fed. R. Civ. P. 56, filed by

defendant Sheriff Joseph P. Lopinto, III (“Sheriff Lopinto”).1 Plaintiffs oppose the

Motion2 and Sheriff Lopinto has filed a Reply.3 After careful consideration of the

parties’ memoranda and the applicable law, the motion is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND4

In the instant Motion, Sheriff Lopinto seeks partial judgment, either on the

pleadings or on summary judgment, dismissing as a matter of law Plaintiffs’ federal

claims asserted against him in his individual capacity.5 Sheriff Lopinto contends that

it is well settled that supervisory officials cannot be held vicariously liable for their

subordinates’ actions under § 1983 unless they either affirmatively participate in acts

that cause the constitutional deprivation or implement unconstitutional polices that

1 R. Doc. 49.

2 R. Doc. 51.

3 R. Doc. 67.

4 The Court set forth the facts of this case in great detail in its May 18, 2023 Order and Reasons (R.

Doc. 208) and, for the sake of brevity, they will not be repeated here.

5 R. Doc. 49.

causally result in the plaintiff’s injury.6 Sheriff Lopinto asserts that Plaintiffs’ claims

against him in his individual capacity should be dismissed because Plaintiffs fail to

allege or provide evidence demonstrating that he participated directly in the events

giving rise to this litigation. Sheriff Lopinto does not seek dismissal or summary

judgment based on qualified immunity in this Motion.

Plaintiffs assert that Sheriff Lopinto’s argument is premised upon an error of

law, and that a supervisor like Sheriff Lopinto need not be at the scene or participate

directly in physical actions to be liable for a constitutional claim.7 Plaintiffs assert

that supervisors may be liable for failures of training, policy, and supervision that

cause constitutional injuries, and that Sheriff Lopinto concedes as much in his

Motion.8 Plaintiffs point out that they are not suing Sheriff Lopinto for his presence

or actions on the scene at the time of the injury, but for the actions and omissions he

personally took in his role as a supervisor and policymaker.9 Plaintiffs contend that

their Complaint specifically articulates that the theory of liability against Sheriff

Lopinto individually is based upon his failures regarding policy, hiring, training,

discipline, and supervision, and not his individual participation in the underlying

actions of the deputies.10 Plaintiffs claim that, “The allegations are bolstered by

factual detail and agency history, ensuring that they satisfy the Iqbal/Twobly [sic]

6 R. Doc. 49-1 at p. 6 (quoting Mouille v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992))

(internal quotation marks omitted). The Court notes that Sheriff Lopinto’s citation to a Louisiana

Fifth Circuit Court of Appeals case by the same name appears to be in error.

7 R. Doc. 51 at pp. 1 & 2.

8 R. Doc. 51 at p. 1 (citing R. Doc. 49-1 at p. 6).

9 R. Doc. 51 at p. 3 (citing R. Doc. 1 at ¶ 6).

10 R. Doc. 51 at p. 3 (citing R. Doc. 1 at ¶¶ 408-29).

plausibility standard.”11 Plaintiffs assert that, because Sheriff Lopinto wrongly

assumes that he must have been physically present or participating directly to be

liable, his Motion should be denied.

In response, Sheriff Lopinto submits that Plaintiffs have now clarified that

their individual capacity claims are policy-related and, as such, they are duplicative

of Plaintiffs’ claims asserted against him in his official capacity.12 As “acknowledged

in his original brief,” Sheriff Lopinto recognizes that the Fifth Circuit has held that a

sheriff not personally involved in acts that deprived the plaintiff of his constitutional

rights is liable under § 1983 if the sheriff failed to train or supervise the officers

involved, there is a causal connection between the alleged failure to supervise or train

and the alleged violation of rights, and the failure to train or supervise constituted

deliberate indifference to the plaintiff’s constitutional rights.13 Sheriff Lopinto

asserts, however, that Plaintiffs cannot defeat his Motion because they failed to argue

or provide any summary judgment evidence indicating that he had knowledge of, was

deliberately indifferent to an obvious need to train the defendant deputies regarding

the specific issues in this case, or that his deliberate indifference caused the

constitutional deprivation.14

11 R. Doc. 51 at p. 3 (citing R. Doc. 1 at ¶ 29, et al. and ¶ 290, et al.).

12 R. Doc. 67 at pp. 1-2 & 2.

13 R. Doc. 67 at p. 3 (quoting Cozzo v. Tangipahoa Parish Council -- President Gov’t, 279 F.3d 273, 286

(5th Cir. 2002)) (internal quotation marks omitted).

14 R. Doc. 67 at pp. 3-5.

II. LEGAL STANDARD

A. Rule 12(c) Motion for Judgment on the Pleadings.

Federal Rule of Civil Procedure 12(c) permits any party to move for a judgment

on the pleadings after the pleadings are closed, provided that the motion is made

early enough to avoid delaying trial. Such motions are “designed to dispose of cases

where the material facts are not in dispute and a judgment on the merits can be

rendered by looking to the substance of the pleadings and any judicially noticed

facts.”15 Rule 12(c) motions are subject to the same standard as motions to dismiss

filed under Fed. R. Civ. P. 12(b)(6).16 In ruling on a Rule 12(b)(6) motion to dismiss,

the Court accepts all well-pleaded facts as true and views those facts in the light most

favorable to the plaintiff.17 Additionally, on a Rule 12(b)(6) motion to dismiss, the

Court is generally prohibited from considering information outside the pleadings, but

may consider documents outside of the complaint when they are: (1) attached to the

motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.18 The

Court can also take judicial notice of matters that are of public record, including

pleadings that have been filed in a federal or state court.19 The Fifth Circuit has

instructed that when reviewing a Rule 12(c) motion, pleadings should be “construed

15 Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F3d 305, 312 (5th Cir. 2002)

(quoting Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990)) (internal

quotation marks omitted). See, Addy’s Burger, LLC v. Paradigm Investment Group, LLC, Civ. A. No.

17-2400, 2018 WL 2569928, at *2 (E.D. La. June 4, 2018) (North, M.J.) (citing Great Plains, supra).

16 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citing Great Plains, 313 F.3d

at 313 n.8).

17 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).

18 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).

19 In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.

Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004)).

liberally.”20 In this Circuit, a Rule 12(b)(6) motion to dismiss “is viewed with disfavor

and is rarely granted.”21

B. Rule 56 Motion for Summary Judgment.

Summary judgment is appropriate where there is no genuine disputed issue as

to any material fact, and the moving party is entitled to judgment as a matter of

law.22 A party moving for summary judgment must inform the Court of the basis for

the motion and identify those portions of the pleadings, depositions, answers to

interrogatories and admissions on file, together with affidavits, if any, that show that

there is no such genuine issue of material fact.23 If the moving party carries its

burden of proof under Rule 56, the opposing party must direct the Court’s attention

to specific evidence in the record which demonstrates that the non-moving party can

satisfy a reasonable jury that it is entitled to a verdict in its favor.24 This burden is

not satisfied by some metaphysical doubt as to alleged material facts, by unsworn

and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of

evidence.25 Rather, Rule 56 mandates that summary judgment be entered 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

20 Great Plains, 313 F.3d at 312 (quotation and internal quotation marks omitted).

21 Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (citation omitted).

22 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202

(1986).

23 Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.

24 Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

25 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

trial.26 In resolving a motion for summary judgment, the Court must review the facts

and inferences in the light most favorable to the non-moving party, and the Court

may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual

disputes.27

C. Individual Capacity Claims Brought Under 42 U.S.C. § 1983.

The Fifth Circuit has held that, “An official cannot be held liable in his

individual capacity merely because a subordinate committed some constitutional

violation; ‘[s]ection 1983 does not impose vicarious liability or respondeat-superior

liability.’”28 “Instead, a defendant must either be ‘personally involved in the

constitutional violation’ or commit ‘acts [that] are causally connected to the

constitutional violation alleged.”29 Stated another way, a “supervisor is not

personally liable for his subordinate’s actions in which he had no involvement.”30

Further, a supervisor not personally involved in the acts that deprive a plaintiff of

his constitutional rights can be held liable under § 1983 if he “implements

unconstitutional policies that causally result in the constitutional injury.”31

According to the Fifth Circuit, this “policy-focused inquiry is akin to the standard for

26 Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.

27 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

28 Magnolia Island Plantation, L.L.C. v. Whittington, 29 F.4th 246, 251 (5th Cir. 2022) (quoting Bigford

v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988)) (reversing district court’s denial of qualified immunity

where plaintiff failed to allege any personal involvement of the sheriff in the purported wrongdoing).

29 Magnolia Island Plantation, 29 F.4th at 251 (quoting Anderson v. Pasadena Indep. Sch. Dist., 184

F.3d 439, 443 (5th Cir. 1999)).

30 Magnolia Island Plantation, 29 F.4th at 251 (quoting James v. Tex. Collin Cnty., 535 F.3d 365, 373

(5th Cir. 2008)) (internal quotation marks omitted).

31 Romero v. Brown, 937 F.3d 514, 523 (5th Cir. 2019) (citing Gates v. Tex. Dep’t of Protective &

Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)).

municipal liability.”32 “That is, for a supervisor to act with ‘deliberate indifference,’

she must usually know about a ‘pattern of similar violations.’”33

Individual capacity claims are usually anchored to a supervisory official’s

failure to train or to the supervisory official’s implementation of “a policy so deficient

that the policy itself is a repudiation of constitutional rights and is the moving force

of the constitutional violation.”34 When individual capacity liability is tied to a

supervisor’s failure to train, the plaintiff must allege and prove the following: (1) that

the supervisor failed to train or supervise the employees directly involved in the

constitutional violation; (2) that there is a causal connection between the alleged

failure to train or supervise and the alleged constitutional violation; and (3) that the

failure to train or supervise constituted deliberate indifference to the plaintiff’s

constitutional rights.35 “Proof of a single instance, rather than a pattern of similar

violations, normally will not sustain a plaintiff’s claim that such a lack of training or

supervision caused a violation of her constitutional rights.”36 The Fifth Circuit has

further held that the training’s inadequacy “must be obvious and obviously likely to

result in a constitutional violation.”37

In contrast, when an individual capacity claim is anchored to a supervisor’s

official policy, the plaintiff first must identify an official policy implemented by the

32 Romero, 937 F.3d at 523 (citing Rios v. City of Del Rio, Tex., 444 F.3d 417, 426 (5th Cir. 2006)).

33 Romero, 937 F.3d at 523 (quoting Rios, 444 F.3d at 427).

34 Cozzo v. Tangipahoa Parish Council -- President Gov’t, 279 F.3d 273, 286, 289 (5th Cir. 2002)

(quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)) (internal quotation marks omitted).

35 Cozzo, 279 F.3d at 286 (quoting Thompson v. Upshur County, Tex., 245 F.3d 447,459 (5th Cir. 2001))

(internal quotation marks omitted).

36 Cozzo, 279 F.3d at 286-87 (citing Thompson, 245 F.3d at 459).

37 Cozzo, 279 F.3d at 287 (quoting Thompson, 245 F.3d at 459).

supervisor. The Fifth Circuit has explained that an “official policy” is, “A policy

statement, ordinance, regulation, or decision that is officially adopted and

promulgated by the [government entity] . . . or by an official to whom the [entity] ha[s]

delegated policy-making authority,” or, “A persistent, widespread practice of . . .

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 [the entity’s] policy.”38 A plaintiff can also establish a custom or policy

“based on an isolated decision made in the context of a particular situation if the

decision was made by an authorized policymaker in whom final authority rested

regarding the action ordered.”39 In addition to identifying the existence of an official

policy or custom, the plaintiff must allege and show that the supervisory official

implemented the policy or custom and that it was “so deficient that the policy itself

is a repudiation of constitutional rights and is the moving force of the constitutional

violation.”40

III. ANALYSIS

In the instant Motion, Sheriff Lopinto does not seek qualified immunity, nor

does he challenge the allegations or evidentiary basis predicating Plaintiffs’ claims

against him in his official capacity. Instead, Sheriff Lopinto asserts that his Motion

should be granted because Plaintiffs “failed to allege or establish that he participated

38 Cozzo, 279 F.3d at 289 (quoting Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)) (internal quotation

marks omitted).

39 Cozzo, 279 F.3d at 289 (citing authority).

40 Cozzo, 279 F.3d at 289 (quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)) (internal

quotation marks omitted) (holding that the district court erred in concluding that the sheriff did not

enjoy qualified immunity against the plaintiff’s failure to train and official policy claims).

directly in any of the alleged dilatory conduct and, therefore, ha[ve] failed to establish

a federal claim against him in his individual capacity.”41 Sheriff Lopinto claims that

it is uncontested that he “was not on scene [sic] during any of the relevant events,”

that he “did not participate in any of the subject events,” and that he “did not direct

any of the actions of the Defendant Deputies.”42 Sheriff Lopinto then concludes the

Motion by asserting that, “Plaintiffs do not allege and cannot show, nor is there any

evidence in the record from which the Court could possibly infer that Sheriff Lopinto

participated directly in any of the subject events,” and that, “Plaintiffs do not even all

[sic] allege that the Sheriff was at the scene.”43 Plaintiffs assert that Sheriff Lopinto’s

argument is premised upon a legal error, since a supervisor may be liable for

implementing unconstitutional policies that causally result in a plaintiff’s

constitutional violation, and that Sheriff Lopinto “concedes as much” in his Motion.44

In support, Plaintiffs point to numerous paragraphs in their Complaint in which they

allege that Sheriff Lopinto is liable in his individual capacity for his role in the

policies, procedures, training, assignments, supervision, and discipline of JPSO

deputies, which contributed to E.P.’s death.45 Sheriff Lopinto fails to address these

arguments in his Reply brief and seems to abandon his request for a Rule 12(c)

judgment on the pleadings, asserting instead that “undue discovery” in this matter

has been “abusive, harassing, and wholly unnecessary” and that summary judgment

41 R. Doc. 49 at p. 1; R. Doc. 49-1 at p. 1.

42 R. Doc. 49-1 at p. 3 (citing R. Doc. 1).

43 R. Doc. 49-1 at p. 7.

44 R. Doc. 51 at pp. 1 & 2-4.

45 Id. at pp. 3-4 (citing R. Doc. 1 at ¶¶ 16, 29, 298-322, & 408-429).

must be granted because Plaintiffs fail to offer “a scintilla of evidence” of Sheriff

Lopinto’s deliberate indifference.46

A. Sheriff Lopinto Is Not Entitled to Judgment on the Pleadings

Under Rule 12(c).

To the extent Sheriff Lopinto seeks judgment on the pleadings as to Plaintiffs’

individual capacity claims, the Motion is denied. While Sheriff Lopinto seeks

dismissal based solely on his lack of direct involvement in the events that occurred

on January 19, 2020 that led to E.P.’s death, he completely ignores that a supervisor

can be held liable under § 1983 if “(1) [s]he affirmatively participates in the acts that

cause the constitutional deprivation, or (2) [s]he implements unconstitutional policies

that causally result in the constitutional injury.”47 The Court finds this striking,

since Sheriff Lopinto acknowledges in his own Motion that supervisory officials can

be held liable under § 1983 “only if: (i) they affirmatively participate in acts that cause

constitutional deprivation; or (ii) implement unconstitutional policies that causally

result in plaintiff’s injury.”48 As Plaintiffs correctly point out in their Opposition

brief,49 the Fifth Circuit has held that supervisors can also be held liable under § 1983

for failure to adopt policies50 and for failure to supervise or train subordinates.51 The

46 R. Doc. 67 at pp. 2-5.

47 Romero v. Brown, 937 F.3d 514, 523 (5th Cir. 2019) (quoting Gates v. Tex. Dep’t of Protective &

Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)) (internal quotation marks omitted).

48 R. Doc. 49-1 at p. 6 (quoting Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992))

(internal quotation marks omitted) (emphasis added).

49 R. Doc. 51 at p. 3.

50 Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Rhyne v. Henderson Cnty., 973 F.2d 386,

392 (5th Cir. 1992)) (internal quotation marks omitted).

51 Cozzo v. Tangipahoa Parish Council -- President Gov’t, 279 F.3d 273, 286-87 (5th Cir. 2002) (quoting

Thompson v. Upshur County, TX, 245 F.3d 447, 459 (5th Cir. 2001)).

Fifth Circuit has further clarified that, “In order to establish supervisor liability for

constitutional violations committed by subordinate employees, plaintiffs must show

that the supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations

of others’ constitutional rights committed by their subordinates.”52

In the Complaint, Plaintiffs allege that Sheriff Lopinto “is the final policy

maker,” and that he “is responsible for the staffing, supervision, administration,

policies, practices, procedures, and customs of the JPSO.”53 Plaintiffs also allege that

Sheriff Lopinto “is responsible for the hiring, training, supervision, discipline, and

control of the JPSO staff, supervisors, and deputies.”54 Plaintiffs further allege that

JPSO policies, including those regarding the use of force, restraints,

positional/compression asphyxia, and encounters and interactions with persons with

developmental disabilities, are contrary to law,55 and that Sheriff Lopinto is liable for

the actions of his deputies due to certain policies, procedures, rules, practices,

customs and/or usages of JPSO that were in effect at the time of, and contributed to,

E.P.’s death, and Plaintiffs proceed to list those policies.56 Plaintiffs also allege that

Sheriff Lopinto’s policies, practices and/or customs demonstrated a deliberate

indifference to the constitutional rights of the public, including E.P. and Plaintiffs,

52 Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Gates v Texas Dep’t of Port. & Reg. Servs.,

537 F.3d 404, 435 (5th Cir. 2008)) (internal quotation marks omitted) (emphasis in original).

53 R. Doc. 1 at ¶ 16.

54 Id.

55 Id. at ¶ 306. See, Id. at ¶¶ 290-322.

56 Id. at ¶ 417. See, Id. at ¶¶ 417-429.

and that they were the proximate cause of their injuries and damages.57 Sheriff

Lopinto does not address, much less contest, these allegations in his Reply brief.

Accepting all well-pleaded facts as true and viewing those facts in the light

most favorable to Plaintiffs, as the Court is bound to do,58 the Court finds that

Plaintiffs have alleged sufficient facts to state a § 1983 claim against Sheriff Lopinto

in his individual capacity based upon his alleged failure to train the defendant

deputies and his alleged implementation of unconstitutional policies that violated the

constitutional rights of Plaintiffs and E.P. and contributed to E.P.’s death.

Accordingly, the Motion is denied to the extent that Sheriff Lopinto seeks a Rule 12(c)

judgment on the pleadings as to Plaintiffs’ individual capacity claims.

B. Sheriff Lopinto Is Not Entitled To Summary Judgment Under Rule

56.

Sheriff Lopinto fares no better under Fed. R. Civ. P. 56, as he has failed to

carry his burden of demonstrating how the summary judgment record discloses no

genuine dispute regarding any material fact as to Plaintiffs’ individual capacity

claims. Sheriff Lopinto’s Motion fails to brief the applicable law and, in so doing, fails

to even identify any relevant (let alone material) facts about which there are no

genuine dispute. In his Statement of Uncontested Material Facts, filed in support of

the Motion, Sheriff Lopinto merely regurgitates the factual allegations made in his

57 Id. at ¶¶ 421-429.

58 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).

Motion.59 The only “undisputed facts” that are marginally pertinent to the instant

Motion include the following:

6. It is uncontested that Sheriff Lopinto was not on scene [sic] during

any of the relevant events; Plaintiffs do not allege otherwise. R. Doc. 1.

7. It is uncontested that Sheriff Lopinto did not participate in any of the

subject events; Plaintiffs do not allege otherwise. Id.

8. It is uncontested that Sheriff Lopinto did not direct any of the actions

of the Defendant Deputies; Plaintiffs do not allege otherwise. Id.60

As explained above, however, these undisputed facts are not relevant to the

individual capacity claims, where Plaintiffs seek to hold Sheriff Lopinto liable for his

implementation of unconstitutional policies that violated the constitutional rights of

Plaintiffs and E.P. and for his failure to train and supervise the JPSO Deputy

Defendants and the JPSO John Doe Deputy Defendants. Sheriff Lopinto’s Motion

fails to raise any dispute of material fact as to these claims. As such, Sheriff Lopinto

has failed to show that he is entitled to summary judgment.

In his Reply brief, Sheriff Lopinto asserts for the first time that he is entitled

to summary judgment because Plaintiffs have failed to offer any competent summary

judgment evidence or argument to establish that he had knowledge of, was

deliberately indifferent to an obvious need to train the defendant-deputies regarding

the specific issues in this case, and that his deliberate indifference caused the alleged

harm.61 Both the Fifth Circuit and other Sections of this Court have held that,

59 Compare R. Doc. 49-3 to R. Doc. 49-1 at pp. 2-3.

60 R. Doc. 49-3 at p. 2.

61 R. Doc. 67 at pp. 4-5.

“Arguments raised for the first time in a reply brief are generally waived.”62 As

explained by one of our sister courts, “it is improper for the movant to sandbag and

raise wholly new issues in a reply memorandum. The scope of the reply should be

limited to addressing the arguments raised by the memorandum in opposition.”63

This Court agrees. Here, Sheriff Lopinto clearly abandoned the arguments raised in

his Motion after reading Plaintiffs’ Opposition brief by raising entirely new

arguments regarding deliberate indifference in his Reply brief. The Court will not

entertain such tactics and, therefore, will not consider the arguments raised by

Sheriff Lopinto for the first time in his Reply brief.

At this juncture and on this briefing, Sheriff Lopinto has failed to persuade the

Court that he is entitled to summary judgment dismissing Plaintiff’s § 1983 claims

against him in his individual capacity. Sheriff Lopinto’s sparse Statement of

Uncontested Material Facts does not support entry of judgment as a matter of law on

Plaintiffs’ § 1983 individual capacity claims, as it contains only the undisputed fact

that Sheriff Lopinto was not physically present on the scene on the day of E.P.’s death.

Additionally, Sheriff Lopinto does not dispute that Plaintiffs make multiple

allegations in their 80-page Complaint concerning his failure-to-train and official-

policy theories of individual capacity liability. Reviewing the facts and inferences in

62 Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010) (citing United States v. Jackson, 426 F.3d 301, 304

n.2 (5th Cir. 2005); Iteld, Bernstein & Associates, LLC v. Hanover Ins. Group, Civ. A. No. 06-3418, 2009

WL 2496552, at *4 (E.D. La. Aug. 12, 2009) (Vance, J.) (“[A]rguments raised for the first time in a

Reply brief are waived.”). See, Little Tchefuncte River Association v. Artesian Utility Company, Inc.,

155 F. Supp. 3d 637, 657 (E.D. La. 2015) (“[A]rguments cannot be raised for the first time in a reply

brief.”) (quoting Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329 (5th Cir. 2008)).

63 Weems v. Hodnett, Civ. A. No. 10-CV-1452, 2011 WL 2731263, at *1 (W.D. La. July 13, 2011)

(Hornsby, M.J.) (citation omitted).

the light most favorable to Plaintiffs, who are the non-moving parties,*4 the Court

finds that Sheriff Lopinto has failed to show that he is entitled to summary judgment

and dismissal of Plaintiffs’ § 1983 claims asserted against him in his individual

capacity.

IV. CONCLUSION

Based on the foregoing findings, IT IS HEREBY ORDERED that the Partial

Motion to Dismiss the Federal Claims Against Sheriff Lopinto in His Individual

Capacity Pursuant to Fed. R. Civ. P. 12(c) or, Alternatively, for Summary Judgment

Pursuant to Fed. R. Civ. P. 566 is DENIED.

New Orleans, Louisiana, May 19, 2023.

(end (2 Vitti

WENDY B. VITTER

UNITED STATES DISTRICT JUDGE

84 International Shortstop, Inc. v. Rally’s, Inc., 989 F.2d 1257, 1263 (5th Cir. 1991).

65 R. Doc. 49.