The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DAVID BARTLET LOWELL, ET AL. CIVIL ACTION
VERSUS
JASON ARD, ET AL. NO.: 17-00187-BAJ-RLB
RULING AND ORDER
Before the Court are Defendants Derek J. Gaudin and Cory Winburn’s Motion
for Summary Judgment (Doc. 39) and Defendants Jason Ard and Perry Rushing’s
Motion for Summary Judgment (Doc. 42). For the reasons that follow, both
motions for summary judgment are GRANTED.
I, BACKGROUND
A. Plaintiff's Arrest
On Saturday, January 7, 2017, Plaintiff was found asleep in the men’s
restroom a Walmart Neighborhood Market in Denham Springs around 2:00 A.M.
Store personnel called law enforcement, and Plaintiff alleges that when the Sheriffs
deputies arrived, officers forcibly removed him from the store. (Doc. 1 at J 7). Once
removed from the store, Plaintiff alleges that Deputies Derek J. Gaudin and Cory
Winburn questioned him, then suddenly attacked him. (Id. at 78,9). Plaintiff further
alleges that he was thrown to the ground and struck in the neck and upper back. (Id.
at 9,11). Plaintiff asserts that the attack was unprovoked and that he did not resist
arrest. (Id. at {| 10). After arresting Plaintiff, Defendants transported him to the
Livingston Parish Detention Center, which Defendant Warden Perry Rushing
supervised. (Id. at § 12). Plaintiff was booked and detained. On August 1, 2017,
Plaintiff pleaded guilty to the charge of Resisting an Officer under Louisiana Revised
Statute 14:108. Plaintiff was sentenced to one month in the Livingston Parish Jail.
Plaintiffs sentence was later suspended, and he was given credit for the time served
(Doc. 44 at pg. 6).
B. Plaintiffs Alleged Post-Arrest Injuries
Throughout his detention, Plaintiff alleges he complained of severe back and
neck pain. (Id. At | 13). After an examination by a health care provider at the
detention center, Plaintiff was transported to Lallie Kemp Regional Medical Center,
where X-rays and diagnostic testing revealed a fracture of his C-6 vertebrae. (Id. at {
14).
On March 24, 2017, Plaintiff filed a complaint against Gaudin, John Doe,
Sheriff Jason Ard, and Warden Perry Rushing. Plaintiff amended the complaint to
include Defendant Winburn, who was named “John Doe” in the initial complaint.
Plaintiff sued Gaudin and Winburn under 42 U.S.C. § 1983 for excessive force,
violations of the Fourth, Highth, and Fourteenth Amendments, and state law claims
of intentional torts and negligence. Plaintiff sued Ard for vicarious liability for the
negligent hiring, training, and supervision of Gaudin, Winburn, Rushing. (Doc. 1 at
4 21).
Plaintiff alleges that as a result of the alleged unprovoked attack, he
underwent medical treatment and continues to suffer pain, mental anguish,
aggravation, and the inconvenience of restrictions in his activities. (id. At J 15).
Plaintiff asserts special damages such as medical expenses and lost wages and
asserts that he may continue to incur medical expenses as a result of the incident.
(Id. at | 16, 17). Plaintiffs wife joined the complaint to assert damages of loss of
consortium, society, companionship, and services. (Id. at. J 18).
C. Motions for Summary Judgment
Gaudin and Winburn filed a Motion for Summary Judgment (Doc. 39)
asserting that Plaintiff resisted arrest, and that Plaintiff pleaded guilty to and was
convicted of Resisting an Officer under La. B.S. 14:108. Although Plaintiff claims that
he never resisted arrest!, Defendants assert that Plaintiffs claims are barred by Heck
v. Humphrey, 512 U.S. 477, 114 5.Ct. 2364 (1994). Defendants Ard and Rushing also
filed a Motion for Summary Judgment (Doe. 42), arguing that the vicarious
liability claims against them must be dismissed due to the absence of liability and
the invocation of qualified immunity.
Tl. LEGAL STANDARD
Pursuant to Rule 56, “[t]he [C]ourt shall grant summary judgment if 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). In determining
whether the movant is entitled to summary judgment, the Court views the facts in
the hght most favorable to the non-movant and draws all reasonable inferences in
1 Plaintiff argues in his reply to Defendants’ Motions for Summary Judgment that it may have
appeared as though he resisted arrest because he has a medical condition that restricts his
movement. He claims this condition prevented him from complying with officers’ demands when they
arrested him. (Doc. 42 at pg. 5).
the non-movant's favor. Coleman v. Houston Independent School Dist, 113 F.3d 528,
533 (5th Cir. 1997).
After a proper motion for summary judgment is made, the non-movant must
set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty
Lobby, Ine., 477 U.S, 242, 250 (1986). At this stage, the Court does not evaluate the
credibility of witnesses, weigh the evidence, or resolve factual disputes. Int'l
Shortstop, Inc. v. Rally’s, Inc., 9389 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502
U.S. 1059 (1992). However, if the evidence in the record is such that a reasonable
jury, drawing all inferences in favor of the non-moving party, could arrive at a verdict
in that party's favor, the motion for summary judgment must be denied. □□□□
Shortstop, Inc., 939 F.2d at 1263.
On the other hand, the non-movant's burden is not satisfied by some
metaphysical doubt as to the material facts, or by conclusory allegations,
unsubstantiated assertions, or a mere scintilla of evidence. Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is appropriate if the non-
movant “fails to make a showing sufficient to establish the existence of an element
essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In
other words, summary judgment will be appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits if any, show that there is no genuine issue as to any material fact, and that
the moving party is entitled to judgment as a matter of law.” Sherman v. Hallbauer,
455 F.2d 1236, 1241 (5th Cir. 1972).
HI. DISCUSSION
Federal law provides a cause of action against “every person who, under color
of any statute, ordinance, regulation, custom, or usage, of any State,.., subjects, or
causes to be subjected, any citizen... to the deprivation of any rights, privileges or
immunities secured by the Constitution and laws....” 42 U.S.C. §1983. To state a
claim under §1983, a plaintiff must: (1) allege a violation of a right secured by the
Constitution or laws of the United States, and (2) show that the deprivation was
committed by a person acting under color of state law. Southwestern Bell Telephone,
EP v. City of Houston, 529 F.3d 257,260 (5th Cir. 2008). Although §1983 actions are
potent proceedings designed to vindicate deprived rights, they are often vulnerable
to dismissal under Heck v. Humphrey, otherwise known as the “Heck doctrine”.
A. Heck v. Humphrey
Gaudin and Winburn contend that because Plaintiff was convicted of resisting
arrest, denying summary judgment and permitting him to pursue his claim would
undermine the validity of the conviction. Under Heck, a §1983 claim must be
dismissed if the adjudication of the clazm would imply the invalidity of a plaintiffs
prior criminal conviction or sentence. Heck, 512 U.S at 486-87. On a motion for
summary Judgment, whether there is a genuine issue of material fact in the basis for
the conviction does not preclude the application of Heck. The Heck doctrine rests on
the “principle that civil tort actions are not appropriate vehicles for challenging the
validity of outstanding criminal judgments.” Jd. at 486. However, the constitutional
violation claim will not be barred “if the factual basis for the conviction is temporally
and conceptually distinct from the excessive force claim.” Bush v. Strain, 518 F.3d
492,498 (5th Cir. 2008).
1. Excessive Foree Claim
Plaintiff claims that he was attacked without provocation by Gaudin and
Winburn. Plaintiff avers that his rights to be secure in his person and to be free from
the excessive and unreasonable use of force, which is secured to him under the Fourth
and Fourteenth Amendments of the Constitution, were violated. Plaintiff initially
alleged in his complaint that he never resisted arrest and did not mention his
conviction for resisting an officer, However, when Defendants introduced the
conviction in their motion to dismiss, Plaintiff, in his reply, admitted to the conviction
and asserts that his guilty plea is “currently being challenged.” (Doc. 44 at pg. 6).?
The Court finds that a favorable verdict on Plaintiffs excessive force claim
would undermine his conviction. The factual basis of Plaintiffs conviction is not
temporally and conceptually distinct from the excessive force claim. Had Plaintiff
alleged that the excessive force was administered after he stopped resisting arrest,
the factual basis for the conviction would be distinct from that of the claim. See Bush
v. Strain, 513 F.3d 492,500 (Sth Cir. 2008); See also DeLeon v. City of Corpus Christi,
488 F.3d 649,657 (5th Cir. 2007). Thus, proceeding with Plaintiffs claim directly
2 Plaintiff notes in his reply that he is challenging his conviction. Plaintiff fails to describe with
specificity how the conviction is being “challenged.” A pending appeal to invalidate or reverse a
conviction does not meet the exception to the Heck doctrine. Plaintiff must allow the entire appeal
precess take place. Then, if the proceeding results in an invalidation or reversal of his conviction,
Plaintiff may bring suit against the officers and submit the reversal or invalidation as evidence.
challenges the validity of his conviction for resisting an officer. Accordingly, the Court
finds that Plaintiff's excessive force claim must be dismissed.
2, Eighth Amendment Violation
The Eighth Amendment protects persons from excessive bail, fines, and cruel
and unusual punishments. Plaintiff argues that his rights to be free and not subjected
to excessive bail, nor excessive fine, nor cruel and unusual punishment, which he
states is secured to him by the Eighth Amendment, was violated. Defendants argue
that the Eighth Amendment claim against Gaudin and Winburn must be dismissed
because Plaintiff was not a convicted inmate.
The Court finds that Plaintiff was not a convicted inmate; therefore, Plaintiff
has no viable Eighth Amendment violation claim. See Hare v. City of Corinth,
Miss.,74 F.3d 633,639 (5th Cir. 1996). Accordingly, Plaintiffs Eighth Amendment
claim is dismissed.
3. State Law Claims
Plaintiff asserts both intentional torts and negligence claims under Louisiana
Civil Code articles 2315, 2316, and 2320. Defendants argue that pursuant to Heck,
all state law claims must be dismissed. The Court agrees.
The Heck doctrine has been applied to bar state tort actions. As previously
noted, the Heck Court held that a civil tort action is not an appropriate vehicle for
challenging the validity of outstanding criminal judgments. Heck, 512 U.S. at 486.
Because Plaintiff provides no detail as to which intentional tort was committed and
how the Gaudin and Winburn were negligent in connection with such tort, the Court
finds that the state law tort claims arise from the same facts that resulted in the
conviction, and that the conviction has not been reversed or invalidated. Plaintiffs
state law tort claims are barred by the Heck doctrine. Accordingly, summary
judgment shall be entered in favor of Gaudin and Winburn.
B. Claims Against Ard and Rushing
Plaintiff presented claims of vicarious hability for excessive force against Ard
and medical indifference against Rushing. These Defendants argue that the claims
against them must be dismissed if Heck bars the claims against Gaudin and Winburn.
Ard and Rushing also argue that qualified immunity applies to the claims brought
against them.
1. Medicai Indifference
Plaintiff claims that he failed to receive the reasonable and necessary medical
care for his alleged injuries suffered from the arrest. Although Plaintiff does not
provide adequate details of these allegation, the Court assumes that Plaintiff asserts
a medical indifference claim against Rushing, in his capacity as the Warden of the
Livingston Parish Detention Center. While detained at the Livingston Parish
Detention Center, Plaintiff claims that he complained of back and neck pain
constantly. Plaintiff further claims that after he was arrested on Saturday, that he
wasn't seen by medical personnel until the followmg Tuesday. Plaintiff claims he was
later taken to a regional medical center nearly a week later, on Friday, January 13,
2017. Defendants argue that Plaintiff cannot meet the high burden of proving a
medical indifference claim.
Deliberate medical indifference is an “extremely high’ standard to meet.”
Brewster v. Dretkle, 587 F.3d 764,769-770 (5th Cir. 2009)(quoting Gobert uv. Caldwell,
463 F.3d 339,346 (5th Cir. 2006)). To show deliberate medical indifference, a plaintiff
must show: (1) the defendants had “subjective knowledge of facts from which an
inference of substantial risk of serious harm could be drawn,” (2) that the defendants
“actually drew that inference,” and (8) that defendants’ response to the risk indicates
that they “subjectively intended that harm occur.” Tamez v. Manthey, 589 F.3d
764,770 (5th Cir. 2009}(citing Thompson v. Upshar Cty., 245 F.3d 447,458-59 (Sth
Cir. 2001)). A mere delay in providing medical treatment does not amount to a
constitutional violation without beth deliberate indifference and a resulting
substantial harm. Easter v. Powell, 467 F.3d 459,463 (5th Cir. 2006)(citing Mendoza
v. Lynaugh, 989 F.2d 191,195 (6th Cir. 1998).
The Court finds that Plaintiff has not provided sufficient details to prove a
medical indifference claim. The delay in treatment that Plaintiff alleges is insufficient
alone to amount to medical indifference. Plaintiffs allegations, at the very least, show
that Plaintiff was not ignored. Plaintiff was examined by medical personnel at both
the detention center and a regional medical center all within one week of his arrest.
Plaintiff also failed to show that Rushing, as warden, had anything to do with the
medical treatment he received, and Plaintiff has failed to allege that anyone else at
the Livingston Parish Detention Center was deliberatively indifferent to any
substantial risk of harm to Plaintiffs health.
2, Vicarious Liability
Plaintiff argues that Ard is liable for negligently hiring, supervising, and
training Gaudin, Winburn, and Rushing. Plaintiff further argues that Ard failed to
properly instruct and train Gaudin and Winburn in the use of force, and to properly
supervise them in their performance. Ard contends that Plaintiff failed to state a
cause of action for vicarious liability. Ard further contends that there is no vicarious
liability where no state law tort was committed by Gaudin and Winburn.
Under Louisiana Civil Code article 2320, “masters and employers are
answerable for the damage occasioned by their servants and overseers, in the exercise
of the function in which they are employed.” Under Louisiana law, a parish sheriff is
hable in his official, but not personal, capacity as an employer of a deputy, for the
deputy’s torts in the course and scope of employment. Hoffpauir v. Columbia Cas. Co.,
No. CIV.A. 12-403-JJB, 2013 WL 5934699, at 13 (M.D. La. Nov. 5, 2013)(citing Hall
v. St. Helena Parish Sheriff's Dept., 668 F.Supp. 535,540 (M.D. La. 1987).
Although Plaintiff's claims against Gaudin and Winburn are barred by Heck,
the preclusion of these claims should not be interpreted as a finding that Gaudin and
Winburn did not commit a state law tort, as Ard contends. Nonetheless, the Court
finds no vicarious liability against Ard because the Heck doctrine bars such liability.
Plaintiff bases his vicarious lability claim on his excessive force claim. The Court
finds that allowing the vicarious lability claim to proceed will also directly challenge
the validity of Plaintiffs conviction for resisting an officer. Thus, the Court concludes
that Plaintiff's vicarious lability claim against Ard must be dismissed.
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3. Official and Individual Capacity Claims
Ard and Rushing argue that Plaintiff does not specify whether he is suing them
in their official or individual capacity. To impose liability under an official capacity
claim, a plaintiff must prove three elements: (1) that the defendant is a policymaker;
(2) the existence of an official policy; and (8) a violation of a constitutional right whose
moving force is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567 (5th
Cir. 2001). Plaintiff has failed to show that Rushing, as warden, is a policymaker;
therefore, the absence of the first element precludes a possible official capacity claim
against him. However, it is clear that Ard, as sheriff, is a policymaker. The second
element of such claim requires that Plaintiff show that Ard created a policy that was
officially adopted by the Sheriff's office. Last, Plaintiff is required to show that the
policy instituted by Ard caused the alleged constitutional violation. Plaintiff has not
pleaded nor shown any of the three elements required to prove an official capacity
claim against Ard or Rushing.
As for individual capacity claims, Ard and Rushing argue that qualified
immunity applies. Qualified immunity protects an official acting under color of state
law in his or her individual capacity from liability for civil damages if their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Batiste v. Theriot, 458 Fed. Appx. 351,354 (5th
Cir. 2012)(quoting Harlow v. Fitzgerald, 457 U.S. 800,818 (1982)). A court must
consider two elements in a qualified immunity defense: 1) whether plaintiff alleged a
violation of a clearly established constitutional right, and 2) whether the official’s
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conduct was objectively reasonable under clearly established law existing at the time
of the incident. Where an officer pleads qualified immunity as a defense, the burden
shifts to plaintiff to negate this defense by establishing that the official’s allegedly
wrongful conduct violated clearly established law. Bazan v. Hidalgo County, 246 F.3d
481,490 (5th Cir. 2001). Plaintiff cannot rest on the pleadings; he must show genuine
issues of material fact. Id.
Here, Plaintiff did not point to or raise any facts in rebuttal of Defendant’s
qualified immunity defense in his opposition to the motion for summary judgment.
Thus, Plaintiff has failed to establish a genuine issue of material fact as to whether
qualified immunity applies. Accordingly, the Court grants summary judgment in
favor of Ard and Rushing.
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C. Shana Lowell’s claims
Joining in this suit as a Plaintiff is Shana Lowell, Plaintiffs wife. Her claims
are derivative claims for damages in connection with Plaintiffs injuries. She claims
losses of consortium, society, companionship, and services. Here, the claims asserted
by her spouse have been dismissed; therefore, the Court must also dismiss her
pending claims.
IV. CONCLUSION
Accordingly,
ORDERED that Defendants’ Motions for Summary Judgment (Doc.
39, 42) are GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ claims are DISMISSED.
Baton Rouge, Louisiana, this 30%, of September, 2019.
a a
JUDGE BRIAX A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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