Opinion

Lowell v. Ard

Court
District Court, M.D. Louisiana
Filed
Oct 1, 2019
Cited by
0 cases
Authority
More cited than 22.5%

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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