Coley v. Boyett

UNITESDT ATDESI STRICCOTU RT

FORT HEW ESTERDNI STRIOCFLT O UISIANA

SHREVEPODRITV ISION

SOLOMOCNO LEEYT,A L. CIVAICLT IONNO .5 :17-CV-01553

VERSUS JUDGEEL IZABEETRHN YF OOTE

CHADB OYETTE,T A L. MAGISTRJAUTDEG HEO RNSBY

MEMORANDURMU LING

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and as to Plaintiffs’ negligence claims against Boyett and Faulkner. Because the parties do not

directly address the claim, the Court makes no ruling as to Hall and Coley’s claims for “loss of

consortium, love, service and society due to injuries to their children.” [Record Document 19

at 8].

BACKGROUND

On the night of April 1, 2017, Coley and his daughters, JC and AC, were at the Stone

Vista Apartments in Shreveport, Louisiana where they were visiting with a friend. [Record

Document 41-10 at 49]. When it was dark outside, JC, AC, and Coley intended to walk a few

blocks to a house where the girls lived with their mother, Hall. [Record Document 41-10 at

49-50] As they were preparing to leave the apartment building, Coley halted the girls because

he heatd police sirens and observed a white Honda and police cars driving past. [Record

Document 41-10 at 50]. Coley then observed the line of vehicles continue until they passed

the Stone Vista complex. [Record Document 41-10 at 50-51].

What Coley witnessed was a police chase that began earlier that night in Bossier City,

Louisiana. [Record Document 41-9 at 10-11]. Bossier City police officers pursued the vehicle

in a chase that crossed the Texas Street Bridge from Bossier City to Shreveport, Louisiana.

[Record Document 41-9 at 12]. As the chase proceeded onto Interstate 49, Officer Chad

Boyett of the Bossier City Police Department led the chase because, per the Bossier City

“General Orders,” the officer with a canine takes the lead in a pursuit when possible, and

Officer Boyett had canine Torres (“Tortes’’) in his vehicle that night. [Record Documents 41-

5 at 21:25, 41-9 at 12-14, and 41-11 at 6, 53].

The car chase continued through Shreveport, eventually passing the Stone Vista

Apartments complex, where Coley had first noticed the procession. [Record Documents 1 at

3, 41-5 at 21:35-21:36]. The white Honda then continued driving past the apartments before

circling back to the Stone Vista Apartments where it entered one of the complex parking lots,

slowed to a roll, and two men fled from the vehicle. [Record Documents 41-6 at 21:37-21:38

and 41-11 at 19]. At this point, Boyett also exited his vehicle and let Torres out of the back

seat. [Record Document 41-5 at 21:38]. Torres was not on a leash. [Record Documents 41-5

at 21:38 and 41-11 at 69]. One officer pursued the man who exited from the passenger side of

the white Honda while Boyett and Torres pursued the suspect who exited from the driver’s

seat, Trevier Williams (“Williams”). [Record Documents 41-2 at 1, 41-5 at 21:38, 41-6 at 21:38,

and 41-13 at 18].

Almost immediately after the pursuit began, Boyett gave Torres the command to

apprehend Williams (“bite command”). [Record Document 41-11 at 82]. He did not give a

vetbal warning. [Record Document 41-11 at 85]. According to Boyett, he did not observe

anybody outside except other police officers and the suspects. [Record Document 41-11 at

86-87]. When Boyett gave the bite command, Williams was still fully visible to Boyett. [Record

Document 41-11 at 83]. Torres began running after Williams, eventually following him out of

the complex and across a street where Torres “hit Williams and knocked] him to the ground

in the gtass.”2 [Record Document 41-11 at 83-84]. As Boyett observed Torres knocking

Williams to the ground, he “was preparing to jump down from [a] retaining wall” located at

2 Plaintiffs dispute the fact that Torres made contact with Williams. [Record Document

41-10 at 52]. Coley states that Williams fell because he hit a fence. [Record Document 41-10

at 79]. In any event, this fact is not material to any legal issue in this case.

the edge of the apartment complex but “lost [his] footing and fell face first basically in the

concrete” and lost sight of Torres and Williams. [Record Document 41-11 at 84, 168]. While

Boyett was standing up from the fall, a parked car blocked his view of Torres, Williams, JC,

AC, and Coley, but he heard someone inside one of the Stone Vista apartments calling out

that “the dog has the baby.” [Record Document 41-11 at 84-85]. When he cleared the car

blocking his view of the incident, Boyett observed Torres biting JC. [Record Document 41-11

at 98].

Coley alleges that before the bite, he observed Williams running towards him and his

daughters with Torres trailing about fifteen or twenty feet behind. [Record Document 41-10

at 51-52]. Williams passed the group, but when Torres reached the trio, instead of continuing

the pursuit of Williams, he “latches onto [JC].” [Record Document 41-10 at 52]. Coley,

assuming that the police dog was trained to start “shaking” after latching onto someone,

gtabbed Tortes and “put [him] in a headlock” and “held the dog still so it couldn’t move his

head nor body until [Coley] looked and [he] saw an officer come running out of the gate” in

an effort to protect JC from further injury. [Record Documents 41-7 at 21:38 and 41-10 at 86-

87].

There is dispute as to how long it took Boyett to get Torres to release his bite on JC.

According to Boyett, he ran across the street, “grabbed his collar, called his name and gave

him an out command, and he let go.” [Record Document 41-11 at 98]. According to Coley,

the officer approached them while the attack was still ongoing and was “tugging on the collar

and saying something. The dog is not responding. . .. Whatever he was saying, he said it more

than four times... . [Torres] didn’t release within ten seconds.” [Record Document 41-10 at

87-88]. Witness to the attack Keyaira Kimble estimated it took officers approximately five

seconds to get Torres to release JC. [Record Document 45-14 at 6]. Another witness, Erica

Proby, saw Boyett give Torres a command to release three times before making physical

contact with Torres to make him release. [Record Document 45-10 at 10].

After Boyett got Torres to release JC, an ambulance arrived at the scene and JC was

taken to the University Health emergency room where doctors examined her. [Record

Documents 41-10 at 96-97 and 41-14 at 6]. Her exam revealed a puncture wound in her right

upper abdomen and “multiple superficial linear abrasions” on the right side of her back.

[Recotd Document 41-14 at 19]. She remained hospitalized overnight where doctors treated

her with intravenous antibiotics. [Record Document 41-14 at 27-28]. The next morning, she

was teleased with a prescription for ten more days of antibiotics. [Record Document 41-14 at

28, 32].

Plaintiffs filed the instant suit on November 29, 2017. [Record Document 1]. They

allege that Defendants Boyett, Faulkner, and the City of Bossier City are liable under 42 U.S.C.

§ 1983 for constitutional violations. [Record Document 19]. Plaintiffs assert that Boyett is

liable in his individual capacity for the use of excessive force under the Fourth Amendment

and for Fourteenth Amendment substantive due process violations. [Record Document 19 at

1, 6]. Plaintiffs allege that the City of Bossier City is liable for failure to train its officers.

[Record Document 19 at 7-8]. Plaintiffs assert that Faulkner is liable in his individual capacity

for failure to intervene to stop Boyett’s use of excessive force. [Record Document 19 at 4-5].

This claim stems from Faulknet’s presence at the location of the attack. When Boyett and

Tortes began their pursuit of Williams on foot, Faulkner stayed in his vehicle and drove atound

the complex, eventually intercepting Williams and Torres at almost the same time that Torres

began biting JC. [Record Documents 41-8 at 21:38 and 41-12 at 21:38]. Faulkner maintains

that he did not notice that Torres was biting JC and, as such, Faulkner parked his vehicle and

began chasing Williams on foot instead of intervening to stop the attack. [Record Documents

41-8 at 21:38 and 41-12 at 42-44].

Finally, Plaintiffs allege that Boyett is liable under Louisiana law for excessive use of

force and negligence. [Record Document 19 at 8-9]. They contend that the City of Bossier

City is liable in negligence for failure to properly train and supervise its officers. [Record

Document 19 at 8-9].

LAW AND ANALYSIS

I. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) directs a court to “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.”3 Summary judgment is appropriate when the pleadings,

answets to interrogatories, admissions, depositions, and affidavits on file indicate that there is

no genuine issue of material fact and that the moving party is entitled to judgment as a matter

of law. Celotexc Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on

the non-moving party, the moving party need not produce evidence to negate the elements of

3 Rule 56 was amended effective December 1, 2010. Per the comments, the 2010

amendment was intended “to improve the procedures for presenting and deciding summary

judgment motions and to make the procedures more consistent with those already used in

many courts. The standard for granting summary judgment remains unchanged.” Therefore,

the case law applicable to Rule 56 prior to its amendment remains authoritative, and this Court

will rely on it accordingly.

the non-moving party’s case; rather, it need only point out the absence of supporting evidence.

See zd. at 322-23.

If the movant satisfies its initial burden of showing that there is no genuine dispute of

material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for trial

by going “beyond the pleadings” and “designat|ing] specific facts” for support. Lathe v. Liquid

Air Corp., 37 F.3d 1069, 1075 Oth Cir. 1994) (citing Celotex, 477 U.S. at 325). “This burden is

not satisfied with some metaphysical doubt as to the material facts,” by conclusory ot

unsubstantiated allegations, or by a mete “scintilla of evidence.” Jd. (internal quotation marks

and citations omitted). However, “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1985) (citing Adickes v. S. H. Kress e Co., 398 US. 144, 158-59 (1970)). While not

weighing the evidence or evaluating the credibility of witnesses, courts should grant summary

judgment where the critical evidence in support of the nonmovant is so “weak or tenuous”

that it could not support a judgment in the nonmovant’s favor. Armstrong v. City of Dall, 997

F.2d 62, 67 (th Cir. 1993).

Additionally, Local Rule 56.1 requires the movant to file a statement of material facts

as to which it “contends there is no genuine issue to be tried.” The opposing party must then

set forth a “short and concise statement of the material facts as to which there exists a genuine

issue to be tried.” W.D. La. R. 56.2. All material facts set forth in the movant’s statement “will

be deemed admitted, for purposes of the motion, unless controverted as requited by this rule.”

Id.

II. Section 1983 Individual Capacity Claim

Plaintiffs allege that Boyett and-Faulkner are liable in their individual capacities under

42 U.S.C. § 1983 for violations of their Fourth and Fourteenth Amendment rights. [Record

Document 19]. Defendants argue that they did not violate Plaintiffs’ constitutional rights and,

alternatively, that if there were constitutional violations, Boyett and Faulkner are qualifiedly

immune from liability. [Record Document 41-1 at 11-15 and 19-28].

Title 42, United States Code, Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation

of any tights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured...

To assert a claim for damages under this statute, a plaintiff must demonstrate (1) a

deprivation of a right secured by federal law, (2) that occurred under color of state law, and

(3) was caused by a state actor. Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004). Ifa

plaintiff establishes a § 1983 violation, the state officer may still be qualifiedly immune from

liability. Pearson v. Callahan, 555 U.S. 223, 231 (2009).

To overcome qualified immunity, a plaintiff must first establish that a constitutional

violation occurred and, second, that the violation was of a clearly established right. ».

Carson, 935 F.3d 444, 451 (5th Cir. 2019). Lf there is no constitutional violation, the officer is

entitled to qualified immunity. JZ Thus the Court will first address whether Plaintiffs have

established that Boyett or Faulkner violated any constitutional rights. Pearson, 555 U.S. at 236

(“The judges of the district courts and the courts of appeals should be permitted to exercise

theit sound discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at hand.”’). Because

the Court finds that there are no constitutional violations for the reasons stated below, the

Court’s § 1983 and qualified immunity analysis ends there.

A. Plaintiffs’ Fourth Amendment Claim

Defendants argue that Plaintiffs’ Fourth Amendment excessive force violation must

fail as a matter of law because excessive force claims under the Fourth Amendment requite an

initial showing that a “seizure” occurred, and in this case, there was no “seizure” because

Defendants did not intend for Torres to bite JC. [Record Document 41-1 at 5-6]. Plaintiffs

contend that it is not necessary to show that Defendants intended that Torres bite JC, but only

that Defendants intended to release Torres to bite someone and that they did so in an

unreasonable manner. [Record Document 45 at 2-13].

To establish a Fourth Amendment violation, Plaintiffs must first establish that a

“seizure” occurred. Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004) (citing Graham v.

Connor, 490 U.S. 386, 388 (1989)). A seizure occurs “when there is a governmental termination

of freedom of movement “rough means intentionally apphed.” Brower v. Cty. of Inyo, 489 U.S. 593,

597 (1989) (emphasis in original). As the Fifth Circuit noted, “other circuits have typically

concluded that ‘where the seizure is directed appropriately at the suspect but inadvertently

injures an innocent person, the innocent victim’s injury or death is not a seizure that implicates

the Fourth Amendment because the means of seizure were not deliberately applied to the

victim.” Blair v. City of Dallas, 666 F. App’x 337, 341 6th Cir. 2016) (quoting Mzdstead v. Kibler,

243 F.3d 157, 163-64 (4th Cir. 2001)), abrogated on other grounds by Pearson v. Callahan, 555 US.

at 235.

Under this standard, JC was not seized by Defendants. The undisputed facts are that

Boyett and others engaged in a vehicular police chase. When the suspects exited the vehicle

and fled on foot, Boyett released Tortes to catch Williams. It was during that pursuit that

Tortes bit JC. There is a dispute as to whether Boyett knew or should have known that there

people in the atea who would be at risk if he released Torres. This fact is not material to

determining if there was a seizure, however, because the issue of seizure turns on intent, and

Plaintiffs have presented no evidence that Boyett intended that Torres bite or otherwise seize

JC when he released the canine. Torres was not “deliberately applied” to JC nor were JC’s

movements restricted “through means intentionally applied.”

In support of their argument, Plaintiffs quote Brendin v. California where the Supreme

Court stated, “Thus, an ‘unintended person ... [may be] the object of the detention,’ so long

as the detention is ‘willful’ and not merely the consequence of ‘an unknowing act.”” Brendiin v.

California, 551 U.S. 249, 254 (2007) (quoting Brower, 489 U.S. at 597). [Record Document 45

at 9-10]. They also cite Stamps v. Framingham, 813 F.3d 27 (1st Cir. 2016), to support the

proposition that “inadvertent excessive force is [not] shielded from scrutiny under [the] Fourth

Amendment to United States Constitution.” [Record Document 45 at 10]. While both cases

may seem applicable at first glance, closer inspection reveals why they are meaningfully

different than the case at hand.

In Brendiin, the Supteme Court did state that an unintended person could be seized,

but importantly followed that with the requirement that the seizure still needed to be willful

and intentional. Brendlin, 551 U.S. at 254. Likewise, in Stamps the First Circuit did find that an

officer’s accidental firing of his weapon while detaining someone could constitute a seizure,

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but significantly the inadvertent excessive force occurred during the course of the officer’s

intentional seizure of the man. Stamps, 813 F.3d at 35-36. While the application of the excessive

force to Mr. Stamps was unintentional, it was a product of the officer’s unreasonable behavior

during an intentional seizure of Mr. Stamps. Id. at 32.

In this case, there is no evidence in the record that Boyett’s willful act, releasing Torres,

was intended to seize anyone other than Williams. Thus even if JC was an “unintended person”

or the victim of inadvertent excessive force, the lack of intent to seize her at all means there

can be no Fourth Amendment violation.

“The Fourth Amendment addresses ‘misuse of power,’ not the accidental effects of

otherwise lawful government conduct.” Brower, 489 U.S. at 596 (internal citations omitted).

Because Officer Boyett did not release Torres with the intent of stopping JC, the bite JC

suffered was not the product of “means intentionally applied” and, therefore, was not a Fourth

Amendment seizure. Plaintiffs’ 42 U.S.C. § 1983 claim based on a Fourth Amendment

violation is DISMISSED WITH PREJUDICE.

B. Failure to Intervene

Plaintiffs assert that Faulkner is liable under 28 U.S.C. § 1983 for failure to intervene

to stop Boyett’s use of excessive force. [Record Documents 19 at 5 and 45 at 29-30]. Plaintiffs

ate correct that an officer who is present at the scene where excessive force is used and fails

to intervene may be liable for a Fourth Amendment violation under § 1983, but “the presence

of excessive force [is] essential to a failure to intervene § 1983 violation.” Spencer v. Rau, 542 F.

Supp. 2d 583, 594 (W.D. Tex. 2007). See also Gilbert v. French, 364 F. App’x 76, 83 (5th Cir.

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2010). This Court found that there was no excessive force violation and, thus, Plaintiffs’ §

1983 claim against Faulkner likewise fails and is DISMISSED WITH PREJUDICE.

C. Plaintiffs’ Fourteenth Amendment Claim

1. Allowing Plaintiffs’ Claim Under the Fourteenth Amendment

Plaintiffs also assert a standalone Fourteenth Amendment substantive due process

claim against Boyett. [Record Documents 19 at 1 and 45 at 24]. Defendants argue that

Plaintiffs’ Fourteenth Amendment claim should be dismissed because the substantive due

ptocess claim is based on excessive force, which must be adjudicated under the Fourth

Amendment because that is the most specific constitutional protection applicable. [Record

Document 41-1 at 14-15]. Plaintiffs respond that, in the event that the Court rules that they

do not have an actionable Fourth Amendment claim, then they do have a Fourteenth

Amendment claim. [Record Document 45 at 24].

First, the Court tutns to whether Plaintiffs’ clatm should be considered under the

Fourteenth Amendment. When a “particular Amendment provides an explicit textual source

of constitutional protection against a particular sort of government behavior, that

Amendment, not the mote generalized notion of substantive due process, must be the guide

for analyzing these claims.” Albright v. Ofver, 510 U.S. 266, 273 (1994) (plurality opinion)

(quoting Graham, 490 U.S. at 395) Gnternal quotation marks omitted). This does not mean that

“all constitutional claims relating to physically abusive government conduct must arise under

either the Fourth or Eighth Amendments|,]’” but only that those clatms which are “covered

by” the Fourth Amendment must be evaluated under Fourth Amendment standards. Czy. of

Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (quoting United States v. Lanier, 520 U.S. 259, 272

12

n.7 (1997)) Gnternal quotation marks omitted). The Fourth Amendment only applies to

seatches and seizures. Id. Plaintiffs do not allege a search occurted in this case and the Court

held that there was no seizure. Thus, the Fourth Amendment is not applicable, and the Court

must address the merits of Plaintiffs’ Fourteenth Amendment claim. Id at 843-44.

2. The Merits of Plaintiffs’ Fourteenth Amendment Claim

Defendants argue that Plaintiffs’ Fourteenth Amendment claim should be dismissed

on the merits because Plaintiffs have not met their burden of establishing that there is a triable

issue of fact. [Record Document 49 at 11]. Plaintiffs assert that the evidence presented thus

far is sufficient to establish that Defendants’ actions rise to the level of a substantive due

process violation. [Record Document 45 at 24-25].

The Fourteenth Amendment protects individuals against deprivation of life, liberty, or

ptoperty without due process of law. U.S. Const. amend. XIV, § 1. This is both a substantive

and a procedural protection. Czy. of Sacramento, 523 U.S. at 840. The “core concept” behind the

term “due process” is the “protection against arbitrary action.” Id at 845. To establish a

substantive due process claim based on executive action, “only the most egregious official

conduct can be said to be ‘arbitrary in the constitutional sense[.]”’ Id. at 846 (quoting Codkns v.

City of Harker Heights, Texas, 503 U.S. 115, 129 (1992)). The “cognizable level of executive

abuse of power [is] that which shocks the conscience.” Id. Conduct amounting to mere

negligence is “categorically beneath the threshold of constitutional due process.” Id. at 849.

Recognizing the difficulties police officers face when engaged in pursuit of a fleeing suspect,

the Supreme Court held that “only a purpose to cause harm unrelated to the legitimate object

of atrest will satisfy the element of arbitrary conduct shocking to the conscience” in that

13

context and noted that “even precipitate recklessness fails to inch close enough to harmful

purpose to spark the shock” that rises to the level of a Fourteenth Amendment violation. Id.

at 836, 853.

Plaintiffs enumerate several of Boyett’s actions that they believe constitute a

Fourteenth Amendment violation. The Court will address each individually. First, Plaintiffs

argue that Boyett’s decision to telease Torres when he either knew or should have known

there would be people present “shocks the conscience.” [Record Document 45 at 23-24].

Under the County of Sacramento standard, Boyett’s knowledge of others at the scene is

immaterial.4 When Tortes was released, the officers were engaged in the chase of suspects the

police believed to be armed. [Record Documents 41-11 at 85 and 41-12 at 55]. There is no

evidence in the record to suggest that Torres was released for any purpose other than to catch

Williams, and certainly no evidence to prove an intent to cause harm that was unrelated to the

legitimate object of arrest. To the extent that Plaintiffs argue Boyett was negligent in failing to

look for the presence of others, this too fails to rise to a substantive due process violation.

Relatedly, Plaintiffs assert that Boyett’s failure to give a verbal warning when releasing

Totres tises to the level of a Fourteenth Amendment violation. [Record Document 45 at 24].

Boyett admits that, “dependent on the situation,” a canine handler should give a verbal

watning before giving a bite command. [Record Document 41-11 at 70]. He also admits that

4 Plaintiffs dispute Boyett’s assertion that he did not know any other people were

outside at the time. [Record Document 45 at 21-22]. Boyett was weating a body camera that

night, but the footage has not been recovered. [Record Document 41-11 at 47-52]. Plaintiffs

argue that because of this, the spoliation doctrine applies, and the Court should presume that

the footage would reveal the presence of civilians outside the complex. [Record Document 45

at 21-22]. Because the officer’s knowledge of other people is not a material fact in the analysis,

the Court makes no ruling as to the application of spoliation.

14

the Bossier City Police Department “General Orders” require that officers give a verbal

warning. [Id.] Boyett acknowledges that he did not give a warning when releasing Torres that

night, but says that decision was based on a fear for officer safety because he had reason to

believe Williams was armed and the warning may have caused Williams to begin shooting.

[Record Document 41-11 at 85]. Plaintiffs present no evidence that Boyett failed to give a

warning with the intent to cause harm unrelated to his stated reason, which is related to the

legitimate object of his arrest. Hence Boyett’s omission does not rise to the level of shocking

the conscience.

Plaintiffs next argue that Boyett’s decision to use the “choke off’ release technique

instead of verbally commanding Torres to release his bite on JC shocks the conscience because

it exacerbated her injuries. [Record Document 45 at 24-25]. Plaintiffs cite expert Kyle Heyen’s

(“Heyen’”) explanation that the use of a “choke off” increased JC’s pain and injuries because

this technique causes the dog to first increase the intensity of the bite before releasing.® [Record

Documents 41-18 at 11-13 and 45 at 25]. Heyen states that there are only three reasons a

canine handler would use a “choke off’ maneuver instead of a verbal command: (1) the

handler has reason to believe the dog will not release by a verbal command alone; (2) the

handler was improperly trained; or (3) the handler “knowingly and maliciously wants to inflict

mote pain.” [Record Document 41-18 at 12-13]. Heyen noted that the use of a “choke off”

release does not meet the “current patrol dog standards in the United States.” [Record

Document 41-18 at 13]. Boyett explained that he chose to use a combination of the “choke

5 Defendants objected to Plaintiffs’ submission of the “Addendum” to the Expert

Repott of Kyle Heyen. [Record Documents 45-5 and 49 at 10]. The Court did not need to rely

on this report, and therefore makes no ruling on Defendants’ objection.

15

off’ and an “out command” because he worried that had he just given an “out command,”

Tortes would have released his bite on JC and instantly turned to attack Coley because Coley

was holding and hitting the dog while trying to help JC. [Record Document 41-11 at 99-100].

At the time this incident occurred, Boyett was in pursuit of a fleeing suspect. He was

forced to make the very type of split-second decision that the Supreme Court considered when

holding that officers engaged in high speed chases were not liable under the Fourteenth

Amendment absent evidence that the officer intended to harm the suspect or worsen his legal

plight. Cty. Of Sacramento, 523 U.S. at 853-854. Boyett was forced to make an instant decision

about how best to get Tortes to release JC without causing Torres to turn his attack on another

person, as Boyett knew was likely to happen in that situation. Given this, the Court cannot

conclude that Boyett’s decision to use a “choke off’ release shocks the conscience. While this

technique very well may have exacerbated JC’s injuries, and possibly was not the best way to

have handled the situation, there is no evidence that Boyett made that decision with the intent

to cause JC more hatm. At most his decision was negligent or showed precipitate recklessness,

but this does not tise to the level of a Fourteenth Amendment violation.

Plaintiffs have failed to identify any actions or decisions which rise to the level of

shocking the conscience, and therefore have failed to establish that Defendants violated their

Fourteenth Amendment rights. Thus, Plaintiffs’ 42 U.S.C. § 1983 claim based on a Fourteenth

Amendment violation is DISMISSED WITH PREJUDICE.

Ill. Official Capacity Claims Against Officer Boyett and Sergeant Faulkner

Plaintiffs assert that Boyett and Faulkner are liable in both their individual and official

capacities. [Record Document 19 at 2]. An official capacity suit against a municipal officer

16

duplicates a suit against the officer’s municipality. Turner v. Houma Mun. Fire C» Police Civil Serv.

Ba., 229 F.3d 478, 483 (5th Cir. 2000) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). A

district court faced with both claims may dismiss the official capacity claim. Castro Romero v.

Becken, 256 F.3d 349, 355 (th Cir. 2001) (citing Flores v. Cameron Cty., 92 F.3d 258, 261 (5th

Cir. 1996)). The official capacity claims against Boyett and Faulkner ace DISMISSED WITH

PREJUDICE as duplicative of the municipal liability claims against the City of Bossier City.

IV. Section 1983 Municipal Liability Claim

Plaintiffs assert that the City of Bossier City is able under 42 U.S.C. § 1983 for failure to

ptoperly train Boyett and Torres. [Record Document 19 at 7-8]. The Supreme Court has held

that municipalities such as the City are “persons” within the meaning of § 1983, and are

therefore subject to potential liability under the statute. Mone// v. Dep’t of Soc. Servs., 436 U.S.

658, 690 (1978). A municipality is only responsible for a constitutional harm if the execution

of one its customs or policies caused, or was the “moving force” of, the injury. Id at 694.

To impose liability on a municipality under § 1983, a plaintiff must prove three

elements: (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights

whose “moving force” is the policy. Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)

(citing Monell, 436 US. at 694). In the instant case, Plaintiffs have failed to establish a violation

of any constitutional right, and therefore their claim against the City of Bossier City is

DISMISSED WITH PREJUDICE.

V. Plaintiffs’ State Law Claims

Having dismissed all of Plaintiffs’ federal claims, the Court must address jurisdiction

ovet the remaining state law claims. When a federal court has jurisdiction over a claim, it can

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also hear any claims overt which it has supplemental jurisdiction. 28 U.S.C. § 1367. If the claims

initially conveying jurisdiction upon the federal court ate dismissed for reasons other than a

lack of jurisdiction, the court has discretion to continue exercising jutisdiction over the

supplemental claims. 28 U.S.C. § 1367(c). See also Baker v. Farmers Elec. Coop., 34 F.3d 274, 283

(5th Cir. 1994) (“The pendent jurisdiction may continue even after the federal claims upon

which jurisdiction is based have been dismissed or rendered moot.”).

Although the federal claims have now been dismissed, the Court exercises its discretion

to retain jurisdiction over Plaintiffs’ state law claims.

A. Battery and Excessive Force

Plaintiffs argue that Boyett is liable under Louisiana Civil Code Article 2315 for “battery

committed against [JC]” under the theory that when an officer uses excessive force, what is

normally a protected use of force is converted to a battery. [Record Document 45 at 30-31].

Under Louisiana law, a police officer has the right to use force when effectuating a lawful

attest. Deville v. Marcantel, 567 F.3d 156, 173 n.9 (5th Cir. 2009) (citing La. Code. Crim. P. art

220). “Excessive force transforms ordinarily protected use of force into an actionable battery,

rendering the defendant officer and his employer liable for damages.” Penn v. St. Tammany Par.

Sheriff's Office, 02-0893 (La. App. 1 Cir. 4/2/03); 843 So. 2d 1157, 1161. “A battery is ‘[a]

harmful ot offensive contact with a person, resulting from an act intended to cause the plaintiff

to suffer such a contact . ...” Landry v. Bellanger, 02-1443 (La. 5/20/03); 851 So. 2d 943, 949

(quoting Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987)). Under Louisiana law, there was no

battery here because battery is the intentional application of force and Boyett did not intend

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to apply force to JC by releasing Torres to attack. Therefore, Plaintiffs’ state law excessive

force claim is DISMISSED WITH PREJUDICE.

B. Strict Liability

1. Plaintiffs’ Right to Raise Strict Liability

Plaintiffs allege that the City of Bossier City is strictly liable for the damage inflicted by

Tortes under Louisiana Civil Code Article 2321. [Record Document 45 at 31]. Plaintiffs first

formally stated a claim for strict liability in theit opposition to Defendants’ motion for

summaty judgment. [Id] Defendants argue that the Court should not consider this argument

because it was raised at a “highly improper” time. [Record Document 49 at 9]. Plaintiffs

contend that the Court should consider this claim because it is not a “new” claim. [Record

Document 53 at 2]. They further argue that should the Court find this is a new claim, the

Court must construe it as a motion to amend the Plaintiffs’ complaint. [Id]

When a claim is raised for the first time in response to a motion for summary judgment,

a court should treat the claim as a motion to amend the complaint under Federal Rule of Civil

Procedure 15(a). Riley v. School Bd. Union Parish, 379 F. App’x 335, 341 (6th Cir. 2010) (citing

Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008)). “The Supreme Court

lists five considerations in determining whether to deny leave to amend a complaint: ‘undue

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party by

virtue of the allowance of the amendment, [and] futility of the amendment... .”’ Rosenzwezg v.

Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)). When these factors ate absent, leave should be “freely given.” Id

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In this case, Plaintiffs have already filed an amended complaint that failed to expressly

sttict liability. [Record Document 19]. This fact alone does not mean they should not be

gtanted leave to amend their complaint to now add the strict liability claim, though. See

Rosenzweig, 332 F.3d at 864 (“Merely because a claim was not presented as promptly as possible,

however, does not vest the district court with authority to punish the litigant.”) (quoting Carson

v. Polley, 689 F.2d 562, 584 (5th Cir. 1982)). The other factors the Court must consider all lead

the Court to allowing Plaintiffs to amend the complaint. First, allowing Plaintiffs’ strict hability

claim to go forward will not cause any undue delays or undue prejudice to Defendants as the

facts relevant to the strict liability claim are the same facts that are relevant to the negligence

claims properly raised in Plaintiffs’ complaint. Second, there is no evidence that strict lability

was taised in bad faith or with a dilatory motive. Third, amending the pleading to raise strict

liability is not futile.

Having concluded that it is in the interest of justice to allow Plaintiffs to amend their

complaint to raise a strict liability claim, the Court will allow until October 31, 2019 for

Plaintiffs to file an amended complaint.

C. Negligence Against the City of Bossier City

Plaintiffs allege that the City of Bossier City is liable in negligence for failure to train

and supetvise Boyett “in tactics concerning the use and handling of a K-9 dog under these

kinds of citcumstances including the presence of innocent bystanders.” [Record Document

19 at 9]. Defendants contend that Bossier City is entitled to discretionary acts immunity under

Louisiana Revised Statute § 9:2798.1. [Record Document 41-1 at 25].

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Louisiana Revised Statute § 9:2798.1(B) provides that “([lJiability 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 ate

within the course and scope of their lawful powers and duties.” The statute defines “public

entity” to include the state and any of its branches and political subdivisions and the

departments, offices, and agencies of such political subdivisions. La. Rev. Stat. § 9:2798.1(A).

See also Roberts v. City of Shreveport, 397 F.3d 287, 296 (Sth Cir. 2005) (applying La. Rev. Stat. §

9:2798.1 to claims of negligent training against a city police chief). This immunity is not

absolute, however. “The Supreme Court of Louisiana considers the immunity conferred on

state public officials by this law to be ‘essentially the same as the immunity conferred on the

federal government by the exception to the Federal Tort Claims Act @TCA).” Id (quoting

Jackson v. State ex rel. the Dep’t of Corrections, 00-2882 (La. 5/15/01); 785 So. 2d 803, 809). The

City of Bossier City is only immune, then, if “no state law, regulation, or policy specifically”

ptosctibed “the officer’s course of action” and if “the challenged action is grounded in

political, economic, ot social policy.” Id. Simply put, if the official exercised “policy-based

discretion,” he or she is immune from state tort liability. Id.

In this case, the parties have provided information about and discussed the training in

which Boyett and Torres participated but have not established that the initial training, the

ongoing training, or the supervision of Boyett was “grounded in political, economic or social

policy.” Defendants have thus failed to establish that the City of Bossier City is entitled to

immunity under § 9:2798.1(B).

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Likewise, Defendants have failed to catty their summary judgment burden on the

merits of Plaintiffs’ negligence claim. In support of their argument, Defendants assert that

“Plaintiffs have no evidence showing that Bossier City failed to adequately train or supetvise

Officer Boyett on the use of police dogs.” [Record Document 41-1 at 25]. They then argue

that the summary judgment evidence demonstrates that “Officer Boyett received all necessary

and appropriate police dog training.” [Id] These ate conclusory allegations for which no record

evidence or binding authority was cited.

The Court recognizes that Defendants addressed the training Boyett received with

Totres in another section of their brief. [Record Document 41-1 at 17]. In this section,

Defendants establish that Boyett “completed a twelve-week handler course, passed written

tests, and completed a two-week field training phase” with Tortes. [I@.].'They also cite evidence

that Boyett was National Police Canine Association (“NPCA”) certified in 2016 and that

NPCA training is the “best practice standard in the police dog industry.” [Id.] While these facts

ate illuminating, they have not been addressed in the context of the Plaintiffs’ negligence claim.

Accordingly, summary judgment is DENIED.

D. Negligence Against Officer Boyett and Sergeant Faulkner

Plaintiffs allege that Boyett was negligent in deploying Tortes and that Faulkner was

negligent in failing to intervene to stop the attack. [Recotd Documents 19 at 8-9 and 45 at 33].

Defendants argue that Plaintiffs cannot satisfy all elements of a negligence claim because they

cannot show that Boyett and Faulkner breached any duty by acting unreasonably. [Record

Document 41-1 at 26-27]. The briefing submitted by the parties failed to address whether

Boyett ot Faulkner owed a duty to JC, AC, and Coley under the circumstances of this case.

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Furthermore, questions of material fact remain that are relevant to determining the

reasonableness of Boyett and Faulkner’s actions. Summary judgment on these claims is

therefore DENIED.

CONCLUSION

For the teasons discussed above, Defendants’ motion for summary judgment [Record

Document 41] is GRANTED IN PART AND DENIED IN PART. It is GRANTED as

to all of Plaintiffs’ federal claims and Plaintiffs’ state law excessive force claim. It is DENIED

as to Plaintiffs’ negligence claim against the City of Bossier City and their negligence claims

against Boyett and Faulkner. Plaintiffs shall have until October 31, 2019 to file their amended

complaint including their strict lability claim.

THUS DONE AND SIGNED in Shteveport, Louisiana, on this AQ} day of

October, 2019.

ELIZABEYRLE. FOOTE

UNITED STAT fpsguc JUDGE

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