The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
ERIE MOORE, JR., ET AL. CIVIL ACTION NO. 3:16-CV-01007
VERSUS JUDGE TERRY A. DOUGHTY
LASALLE CORRECTIONS, INC., MAG. JUDGE KAREN L. HAYES
ET AL.
RULING
Pending here is a Motion for Summary Judgment filed by Defendants Archie Altman; Sgt.
Roy Brown; Reginald Curley; Jody Foster; Alton Hale; Warden Ray Hanson; Sgt. Gerald
Hardwell; Sgt. Kenneth Hart; William Mitchell; Sgt. Duan Rosenthal; Jeremy Runner; Danielle
Walker; Sgt. Reginald Williams; LaSalle Management Co., LLC; Richwood Correctional Center,
LLC; Roderick Douglas; Christopher Loring; Tommy Crowson; and City of Monroe (collectively
“Defendants”) [Doc. No. 245]. Plaintiffs Erie Moore, Jr., Tiffany Robinson, and Tamara
Robinson (collectively “Plaintiffs”) have filed an opposition. [Doc. No. 303]. Defendants have
filed a reply to the opposition [Doc. No. 339].
Plaintiffs have brought several claims under 42 USC § 1983 as well as Louisiana state law
concerning the alleged tortious acts of Defendants which they argue caused the death of their
father, Erie Moore, Sr. (“Moore”). While each of those causes of action is different, they all share
a common element: medical causation. Defendants contend they are entitled to judgment as a
matter of law on Plaintiffs’ claims for the death of Moore due to excessive force because Plaintiffs
are unable to prove that Defendants’ actions or omissions caused his death.1 Plaintiffs respond
that each Defendant was as much at fault as the others for the death of their father and all are liable.
1 Defendants do not seek summary judgment as to the less than fatal injuries to Moore.
For the following reasons, the Court GRANTS the pending Motion for Summary
Judgment.
I. FACTS AND PROCEDURAL HISTORY
This lawsuit follows the death of two detainees at the Richwood Correctional Center
(“RCC”), a private detention center located in Ouachita Parish, Louisiana. RCC is owned and
operated by LaSalle Management Company, LLC (“LaSalle”) and/or Richwood Correctional
Center, LLC (“Richwood”), related private entities.
At the time of the incident, Moore was being detained at RCC after having been arrested
by Monroe Police Department (“MPD”) Lieutenant (then-Corporal) Tommy Crowson (“Officer
Crowson”) for disturbing the peace on October 12, 2015. The next day, October 13, 2015,
Moore was involved in an altercation with another detainee, Vernon White (“White”). White
died shortly after the altercation. Moore was forcibly removed from the holding cell after the
altercation occurred. Soon thereafter, Moore became unconscious. He died on November 14,
2015, without ever having regained consciousness.
Plaintiffs are the children and heirs of Moore. In their original Complaint, filed July 8,
2016, Plaintiffs alleged that the death of their father was caused by multiple Defendants. [Doc.
No. 1]. On December 5, 2017, an Amended Complaint was filed which added new Defendants
and continued the previous allegations. [Doc. No. 63]. On April 11, 2019, the Third Amended
Complaint was filed, which added more Defendants to the suit, repeated many of the original
claims, and made new claims. [Doc. No. 140].
A. Factual Background
On October 11, 2015, Louisiana State Trooper Jason Hanemann (“Trooper Hanemann”)
was pulled over by Moore. [Doc. No. 140, ¶ 7]. Moore informed Trooper Hanemann that Moore
was going to force a police officer to shoot him and that Moore wanted to be in front of the TV
when the police officer shot him. Trooper Hanemann believed Moore was attempting to force him
into a confrontation. Trooper Hanemann did not detain Moore.
On the morning of October 12, 2015, while on duty, at approximately 6:15 am, Officer
Crowson went to Donut Palace in Monroe, Louisiana, to get something to eat. [Crowson
Deposition, Doc. No. 224-3, pp 9-10, 54]. As he walked just inside the front door, Officer Crowson
observed a man – later identified as Moore – at the front counter “hollering and screaming and
cursing.” [Id., pp. 11-12]. Officer Crowson observed Moore “ra[nting] and raving” and waving his
arms. [Id., pp. 12-14]. Officer Crowson thought that Moore was “upset” at the employee behind
the counter; the employee, in turn, seemed nervous and scared. [Id., pp. 12-13, 22-23]. Officer
Crowson also observed other patrons leaving the business. [Id., pp. 13, 45-46].
When Officer Crowson entered, Moore turned from the counter towards the door and saw
him. [Id., pp. 13-14]. Moore then approached him and closed the gap between the two of them to
two to three feet. [Id., p. 15]. While approaching him, Moore hollered curse words at Officer
Crowson, continued “ra[nting] and raving,” and informed Officer Crowson that he knew the
mayor. [Id., pp. 14-16]. Officer Crowson confronted Moore and told Moore that he needed to
“calm down.” [Id., pp. 13-15]. Officer Crowson’s directive had no apparent effect. [Id., p. 14].
After the directive was ignored, Officer Crowson placed Moore under arrest for disturbing
the peace, turned Moore around, and handcuffed him behind his back. [Id., p. 15]. Moore was
advised of his rights but refused to explain his actions. [Id., pp. 27, 33].
After arresting Moore, Officer Crowson began the process of moving Moore to his patrol
unit for transport. Moore provided some resistance as he led Moore outside, which Officer
Crowson described as having to “coax” Moore while Moore was “slightly” pulling on him. [Id,
pp. 18-19].
At the vehicle, Officer Crowson searched Moore incident to arrest and located Moore’s
driver’s license, which he used when he called dispatch. [Id., pp. 20-21]. Moore was placed in the
patrol unit, and Officer Crowson secured Moore’s vehicle. [Id., pp. 20-22]. Officer Crowson then
returned to the store to interview the employee, who provided his account of the event. [Id., pp.
22-23, 25-26].
At some point, while already in custody, Moore told Officer Crowson that Officer Crowson
“was going to kill him.” [Id., pp. 32, 51]. Moore made the latter statement only once, and Crowson
did not engage him about it. [Id., pp. 32-34, 44, 51].
Upon arrival at RCC, Officer Crowson took Moore to booking to be processed into the
facility. [Id., p. 31]. Officer Crowson testified that he informed the booking officer that he was
charging Moore “with disturbing the peace, loud and profane, for him disturbing the peace and
cussing.” [Id., pp. 32-33].
Shortly after Moore’s arrival, Nurse William Mitchell, LPN, (“Mitchell”), the on-staff
nurse at RCC, assessed Moore. [Mitchell Deposition, Doc. No. 224-7, pp. 2-5, 6-8]. Mitchell
believed that Moore was “intoxicated,” [Id., pp. 7, 9]; specifically, Mitchell believed that Moore
was “either drunk or on something,” meaning that his behavior was “chemically induced.” [Id., p.
10-11].
During the booking process at RCC, Moore was uncooperative and acting irrationally, so
he was eventually placed in Lockdown Cell 7 (“LD-7"). [Third Amended Complaint, Doc. No.
140, at pp. 10-11. ¶10; Deposition of RCC Lieutenant Gerald Hardwell, Doc. No. 256-4, at pp.
47-49; Deposition of RCC Corrections Officer (“C/O”) Roy Brown, Doc. No. 256-5, at pp.76-
77]. It was observed that Moore was acting irrationally or erratic during the time he spent in LD-
7. [Doc. No. 140, at pp. 10-12, ¶¶ 10, 13; Doc. No. 256-4, at pp.50-51, 55, 60-61].
Another detainee, Vernon White (“White”), was placed in LD-7 with Moore. [Doc. No.
140, at p. 11, ¶11]. Moore’s irrational behavior continued and, ultimately, he and White were
involved in an altercation in which White was shoved into a corner just out of range of the
camera monitoring LD-7, as shown in surveillance video. [Deposition of OPSO Deputy
Nathaniel Lambright, Doc. No. 256-11, at p. 34; Deposition of OPSP Investigator Johnny
Holyfield, Jr., Doc. No. 256-9 at p. 92; Deposition of RCC Corrections Officer (“C/O”) Jeremy
Runner, Doc. No. 256-7 at p. 78]. This occurred at approximately 5:20 p.m. [Unusual
Occurrence Report prepared by RCC Asst. Warden Aultman, Doc. No. 256-12].
A few minutes later, Runner looked at the video screen and observed only Moore in LD-
7. Moore was sitting on an empty bed rack from which he had knocked off the mattress. Two
dinner trays had been delivered to the cell, but Moore was eating from both trays. Runner went
directly to the cell to see what was going on. When he arrived at the cell, Moore was standing
directly in front of the small window on the cell door, blocking Runner’s view into the cell.
Moore stated he wanted to see the lieutenant. Runner asked why, but Moore refused to say.
Runner said he would go find the lieutenant and he turned to leave. As Runner was walking
away, he felt that something wasn’t right, so he went back to the cell door and looked in the
window. Moore was no longer standing in front of the window but had returned to his rack.
Runner then saw White on the floor underneath the camera, shaking as if he were having a
seizure. [Runner Deposition, Doc. No. 256-7, pp. 78-82].
Runner then summoned help. Just after 6 p.m., White was extracted from the cell after
Moore was subdued by the application of pepper spray and physical force applied by RCC
officer(s), including an alleged closed-hand strike by Defendant Runner, who forced Moore to
the floor. [Third Amended Complaint, Doc. No. 140, at pp. 13-14, ¶¶19-20; Hardwell
Deposition, Doc. No. 256-4, at pp.63-75; Runner Deposition, Doc. No. 256-7,at pp. 78-93;
Holyfield Deposition, Doc. No. 256-9, at pp. 15-16; Deposition excerpts of RCC Warden Ray
Hanson, Doc. No. 256-13, at pp. 94-95, 97-98, 99-100].
White’s injuries appeared to be quite serious and possibly life-threatening. [Runner
Deposition, Doc. No. 256-7, at pp.138-143]. White was taken to a hospital by ambulance for
medical treatment at about 6:30 p.m., but he later died from his injuries. [Third Amended
Complaint, Doc. No. 140, at p.14, ¶21; Deposition excerpts of RCC C/O Reginald Curley, Doc.
No. 256-14, at pp. 45-49]
After White was removed, Moore was extracted from LD-7. [Third Amended Complaint,
Doc. No. 140, at p. 14, ¶ 21]. In order to subdue Moore, RCC officers again applied pepper spray
and used physical force. [Id., at p. 14, ¶ 21; Hardwell Deposition, Doc. No. 256-4, at pp. 63-68;
Runner Deposition, Doc. No. 256-7 at pp. 83-84, 97-100]. Moore was carried out of the cell and
forcefully taken down to the floor by Defendant Hardwell in the hallway outside of LD-7. [Third
Amended Complaint, Doc. No. 140, at p. 14, ¶ 21; Hardwell Deposition, Doc. No. 256-4 at
pp.69-78; Hansen Deposition, Doc. No. 256-13, at pp. 102-103]. Moore’s head allegedly hit the
floor as a result of this maneuver. [Third Amended Complaint, Doc. No. 140, at p. 14, ¶ 21].
Handcuffs and leg restraints were applied to Moore and he was moved to the “Four-Way,” an
interlock area between hallways of RCC which is not monitored by video cameras, where he was
placed on the floor laying on his back. [Hardwell Deposition, Doc. No. 256-4, at pp. 78-80;
Runner Deposition, Doc. No. 256-7, at pp. 99,104-106].
As Moore was being carried from the hall to the Four-Way, however, one of the RCC
officers stumbled, and Moore’s head again hit the floor. [Third Amended Complaint, Doc. No.
140, at p. 14, ¶ 22; Hardwell Deposition, Doc. No. 256-4, at pp. 81-83; Holyfield Deposition,
Doc. No. 256-9, at pp. 13-15].
RCC contacted the Ouachita Parish Sheriff’s Office to report the incident as a battery
during a fight among inmates. [Deposition of OPSO Lieutenant Robert Tolbird, Doc. No. 256-8,
at p. 14]. OPSO investigator Nathaniel Lambright is logged as arriving at RCC at 7:32 p.m.
[Lambright Deposition, Doc. No. 256-11, at pp. 14, 43; Tolbird Deposition, Doc. No. 256- 8, at
p. 21]. Lambright’s supervisor, OPSO Lieutenant Tolbird. arrived at RCC shortly after
Lambright. [Tolbird Deposition, Doc. No. 256-8, at pp. 19-21; Holyfield Deposition, Doc. No.
256-9, at p. 54; Lambright Deposition, Doc. No. 256-11, at pp. 18, 43].
Upon arrival at RCC, Lambright learned that White had succumbed to the injuries he
suffered in the altercation with Moore. [Lambright Deposition, Doc. No. 256-11, at p.21]. RCC
Warden Aultman met Lambright and Tolbird and showed them the video recordings from the
security camera in LD-7, which showed an altercation between Moore and White. [Tolbird
Deposition, Doc. No. 256-8, at pp. 14-15, 45-47; Lambright Deposition, Doc. No. 256-11, at pp.
34-36, 40, 44-45].
When Investigator Lambright and Lt. Tolbird saw Moore after viewing the video, he was
on his back in the Four-Way area of RCC, appeared to be sleeping, and was snoring loudly.
[Lambright Deposition, Doc. No. 256-11, at pp. 15-16, 47; Tolbird Deposition, Doc. No. 256-8,
at p. 15-17, 38-39; Aultman Deposition, Doc. No. 256-15, at p. 61]. Moore did not appear to be
in distress. [Holyfield Deposition, Doc. No. 256-9, at pp. 15-18; Tolbird Deposition, Doc. No.
256-8, at p. 16; Aultman Deposition, Doc. No. 256-15, at p. 62]. Neither Lambright nor Tolbird
observed any apparent injuries to Moore at the time and RCC staff did not indicate to the OPSO
Investigators that Moore required any medical attention at that time. [Tolbird Deposition, Doc.
No. 256-8, at pp.24-26, 41, 51, 53-55; Lambright Deposition, Doc. No. 256-11 at pp. 17-18, 20,
22-23, 31].
Lambright and Tolbird were shown to LD-7. The area had been cleaned prior to their
arrival; therefore, the cell showed no signs of the altercation between Moore and White when
Lambright and Tolbird saw it. [Tolbird Deposition, Doc. No. 256-8, at pp.17-19; Holyfield
Deposition, Doc. No. 256-9, at pp. 17-18; Lambright Deposition, Doc. No. 256-11, at pp. 20-21,
41, 46-47]. The OPSO Investigators nevertheless secured the scene as it was, and then continued
the investigation into the battery of White, which by then had morphed into an investigation into
White’s death. Id. When OPSO Investigators Holyfield, Boney, and Holloway arrived at RCC,
they took over the investigation because it was then considered a homicide investigation.
[Tolbird Deposition, Doc. No. 256-8, at p. 48; Lambright Deposition, Doc. No. 256-11, at p. 42].
The investigation continued from that point and Lambright assisted as instructed. Id. Holyfield
was designated as the lead investigator on the case, and the others were to assist as needed.
[Tolbird Deposition, Doc. No. 256-8, at. p. 48].
After viewing the video capture, interviewing RCC staff, and inspecting LD-7, Holyfield
went to the Four-Way to speak with Moore. [Holyfield Deposition, Doc. No. 256-9 at pp. 20, 26-
29]. Holyfield remembers Moore apparently sleeping while lying on his side and snoring loudly.
[Id., at p. 30]. RCC staff indicated that Moore had been doing that for some time and that they
had not tried to wake him. [Id]. Holyfield decided that, given Moore’s previous combative nature
towards RCC staff, it might be better to have Moore transported to Ouachita Correctional Center
(“OCC”) and then interview him there. [Id]. Lt. Tolbird called OCC and asked them to send
transport officers over to take Moore from RCC to OCC. [Tolbird Deposition, Doc. No. 256-8, at
pp. 31, 50]. This call took place at approximately 8:45 p.m. [Holyfield Deposition, Doc. No. 256-
9, at pp.75-76]. Holyfield did not wait for the transport officers to arrive; instead, he went back to
the purported crime scene to investigate further. [Id.]
OPSO Deputies Murphy and Wells, then on duty at OCC, were told to drive to RCC,
collect Moore, and transport him from RCC to OCC. [Wells Deposition, Doc. No. 256-16, at
p.10; Murphy Deposition, Doc. No. 256-17, at pp. 9-10]. Deputy Murphy testified at deposition
that the call for him to head to RCC to pick up Moore and bring him to OCC was made at
approximately 8:50 p.m. [Id.] Logs show the transport deputies departed OCC at 8:55 p.m. and
arrived at RCC at 8:57 p.m. [Wells Deposition, Doc. No. 256-16, at p. 11; Murphy Deposition,
Doc. No. 256-17, at p. 11]. RCC is adjacent to OCC, and it only takes a few minutes to drive
between the two facilities. [Lambright Deposition, Doc. No. 256-11 at p. 33].
After Deputies Wells and Murphy arrived at RCC in the transport unit, they entered RCC
and were directed to Holyfield, who told them that it might be best to take Moore out through the
booking area instead of the administration area, which meant the transport unit would have to go
to a different entrance. [Holyfield Deposition, Doc. No. 256-9, at p. 32]. Deputy Wells went to
relocate the transport unit. [Wells Deposition, Doc. No. 256-16, at p. 10-11, 18]. Holyfield
walked back to the Four-Way, and Moore still appeared to be sleeping and snoring. Murphy and
others witnessed the same thing in the Four-Way. [Mitchell Deposition, Doc. No. 256-6, at
pp.52-56; Holyfield Deposition, Doc. No. 256-9, at pp.32-33; Wells Deposition, Doc. No. 256-
16, at p. 19; Murphy Deposition, Doc. No. 256-17, at pp. 15-16]. Officers tried to wake Moore
up. Some say he would not wake up [Hardwell Deposition, Doc. No. 256-4, at 91-93, 129-130;
C.O. Williams Deposition, Doc. No. 256-18, at pp.80-81, 83; Mitchell Deposition, Doc. No. 256-
6, at pp.146-148]. Others testified they recalled Moore did not appear to wake up [Holyfield
Deposition, Doc. No. 256-9, at p. 34; Wells Deposition, Doc. No. 156-16, at pp. 15-16].
Holyfield did not observe any signs of injury to Moore at that time. [Holyfield
Deposition, Doc. No. 256-9, at p. 36]. Neither did Wells or Murphy. [Wells Deposition, Doc. No.
156-16, at pp. 14, 19; Murphy Deposition, Doc. No. 256-17, at pp.14-15, 19]. RCC Nurse
Mitchell saw abrasions and a “knot” on Moore’s head. [Mitchell Deposition, Doc. No. 256-6, at
pp. 46-47, 63]. C/O Runner also recalled that Moore had a bump on his forehead during the time
he was in LD-7 and that it might have been a result of Moore’s banging his head on the door to
the cell prior to the altercation with White. [Runner Deposition, Doc. No. 256-7, at pp. 109-110,
115, 120-122]. Captain Hardwell noticed the bump or “knot” as well when Moore was in LD-7.
[Hardwell Deposition, Doc. No. 256-4, at pp. 56, 61-62; 141-144].
When it came time to move Moore, officers picked Moore up by the arms and legs to
carry him to the waiting transport unit. [Holyfield Deposition, Doc. No. 256-9, at pp. 34-35;
Murphy Deposition, Doc. No. 256-17, at pp. 17-18]. Moore was carried to the unit face down
because he was a large, heavy man and it was an easier way to carry him. [Holyfield Deposition,
Doc. No. 256-9, at p. 37; Wells Deposition, Doc. No. 156-16, at p. 12; Murphy Deposition, Doc.
No. 256-17, at pp. 19-20]. Deputy Murphy remembered that he had Moore by the legs and RCC
officers had Moore by the arms. [Murphy Deposition, Doc. No. 256-17, at p. 17].
Deputy Murphy did not recall dropping Moore during this trek. [Murphy Deposition,
Doc. No. 256-17, at p. 17]. Nor did Williams. [Williams Deposition, Doc. No. 256-18, at pp.85-
86]. Investigator Holyfield did say that he had heard from someone (he could not remember
who) that Moore was dropped on the way to the unit and that his nose or forehead may have hit
the ground, but he had no personal knowledge of that happening and did not witness it
happening. [Holyfield Deposition, Doc. No. 256-9, at p. 37, 41, 44]. Other officers at the scene,
however, testified at deposition that they did not see Moore get dropped as he was carried from
the Four-Way to the OCC transport unit. [Hansen Deposition, Doc. No. 256-14, at p. 224;
Aultman Deposition, Doc. No. 256-15, at pp.55-56; Murphy Deposition, Doc. No. 256-17, at p.
33; Williams Deposition, Doc. No. 256-18, at pp.85-86; Foster Deposition, Doc. No. 256-19, at
pp.25-30]. Moore did not at this time appear to be seriously injured or actively bleeding. [Foster
Deposition, Doc. No. 256-19, at p. 27; Hardwell Deposition, Doc. No. 256-4, at p. 144].
The unit transporting Moore arrived back at OCC at 9:27 p.m. [Wells Deposition, Doc.
No. 256-16, at p. 17; Murphy Deposition, Doc. No. 256-17, at p. 21-22]. When OPSO personnel
removed him from the unit and placed him on the cart, deputies noticed there was some bleeding
from Moore’s head and mouth. [Wells Deposition, Doc. No. 256-16, at pp. 20, 23-27; Murphy
Deposition, Doc. No. 256-17, at pp. 22-24, 26-27]. OCC Medical Officer Crecink examined
Moore to assess his condition before OCC could accept custody. [Wells Deposition, Doc. No.
256-16, at pp. 22, 26-27; Crecink Deposition, Doc. No. 256-22, at pp. 12-15, 21-26, 32-33].
Photographs of Moore were taken by OCC staff. [Murphy Deposition, Doc. No. 256-17, at p.23;
Crecink Deposition, Doc. No. 256-22, at p. 16-21]. Following the examination, Crecink informed
the shift supervisor on scene that Moore showed signs of having a head injury and needed to be
taken to the hospital. [Id., at p. 22].
Murphy and Wells took Moore to Conway. Medical personnel treating Moore at Conway
performed a CT scan and other tests and determined that Moore had suffered a fractured skull.
[Wells Deposition, Doc. No. 256-16, at pp.32-33; Murphy Deposition, Doc. No. 256-17, at p.31].
Medical personnel also indicated that Moore had suffered a midline shift in his brain due to
bleeding in his skull. [Wells Deposition, Doc. No. 256-16, at pp.32-33; Murphy Deposition, Doc.
No. 256-17, at p.31-32] At 12:29 a.m. on the 14th, Moore was transported by air evacuation
helicopter to LSU Health Center in Shreveport for additional care that could not be provided at
Conway. [Wells Deposition, Doc. No. 256-16, at p.30; Murphy Deposition, Doc. No. 256-17, at
pp. 34-35; Tolbird Deposition, Doc. No. 256-8, at pp. 22-23].
Subsequent to Moore’s transfer to Shreveport and the examinations conducted there, the
medical care providers indicated that Moore was likely brain dead and a decision would have to
be made as to whether to discontinue life support. [Holyfield Deposition, Doc. No. 256-9, at p.
60]. Investigators believed that this was a decision for the Moore family, and not the Sheriff’s
Office, to make. The investigation materials were then turned over to the District Attorney’s
Office, which declined prosecution of Moore in connection with the death of White, so as to
allow the Moore family to make that decision regarding life support. [Id.]. On or about
November 14, Erie Moore, Sr. died. [Third Amended Complaint, Doc. No. 140, at p. 9, ¶ 6; p.
16, ¶ 26].
B. Deposition of Dr. Teri O’Neal
Dr. Teri O’Neal (“Dr. O’Neal”), Ouachita Parish Coroner at the time, testified at her
deposition that Moore died of complications from a subdural hematoma caused by blunt force
trauma. [Dr. Teri O’Neal Deposition, Doc. No. 256-26, p. 2]. Dr. O’Neal indicated that it was
likely that the blow that caused the fatal injury was inflicted to the right side of Moore’s head.
[Id., pp. 5-6]. She also testified that none of the external injuries seen on Moore’s head appeared
to be related to the fatal “severe underlying head injury.” [Id., pp. 5-8]. She testified that “a
pretty significant amount of force,” is needed to cause a subdural hematoma. [Id., p. 18].
C. Deposition of John Owings, M.D.
Dr. John Owings [“Dr. Owings”] was deposed on September 18, 2019. Dr. Owings
treated Moore but had no specific recollection of it. [Dr. John Owings Deposition, Doc. No. 246-
4, p. 11]. He also reviewed Moore’s pertinent X-rays to formulate his opinion. [Id., p. 12]. He
produced a report for Plaintiffs. [Id., p. 14]. He was asked to review Moore’s records and his
recollection of treating Moore and issue an opinion, “as to the survivability of Mr. Moore’s head
injury, as to the chronicity of his head injury, and as to what mechanism of injury might have
caused his head injury.” [Id., p. 15].
Dr. Owings opined that, “Moore suffered blunt force trauma to the head while at
Richwood Correctional Center,” but later testified that he did not know specifically when Moore
suffered the blunt force trauma which caused the subdural hematoma. [Id., p. 22]. He testified
that the subdural hematoma likely began to form between 24 and 48 hours prior to Moore’s
presentation at E.A. Conway hospital. [Id., p. 23].
Dr. Owings opined that, “Moore manifested signs of a significant head injury.” [Id., p.
25]. Dr. Owings went on to opine that blunt force trauma resulted in the gradual development of
Moore’s subdural hematoma. [Id., p. 26]. However, Dr. Owings testified that he could not, “tell
you what specific event caused his subdural hematoma,” and that he, “[didn’t]think anybody
could put their finger on that given at least evidence that I know of that exists.” [Id., p. 27].
Dr. Owings did not offer an opinion concerning whether any Defendant had acted
negligently or improperly. [Id., p. 32]. Dr. Owings could not offer an opinion “from a causation
time wise standpoint”, “because [he didn’t] know exactly when the subdural started forming[.]
[Id., pp. 33-34].
D. Deposition of David Nelson, M.D.
Dr. David Nelson (“Dr. Nelson”) was deposed on October 12, 2019. Dr. Nelson was the
emergency room physician on the night Moore was brought in to E.A. Conway hospital (October
13, 2015). [Dr. David Nelson Deposition, Doc. No. 246-5., p. 10]. Dr. Nelson testified that he did
not determine the location on the head where any trauma may have occurred. [Id., p. 18].
Dr. Nelson would not commit to a causal relationship between any of the potential
traumas and the subdural hematoma. Asked if a, “body slammed head-first onto a hard floor”
could cause the injury, Dr. Nelson would only commit to, “It could be.” [Id., p. 19]. Asked, “If
an individual is struck in the back of the head with a closed fist, is that significant enough force
to cause this kind of an injury?” again Dr. Nelson would only commit to, “It could be.” [Id., p.
19]. Asked, “Could enough force to cause this kind of injury be applied in a situation where a
person is dropped from a level of three to four feet onto a hard floor head-first?” again Dr.
Nelson would only commit to, “It could be.” [Id., p. 19].
When Dr. Nelson was asked, “Now, the fact that someone suffers in a situation where it
is a blunt force subdural hematoma, you can’t offer a medical opinion as to what the specific
trauma was that resulted in this subdural hematoma; is that correct?” he agreed, testifying,
“That’s correct.” [Id., p. 24].
Asked about the likely location of blunt force trauma which could have caused a subdural
hematoma, Dr. Nelson testified that he would expect that a hematoma located on the right side of
the head would have been caused by a blow to the right side of the head, even though he
documented no physical evidence of such a blow. [Id., p. 26].
Dr. Nelson had no medical opinion about where or when the blunt force trauma at issue
took place. [Id., p. 27]. However, Dr. Nelson opined that if Moore was acting normally five
hours earlier, then the injury likely happened during that five hour period. [Id., pp. 36-38].
E. Deposition of Eduardo Gonzalez-Toledo, M.D.
Dr. Eduardo Gonzalez-Toledo (“Dr. Gonzalez-Toledo”) was deposed on November 19,
2018. Dr. Gonzalez-Toledo treated Moore at LSU Shreveport. He is a professor of radiology,
neurology, and anesthesiology at LSU Shreveport as well as the director of the neuroradiology
section of the radiology department there. [Dr. Eduardo Gonzalez-Toledo Doc. No. 246-6, pp. 6-
7]. His only role in Moore’s treatment was reviewing diagnostic films taken while Moore was at
LSU Shreveport. [Id., p. 8].
Dr. Gonzalez-Toledo also testified as an expert for Plaintiffs in neuroradiology and
provided a report at their request. [Id., p. 8-9]. Dr. Gonzalez-Toledo formed his opinions based
on discussions with Plaintiffs’ counsel as well as a review of pertinent CT scans, medical
records, and the autopsy report. [Id., pp. 10-12]. Dr. Gonzalez-Toledo testified about the three
opinions contained in his report: (1) “the subdural hematoma was traumatically induced,” (2)
“the trauma was inflicted to the right rear of the head,” and (3) “the precipitating cause of the
subdural hematoma was inflicted 24 hours or less from the time Mr. Moore presented to the
University Healthcare in Monroe,” (roughly 9:50 p.m. October 13, 2015). [Id., p. 15].
Dr. Gonzalez-Toledo further testified that the trauma which caused the injury likely came
from the front or back right side of Moore’s skull. [Id., pp. 17-18]. He testified that Moore
suffered a midline shift of his brain, which led Dr. Gonzalez-Toledo to conclude that the
hematoma was traumatically induced and came from the right side of Moore’s head. [Id., pp. 18-
19].
Other than his opinion that the precipitating cause of the subdural hematoma occurred
within 24 hours of Moore’s arrival at EA Conway, Dr. Gonzalez-Toledo offered no opinion as to
the causation of the injury.
F. Deposition of Frank Peretti, M.D.
Dr. Frank Peretti (“Dr. Peretti”) was deposed on August 10, 2018. Dr. Peretti is the
associate medical examiner and forensic pathologist who performed Moore’s autopsy. [Dr. Frank
Peretti Deposition, Doc. No. 246-7, pp. 10, 12]. Along with performing Moore’s autopsy, Dr.
Peretti was tasked with producing an autopsy report, with the cause of death, along with a
toxicology. [Id., p. 13]. Typically, as was the case here, Dr. Peretti was provided with the
coroner’s investigative report prior to performing an autopsy. [Id., p. 14].
Dr. Peretti’s autopsy of Moore produced a report with multiple findings. [Autopsy
Report, Doc. No. 246-7, p. 72]. The first finding was blunt force trauma to the head. [Doc. No.
246-7, p 16]. Dr. Peretti was not able to determine what instrument or object caused the blunt
force trauma. [Id., p. 17]. Dr. Peretti’s next finding was of a subdural hematoma on the right side.
[Id.]. Dr. Peretti testified that the right side hematoma indicates that the trauma at issue likely
occurred on the right side of Moore’s head, though trauma to the front or back of the head could
also have caused it. [Id., pp. 19-20].
Dr. Peretti was asked if he could tell in the autopsy when the trauma occurred but was
only able to say that it was a “relatively fresh subdural hematoma.” [Id., pp. 24-25]. He testified
that his autopsy findings would be consistent with blunt force trauma as far back as October 11,
2015, prior to Moore’s detention at RCC. [Id., pp. 25-26]. When asked more directly whether he
could determine the timing of the blunt force trauma from the autopsy, Dr. Peretti admitted that
he could not. [Id., p. 26].
Dr. Peretti discussed the midline shift he found, describing it as the brain shifting left or
right in the skull due to swelling. [Id., p. 27]. Dr. Peretti was asked about the lack of subgaleal or
temporalis muscle contusions shown in his report, and he testified that the subgaleal muscles are
under the scalp, while the temporalis muscle is above the ear, and that neither showed trauma.
[Id., pp. 30-31]. He continued, testifying that he did not see an impact point or any external
injuries to the scalp. [Id.] Based on his findings, Dr. Peretti listed Moore’s cause of death as
pneumonia complications and blunt force head injuries. [Id., p. 33].
Questioned by Plaintiffs’ counsel about potential causes of the hematoma, specifically
impact on a flat surface or with a closed fist strike, Dr. Peretti would only grant that these were
possible causes. [Id., pp. 46-47]. Even after being shown pictures of Moore from October 13,
2015, Dr. Peretti could not commit to an impact site which was the source of the hematoma. [Id.,
pp. 47-48].
Later asked if he could, “determine where the source of the bleeding, of the subdural
hematoma is?” Dr. Peretti responded that, “[t]he only thing [he could] say is the right cerebral
hemisphere, the dura under there. I can’t tell you exactly where, because like I told you, the
blood is going to start to spread out, so you can’t see where.” [Id., p. 56]). Upon final questioning
by Plaintiffs’ counsel, Dr. Peretti was asked repeated questions about the likelihood that impact
with a floor caused the blunt force trauma, and still he was only willing to testify that such an
impact was a likely cause after explicitly being asked to assume that no other potential causes
existed. [Id., pp. 66-67].
B. Defendants’ Motion for Summary Judgment
The parties agree that Moore died as a result of a subdural hematoma. Plaintiffs have
brought claims under 42 USC § 1983 as well as Louisiana state law alleging that Defendants’
tortious acts caused the subdural hematoma and the subsequent death of their father.
Defendants contend they are entitled to judgment as a matter of law with regard to
Plaintiff’s excessive force claim because Plaintiffs lack the medical evidence necessary to
determine which potential impact caused the injury which led to Moore’s death. Defendants
assert that Plaintiffs’ burden of proof includes an implicit requirement that they not only prove
what act caused the subdural hematoma, but who caused the subdural hematoma. Plaintiffs
respond that the medical evidence and evidence of a conspiracy are more than enough for a jury
to find that Defendants employed the force that caused Moore’s death.
The motion is fully briefed, and the Court is prepared to rule.
II. LAW AND ANALYSIS
A. Standard of Review
Under Federal Rule of Civil Procedure 56(a), A[a] party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary
judgment is sought. The court 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.@
The moving party bears the initial burden of informing the court of the basis for its motion by
identifying portions of the record which highlight the absence of genuine issues of material fact.
Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (AA
party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . ). A fact is Amaterial@ if proof of its existence or
nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is Agenuine@ if
the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party.
Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the
Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in
its favor. Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson, 477 U.S. at
248.)
B. Analysis
1. 42 USC § 1983 Claims
a. Individual Defendants
Plaintiffs bring federal claims under 42 U.S.C. § 1983, seeking damages for the alleged
violation of Moore’s constitutional rights. Section 1983 provides for the recovery of damages when
a person is deprived on his or her constitutional rights by a person acting under color of state law.
See Davidson v. Cannon, 474 U.S. 344 (1986); and Daniels v. Williams, 474 U.S. 327 (1986).
Allegations of mere negligence will not suffice to make a claim under § 1983. Id.
“To prevail on a Section 1983 claim, Plaintiffs ‘must show (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.’” Bedingfield v. Deen, 2011 WL3206872, *14 (W.D. La. 7/27/11). “[T]he plaintiff must
establish a direct causal connection between the matter occurring under color of state law and the
alleged constitutional violation.” Givs v. Cityof Eunice, 512 F. Supp. 2d 522, 542 (W. D.
La.5/21/07). “[The specific parameters of liability for civil rights violations are matters of federal
common law, ‘as modified and changed by the constitution and statutes of the State wherein the
court having jurisdiction of such civil. . . cause is held.” Perry v. City of Bossier City, 2019
WL1782482, *3 (W.D. La. 4/23/19).
Specifically regarding medical causation, the court in Perry found that, “to survive
summary judgment when alleging causation of an injury or condition outside of common
knowledge, a § 1983 plaintiff in Louisiana must produce competent medical evidence that, when
combined with other direct and circumstantial evidence, allows a jury to rationally infer that the
defendant’s conduct caused the injury or condition.” Id. at *4.
Defendants contend there are several potential acts which could have caused the subdural
hematoma which resulted in Moore’s death, including:
(1) any blunt force trauma he may have suffered prior to his
booking into RCC;
(2) any blunt force trauma he may have suffered during his
altercation with Vernon White in LD-7;
(3) Runner’s alleged closed hand strike;
(4) Hardwell’s takedown;
(5) his drop by officers in the hallway outside LD-7; and
(6) his alleged drop while being taken out of the Four-Way.
[Doc. 140, ¶29].
In addition, there have been allegations that Moore beat his head against the cell door.
Defendants assert that the burden of proof is upon Plaintiffs to show which of these incidents was
the factual cause of Moore’s subdural hematoma and they must do so based upon the expert
medical evidence available. Defendants further assert Plaintiffs will be unable to meet this burden
of proof.
With regard to the first possible cause, trauma Moore may have suffered prior to being
booked into RCC, Defendants point to the allegations in the Third Amended Complaint that Moore
acted strangely in his interactions with State Trooper Hanneman on October 11, 2015, by following
the trooper, by stopping behind him, and by making threats and seemingly suicidal comments.
[Doc. No. 140, ¶7]. Moore was later arrested by Monroe Police Officer Crowson in part for acting
erratically in public. [Id., ¶8]. Moore continued acting erratically after his arrival at RCC,
preventing booking and intake from being completed. [Id., ¶ 10]. Defendants argue that such
behavior lends support to potential unknown causes of the subdural hematoma prior to his arrest
by Officer Crowson and unrelated to any Defendant.
Additionally, Defendants cite Dr. Owings’ testimony that the onset of the subdural
hematoma was likely 24-48 hours prior to Moore’s arrival at EA Conway. [Doc. No. 246-4, p. 23].
According to Plaintiffs’ Third Amended Complaint, Moore was arrested at approximately 6:15
a.m. on October 12, 2015. [Doc.140, ¶8]. He was presented to EA Conway sometime after the
incident on October 13, 2015, less than 48 hours from the time of his arrest. Based on Dr. Owings’
testimony, Defendants assert that it is possible that Moore suffered blunt force trauma prior to his
arrest and booking into RCC, causing the subdural hematoma at issue.
With regard to the second possible cause, the altercation with White, Defendants point to
Plaintiffs’ allegations in their Third Amended Complaint that an altercation occurred between
Moore and White on October 13, 2015. [Doc. No. 140 ¶ 44]. It is possible that Moore was struck
by White during that altercation, or at some other unknown time. According to Dr. Nelson’s
testimony, a closed fist “could be” enough force to cause the subdural hematoma and one could
easily imagine such a strike occurring during an altercation. [Doc. No. 246-5, p. 19].
With regard to the third possible cause, Defendants contend that Runner’s alleged closed
hand strike was not a likely cause of the injury. Dr. O’Neal was shown video of the strike and
asked to form the necessary causal connection but would not. Instead, Dr. O’Neal would only
testify that, “Probably the hand striking the head would not be sufficient force to cause [a subdural
hematoma].” [Doc. No. 246-5, p. 97].
With regard to the fourth possible cause, Hardwell’s take-down, Defendants assert that Dr.
O’Neal was also shown video of Hardwell’s takedown and asked for an opinion on causation, but
again could only testify that it was possible, because she could not see from the video how hard
Moore’s head hit the floor. [Id., p. 93].
With regard to the fifth possible cause, the drop by the officers in the hallway outside LD-
7, Defendants state that Dr. O’Neal was also shown video of the drop and stated that there was a
possibility that it was a cause of the subdural hematoma. [Id., p. 94].
With regard to the sixth possible cause, the alleged drop while being taken out of the Four-
Way, Defendants state that no medical testimony was elicited specifically about that alleged drop
but testimony allowing for the possibility that a drop could result in a subdural hematoma would
logically extend to that instance as well, if it occurred.
Defendants argue that the medical testimony does not establish what act caused the
subdural hematoma or even when it was caused. Dr. Owings testified that he could not, “tell you
what specific event caused his subdural hematoma,” and that he, “[didn’t] think anybody could put
their finger on that given at least evidence that I know of that exists.” [Doc. No. 246-4, p. 27]. Dr.
Owings could not offer an opinion “from a causation time wise standpoint”, “because [he didn’t]
know exactly when the subdural started forming[.]” [Id., pp. 33-34]. The best he could do on the
causation question was testify that a hypothetical incident at 7:00 p.m. could be the cause. [Id., p.
43].
Additionally, Dr. Nelson was not able to offer an opinion regarding causation. He was
asked, “Now, the fact that someone suffers in a situation where it is a blunt force subdural
hematoma, you can’t offer a medical opinion as to what the specific trauma was that resulted in
this subdural hematoma; is that correct?” He agreed, testifying, “That’s correct.” [Doc. No. 246-
5, p. 24]. Similarly, Dr. Gonzalez-Toledo offered only general information concerning the window
of time that the causative act may have occurred but could not be any more specific about causation
than that the precipitating incident likely occurred within 24 hours of Moore’s arrival at EA
Conway. [Doc. No. 246-6, p. 15]. Dr. Frank Peretti was repeatedly asked for an opinion on
causation but, like Dr. O’Neal, would only commit to “possibilities” or to causation in hypothetical
scenarios. [Doc. No. 246-7].
In sum, according to Defendants, none of the medical testimony which Plaintiffs must use
to prove medical causation offers a definitive opinion about medical causation. This is because
none of those experts testified that a specific cause was more likely than not the cause of the
subdural hematoma. Defendants argue that all the Plaintiffs have are a handful of physicians
willing to say “maybe” about the various known potential causes.
Plaintiffs respond that no potential cause of Moore’s fatal injury exists outside of the
actions of the Defendants. Additionally, they assert that causation has been established
circumstantially. Finally, Plaintiffs argue that where multiple tortfeasors concurrently cause an
injury, each can be held liable for the entire injury, and the burden shifts to each tortfeasor to
exculpate himself.
The Court finds that Plaintiffs are incorrect in their assertion that the medical evidence
shows that nothing could have caused the subdural hematoma other than the actions of Defendants.
The medical evidence does not establish when the subdural hematoma was inflicted, or by whom.
“A perfectly equivocal opinion does not make any fact more or less probable and is irrelevant
under the Federal Rules of Evidence.” Pepitone v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir.
2002). None of the doctors who Plaintiffs rely upon could testify more likely than not that any
single act caused the subdural hematoma. On the issue of the causal blow, all were “perfectly
equivocal,” providing no support for Plaintiffs’ allegations.
Taken as a whole, the medical evidence allows for a 48-hour window for a potential injury
to have occurred prior to Moore’s arrival at E.A. Conway hospital. The injury is just as likely to
have been inflicted before Moore was brought to the RCC for booking. The Court notes that the
stop by the state trooper occurred outside the 48-hour window before Moore arrived at E.A.
Conway hospital. However, Moore was acting erratically from the time he was observed by
Officer Crowson in the donut shop, which was in the 48-hour window.
It is also just as likely that it was inflicted during the physical altercation between Moore
and White which resulted in White’s death. It is just as likely to have been inflicted when the
officer slipped and fell while carrying Moore in the hallway outside of LD-7. A review of the
video evidence indicates that Moore’s head struck the floor with some force, and that the officer
did not intentionally drop Moore. As indicated above, allegations of mere negligence will not
suffice to make a claim under § 1983.
The medical testimony available is simply inadequate to show what blow or injury caused
the subdural hematoma.
Plaintiffs next argue that the general rule is that expert testimony is not necessary to prove
causation “if all the primary facts can be accurately and intelligibly described to the jury, and if
they, as men of common understanding, are as capable of comprehending the primary facts and of
drawing correct conclusions from them as are witnesses possessed of special or peculiar training,
experience or observation,” citing Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962) (quotation
marks omitted) and Cyrus v. Town of Mukwonago, 624 F.3d 856, 864 (7th Cir. 2010).
They argue that the medical evidence, together with evidence of a conspiracy among all of
these Defendants to harm Moore, is sufficient circumstantial evidence for a jury to find that
Defendants employed the force that caused Moore’s death.
Plaintiffs in a Section 1983 case are permitted to show causation through circumstantial
evidence. General tort principles are applied. In the case of Naquin v. Marquette Casualty
Company (1963) 244 La. 569, 153 So.2d 395 at 397, the Supreme Court of Louisiana said:
Causation may, of course, be proved by circumstantial evidence. In
many instances, it can be proved only by such evidence. Taken as a
whole, circumstantial evidence must exclude other reasonable
hypotheses with a fair amount of certainty. This does not mean,
however, that it must negate all other possible causes. Otherwise,
the mere identification by the record of another possibility, although
not shown to be causally active, would break the chain of causation.
Additionally, a § 1983 conspiracy can furnish the conceptual spring for imputing liability
from one to another. Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984).
Plaintiffs assert that these Defendants were involved in a conspiracy or team effort, or aided
and abetted one another, in an agreement to injure Moore. Plaintiffs claim that there was a
conspiracy that included the plan for the rescue of White from LD-7, the extraction of Moore and
the drop of Moore on the floor in the hallway in front of LD-7. Plaintiffs also assert that there was
a beating administered by a group of COs while Moore was in the Four-Way, which was followed
by a cover-up.
However, Plaintiffs have produced no evidence to show that these Defendants acted
together to drop Moore, take Moore to the ground, or shove Moore. Each of the actions was done
by an individual Defendant. The fact that a few officers developed a plan before going into LD-7
to rescue White does not establish a conspiracy. Plaintiffs allege there was a group effort to harm
Moore, but they produce no evidence that would establish any such group effort. Plaintiffs have
produced little more than conclusory allegations in support of their allegations of a conspiracy.
Even if Plaintiffs’ evidence of a conspiracy is considered in the light most favorable to
them, Plaintiffs still have not produced sufficient evidence to exclude other reasonable hypotheses
with a fair amount of certainty. In other words, Plaintiff’s evidence is still simply inadequate to
show what blow or injury caused the subdural hematoma.
Additionally, Plaintiffs have not shown that they should be allowed to combine an alleged
civil rights violation (such as an unconstitutionally excessive use of force) with a merely negligent
act (such as accidentally dropping a person being carried) to establish a conspiracy or concurrent
causation.
Lastly, Plaintiffs argue that multiple tortfeasors who concurrently cause an indivisible
injury are jointly and severally liable, and each can be held liable for the entire injury. They assert
that it is not essential that all persons who concurrently caused the harm be joined as defendants.
Restatement (Second) of Torts § 433A, comment I, § 433B, comments c and d, and §§ 879–82.
See Edmonds v. Compagnie GeneraleTransatlantique,443 U.S. 256, 260 n. 7 and 8 (1979) (“This
latter rule is in accord with the common law, which allows an injured party to sue a tortfeasor for
the full amount of damages for an indivisible injury that the tortfeasor's negligence was a
substantial factor in causing, even if the concurrent negligence of others contributed to the
incident.); Bell v. Mickelsen,710 F.2d 611, 619 (10th Cir. 1983) (applying Wyoming law); Prosser
and Keeton on Torts, § 47, p. 328 and § 52, pp. 347–48.
Plaintiffs argue that, consequently, a tortfeasor who cannot prove the extent to which the
harm resulted from other concurrent causes is liable for the entire harm. Subsection (2) of § 433B
states the burden of proof also shifts to the defendant in the case of concurrent causes: “Where the
tortuous conduct of two or more actors has combined to bring about harm to the plaintiff, and one
or more of the actors seeks to limit his liability on the ground that the harm is capable of
apportionment among them, the burden of proof as to the apportionment is upon each such actor.”
Thus, according to Plaintiffs, Defendants bear the burden of proving that they did not cause the
injury at issue.
Defendants respond that the case law cited by Plaintiffs suggests that while concurrent
causation may apply in a § 1983 action, Plaintiffs must show that the individuals whose actions
were substantial causes must have “functioned as a unit” during the incident. See Simpson v. Hines,
903 F. 2d 400, 403 (5th Cir. 1990). Defendants assert that no such concerted action occurred outside
of the general concept that all individuals were corrections officers attempting to maintain control
after a violent incident.
The Court agrees there is no evidence that Defendants or any other potential actors
functioned as a unit. Runner went into LD-7 and made contact with Moore. Hardwell later entered
and extracted Moore from the cell, during the course of which both went to the floor. Runner and
another officer later attempted to move Moore, slipping and dropping him. OPSO officers later
allegedly dropped Moore while moving him to their patrol car. Additionally, injury before arrival
and injury by White cannot be excluded though those are potentially concurrent causes. These
potential causes do not form a single “unit” of action.
Further, the Louisiana Supreme Court set forth the proper inquiry for causation for
instances where there are multiple causes in Bonin V. Ferrellgas, Inc., 877 So.2d 89 (La. 2004).
The Court stated:
Under Louisiana jurisprudence, most negligence cases are resolved
by employing a duty/risk analysis.
. . .
Cause-in-fact is generally a “but for” inquiry, which tests whether
the accident would or would not have occurred but for the
defendant's substandard conduct. However, where there are
concurrent causes of an accident, the proper inquiry is whether the
conduct in question was a substantial factor in bringing about the
accident. In this case, more than one party's conduct allegedly
caused the fire, i.e., Ferrellgas, Empiregas, and Lanclos. In
considering the substantial factor test, this Court has stated that
cause-in-fact clearly exists when the plaintiff's harm would not have
occurred absent the specific defendant's conduct. Perkins [v.
Entergy Corp. 792 So.2d 606 (La. 3/23/01)], supra at 612 (citing
Graves v. Page, 96-2201 (La.11/7/97), 703 So. 566, 570). This
Court has considered “whether each of the multiple causes played
so important a role in producing the result that responsibility should
be imposed upon each item of conduct, even if it cannot be said
definitively that the harm would not have occurred ‘but for’ each
individual cause.” Perkins, supra at 612 (citing Graves, supra )
[Id., at 95] Here, as indicated above, Plaintiffs have produced no evidence that any Defendant
played so important a role in producing Moore’s death that responsibility should be imposed upon
him.
The Court is mindful that, “the court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, (2000). The Court is also mindful that
conclusory claims, unsubstantiated assertions, or insufficient evidence will not satisfy the
nonmovant's burden. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046–47 (5th Cir. 1996). If the
nonmovant fails to present specific evidence showing there is a genuine issue for trial, summary
judgment is appropriate. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992). Plaintiffs have
produced nothing more than conclusory claims and unsubstantiated assertions to show that
Defendants caused the subdural hematoma which resulted in Moore’s death.
For these reasons, Plaintiffs’ claims under § 1983 against the individual Defendants for the
death of Moore as a result of excessive force should be dismissed for their failure to establish
medical causation
b. Monell Claims
As discussed above, the medical personnel who have been deposed could not commit to a
causal link between any individual act and Moore’s fatal injury. Further, the remaining evidence
is insufficient, when combined with the medical testimony, to allow an inference of causation.
Without the ability to prove that a specific incident medically caused the subdural hematoma,
Plaintiffs will necessarily be unable to show that a policy or custom of LaSalle or RCC caused the
hematoma. Accordingly, Plaintiffs’ Monell claims under § 1983 for the death of Moore due to
excessive force should also be dismissed for their failure to establish medical causation.
c. Failure to Provide Medical Care, Lost Chance of Survival
The Court does not construe Defendants’ motion as seeking summary judgment on the
issue of whether any inadequate medical care issue caused Moore’s death. The Court further does
not construe Defendant’s motion as seeking summary judgment as to any loss of chance of survival
claim. However, Plaintiffs referenced both issues in their opposition, and Defendants responded
to Plaintiffs’ arguments in their reply. Because Defendants did not seek summary judgment on
either issue in their motion, the Court does not address those issues in this Ruling.
2. State Law Claims
Defendants seek judgment as a matter of law on the issue of causation as to Plaintiffs’ state
law claims with regard to excessive force and Moore’s death. They assert that causation is also
necessary to any successful claim under Louisiana law, which employs a duty/risk analysis to
determine liability for all state law causes of action brought by Plaintiffs.
In support of their positions as to the state law claims, both Plaintiffs and Defendants offer
the identical arguments they made with regard to the federal claims. Accordingly, for the reasons
set forth above, the Court grants Defendants’ motion with regard to Plaintiffs’ state law claims for
excessive force and the death of Moore.
CONCLUSION
For the reasons set forth above, the Court GRANTS the pending Motion for Summary
Judgment [Doc. No. 245]. Plaintiffs’ claims against Defendants for the death of Moore due to
excessive force are DISMISSED WITH PREJUDICE in their entirety. Plaintiffs’ claims against
Defendants for any injuries to Moore that were less than lethal remain pending.
MONROE, LOUISIANA, this 30" day of October, 2020.
ba ant
TERRY 4. DOUGHTY () (og
UNI ip STATES DISTRICT JUDGE
30