Moore v. LaSalle Corrections Inc

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 Defendant Monroe Police

Department (“MPD”) Lieutenant (then-Corporal) Tommy Crowson (“Officer Crowson”) seeking

the dismissal of Plaintiffs’ claims against him. [Doc. No. 224]. Plaintiffs filed an opposition

[Doc. No. 295]. Officer Crowson filed a reply to the opposition [Doc. No. 322].

For the following reasons, Officer Crowson’s Motion for Summary Judgment [Doc. No.

224] is GRANTED.

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 Defendants LaSalle and/or Richwood, related private entities.

At the time of the incident, Erie Moore, Sr. (“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 within a few hours of the altercation. Moore was forcibly removed

from the holding cell where the altercation occurred. Shortly thereafter, Moore became

unconscious. He died on November 14, 2015, without ever having regained consciousness.

Plaintiffs Erie Moore, Jr., Tiffany Robinson, and Tamara Robinson (collectively

“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, including

individual corrections officers who allegedly used excessive force, and by the correctional

facilities themselves. [Doc. No. 1]. On December 5, 2017, an Amended Complaint was filed which

added new Defendants including Officer Crowson, 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].

Relevant to the pending motion, Plaintiffs allege that Officer Crowson displayed deliberate

indifference to Moore’s mental health issues when he arrested and booked Moore into RCC, and

that Officer Crowson failed to inform RCC staff of these mental health issues. But for Officer

Crowson’s actions, Plaintiffs assert that Moore would not have been placed in the cell with White

and would have not been subjected to the use of excessive force by other defendants. Officer

Crowson is not alleged to have been involved with any use of force or any actions inside RCC.

Officer Crowson seeks the dismissal of all of Plaintiffs’ claims against him in in his

individual capacity.1 [Doc. No. 224]. Officer Crowson contends he is entitled to qualified

immunity on all federal claims, and, further, that he was not negligent under state law.

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

1 Plaintiffs brought claims against Officer Crowson in his individual and official capacities under federal

law. A suit against a state or municipal officer in his or her official capacity is a treated as a suit against the entity

itself. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, the claims against Officer Crowson in his

official capacity should be treated as claims against the City of Monroe, which are addressed in a separate motion

for summary judgment [Doc. No. 247].

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.

It is undisputed that Officer Crowson received no information about the encounter between

Trooper Hanemann and 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]. Officer Crowson parked directly in front of the building

and proceeded inside. [Id., p. 11].

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, 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., p. 27].

Moore did not resist being handcuffed, and Officer Crowson did not have to use force to

effect the arrest. [Id., pp. 16, 48]. Officer Crowson testified that he believed that arresting Moore

was necessary to prevent further incident in the Donut Palace, [Id., pp. 54-55], but that he never

felt personally threatened by Moore. [Id., p. 40].

Officer Crowson arrested Moore for disturbing the peace. [Id., p. 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].

Moore continued to shout on the way to the car, [Id.], and at some point, while already in

custody, Moore told Officer Crowson that Officer Crowson “was going to kill him.” [Id., pp. 16,

30]. Moore made the latter statement only once, and Officer Crowson did not engage him about it.

[Id., pp. 16-18, 27, 30].

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].

Officer Crowson testified that he did not believe that Moore was engaging in any suicidal

behavior, had mental health issues, or that Moore was trying to get Officer Crowson to harm him.

[Id., pp. 30, 39]. Officer Crowson did not believe this was an “unusual” encounter, [Id., p. 26].

Officer Crowson testified that he believed that Moore’s singular statement that Officer Crowson

would “kill him” was not “abnormal” because Officer Crowson has previously encountered

African American males who believe that Caucasian police officers intend to harm them. [Id., p.

33]. Officer Crowson suspected that it was possible that Moore was intoxicated, but he admitted

he was unable to detect the odor of any alcoholic beverages due to sinus issues. [Id., pp. 19-20].

After arresting Moore, Officer Crowson notified dispatch of the arrest. [Id., pp. 28-29].

Officer Crowson was not alerted to any outstanding issues concerning Moore by dispatch, so he

began the process of taking him to RCC for booking. Officer Crowson does not recall Moore

saying anything in the patrol car on the way to RCC, and Moore did not do anything unusual in

the backseat while being transported. [Id., p. 18].

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]. Crowson did not specifically inform the booking officer of Moore’s

singular statement that Crowson was going to “kill” Moore. [Id., p. 33]. Crowson also did not

inform the booking officer of any perceived concerns to the health and safety of Moore, because

he states he did not know of any. [Id., pp. 32-33]. After the arrest and booking, Crowson prepared

an initial report and narrative. [Id., pp. 24-25]; [MPD Initial Report, Doc. No. 224-4].

Shortly after Moore’s arrival, Nurse William Mitchell, LPN, (“Nurse Mitchell”), the on-

staff nurse at RCC, assessed Erie Moore. [Mitchell Deposition, Doc. No. 224-7, pp. 2-5, 6-8].

Nurse Mitchell believed that Moore was “intoxicated,” [Id., pp. 7, 9]; specifically, Nurse Mitchell

believed that Moore was “either drunk or on something,” meaning that his behavior was

“chemically induced.” [Id., p. 10-11]. Nurse Mitchell further explained that Moore seemed

“intoxicated,” “[n]ot crazy.” [Id., p. 12]. Nurse Mitchell did not believe that Moore was showing

any signs of mental health issues, and he did not refer Moore for a mental health evaluation. [Id.,

p. 10-11]

Officer Crowson has been employed with MPD since August 15, 1993. [Doc. No. 224-3,

p. 3]. Crowson was a patrol officer for the MPD from the beginning of his career until January

2016, when he was promoted to Sergeant and began supervising patrol officers. [Id., pp. 3, 8]. As

a patrol officer, Crowson estimated that he had roughly one hundred encounters or “stops” per

week. [Id., p. 26].

Officer Crowson received training, just months before his encounter with Moore,

concerning how to address persons with mental health issues. [Id., pp. 2-7, 55-56]. Officer

Crowson testified that he has encountered individuals with injuries and illnesses before; in those

cases, where a need was disclosed, Officer Crowson has taken those individuals to seek treatment.

[Id., pp. 42-44].

Officer Crowson contends he is entitled to judgment as a matter of law dismissing

Plaintiffs’ claims against him, first because he is entitled to qualified immunity as to Plaintiffs’

federal law claims where the undisputed material facts show that he was not aware of or

deliberately indifferent to a known and obvious mental health condition of Moore. Further, even

if he was deliberately indifferent, he is still entitled to qualified immunity because no case clearly

established the unlawfulness of Crowson’s actions. As to the state-law claims, Crowson contends

that summary judgment is warranted where Plaintiffs cannot show that Crowson breached a duty

owed to Moore, or that if he did, the harm sustained by Moore was within the scope of protection

afforded by that duty or was foreseeable to Crowson.

As to their federal claims, Plaintiffs respond that (1) Officer Crowson knew but

disregarded Mr. Moore’s obvious and serious suicidal ideations; (2) the law was clearly

established on October 12, 2015 that once in physical custody by arrest, an arrestee has a right to

medical care for an obvious and serious health condition by either taking the arrestee to a health

care provider or informing the booking officer; and (3) Officer Crowson failed to provide Moore

mental health care because of Moore’s race. Plaintiffs further contend that Officer Crowson

acted with deliberate indifference to Moore’s right to medical care, thus entitling Plaintiff to

punitive damages. Plaintiffs contend that their state law claims survive for many of the same

reasons.

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. Qualified Immunity

Plaintiffs assert claims against Officer Crowson for violations of Moore’s constitutional

rights under 42 U.S.C. § 1983. In response, Officer Crowson has invoked the qualified immunity

defense. [Doc. No. 157, p. 15, ¶ 2].

The doctrine of qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818(1982). The Supreme Court has recognized the importance of granting qualified immunity

prior to trial when officers make reasonable but mistaken judgments, because “qualified immunity

is important to society as a whole, and because as an immunity from suit, qualified immunity is

effectively lost if a case is erroneously permitted to go to trial.” White v. Pauly, 137 S. Ct. 548,

551-552 (2017). The Supreme Court has recognized the potency of the immunity: qualified

immunity “protects all but the plainly incompetent or those who knowingly violate the law.”

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quotation omitted).

“[O]fficers are entitled to qualified immunity under § 1983 unless (1) they violated a

federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly

established at the time.’” D.C. v. Wesby, 138 S. Ct. 577, 589 (2018) (citing Reichle v. Howards,

566 U.S. 658, 664 (2012)). The burden is on the plaintiff to overcome the defense. Bourne v.

Gunnels, 921 F.3d 484, 490 (5th Cir. 2019).

Officer Crowson contends that Plaintiffs have not shown that he violated any of Moore’s

constitutional rights or that existing law clearly established that he acted unlawfully.

1. Did Crowson violate Moore’s constitutional rights?

In their Third Amended Complaint, Plaintiffs allege that “Crowson displayed deliberate

indifference to Moore’s mental health issues” by failing “to provide medical care to Moore who

was in his custody.” [Doc. No. 140, p. 20, ¶ 35]. This is so, according to Plaintiffs, because “Moore

displayed obvious and serious medical health conditions, including suicidal ideations,” and

because Crowson “failed to inform Richwood booking officers of the information he learned on

the scene . . .” Id.

Plaintiffs argue that the statement by Moore that Officer Crowson was going to kill him

was suicide ideation, which is a serious mental health condition. They argue that Officer Crowson

should have been able to detect “suicide by cop.” As a veteran officer, he should have known this

was a suicidal gesture, yet he took no action to mitigate the suicidal ideation, such as by talking

him down. In support of their argument, Plaintiffs point to the deposition testimony of Dr. Robert

Hanser, in which he expressed his opinion that Officer Crowson did nothing to mitigate the suicidal

ideation by Moore. [Doc. No. 295-5, p. 78].

Plaintiffs further assert that Officer Crowson expressed that the reason he did not tell RCC

Booking of Moore’s suicidal gesture was because all black arrestees say the white officer is going

to kill them. Plaintiffs conclude from this that Officer Crowson denied Moore needed medical care

because of Moore’s race, African American.

The Supreme Court has held that “deliberate indifference to serious medical needs of

prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, (1976) (quoting Gregg v. Georgia, 428 U.S.

153, 173, (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)).

“Although pretrial detainees like Hyatt are not protected by the Eighth Amendment, we

have held that ‘the State owes the same duty under the Due Process Clause and the Eighth

Amendment to provide both pretrial detainees and convicted inmates with basic human needs,

including medical care and protection from harm, during their confinement.’” Hyatt v. Thomas,

843 F.3d 172, 177 (5th Cir. 2016) (quoting Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th

Cir. 1996) (Hare II )).

“[T]he Supreme Court explained that to be deliberately indifferent to an inmate’s needs in

violation of the Eighth Amendment, ‘the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.’ Therefore, to avoid liability, ‘[p]rison officials charged with deliberate indifference

might show ... that they did not know of the underlying facts indicating a sufficiently substantial

danger and that they were therefore unaware of a danger, or that they knew the underlying facts

but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or

nonexistent.’” Id. at 177 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994)).

“Furthermore, evidence that an official was aware of a substantial risk to inmate safety

does not alone establish deliberate indifference. As the Supreme Court explained in Farmer,

‘prison officials who actually knew of a substantial risk to inmate health or safety may be found

free from liability if they responded reasonably to the risk, even if the harm ultimately was not

averted.’” Id. at 177 (quoting Farmer, 511 U.S. at 844).

Deliberate indifference “is an extremely high standard to meet.” Domino v. Texas Dep't of

Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). Negligence is insufficient to meet the deliberate

indifference standard, Hare v. City of Corinth, Miss. (“Hare II”), 74 F.3d 633, 650 (5th Cir. 1996)

(en banc); deliberate indifference requires “evidence of ‘egregious intentional conduct.”

Zaunbrecher v. Gaudin, 641 F. App’x 340, 344 (5th Cir. 2016) (quoting Gobert v. Caldwell, 463

F.3d 339, 351 (5th Cir. 2006)).

“A plaintiff can show deliberate indifference by showing that an official ‘refused to treat

him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar

conduct that would clearly evince a wanton disregard for any serious medical needs.’” Alderson v.

Concordia Par. Corr. Facility, 848 F.3d 415, 422 (5th Cir. 2017) (quoting Easter v. Powell, 467

F.3d 459, 464 (5th Cir. 2006)).

In the suicide context (which Plaintiffs invoke here), the relevant standard is “not whether

the [police] officer[] ‘knew or should have known”’ of the potential suicide risks, “but whether

[the officer] gained actual knowledge of the substantial risk of suicide and responded with

deliberate indifference.” Hare, 74 F.3d at 650.

Under these standards Officer Crowson moves for summary judgment, first arguing that

Plaintiffs have no evidence, other than post hoc speculation, that Moore had a serious medical need

at the time of his interaction with Crowson. Plaintiffs in this case, Moore’s children, directly

testified that they were unaware of any mental-health problems, including suicidal thoughts, that

Moore might have had, and they were not aware of any history of mental health problems in the

family. [Doc. No. 224-8, en globo]. Further, Plaintiffs have not presented any medical records

indicating that Moore had any diagnosed mental illness. Also, neither a physician, including a

psychiatrist, nor a psychologist, have testified about any mental conditions or suicidal ideations

that Moore might have had at the time of his arrest.

Without a documented history of mental illness or medical condition, Officer Crowson

asserts that Plaintiffs are forced to show that Moore had a serious medical need “for which the

need [was] so apparent that even laymen would recognize that care [was] required.” Gobert, 463

F.3d at n.12. He argues that Plaintiffs cannot meet this burden based on the encounter between

Moore and himself.

Officer Crowson states he did not believe that Moore needed medical treatment or had

suicidal thoughts, and no other fact witness has testified that Moore’s actions on the scene caused

them to believe he was suicidal. In fact, Moore’s own sister, who talked to him about thirty minutes

before Moore’s encounter with Crowson, testified that Moore was not acting abnormally.

[Catherine Moore Deposition, Doc. No. 224-9, pp. 2-3, 4-5].

According to Officer Crowson, Moore’s limited resistance, the fact that he made the

statement about Officer Crowson “killing him” while he was already in custody (and had no

opportunity to force a violent encounter), and Moore’s much calmer actions during transport and

at booking, would not establish that he was “suicidal” or had a mental health condition. Moore’s

actions would certainly not lead a “layman” to the undisputed conclusion that Moore needed

medical intervention, and “nothing he did so clearly indicated an intent to harm himself that

[Crowson] could have only concluded that he posed a serious risk of harm to himself.” Sibley v.

Lemaire, 184 F.3d 481, 489 (5th Cir. 1999).

Officer Crowson further argues that, if Plaintiffs are correct that when an arrestee, already

in custody, makes a fleeting statement to an officer that the officer will “kill him,” then any arrestee

who ambiguously suggests that an officer might cause him injury at some point in the future will

have to be treated as a potential suicide risk or a mental health risk.

Additionally, Officer Crowson argues that, even if Moore had a serious medical need,

Plaintiffs cannot establish that he had subjective knowledge or drew the inference of the need. See

Petzold v. Rostollan, 946 F.3d 242, 249-50 (5th Cir. 2019) (prison nurse did not have subjective

knowledge of broken ankle based on cursory encounters despite noticing that prisoner had

significant limp). Officer Crowson thought Moore may have been intoxicated. So did Nurse

Mitchell. Officer Crowson contends that, although he has been trained to assess such risks, he

perceived no risk of suicide or a mental health issue in Moore based on his encounter.

Although Plaintiffs argue that Officer Crowson “should have known” about some a risk of

injury to Moore, Officer Crowson asserts that it is not sufficient “that defendants should have

known of a substantial risk; they must have actual knowledge of the risk and must thereafter have

ignored it.” Debrow v. Caddo Par. Comm’n, No. 5:15-CV-1717, 2015 WL 4406296, at *4 (W.D.

La. July 16, 2015).

Officer Crowson argues that Dr. Hanser’s opinions should be excluded because he was not

retained as an expert, he admitted that he did not know the facts of this case, and his opinions at

deposition were purely speculative and based on hypotheticals. [Hanser Deposition, Doc. No. 322-

1, pp. 1-8].

Finally, Officer Crowson argues that Plaintiffs cannot establish that Crowson disregarded

or was deliberately indifferent to any risk of harm to Moore. Officer Crowson brought Moore to

RCC, which had a licensed nurse on staff. Shortly after Officer Crowson brought Moore to RCC,

Moore was seen by Nurse Mitchell who concluded that Moore was likely intoxicated. Even a

prison physician’s incorrect assessment of suicide risk does not amount to deliberate indifference.

Domino, 239 F.3d at 756. (finding that an incorrect assessment of suicide risk does not amount to

deliberate indifference). It cannot be deliberate indifference when an officer brings an arrestee to

a facility with a nurse present who then assesses the arrestee, according to Officer Crowson.

The Court finds that Plaintiffs have not carried their burden of showing that Officer

Crowson violated Moore’s constitutional rights. Plaintiff’s case hinges on speculation concerning

what Moore meant when he told Officer Crowson that Crowson was “going to kill him.” There is

no evidence that Moore intended for Officer Crowson to kill him, or that Moore intended to commit

“suicide by cop.”

Plaintiffs have not shown that Officer Crowson was “aware of facts from which the

inference could be drawn that a substantial risk of serious harm exist[ed].” Hyatt, 843 F.3d 172. It

is undisputed that Officer Crowson was not aware of the encounter between Trooper Hanemann

and Moore. Plaintiffs are, therefore, left to rely on the encounter between Moore and Officer

Crowson to support their claim.

However, this encounter, standing alone, does not reveal an imminent need for medical

intervention or facts which indicate that Moore was at a substantial risk of harm. Officer Crowson

encountered a disorderly person (or possibly intoxicated), who appeared to be upset and angry with

a donut shop employee. Moore did not resist arrest, did not make any statements indicating that he

intended to harm himself or others, displayed no outward signs of injury or illness, and was an

otherwise cooperative arrestee. Even if Moore’s statement could be construed as transforming this

encounter into a constitutional issue, an officer is not deliberately indifferent when “they knew the

underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was

insubstantial or nonexistent.” Farmer, 511 U.S. at 844. There were no facts in the encounter that

would have caused Officer Crowson to believe that Moore had a serious medical need or intended

to commit suicide.

Although Plaintiffs assert that Officer Crowson, as a veteran police officer, was

subjectively aware of the seriousness of Moore’s condition, he testified he did not believe that

Moore’s statement was an indication of suicide; instead, he believed that Moore thought that

Crowson intended to harm him after the arrest. Whether an officer drew an inference is not a

“would know” or “should know” analysis – it is whether the officer made the connection. Plaintiffs

have no evidence that Crowson knew that Moore intended to commit suicide or had a mental health

issue. Farmer, 511 U.S. at 837–38 (rejecting “should have known” standard).

Even if the Court were to consider Dr. Hanser’s opinions, they are not sufficient to create

an issue of fact for the same reasons Officer Crowson argues they should be excluded, i.e., because

he was not retained as an expert, he admitted that he did not know the facts of this case, and his

opinions at deposition were purely speculative and based on hypotheticals. Further, Dr. Hanser’s

opinion relates to whether Officer Crowson “should have” known, and, as indicated above, the

issue is not whether Officer Crowson should have known, but whether he actually knew.

Plaintiffs have failed to produce facts that would show that Officer Crowson was

deliberately indifferent to Moore’s alleged medical needs.

Finally, Plaintiffs accuse Crowson of refusing medical care to Moore based on his race.

However, they produce no evidence to support their accusation. Officer Crowson did not testify

that he denied medical care to Moore based on race or that race ever motivated his decisions.

Instead, Officer Crowson testified as to what he thought Moore meant when the statement was

made (i.e., that Moore believed Crowson intended to harm him or would harm him).

For these reasons, the Court finds that Plaintiffs have not established that Officer Crowson

violated a federal statutory or constitutional right.

2. Did Crowson violate “clearly established” law?

The second prong of the qualified immunity analysis asks whether the right in question was

“clearly established.” A right is clearly established when “the contours of the right were

sufficiently clear that a reasonable official would have understood that what he is doing violates”

the law. Mullenix v. Luna, 136 S. Ct. 305, 313 (2015) (per curiam) (citations omitted). The right

identified by the plaintiff cannot be abstract; the right must be tailored to the factual circumstances

the officer faced at the time of the conduct. See D.C. v. Wesby, 138 S. Ct. 577, 590 (2018). Further,

“[t]he rule must be settled law, which means it is dictated by controlling authority or a robust

consensus of cases of persuasive authority.” Id. at 589-590. While this does not require a case

directly on point, existing precedent must have placed it “beyond debate” that the officer’s conduct

violated the law. White v. Pauly, 137 S. Ct. 548, 551. To do so, “Plaintiffs must point th[e] court

to a legislative directive or case precedent that is sufficiently clear such that every reasonable

official would have understood that what he is doing violates that law.” Keller v. Fleming, 952

F.3d 216, 225 (5th Cir. 2020) (citations omitted).

Here, Plaintiffs are relying on the factual assertion that Moore told Officer Crowson that

Crowson was “going to kill him” while Crowson brought Moore to the patrol vehicle. There is no

evidence that Moore attempted to force a confrontation with Officer Crowson, or, that Moore

outwardly expressed a desire to kill himself or to commit suicide. He only made the statement

once. Moore did not attempt to engage Officer Crowson in a violent act that could have precipitated

“suicide by cop,” Moore did not commit any act of self-harm, and there is no evidence that Moore

informed Crowson that he needed medical attention.

Plaintiffs rely on four cases to show that the unlawfulness of Crowson’s actions was

“clearly established”: Conn v. City of Reno, 591 F.3d 1081, 1102 (9th Cir. 2010) (subsequent

history omitted); Nerren v. Livingston Police Department, 86 F.3d 469 (5th Cir. 1996); Gordon v.

Kidd, 971 F.2d 1087 (4th Cir. 1992); and Partridge v. Two Unknown Police Officers of City of

Houston, Tex., 791 F.2d 1182 (5th Cir. 1986).

The Court finds that the facts of these cases are readily distinguishable from the instant

case, and none of these cases identifies a “robust consensus” that Officer Crowson’s actions were

unlawful here.

For out-of-circuit cases to clearly establish the law, there must be a “robust” consensus

among those cases that the law is clearly established. Morrow v. Meachum, 917 F.3d 870, 879–80

(5th Cir. 2019). In Conn, the Ninth Circuit denied qualified immunity to two officers who failed

to report that an arrestee actually tried to commit suicide en route to the jail and told the officers

that if they did not kill her, she would kill herself. Conn, 591 F.3d at 1105. In Gordon, which

significantly predates modern qualified immunity jurisprudence, an officer was denied qualified

immunity where it was “objectively unreasonable” to fail to pass along information concerning

suicide after another officer explicitly warned him of the arrestee’s potential for suicide. Gordon,

971 F.2d at 1096-1097.

Neither Conn nor Gordon would have provided the requisite notice to Officer Crowson

that his actions in this case were unlawful. Unlike the situation in Conn, Moore did not engage in

any physical behavior indicating suicide or physically attempt suicide in Officer Crowson’s

presence, nor did he threaten to kill himself or tell Officer Crowson that he would “make” Crowson

shoot him, and Officer Crowson did not fail to pass along information concerning a known risk of

suicide. Neither of those cases establish that an officer is required to pass along an ambiguous

statement when the officer has no information indicating that the arrestee has a known propensity

for potential suicide, when the circumstances did not indicate a suicide risk, and when Officer

Crowson, who encountered the person, did not believe that Moore was suicidal.

The remaining cases Plaintiffs rely on come from the Fifth Circuit; however, those cases,

would not have clearly established the law. In Partridge, the court only held that it was wrong to

dismiss claims against a detention center for deliberate and systemic denial of care to arrestees.

791 F.2d at 1187–88. While the court made broad pronouncements about the duties owed to

detainees, the claims against the officers in that case (that they failed to pass along known

information concerning medical needs and the detainee had injured himself) were dismissed.

In Nerren, the arresting officers were denied qualified immunity after refusing to take an

arrestee to a medical facility, even though he complained of injuries, was in pain, and had visible

abrasions on his chest. 86 F.3d at 473. In denying qualified immunity, the court did not discuss

whether existing caselaw would have put the officers on notice that their conduct was unlawful

but relied on the general proposition that pre-trial detainees have the right to access medical care.

Id. The Court found that the officers’ actions were not “objectively reasonable” because there was

no “legitimate government interest” in denying medical care to an arrestee who complained of pain

and had visible injuries, and the court found that the officers’ reasons for not providing care

indicated an intent to punish. Id. at 474.

Those cases do not establish that Officer Crowson acted unlawfully. Again, Moore made a

singular statement to Officer Crowson that Officer Crowson was “going to kill him.” Nothing in

Patridge or Nerren establishes that Officer Crowson violated Moore’s right to medical care by not

relaying that statement or that Officer Crowson was required to immediately bring Moore to a

medical facility. Officer Crowson relayed to the booking officer what Moore was arrested for, his

actions (“what he done”), and transferred custody of Moore to RCC.

The caselaw does not establish, beyond debate, that Officer Crowson had an obligation to

do more just because an arrestee said that Officer Crowson might harm him. The law was not

clearly established on this front, and summary judgment is warranted.

Accordingly, for the above reasons, Officer Crowson is entitled to judgment as a matter of

law finding that he is entitled to qualified immunity on all federal claims. Plaintiffs’ federal claims

are DIMISSED WITH PREJUDICE.

F. Putative Damages

Plaintiffs seek punitive damages from Crowson for his alleged “malicious and deliberately

indifferent actions[.]” [Doc. No. 140, pp. 28-29, ¶ 55]. There is no claim for punitive damages

under state law where there is no authorization for such an award. Ross v. Conoco, Inc., 2002-0299

(La. 10/15/02) 828 So. 2d 546, 555.

With regard to Plaintiffs’ claim for punitive damages under Section 1983, Officer Crowson

argues that, even if Plaintiffs are entitled to press their federal claims to a jury, they are not entitled

to the punitive damages they seek against him. See Heaney v. Roberts, 846 F.3d 795, 803 (5th

Cir. 2017) (denying summary judgment on liability but dismissing claims for punitive damages).

“Punitive damages may be awarded in § 1983 cases ‘when the defendant’s conduct is shown to be

motivated by evil motive or intent, or when it involves reckless or callous indifference to the

federally protected rights of others.’” Id. (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).

“Reckless indifference has been described by the Supreme Court as subjective consciousness of a

risk of injury or illegality and a criminal indifference to civil obligations.” Id. Officer Crowson

argues that Plaintiffs cannot satisfy their burden.

The Court agrees, and, further, Plaintiffs do not dispute Officer Crowson’s arguments in

their opposition. Even if the Court were to find that Officer Crowson should have recognized the

import of Moore’s singular statement and relayed it, the only thing he is alleged to have done in

this case is transport Moore to RCC without explicitly relaying the statement (even though he did

relay Moore’s actions). The actions that led to Moore’s death occurred over a day after Officer

Crowson encountered Moore – after several intervening events –, and it is undisputed that Officer

Crowson was not involved, whatsoever, in any events after he left RCC.

The Court finds that no reasonable jury could find that Officer Crowson acted with “evil

motive or intent” or with “criminal indifference to civil obligations.” Accordingly, Plaintiffs’ claim

for punitive damages against Officer Crowson is DISMISSED WITH PREJUDICE.

G. State Law Claims

Plaintiffs bring a claim under Louisiana state law that Officer Crowson was at fault under

LA. CIV. CODE art. 2315 for (1) failing to provide medical care and (2) failing to inform the RCC

booking officer of Moore’s suicidal gesture.

Article 2315 states that “[e]very act whatever of man that causes damage to another obliges

him by whose fault it happened to repair it.” “Under Louisiana law, ‘[t]he duty-risk analysis is the

standard negligence analysis employed in determining whether to impose liability.’” Audler v.

CBC Innovis, Inc., 519 F.3d 239, 249 (5th Cir. 2008) (alteration in original) (quoting Lemann v.

Essen Lane Daiquiris, Inc., 923 So.2d 627, 633 (La. 2006)). The duty-risk analysis requires a

plaintiff to satisfy five elements:

(1) the defendant had a duty to conform his conduct to a specific

standard (the duty element); (2) the defendant’s conduct failed to

conform to the appropriate standard (the breach element); (3) the

defendant’s substandard conduct was a cause in fact of the plaintiff’s

injuries (the cause-in-fact element); (4) the defendant’s substandard

conduct was a legal cause of the plaintiff’s injuries (the scope of

liability or scope of protection element); and (5) the actual damages

(the damages element).

Id. (citing Lemann, 923 So.3d at 633). Additionally, “if an unforeseeable intervening cause

occurs, it will relieve the original tortfeasor of liability if ‘the intervening cause [superseded] the

original negligence and alone produced the injury.’” Renwick v. PNK Lake Charles, L.L.C., 901

F.3d 605, 618 (5th Cir. 2018) (quoting Adams v. Rhodia, Inc., 983 So.2d 798, 808 (La. 2008))

(emphasis added by appellate court). “An intervening cause is one which comes into play after the

defendant’s negligent conduct has ceased but before the plaintiff suffers injury.” Mosley v. Wood

Grp. PSN, Inc., 760 F. App’x 352, 363 (5th Cir. 2019) (citation omitted).

Officer Crowson concedes the existence of a duty in this case. Louisiana courts have held

that an arresting officer “owes a duty to a person in custody to protect him from injury and to care

for his safety.” Phillips v. State, Dep't of Pub. Safety & Corr., 43,143 (La. App. 2 Cir. 3/19/08),

978 So. 2d 1223, 1229 (citations omitted). Further, an “officer also has the duty to see that

reasonable medical care is provided to a person in his custody when the need for such care is

indicated by the person’s mental or physical condition.” Id. (citations omitted). The need to provide

such care, however, only remains “so long as the prisoner is in [the officer’s] custody or subject to

his control[.]” Evans v. Hawley, 559 So. 2d 500, 505 (La. Ct. App.), writ denied, 563 So. 2d 1156

(La. 1990) (quoting Cobb v. Jeansonne, 50 So.2d 100 (La.App.2d Cir. 1951)). Further, “this duty

extends to doing only ‘what is reasonable under the circumstances’ and is limited to a certain set

of risks.” Curran v. Aleshire, 67 F. Supp. 3d 741, 767 (E.D. La. 2014)) (quoting Griffis v. Travelers

Ins. Co., 273 So. 2d 523, 526 (La. 1973)).

Although Officer Crowson does not dispute the existence of a general duty here, he denies

that Plaintiffs can establish that his alleged actions breached a duty, were the cause-in-fact of

Moore’s injuries, or were foreseeable.

First, Officer Crowson argues that he did not breach any duty owed to Moore. Plaintiffs

contend that he should have exercised care for Moore’s medical condition or that he was required

to alert the prison officials of Moore’s “suicidal ideations.” The duty, they claim, arose when

Moore stated that Crowson was “going to kill” him. However, Officer Crowson maintains that,

following his arrest, Moore gave him minimal resistance, did not say anything noteworthy during

transport, and did nothing to alarm Officer Crowson while at booking. Under those circumstances,

Officer Crowson argues that he cannot be said to have breached any duty to Moore when it was

not apparent that Moore had any mental or physical condition that required treatment. Even then,

according to Officer Crowson, he discharged any duty when he transferred custody of Moore to

RCC and Moore was seen by Nurse Mitchell.

Secondly, Officer Crowson argues that, even if his actions were sufficient to establish

negligence, Plaintiffs cannot show that the alleged negligence was the cause-in-fact of the harm in

this case, or that the harm was foreseeable to Officer Crowson. Although he admittedly did not

inform booking of Moore’s statement, the medical officer saw Moore minutes after Officer

Crowson brought him and thought that Moore was intoxicated. Officer Crowson therefore argues

that the subsequent events that happened were not a result of any failure to relay information, and,

they had nothing to do with information sharing. See Roberts v. Benoit, 605 So. 2d 1032, 1042

(La. 1991), on reh'g (May 28, 1992) (stating that “cause-in-fact” is a “but-for” or “substantial

factor” test). There is no “factual, causal relationship” between the ultimate harm suffered by

Moore – the alleged use of force – and the actions of Officer Crowson; put differently, Officer

Crowson’s alleged inactions did not have “something to do with” Moore’s later injuries. Id.

Since Moore was allegedly injured by the use of force over twenty-four hours after Officer

Crowson booked him into RCC when officers extracted him from a cell, Officer Crowson argues

that the mere act of arresting Moore and booking him into jail were not “substantial factors” in

Moore’s injuries. To hold otherwise would transform every arrest into potential liability for

subsequent acts. Officer Crowson further argues that he cannot be responsible for the subsequent

acts at RCC, all of which were intervening causes. He states he was not present and was not

involved with Moore’s brief incarceration, or the use of force. Thus, any purported negligent act

by Officer Crowson had long ceased prior to the harm Moore suffered.

Plaintiffs respond that causation is an issue of fact that is generally decided at the trial on

the merits and not on summary judgment or a motion to dismiss. Wooley v. Lucksinger, 14 So.3d

311 (1st Cir.,2008) at 397. See also Estate of Adams v. Home Health Care of Louisiana, 775 So.2d

1064 (La.,2000) (per curiam). A plaintiff need not show that the defendant’s conduct was the only

cause of his harm, nor must he negate all other possibilities; rather, he must show that more

probably than not he suffered injuries because of the defendants' conduct. Straley v. Calongne

Drayage &Storage, Inc., 346 So.2d 171 (La.1977). Defendant’s conduct need not be the only

cause. If Plaintiff shows that without defendant’s wrongful conduct Plaintiff would not have been

injured, cause in fact is shown. Morris v. Orleans School Bd, 553 So.2d 427, 429 (La. 1989).

In other words, the plaintiffs' burden is not to prove their case beyond all doubt or even

beyond a reasonable doubt, but merely by a preponderance of the evidence, or 51%; he need not

negate all viable theories, but only show that his position is more probable than not. Howell v.

Iacona, 505 So.2d 821 (La. App. 2d Cir. 1987) (medical malpractice). If there was fault on the part

of any Defendant, and that of some third party, or the deceased, then an allocation of comparative

fault may be appropriate. La. C.C.art. 2323. Hayes v. Kelly, 625 So.2d 628, 632 (La. App. 3

Cir.,1993) (excessive incarceration caused by several actors).

Plaintiffs further argue that the acts of Officer Crowson contributed to the injuries and

death suffered by Moore. But for Moore not being placed in medical care and booking at R.C.C.

not being warned, he would not have been taken to RCC without medical attention or screening.

If never sent to Richwood Correctional Center, Moore would not have been subjected to violence

that led to his death.

According to Plaintiffs, the officer who fails to provide the critical information is thus at

fault for any subsequent injuries sustained by Moore from violence, particularly where, as here,

the violence is inflicted within 48 hours of booking. If Officer Crowson had provided the

information to booking that he had, Moore would have most likely been isolated and not subjected

to violence.

Plaintiffs conclude that Officer Crowson knowingly left a fragile and fractured man on the

doorstep of the RCC jail without any warning, endangering Moore, jail staff and others at the

facility.

The Court finds that Officer Crowson is entitled to summary judgment dismissing

Plaintiffs’ state-law claims. As indicated in the discussion of Plaintiffs’ federal law claims, Moore

did not do or say anything that would have caused Officer Crowson to believe that Moore was

suicidal, mentally ill, or needed any medical attention. A singular, ambiguous statement, without

more, did not “disclose[] the need” for medical intervention or that the statement had to be

disclosed apart from telling booking what Moore was arrested for. Evans v. Hawley, 559 So. 2d

500, 505 (La. Ct. App.), writ denied, 563 So. 2d 1156 (La. 1990). Plaintiffs do not cite any

Louisiana cases where an officer has been held liable for similar conduct.

Plaintiffs also claim that Officer Crowson caused Moore’s death because, they speculate,

that no force would have ever been used if Officer Crowson would have handled the situation

differently.

Crowson did not cause or contribute to the events that led up to the alleged use of excessive

force (i.e., Crowson didn’t cause Moore to be involved in a violent altercation in which his cellmate

was beaten to death). Crowson did not cause or contribute to the alleged use of force on Moore.

And, Crowson did not cause or contribute to any delay in medical care. Therefore, Plaintiffs have

not shown how Crowson was a cause of Moore’s death.

Further, Plaintiffs have not shown how Moore’s death was foreseeable to Officer Crowson.

Officer Crowson could not have known that by simply arresting a disorderly person that that person

would, over a day later, get into a violent altercation with a cellmate, refuse orders, or that someone

would allegedly punch Moore in the head, or that Moore would have to be extracted from the cell.

There is no ease of association in this case where the subsequent events would have been

foreseeable to the arresting officer.

Accordingly, Officer Crowson is entitled to judgment as a matter of law dismissing

Plaintiff's state-law claims against him, with prejudice.

Wl. CONCLUSION

For the reasons set forth above, Defendant Tommy Crowson’s Motion for Summary

Judgment [Doc. No. 222] is GRANTED. Plaintiffs’ claims against him are DISMISSED WITH

PREJUDICE in their entirety.

MONROE, LOUISIANA, this 30" day of October, 2020.

ke. ( \ Se □

UNITED STATES DISTRICT JUD

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