# Frank v. City of Lake Charles

> District Court, W.D. Louisiana · June 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10195017

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** June 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

TODD DWAYNE FRANK CASE NO. 2:22-CV-00053

VERSUS JUDGE JAMES D. CAIN, JR.

CITY OF LAKE CHARLES ET AL MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the court is a Motion for Summary Judgment [doc. 14] filed by defendants
and seeking dismissal of plaintiff’s claims under 42 U.S.C. § 1983. Plaintiff opposes the
motion.
I.
BACKGROUND

This suit arises from plaintiff’s arrest on March 22, 2012, by officers of the Lake
Charles Police Department (“LCPD”). On that date officers responded to a 911 call
reporting a reckless driver on Ryan Street in Lake Charles, Louisiana. Doc. 14, att. 4, pp.
2–5. The caller observed plaintiff driving at an excessive speed of over 80 miles per hour
and veering all over the road and onto sidewalks. Id. The 911 operator routed the caller to
a police officer, and at the officer’s instruction the caller followed plaintiff in order to give
information about his location to police. Id. at 5–7. In the process the caller observed the
plaintiff continuing to drive erratically and nearly causing multiple accidents. Id. at 5–7.
Sergeant Mitchell Sawyer intercepted the vehicle, also observed it driving erratically, and
activated his lights and siren. Doc. 14, att. 5, pp. 11–12. Plaintiff did not stop, however,
and nearly struck several light poles. Id. at 11–14. Corporal Benjamin Randolph initially
drove ahead to deploy spike strips, but then joined Sawyer in direct pursuit of plaintiff’s

vehicle. Doc. 14, att. 6, pp. 8–10. Plaintiff eventually came to a stop, with Sawyer and
Randolph exiting their vehicles and shouting instructions as they approached plaintiff’s
vehicle, the window of which was rolled down. Id. at 11; doc. 14, att. 5, pp. 14–16. Instead
of exiting the vehicle with his hands raised, as instructed, however, plaintiff remained in
his vehicle and appeared to reach for the center console. Doc. 14, att. 5, pp. 14–16; Doc.
14, att. 6, p. 11. Fearing that plaintiff was going for a weapon, Sawyer then deployed his

canine partner, Biko. Doc. 14, att. 5, pp. 15–18.
Biko was commissioned and joined the LCPD approximately eight days before
plaintiff’s arrest. Doc. 18, att. 2, pp. 6–7. He did not achieve his National Police Canine
Association certification until the following year. Id. The city admitted that, in purchasing
Biko, it chose the cheapest dog with the shortest training course. Id. at 15. Training records

from 2014 show that Biko was still having issues with releasing on command after
attacking a subject. Doc. 18, att. 3. The city also admitted that, compared to other dogs
commissioned to work with the city, Biko’s obedience was “marginal” early on. Doc. 18,
att. 4, p. 56.
When first released at the scene of plaintiff’s arrest, Biko ran to the driver’s side

door of the vehicle but did not enter through the open window as Sawyer hoped he would.
Id. at 15–21. The officers then approached the vehicle and Sawyer saw that plaintiff’s
hands were empty. Id. Sawyer opened the door and gave plaintiff several verbal commands
to exit the vehicle, but plaintiff did not comply. Id. at 18–21. Sawyer then saw plaintiff
reach for the center console and deployed Biko again, at which time Biko attacked plaintiff.
Id. at 21–23. Biko chewed on plaintiff’s arm and continued to do so even as Sawyer ordered

him to disengage, and did not release until Sawyer reached into the vehicle and pulled him
off. Id. 22–26. Sawyer admitted that it took him a “minute” to get Biko to let go after his
initial verbal command. Id. at 25. Available video footage does not contradict the officers’
version of events.
After the dog released plaintiff remained in the vehicle and refused to emerge
despite more verbal commands. Id. at 27–28. One of the other officers now at the scene,

Corporal White, then tased plaintiff for five seconds. Id. At this point, Sawyer testified,
Randolph yelled that plaintiff was again reaching for the console and Sawyer again released
Biko. Id. at 28–29. Biko bit plaintiff’s lower leg and Sawyer began pulling plaintiff out of
the car, though plaintiff got caught on the seatbelt and Sawyer had to cut him out with a
knife. Id. at 29–30. Sawyer did not order Biko to release until plaintiff had been completely

removed from the vehicle. Id. After plaintiff’s arrest for DWI, a search of the vehicle
revealed no contraband or weapons. Id. at 30–31; doc. 14, att. 6, p. 13.
Plaintiff argued that he did not recall driving erratically and accused the 911 caller
of lying in his report. Doc. 14, att. 7, pp. 7–10. He admitted, however, that he was taking
several prescription drugs at the time, including the muscle relaxant Soma and the narcotic

pain killers Percocet and Lorcet, and had taken multiple doses by the time he got in his car
that day. Doc. 14, att. 7, pp. 2–3. He further testified that he was scared when police
approached his vehicle, and so attempted to keep his hands still. Doc. 18, att. 7, p. 7.
Finally, he testified that he never reached for his center console and was only trying to
unbuckle his seatbelt. Id. at 9–10. Sawyer, on the other hand, testified that plaintiff claimed
he was reaching for his cell phone, then later said he was trying to get his employment

card, but never told the officers that he was trying to unbuckle his seatbelt. Doc. 14, att. 5,
p. 33.
Plaintiff filed suit in the Fourteenth Judicial District Court, Calcasieu Parish,
Louisiana, on March 22, 2013. Doc. 2, att. 3. There he raised claims under state law against
several individual police officers in their individual capacities and against the City of Lake
Charles, based on a theory of vicarious liability. Id. Over eight years later, in November

2021, plaintiff amended his complaint to add claims excessive force and municipal liability
under federal law based on the officers’ alleged Fourth Amendment violations. Doc. 4, att.
8. Defendants then removed the suit to this court on the basis of federal question
jurisdiction, 28 U.S.C. § 1331. Doc. 1. They have now filed a motion for summary
judgment, asserting that (1) the use of force by Officers Sawyer, White, and Randolph was

reasonable under the circumstances and that no claim against them can survive under state
or federal law; (2) the remaining officer defendants used no force against plaintiff and
should therefore be dismissed; and (3) there is no municipal liability for the city under
applicable federal law. Doc. 14, att. 2. Plaintiff opposes the motion. Doc. 18.
II.
SUMMARY JUDGMENT STANDARD

Under Rule 56(a), “[t]he 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 is initially responsible for identifying
portions of pleadings and discovery that show the lack of a genuine issue of material fact.
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). He may meet his burden by

pointing out “the absence of evidence supporting the nonmoving party’s case.” Malacara
v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). The non-moving party is then required to go
beyond the pleadings and show that there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To this end he must submit
“significant probative evidence” in support of his claim. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is

not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249 (citations omitted).
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable

to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material
fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
III.
LAW & APPLICATION

A. Claims Against Officers
The court first resolves the question of whether the individual officers are entitled
to qualified immunity for any Fourth Amendment violation. Qualified immunity provides
a shield for government officials performing discretionary functions, “as long as their
actions could reasonably have been thought consistent with the rights they are alleged to

have violated.” Good v. Curtis, 601 F.3d 393, 400 (5th Cir. 2010) (internal quotations
omitted). Courts use a two-step process to determine when this immunity applies, by
looking to (1) “whether the plaintiff has adduced facts sufficient to establish a
constitutional or statutory violation” and (2) “whether [the employee’s] actions were
objectively unreasonable in light of clearly established law at the time of the conduct in
question.” Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009). The plaintiff bears

the burden of overcoming the qualified immunity defense. Bennett v. City of Grand Prairie,
Tex., 883 F.2d 400, 408 (5th Cir. 1989).
The Fourth Amendment right to be free from excessive force during an arrest is
clearly established. E.g., Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016). With respect
to the first prong, the officers are only entitled to qualified immunity at the summary

judgment stage if their use of force was not “clearly excessive to the need” or if the
excessiveness was not “objectively unreasonable.” Clark v. Massengill, 641 F. App’x 418,
420 (5th Cir. 2016) (quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)). The
case must be evaluated “from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Griggs, 841 F.3d at 312 (internal quotation

omitted). “Determining whether an officer’s use of force was objectively reasonable
‘requires careful attention to the facts and circumstances of each particular case, including
the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.’” Deshotels v. Marshall, 454 F. App’x 262, 267 (5th Cir. 2011)
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

Plaintiff points to segments from the LCPD’s policies on use of force, canine
deployments, and traffic stops in order to argue that officers exceeded their authority and
used an unreasonable amount of force to accomplish his arrest. In particular, he points to a
lack of guidance on the use of canines compared to other types of force and the potential
of canines like Biko to apply lethal force. These policies are devoid of context, however,
and the record shows that Biko only ever applied non-lethal force by attacking plaintiff’s

arm and leg. Although the evidence suggests that plaintiff was never attempting to access
a weapon and may only have been trying to unbuckle his seatbelt, the circumstances at the
scene of the arrest still show that the use of force—namely, the deployments of Biko and
the use of a taser—was not objectively unreasonable. Officers testified that plaintiff
ignored multiple verbal commands and kept reaching towards the center console of his

vehicle (in the same direction, incidentally, as his seatbelt buckle). Until the vehicle was
searched, the officers had no way of knowing whether plaintiff had a weapon within reach.
Plaintiff was also still inside a vehicle that he had recently taken on a dangerous, high-
speed ride through city streets, and was positioned to flee the officers until he exited the
vehicle. Despite Biko’s obedience issues, the uncontroverted testimony does not suggest

that Sawyer’s deployments of Biko were unreasonable, that Sawyer allowed Biko to
continue attacking plaintiff for an unreasonably long time under the circumstances, or that
White’s use of a taser was unreasonable in light of plaintiff’s continued failure to exit the
vehicle. Furthermore, there is no basis for holding the remaining officers liable for allowing
a reasonable use of force to be deployed. Accordingly, the officers are entitled to qualified
immunity on any excessive force claims raised against them.

Plaintiff has also raised claims of excessive force against the officers under state
law. “In Louisiana, excessive force claims are analyzed under a reasonableness standard
similar to that used to evaluate § 1983 excessive force claims.” Deshotels, 454 F. App’x at
269 (citing Kyle v. City of New Orleans, 353 So.2d 969, 972–73 (La. 1977)). Relevant
factors include the known character of the arrestee, the risk faced by officers, the nature of
the offense involved, the chance of the arrestee’s escape if the particular means are not

used, the existence of alternative methods, the relative “physical size, strength, and
weaponry of the officers as compared to the arrestee, and the exigencies of the moment.”
Id. For the reasons outlined above, as well as the fact that the only other alternative method
plaintiff points to is the officers’ drawn firearms, the court finds that the use of force was
reasonable under Louisiana law and that state law claims against the officers should also

be dismissed.
B. Liability of the City of Lake Charles
Plaintiff also seeks to hold the city liable for his injuries, on the grounds that it (1)
is vicariously liable for the officers’ use of excessive force under state law and (2) is liable
for incidents of excessive force under Monell v. Department of Social Services, 436 U.S.

658 (1978). Because the court found no claim for excessive force under state law,
plaintiff’s claim of vicarious liability is barred. Likewise, plaintiff may only hold the city
independently liable under Monell if it shows (1) a policymaker, (2) an official policy or
custom, and (3) a violation of a constitutional right whose “moving force” is the policy or
custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (Sth Cir. 2001). As described
above, the court finds no violation of a constitutional right under these circumstances.
Accordingly, there is no basis for any claim against the city in this matter.
IV.
CONCLUSION
For the reasons stated above, the Motion for Summary Judgment [doc. 14] will be
granted and all claims in this matter will be dismissed with prejudice.
THUS DONE AND SIGNED in Chambers this 15th day of June, 2022.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10195017. Public record. Not legal advice.