The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
14-384
CARLOS TURNER
VERSUS
LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, ET AL.
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20101458
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE
**********
MARC T. AMY
JUDGE
**********
Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.
AFFIRMED.
Cooks, J., dissents and assigns reasons.
John G. Swift
Donna R. Moliere
Swift & Rhoades, LLP
Post Office Box 53107
Lafayette, LA 70505-3107
(337) 572-9877
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette City-Parish Consolidated Government
Jonathon Sanchez
Myles J. Johnson
3211 115th Avenue NE #166
Bellevue, WA 98004
(504) 234-8264
COUNSEL FOR PLAINTIFF/APPELLANT:
Carlos Turner
AMY, Judge.
The plaintiff alleged that he sustained injury and related damages after
police officers placed him face down on the concrete with his hands behind his
back before patting him down for weapons. The plaintiff, a paraplegic confined to
a wheelchair, asserted that he had warned the officers that he could not be placed
in that position. A named officer and four unnamed officers, along with the City-
Parish Government, were named as defendants in the plaintiff’s suit, which
advanced state and federal theories of recovery. Upon motion on behalf of the
defendants, the trial court entered summary judgment, dismissing the plaintiff’s
petition. The plaintiff appeals. For the following reasons, we affirm.
Factual and Procedural Background
The plaintiff, Carlos Turner, alleged that in the early morning hours of
March 4, 2009, he and a passenger, Jermaine St. Julien, were seated in his vehicle
in the parking lot of a Lafayette business while they awaited the return of a group
of their friends. Mr. Turner asserted that he was awakened by strobe lights and his
passenger leaving the vehicle. Thereafter, he was ordered to exit the vehicle by
Lafayette Police Officer Jonathon Sanchez and another, unidentified, officer who
had approached the car. The plaintiff alleged that he and his passenger informed
the officers that he was a paraplegic and required the use of a wheelchair to exit the
vehicle. In the petition instituting this matter, the plaintiff stated that: “Officer
Sanchez and John Doe One did not heed Mr. Turner’s request for his wheelchair
and dragged him from his vehicle” and subsequently “placed him face down on the
pavement and cuffed his hands behind his back.” The plaintiff asserted that the
officers placed him in this position despite him having informed them that he was
prohibited from being placed in this position due to his “physical and medical
condition” and that “cuffing his hands behind his back further aggravated his
condition.” He stated that he was required to stay in this position a “significant
amount of time.”
The plaintiff alleged that other officers arrived on the scene during the
period of investigation, including a superior officer who did not respond to his
request to speak with him, despite his complaints of pain due to the positioning. At
the conclusion of the investigation, the plaintiff alleged that he was not permitted
to drive home despite not being administered “a sobriety exam, breathalyzer test,
or told why he would not be allowed to drive himself home.” He subsequently
accepted a ride to his home by one of the police officers.
In his petition instituting his matter, the plaintiff named Officer Sanchez and
the three unidentified officers (named as Officers John Doe One, Two, and Three)
as defendants. Additionally, the plaintiff named the Lafayette City-Parish
Consolidated Government (initially erroneously named as the City of Lafayette) as
a defendant, specifically pleading the doctrine of respondeat superior under
La.Civ.Code art. 2320.1 Therein, the plaintiff alleged that: “As a result of the
actions of the defendants . . . Mr. Turner has suffered aggravation of his spinal cord
1
Louisiana Civil Code Article 2320 provides:
Masters and employers are answerable for the damage occasioned by their
servants and overseers, in the exercise of the functions in which they are
employed.
....
In the above cases, responsibility only attaches, when the masters or
employers, . . . might have prevented the act which caused the damage, and have
not done it.
The master is answerable for the offenses and quasi-offenses committed
by his servants, according to the rules which are explained under the title: Of
quasi-contracts, and of offenses and quasi-offenses.
2
injury, and medical complications associated with the two Harrington Rods
securing his spinal cord.” The petition advanced causes of action pursuant to 42
U.S.C. § 19832 (specifically Fourth and Fourteenth Amendment Claims) as well as
state tort theories of recovery related to battery and negligence. The plaintiff also
sought attorney fees and costs pursuant to 42 U.S.C. § 1988.3
In October 2013, the City, acting on behalf of all of the defendants, filed a
motion for summary judgment, seeking dismissal of the plaintiff’s claims. The
2
Entitled “Civil Action for deprivation of rights,” 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
3
Entitled “Proceedings in vindication of civil rights,” 42 U.S.C. § 1988 provides, in part:
(a) Applicability of statutory and common law
The jurisdiction in civil and criminal matters conferred on the district
courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the
protection of all persons in the United States in their civil rights, and for their
vindication, shall be exercised and enforced in conformity with the laws of the
United States, so far as such laws are suitable to carry the same into effect; but in
all cases where they are not adapted to the object, or are deficient in the
provisions necessary to furnish suitable remedies and punish offenses against law,
the common law, as modified and changed by the constitution and statutes of the
State wherein the court having jurisdiction of such civil or criminal cause is held,
so far as the same is not inconsistent with the Constitution and laws of the United
States, shall be extended to and govern the said courts in the trial and disposition
of the cause, and, if it is of a criminal nature, in the infliction of punishment on
the party found guilty.
(b) Attorney’s fees
In any action or proceeding to enforce a provision of section[ ] . . .
1983 . . . , the court, in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney’s fee as part of the costs[.]
3
City attached various exhibits to its motion, including correspondence from the
Chief of Police to the plaintiff in which he related the findings of the police
department’s investigation of the plaintiff’s complaint. Therein, the Chief of
Police suggested that the officers had found the plaintiff “passed out behind the
wheel” of his vehicle, which was running; that the plaintiff had admitted to being
too intoxicated to drive or understand what the officers were requesting of him;
that the plaintiff had a handgun in the seat next to him; that the plaintiff’s
passenger was intoxicated and vomiting; and that, once it was learned that the
plaintiff needed use of the wheelchair, and that after the scene was secured, he was
given access to the wheel chair.
The Chief of Police further reported to the plaintiff that his investigation had
revealed that, although a supervisor was at the site, five officers reported that the
plaintiff did not ask to speak to him and that, upon a later inquiry, the plaintiff had
denied being injured in any way, but only that he did not like being placed on the
ground. Finally, the Chief of Police noted that he was offered a courtesy ride home
and that he was not “arrested for OWI (although [he] could have been).”
Additionally, the City attached excerpts from the depositions of both the plaintiff
and Mr. St. Julien wherein they explained their version of events at issue as well as
an affidavit of Sergeant John L. Miller, who set forth the response protocol of the
department.
In its supporting memorandum, the City argued that, in light of the evidence
developed by its exhibits, the plaintiff would be unable to meet his burden of
proving the elements of his respective causes of action. With regard to the federal
claims, the City asserted, in part, that the plaintiff would be unable to show the
clearly established right that was allegedly violated, that the conduct of the officers
4
violated that right either by excessive force or unreasonable detention, nor would
he be able to demonstrate that any such force/detention caused injury. It further
suggested that its showing demonstrated the unavailability of punitive damages
and, in turn, the availability of its defense of qualified immunity due to
reasonableness of the officer’s actions in light of the need for officer safety.
Similarly, and with regard to the plaintiff’s state law claims and the related
assertion of vicarious liability, the City argued that summary judgment was
appropriate for the state law claims insofar as the evidence demonstrated that the
stop/search procedure was reasonable under the circumstances and the force used
was minimal.
In opposition, the plaintiff offered no additional exhibits. However, he
argued that, as a paraplegic requiring the use of a wheelchair, he was a member of
a protected class due to application of the American With Disabilities Act and that
information available via the Internet revealed that police officers responding to
those living with disabilities required the use of different protocol. He further
suggested that the details of the stop indicated that it was not reasonable. Finally,
the plaintiff alleged that, with regard to the need to prove a causal connection
between the police conduct and some injury, “his injuries were sustained as a
direct result of the officers forcibly removing him from this vehicle, placing him
face down on the pavement, and handcuffing him behind his back.” With regard to
the State law claims, the plaintiff asserted in his brief in opposition that “when the
officers forcibly removed him from his vehicle and placed him face down on the
pavement cuffing his hands behind his hands behind his back, that this action was
the cause-in-fact of his injuries.”
5
Following a hearing, the trial court judge entered summary judgment in
favor of the defendants, dismissing the plaintiff’s claims against all defendants.
The plaintiff appeals, asserting that the trial court failed to consider that: 1) “there
really was no need, under the facts and circumstances surrounding the stop of
Carlos Turner on March 4, 2009, for Mr. Turner to be forcibly removed from his
vehicle, denied access to his wheelchair, and subsequently handcuffed face down
on the pavement thereby causing substantial personal injury”; and 2) failed to
“consider that [the] Americans with Disabilities [Act] require[s] a higher standard
of care and protection when dealing with police officers, physical contact, and
detention. The officers involved in this incident were clearly not properly trained,
and as a direct result, caused significant bodily injury to Mr. Turner.”
Discussion
Summary Judgment
Louisiana Code of Civil Procedure Article 966(B)(2) provides that summary
judgment shall be “rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions, together with the affidavits, if any, admitted for
purposes of the motion for summary judgment, show that there is no genuine issue
as to material fact, and that mover is entitled to judgment as a matter of law.”
Article 966(C)(2) further advises that the moving party bears the burden of proof.
However, if the movant will not bear the burden of proof at trial on the matter that
is before the court on the motion for summary judgment, the movant is not
required to negate all essential elements of the adverse party’s claim, action, or
defense. Id. Rather, it is the movant’s burden “to point out to the court that there
is an absence of factual support for one or more elements essential to the adverse
party’s claim, action, or defense.” Id. Thereafter, if the adverse party does not
6
produce factual support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.
Furthermore, the summary judgment procedure is designed to secure the
just, speedy, and inexpensive determination of all but certain enumerated actions.
La.Code Civ.P. art. 966(A)(2). It is favored in the law and “shall be construed to
accomplish these ends.” Id. On appeal, the reviewing court reviews a trial court’s
action on the motion for summary judgment de novo, using the same criteria
available to the trial court, i.e., whether genuine issues of material fact exist and
whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-
1726 (La. 2/26/08), 977 So.2d 880.
Causes of Action
As for his federal claims, the plaintiff lodged two separate claims under 42
U.S.C. § 1983 for alleged violations of the Fourth and Fourteenth Amendments.
With regard to the Fourth Amendment, the plaintiff alleged that the defendant
officers used “excessive force on him given the warnings presented to them by Mr.
Turner and his passenger, as well as [his] obvious medical condition.” He alleged
that he “suffered and continues to suffer damages” associated with that purported
violation.
In addressing excessive force claims made pursuant to the Fourth
Amendment right against unreasonable seizure, the United States Court of
Appeals, Fifth Circuit has explained that a plaintiff must establish an (1) injury that
(2) resulted directly and only from a use of force that was clearly excessive, and
(3) that the excessiveness was clearly unreasonable. Ramirez v. Knoulton, 542
F.3d 124 (5th Cir. 2008). See also Clark v. Parker, 08-941 (La.App. 3 Cir. 2/4/09),
2 So.3d 1262 (wherein a panel of this court addressed United States Supreme
7
Court jurisprudence in discussing the “reasonableness” of a particular use of force
and noting that the “reasonableness” inquiry is an objective one, evaluating the
facts and circumstances confronting the subject police officers without regard to
underlying intent or motivation), writ denied, 09-401 (La. 4/13/09), 5 So.3d 165.
With regard to his remaining claim under 42 U.S.C. § 1983, the plaintiff
contends that the defendant officers, while acting under color of state law, deprived
him of his rights “under the Due Process Clause of the Fourteenth Amendment of
the United States Constitution by failing to recognize that detaining a person who
is paraplegic requires a higher standard of physical care than detaining an able
bodied citizen.” He alleged generally that he “suffered and continues to suffer
damages” as a result of that purported violation.
Certainly, the Fourteenth Amendment, via its Due Process Clause, provides
a substantive right to be free from the abusive use of government power without
legitimate enforcement objective. See Daniels v. Williams, 474 U.S. 327, 106
S.Ct. 662 (1986). In order to be actionable thereunder, however, the subject
government official’s abuse of power must rise to the conscious-shocking level, as
determined by the circumstances of each case. County of Sacramento v. Lewis,
523 U.S. 833, 118 S.Ct. 1708 (1998). Further, a plaintiff may be awarded only
such damages as the evidence shows to have been caused by the purported
wrongful conduct. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042 (1978). In
addition to any type of physical injury the plaintiff may be alleging here, it is clear
that intangible, compensatory damage such as emotional distress requires proof of
8
actual injury. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 106 S.Ct.
2537 (1978).4
Finally, the plaintiff lodged state law battery and negligence claims against
the defendants pursuant to La.Civ.Code art. 2315, which provides that “[e]very act
whatever of man that causes damage to another obliges him by whose fault it
happened to repair it.” Under the attendant duty-risk analysis, a plaintiff seeking
recovery under Article 2315 must prove that: 1) substandard conduct was a cause-
in-fact of the plaintiff’s injuries; 2) the defendant’s conduct failed to conform to
the appropriate standard; 3) the defendant had a duty to conform his conduct to a
specific standard; 4) the defendant’s substandard conduct was a legal cause of the
plaintiff’s injuries; and 5) actual damages. Perkins v. Entergy Corp., 00-1372 (La.
3/23/01), 782 So.2d 606.
Having set forth the elements attendant to each of the plaintiff’s causes of
action, we turn to consideration of the parties’ submissions in light of the trial
court’s ruling on the motion for summary judgment.
Pointedly, because of the state of the submission offered in support of and in
opposition to the motion for summary judgment, we are not called upon to reach
the contested issue of whether the officers’ actions were appropriate/reasonable as
that issue relates to each of the above claims. Rather, we simply observe that each
4
The petition in this case seeks recovery for compensatory damages and makes no claim
for injunctive or declaratory relief that could potentially render the plaintiff a “prevailing party”
for purposes of relief under 42 U.S.C. § 1988. In Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566
(1992), the United States Supreme Court explained that a plaintiff “prevails” when actual relief
on the merits of his or her claim materially alters the legal relationship between the parties by
modifying the defendant’s behavior in a way that directly benefits the plaintiff. An award of
damages, injunction, or declaratory judgment will usually satisfy that test. Lefemine v. Wideman,
_U.S. _, 133 S.Ct. 9 (2012). However, damages awarded in a 42 U.S.C. § 1983 claim must be
designed to compensate injuries caused by a Constitutional deprivation. Farrar, 506 U.S. 103.
Thus, “[w]hen a plaintiff recovers only nominal damages because of his failure to prove an
essential element of his claim for monetary relief . . ., the only reasonable attorney fee is usually
no fee at all.” Id. 506 U.S. at 115.
9
of the federal and state claims requires a plaintiff to demonstrate damages and
causation, at least to some extent as a fundamental element. In this case, the
plaintiff only generally alleged injury and damages in his petition. However, in
support of the motion for summary, the City, on behalf of all defendants, submitted
the excerpts of the plaintiff’s deposition where he again only alleges injury and
does so without specificity. Except for a mention of an MRI bill that he had paid,
no details were revealed regarding the nature of his alleged injury or any damages
sustained. After this initial showing by the City, and although the plaintiff was
required to bear the burden of proof at trial, he did not offer his own evidence in
opposition to the motion for summary judgment. See La.Code Civ.P. art.
966(C)(2). Thus, the plaintiff failed “to produce factual support sufficient to
establish that he will be able to satisfy his evidentiary burden of proof at trial[.]”
Id. Speculation as to the existence and extent of any damages is at odds with this
requirement. Accordingly, no genuine issues of material fact exist. Id.
As the issue of damages cuts across all of the plaintiff’s claims, and he has
failed to demonstrate that he will be able to satisfy this necessary aspect of his
evidentiary burden of proof at trial, the trial court appropriately entered summary
judgment in favor of the defendants. We affirm that decision below, pretermitting
further consideration of the plaintiff’s arguments.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. Costs
of this proceeding are assigned to the appellant, Carlos Turner.
AFFIRMED.
10
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
14-384
CARLOS TURNER
VERSUS
LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, ET AL.
COOKS, J., dissenting.
I respectfully dissent from the majority’s decision to affirm the trial court’s
grant of summary judgment in this matter. The majority does not address
Plaintiff’s allegations that the officer’s acted unreasonably in this case (which was
the issue the trial court focused on in granting summary judgment), instead
dismissing Plaintiff’s case solely on the basis that Plaintiff “only generally alleged
injury and damages in his petition.” The majority cites this lack of ‘specificity” of
damages, stating that other than a mention of an MRI bill that he had paid, no
details were revealed regarding the nature of his alleged injury or any damages
sustained.” While I note Plaintiff’s deposition testimony alone might well come up
short of establishing compensable damages were this a trial on the merits, I find it
was sufficient to establish genuine issues of material fact at the summary level as
to the existence of damages.
In his deposition, Plaintiff specifically stated he was “sure about [his] back
being injured.” Plaintiff also steadfastly maintained it was his opinion that his
placement on the ground on his stomach with his hands placed behind his back “is
what caused his damages.” He noted several times the officers’ actions put him in
“a position I’m [not] supposed to be in.” Plaintiff obviously has endured severe,
life-altering past injuries to his spinal cord, rendering him a paraplegic. He has
two metal Harrington Rods fused to his spinal cord for stability. I find it plausible,
if not likely, that Plaintiff suffered anxiety and emotional distress over possible
injuries caused to his spinal cord, when he was placed into what he believed to be
an unsafe position by the officers. I strongly reject any argument that no genuine
issues of material fact exist as to whether Plaintiff suffered any injury as a result of
the incident in question. Any such determination at the summary judgment stage is
premature and inappropriate.
Although the majority pretermits any discussion of the reasonableness of the
officers’ actions due to its conclusion that Plaintiff failed to produce factual
support on the existence and extent of damages, I will address that argument. It is
undisputed that Plaintiff is a member of a protected class. He is confined to and
relies on his wheelchair to travel. These factors were obvious to the officers during
the incident in the Super Daq parking lot. In discussing whether the officers’
actions at the scene were “reasonable,” Defendants contend “the officers had
limited information concerning Plaintiff’s medical condition.” It was not disputed
that both Plaintiff and St. Julien, on several occasions, informed the officers of
Plaintiff’s disability and reliance on his wheelchair. At the time Plaintiff was
placed face down on the parking lot ground, with his hands cuffed behind him, the
officers were aware Plaintiff was a paraplegic who could only travel through use of
his wheelchair. The officers were also immediately informed by Plaintiff that the
position he was in was potentially harmful to him. This information, followed by
the officers’ decision to keep Plaintiff in that position for approximately five
minutes, certainly creates a disputed issue as to the “reasonableness” of the
officers’ actions and whether the force used was excessive given the
circumstances.
Defendants vehemently argue the officers’ actions were reasonable based on
officer safety. A review of the transcript of the hearing on the motion for summary
judgment indicates the concern over officer safety was the primary basis for the
trial court’s ultimate decision to grant summary judgment in Defendants’ favor.
The trial court specifically asked Plaintiff the following question at the hearing on
the motion for summary judgment:
What should [the officers] have done? What should or could
they have done differently that would have taken care of the officers’
safety concerns because of the guns - - you’ve got to get him out - -
and where do you put him? Where do you put him while the
wheelchair is being assembled?
Considering the situation, there appear to be several alternative methods that a
factfinder could conclude were reasonable and preferable to the officers’ decision
to place a cooperative paraplegic, face down on the ground with his hands cuffed
behind his back, despite the fact they were alerted such a position could be harmful
to him. I note there were multiple officers present at the scene. After St. Julien
was removed and placed on the ground in cuffs, one of the officers could have
walked to the other side of the vehicle and removed the firearm located by the
driver’s seat while Plaintiff was being monitored with his hands clearly visible or
otherwise secured. If the officers were still concerned about the possibility of
additional weapons, at this point, one officer could have removed and assembled
the wheelchair while Plaintiff was watched by another officer. Plaintiff could then
have been removed from the vehicle and placed in his wheelchair. It also seems
readily apparent that the officers could have removed Plaintiff from his vehicle and
placed him in the rear of a police vehicle, in a seated position with his hands cuffed
in the front. Lastly, the officers could have positioned Plaintiff in a seated upright
position on the ground. Certainly, any of the above mentioned scenarios were
easily available to the officers at no additional concern for their safety. At a bare
minimum, there are undoubtedly questions of fact that alternative, reasonable
methods for Plaintiff’s removal from the vehicle were available to the officers at
the scene that would have accommodated his physical disability without posing
risks of harm to him or the officers’ safety.
Defendants argued the officers did in fact “modify their actions to
accommodate [Plaintiff’s] physical limitations, actions which placed their own
safety at risk.” Defendants list the following examples as illustrative of the
officers’ modified actions to accommodate Plaintiff’s disability:
[T]aking time to question [Plaintiff] about his condition and how he
usually exited the vehicle, rather than immediately extracting him;
officers using both hands to lift him out of the vehicle, thereby
restricting their ability to use their hands to respond to a dangerous
situation; and taking [Plaintiff’s] wheelchair out of the car, assembling
it and placing him in it, with his hands cuffed in front of him, before
patting him down, although the officers could and should have
searched [Plaintiff] on the ground, especially as a weapon had been
discovered.
These examples indicate the officers were aware of Plaintiff’s disability, and
establish their realization that it was imperative they depart from standard
procedure in their handling of Plaintiff. However, Defendants do not address why
the officers chose to place Plaintiff in a potentially harmful position, and left him
there for several minutes after being informed by Plaintiff of the harm it could
cause him to remain in that position. As set forth above, there were several
alternative methods the officers could have employed to secure the scene which
would not have compromised officer safety. The officers’ admitted realization of
the need to accommodate Plaintiff’s disability only highlights that a factfinder,
under the circumstances, could find the officers’ decision was unnecessary and
excessive. Thus, I would find the trial court’s grant of summary judgment, with
the presence of these genuine issues of material fact, was inappropriate.