The opinion of the court was delivered by: Judge Tucker L. Melançon
Magistrate Judge C. Michael Hill
Before the Court is a Motion for Summary Judgment filed by defendants Larry P. Bacque, Sr. and Cowboy's Western Store and Trailer Sales, Inc. ("Cowboy's") [Rec. Doc. 151] and a Motion for Summary Judgment filed by defendants the City of Scott, Chief Chad Leger, in his official capacity as Chief of Police of the City of Scott, Officer David Sonnier, individually and in his official capacity as a Police Officer for the City of Scott and Officer Byron Romero, individually and in his official capacity as a Police Officer for the City Scott ("the City of Scott defendants") [Rec. Doc. 152]. For the following reasons, the motions for summary judgment will be granted.
This action arises from an incident in which Ken Bacque was shot and killed by Officer Byron Romero on May 19, 2004 during an altercation with his father, Larry Bacque, at their place of business in Scott, Louisiana, the Horseman Western Store. The decedent's wife and children filed this action asserting actions under 42 U.S.C. § 1983 and Louisiana state law against all defendants. Plaintiff's claim against Officer Sonnier in his individual capacity has been dismissed on the basis of qualified immunity. [Rec. Doc. 140].
II. Summary Judgment Standard
A motion for summary judgment shall be granted if the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994)(en banc). When a party seeking summary judgment bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if such evidence were uncontroverted at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim. Celotex Corp.,477 U.S. at 324.
Once the movant produces such evidence, the burden shifts to the respondent to direct the attention of the court to evidence in the record sufficient to establish that there is a genuine issue of material fact requiring a trial. Id. The responding party may not rest on mere allegations made in the pleadings as a means of establishing a genuine issue worthy of trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Little, 37 F.3d at 1075. If no issue of fact is presented and if the mover is entitled to judgment as a matter of law, the court is required to render the judgment prayed for. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322. Before it can find that there are no genuine issues of material fact, however, the court must be satisfied that no reasonable trier of fact could have found for the non-moving party. Id.
Defendants Larry Bacque and Cowboy's and the City of Scott defendants have each filed a motion for summary judgment moving the Court to dismiss plaintiff's conspiracy claims under § 1983. Plaintiff's original Complaint set out claims against the City of Scott and Chief Leger and her First Amending Complaint added claims against Officer Sonnier, and Officer Romero. R. 1, 5. Plaintiff added defendants Larry Bacque and Cowboy's in her Second Amending Complaint, alleging state law claims for gross negligence. R. 28. In her Third Supplemental and Amended Complaint, plaintiff alleged civil conspiracy claims under § 1983 and state law against all defendants for the shooting of Ken Bacque. In their motions for summary judgment, all defendants argue that plaintiff's federal and state law claims of conspiracy should be dismissed, as plaintiff has provided no evidence under Rule 56 to support these claims. Defendants Larry Bacque and Cowboy's also assert that plaintiff's claims against them are barred by the running of prescription and that plaintiff has no cause of action against Cowboy's as it was not incorporated at the time Ken Bacque died.
1. Civil Conspiracy Under § 1983
The elements of civil conspiracy are (1) an actual violation of a right protected under § 1983 and (2) actions taken in concert by the defendants with the specific intent to violate the aforementioned right. Kerr v. Lyford 171 F.3d 330, 340 (5th Cir. 1999). With regard to the second element, the Fifth Circuit has also stated, "[t]o establish a cause of action based on [a § 1983] conspiracy a plaintiff must show that the defendants agreed to commit an illegal act." Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir.1979); See also McCall v. Peters, 108 Fed.Appx. 862, 863, 2004 WL 1842567, *1 (5th Cir. 2004). A conspiracy may be charged under section 1983 as the legal mechanism through which to impose liability on all of the defendants without regard to who committed the particular act, but a conspiracy claim is not actionable without an actual violation of section 1983. Hale v. Townley 45 F.3d 914, 920 (5th Cir. 1995). "[T]o act 'under color of' state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting 'under color' of law for purposes of § 1983 actions." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 152(1970)).
In her oppositions to defendants' motions, plaintiff reiterates the allegations in her Third Supplemental and Amended Complaint, R. 93, as follows: 1) Officer Romero and the other members of the Scott police department regularly worked security for Larry Bacque at Cowboy's nightclub; 2) there was no altercation or threat of altercation ongoing when Daniel Hildalgo, the manager of Cowboy's nightclub, called the Scott police department at Larry Bacque's request; 3) upon arrival, the officers "reported to Larry [Bacque] and Hildalgo, and formulated a plan of action to force Ken Bacque to leave the Horseman, even though he owned one-half of the Horseman at the time; 4) Larry Bacque initiated the altercation between himself and Ken Bacque when he ...