United States District Court, W.D. Louisiana, Lafayette Division
YOLANDA YOUNG, ET AL.
LOUIS AKAL, ET AL
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For Yolanda Young, Annalexis Lewis, individually and, on behalf of, Annalexis Lewis, on behalf of, Johntiajah Lewis, on behalf of, Jaquan Lewis, on behalf of, Jaazanniah Lewis, on behalf of, Jaqualin Lewis, Plaintiffs: James Patrick MacManus, Lafayette, LA.
For Louis Akal, Carmen Garcia, Deputy, Defendants: L Fred Schroeder, LEAD ATTORNEY, Usry Weeks & Matthews (NO), New Orleans, LA; Jason Paul Wixom, New Orleans, LA.
REBECCA F. DOHERTY, UNITED STATES DISTRICT JUDGE. MAGISTRATE JUDGE HANNA.
Pending before this Court is the " Motion for Summary Judgment" [Doc. 18] filed by defendants Louis Ackal (in his official and individual capacities as the Sheriff of New Iberia) and Sergeant Carmen Garcia (in her official and individual capacities as a police officer for the City of New Iberia) (hereinafter, collectively, " the defendants" ). By way of their motion, defendants seek " dismissal of the plaintiffs' [sic] claims against them," on grounds Sheriff Ackal and Deputy Garcia " are entitled to qualified immunity from [the] constitutional claims brought under 42 U.S.C. § 1983."  The motion is opposed by plaintiffs Yolanda Young and Annalexis Lewis, individually and on behalf of her minor children Annalexis Lewis, Johntiajah, Jaquan, and Jaazanniah Lewis [Doc. 24].
For the following reasons, defendants' motion for summary judgment is GRANTED.
I. Factual and Procedural Background
The parties largely agree on the factual scenario which places this matter before the Court. The undisputed facts are as follows:
o The Sugar Cane Festival is an annual event held in New Iberia, Louisiana.
o In 2011, the festival was held on Sunday, September 25.
o A contingent of Iberia Parish Sheriff's deputies undertook security responsibilities for the festival as off-duty detail work.
o The festival promoters had a permit allowing the festival to operate on September 25, 2011 from 10:00 a.m. until 6:00 p.m. Sgt. Carmen Garcia was one of those deputies working the off-duty security detail at the festival.
o Sheriff Ackal was not on the scene.
o Shortly before the conclusion of the permitted time of the festival, the deputies working the festival security detail developed a plan to clear Hopkins Street, which is a state highway, of festival-goers in order to restore traffic flow on this state highway.
o The plan called for deputies to proceed in their marked patrol units down Hopkins Street utilizing the units' public address, lights, and siren system to notify festival-goers that the festival was over and the streets must be cleared.
o These attempts to peacefully disperse the crowd and restore normal traffic flow were largely unsuccessful, due to the large size of the crowd and its refusal to follow the deputies' instructions to clear the roadway.
o After several unsuccessful attempts, the deputies at the scene attempted on foot to disperse the crowd and clear the roadway but these attempts to restore normal operation of the roadway were again met with resistance by the crowd and were largely unsuccessful.
o An aerosol form of tear gas (brand name: " Clear Out" ) was deployed to assist deputies in their efforts to disperse the crowd that had gathered and refused to leave the area, to restore order, and to return Hopkins Road to normal vehicular traffic.
o The deputies providing security for the Festival tried in vain to clear the roadway for several hours and were finally able to restore order and normal traffic flow on Hopkins Road by 10:30 p.m.
o The petitioners were " in their home at 719 Hopkins Street" when the tear gas was deployed.
The plaintiffs filed suit against Sheriff Ackal, Sgt. Garcia, and an individual identified only as " Deputy Broussard"  on September 24. 2012. In her complaint, Yolanda Young alleges she and her minor children sustained injuries to their lungs and eyes, as well as psychological injuries, after coming into contact with the tear gas deployed by the police. Although the tear gas was deployed into the crowd, the plaintiffs allege they were injured " while in their home on Hopkins St." Although drafted inartfully, the plaintiffs' first complaint alleges claims of negligence, excessive force, and a failure to train and supervise deputies, all seemingly under 42 U.S.C. § 1983 without reference to any specific constitutional violations.
Plaintiffs filed a First Amended Complaint -- the Complaint that is the subject of this Court's scrutiny in connection with the instant motion -- on May 30, 2013. Plaintiffs' Amended Complaint continues to be deficient in several respects, most specifically, in failing to specifically delineate each claim against each defendant, and in failing to properly identify the governing law for each claim. As best this Court can determine, the plaintiffs allege four claims against Sheriff Ackal and Deputy Garcia in both their official and individual capacities: (1) a § 1983 claim for excessive force in violation of the plaintiffs' First, Fourth, and Fourteenth Amendment rights (notwithstanding the framing of the " cause of action" in terms of § 1983, the plaintiffs allege the actions of the defendants were " negligent); " (2) the second cause of action does not appear to be a cause of action at all, but rather, an allegation that the defendants are not entitled to qualified immunity; (3) a § 1983 claim for " the improper training, oversight, control and improperly equipping the Deputies by the other defendants...." ; and (4) a state law cause of action for negligence under Louisiana Civil Code Article 2315.
The defendants filed the instant motion for summary judgment on September 16, 2013, arguing all claims of the plaintiffs should be dismissed, as the defendants are qualifiedly immune from suit under the circumstances of this case.
II. Summary Judgment Standard
A party claiming relief, or a party against whom relief is sought, may move, with or without supporting affidavits, for summary judgment on all or part of the claim. Fed. R. Civ. Proc. 56(a) and (b). Summary judgment is appropriate if " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c)(1), (2).
When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.
Fed. R. Civ. Proc. 56(e). In general, as summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994):
When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Id. at 322; see also, Moody v. Jefferson Parish School Board, 2 F.3d 604, 606 (5th Cir.1993); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir.1991). Only when " there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" is a full trial on the merits warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Supreme Court has instructed:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Where no such showing is made, " [t]he moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The Court later states:
In ruling upon a Rule 56 motion, " a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from " assuming" that general averments embrace the " specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment shall be entered against the nonmoving party unless affidavits or other evidence set forth specific facts showing that there is a genuine issue for trial. The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues.
Id. at 888-89 (1990)(internal quotations and citations omitted). The Fifth Circuit has further elaborated:
[The parties'] burden is not satisfied with 'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by only a 'scintilla' of evidence. We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. ...[S]ummary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citations and internal quotations omitted).
Finally, in evaluating evidence to determine whether a factual dispute exists, " credibility determinations are not part of the summary judgment analysis." Id. To the contrary, in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving ...