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Barber v. Glover

United States District Court, Western District of Louisiana, Shreveport Division

December 16, 2014





Before the Court are the following two motions: Motion for Partial Summary Judgment, filed by Defendants City of Shreveport, Mayor Cedric Glover, Shreveport Police Chief Willie Shaw, Officer C.E. Temple, Officer W.R. Goodin, Officer D.K. Goodwin, and Officer Francis Mogavero, in his official capacity (collectively, "the City Defendants") [Doc. #42]; and Motion for Summary Judgment, filed by Defendant Francis Mogavero, in his individual capacity ("Mogavero"). [Doc. #43]. Plaintiffs, Joseph Barber, Jr. and Brenda Barber (collectively, "Plaintiffs" or "the Barbers"), oppose Mogavero's motion for summary judgment [Doc. #52]; however, Plaintiffs advised the Court that there was no opposition to the City Defendants' motion for partial summary judgment. For the reasons that follow, the City Defendants' motion [Doc. #42] is GRANTED, and Defendant Mogavero's motion [Doc. #43] is hereby DENIED.


Plaintiffs filed this lawsuit, pursuant to 42 U.S.C. §1983, alleging violations of Joseph Barber, Jr.'s rights under the Fourth and Fourteenth Amendments to the United States Constitution. Mr. Barber alleged that he sustained injuries as a result of the unconstitutional conduct of several law enforcement officers when they seized him and subjected him to excessive force. Named as defendants herein are the City of Shreveport, Shreveport Mayor Cedric Glover, Shreveport City Police Chief Willie Shaw, Officer Francis Mogavero, Officer C.E. Temple, Officer W.R. Goodin, and Officer D.K. Goodwin. All officers, other than Mogavero, are named only in their official, capacity as police officers for the City of Shreveport. Officer Mogavero is named in both an individual and official capacity.

On September 3, 2011, Plaintiffs, who are both residents of Zachary, Louisiana, attended the Port City Classic football game at Independence Stadium in Shreveport, Louisiana. At some point during the football game, Mr. Barber visited a concession stand inside the stadium. After ordering, paying for, and receiving his food, Mr. Barber became involved in a verbal altercation with a salesperson at the concession stand. Mr. Barber claims that he was dissatisfied with the food he received and desired a refund, at which point a dispute arose over the amount of money tendered for the food versus what was offered as a refund. Mr. Barber believed that he had originally given the salesperson a twenty dollar bill and became upset when the salesperson offered him a refund of only ten dollars.

Officer Mogavero, who was nearby and acting in the course and scope of his employment as a police officer for the City of Shreveport, was summoned to the scene by Ethel Mitchell, one of the concession stand workers. The officer's initial impression of Mr. Barber was that Barber was intoxicated.[1] Officer Mogavero contends that Mr. Barber continued to argue with the sales people, refused Officer Mogavero's instructions to step away from the stand, and snatched his arm away from Officer Mogavero's hand, acting hostile and aggressively toward the situation. This indicated to Officer Mogavero that Barber was resisting arrest, after which Officer Mogavero claims Mr. Barber was struck once in the face and once in the chest. Plaintiffs contend that Officers Temple and Goodin observed, from a short distance, Officer Mogavero striking Mr. Barber in the face and failed to make any attempts to get Officer Mogavero to back off. Mr. Barber contends that he was compliant with and responsive to Officer Mogavero, that he did not act in a belligerent manner toward Officer Mogavero, and that he did not resist arrest. Mr. Barber was ultimately arrested and charged with simple assault and public intoxication. He was transported to jail, posted bail, and returned home with Ms. Barber to Zachary, Louisiana.

During the course of Officer Mogavero's interaction with Mr. Barber, Mr. Barber sustained facial injuries. As a result thereof, Mr. Barber contends that he was diagnosed with multiple left eye orbital fractures (orbital blowout), requiring surgery and resulting in vision problems, nasal and sinus complications and dental issues. Mr. Barber further claims to have suffered permanent nerve damage resulting in numbness to the left side of his face. As to Ms. Barber, she claims to have sustained damages resulting from this incident, including but not limited to mental anguish and loss of enjoyment of life.


Federal Rule of Civil Procedure 56(a) directs that a 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." Fed.R.Civ.P. 56(a).[2] An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue can be resolved only by a trier of fact because it may be resolved in favor of either party. Id. at 248-49. A fact is "material" if it can "affect the outcome of the suit under the governing law." Id. Facts that are irrelevant or unnecessary for determination of the suit should not be considered. Id. The substantive law will determine which facts are "material." Id.

The burden of proof in a summary judgment proceeding is on the party moving for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). When a defendant moves for summary judgment on the plaintiffs claim, he may satisfy the summary judgment burden in one of two ways: (1) show there is no evidence to support an essential element of the plaintiffs claim, or (2) submit summary judgment evidence that negates one of the essential elements of the plaintiffs claim. Celotex, 477 U.S. at 322-24; Lavespere v. Niagara Mack & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). If the motion is properly made, the plaintiff "must set forth facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. The plaintiff "must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial." Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citations omitted). The court is to resolve all reasonable doubts about the facts in favor of the plaintiff. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 456 (5th Cir. 2005).

Pursuant to Local Rule 56.1, the moving party shall file a short and concise statement of the material facts as to which it contends there is no genuine issue to be tried. Local Rule 56.2 requires that a party opposing the motion for summary judgment set forth a "short and concise statement of the material facts as to which there exists a genuine issue to be tried." All material facts set forth in the statement required to be served by the moving party "will be deemed admitted, for purposes of the motion, unless controverted as required by this rule." Local Rule 56.2. Because Plaintiffs filed no opposition to the City Defendants' motion for partial summary judgment, all material facts set forth by the City Defendants will be deemed admitted for purposes of the motion for partial summary judgment.[3]


"To state a claim under 42 U.S.C. §1983, 'a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.'" Randolph v.Cervantes, 130 F.3d 727, 730 (5th Cir. 1997) (citing Leffall v.Dallas Indep. Sch. Dist, 28 F.3d 521, 525 (5th Cir. 1994)). Here, Plaintiffs have alleged that Mr. Barber sustained injuries as a result of the ...

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