United States District Court, E.D. Louisiana
ORDER AND REASONS
HELEN G. BERRIGAN, District Judge.
This matter comes before the Court on defendants' Motion for Summary Judgment. Rec. Doc. 34. Plaintiff opposes the motion. Rec. Doc. 38. The motion is before the Court on the briefs, without oral argument. Having considered the law, the facts, and the arguments of the parties, and for the reasons discussed herein, the Court GRANTS IN PART and DENIES IN PART defendants' motion.
I. Factual background
In this action, plaintiff, Walter Roy Aswell, III ("Aswell"), raises a claim of liability under 42 U.S.C. §1983 for the use of excessive force by officers of the Bogalusa Police Department, who include Lieutenant Patrick Lyons ("Lyons"), Patrolman First Class Chad Cassard ("Cassard"), Patrolman First Class Lavon Scott Seals ("Seals"), and Chief of Police Joe Culpepper ("Culpepper"); as well as Deputy Marshall John Summrall for the City of Bogalusa. Rec. Doc. 1 at 6-8. The Court notes that in the complaint, plaintiff alleges excessive force under the Eighth Amendment, but appears to have changed his theory to excessive force under the Fourth Amendment in his opposition to the motion for summary judgment. The Court will analyze plaintiff's claim as a claim brought under the Fourth Amendment and will allow plaintiff to amend his complaint.
On April 20, 2011, Aswell and Logan Mills, a plaintiff in a related case, committed an armed robbery at a Capital One Bank in Bogalusa, Louisiana, and fled the bank in a Jeep, with Aswell driving. Rec. Docs. 34-6 at 10:12-18; 38-3 at 13:10-18:21. Lyons, Cassard, and Seals separately pursued Aswell and Mills in marked Bogalusa Police Department cars, and Sumrall joined the pursuit in an unmarked car. Rec. Doc. 34-8 at 10-13. Heading east down Highway 26, Aswell and Mills exchanged gunfire with the police officers. Rec. Docs. 34-8 at 13:10-15; 38-3 at 21:14-22:14. Eventually, the officers succeeded in disabling the Jeep, forcing Aswell and Mills to veer to the left of the highway and stop near a grocery store called Sheila's Store. Rec. Doc. 34-8 at 13:7-17. The three Bogalusa officers stopped their vehicles near the Jeep, and Sumrall arrived shortly thereafter. Id. All the officers testify to seeing Aswell and Mills exit the Jeep. Id. See also 34-7 at 16:2-17:2; 34-9 at 12:9-25. However, their recollections differ in many respects. Lyons testifies that he saw Aswell holding a pistol in his hand and, when Lyons told Aswell to stop, Aswell "pulled" the weapon. Lyons responded by shooting at Aswell. Rec. Doc. 34-9 at 12:20-25. Cassard and Seals stated they could not clearly see the driver's side of the Jeep when Aswell was exiting, but do not testify to seeing him holding a gun. Rec. Doc. 34-7 at 15:19-22; Rec. Doc. 34-10 at 13:14-17.
Once out of the Jeep, Aswell fled towards the nearby field. Rec. Doc. 34-7 at 19:3-11. Cassard drove his vehicle into the field in pursuit of Aswell and fired four rounds at Aswell. Id. After seeing Aswell fall to the ground, Cassard drove towards a wooded area where he believed Mills had run. Rec. Doc. 34-7 at 21:17-19.
Sumrall also drove after Aswell. Upon seeing Aswell fall to the ground, Sumrall stopped his car roughly twenty or thirty feet away, got out and took cover behind the car door with his gun out. Rec. Doc. 34-8 at 16:1-18:6. According to Sumrall, Aswell lay face down on the ground, with either one or both arms under his body. Id. He stated that he and Lyons approached Aswell at roughly the same time from different directions. Id. at 21:4-23:18. Sumrall he shouted at Aswell to show his hands and eventually Aswell showed his right arm, though Sumrall later testified that he couldn't remember if Lyons pulled Aswell's arm from beneath his body or if Aswell complied on his own. Id. at 19:3-24, 26:18-21. Sumrall recalls that Aswell tried to get up and Lyons commanded him to stay on the ground. When Aswell continued to make his way to all fours, Lyons knocked him to the ground, striking Aswell on the back around the shoulder area with his fist. Id. at 28:23-32:15. Finding that he had no handcuffs, Sumrall asked Lyons to hand him his handcuffs and said he would cuff Aswell so that Lyons could check on his men who had gone after Mills. Id. at 33:6-16. Sumrall states that he did not see Aswell with a weapon, nor did he see a weapon in the immediate vicinity. Id. at 36:6-18, 39:13-40:23. He stayed with Aswell for several minutes until other officers arrived. Id. at 37:12-15.
Though Lyons and Sumrall apprehended Aswell together, Lyons' account of events conflicts with Sumrall's at several points. In addition, during his deposition, Lyons related multiple versions of the events. Lyons stated that he chased Aswell through the vacant field and fired on him. Rec. Doc. 34-9 at 19:3-8. Unlike Sumrall, Lyons averred that he saw Aswell with a gun. Id. Lyons initially stated that he patted Aswell down for weapons before Aswell was cuffed, then stated he did not remember if he had conducted a pat down. Id. at 25:22-27:19. He then stated that he thought, but was unsure, that he gave his handcuffs to Sumrall and asked him to cuff Aswell, then left to check on the other officers before Aswell was cuffed. Id. at 28:17-32. Lyons also stated he never touched Aswell. Id. at 29:3-7. However, after being presented with an incident report in which he had previously stated that he had struggled with Aswell, Lyons said that he remembered that Aswell had tried to jerk away and fight while being handcuffed, but that he didn't remember striking Aswell. Id. at 54:5-17. This version of events tends to suggest that contrary to Lyons earlier recollection, that he was with Aswell when he was handcuffed. When asked to elaborate on his account, Lyons said that he was unable to, and that he could only recall what had been written in the incident report. Id. at 59:1-60:9.
Seals also drove his car in pursuit of Aswell, stopping in the field to allow Lyons to fire shots at Aswell. Rec. Doc. 34-10 at 17:6-20. Seals saw Aswell fall to the ground and pulled his car beside him. Id. at 19:10-20:17. Seals did not exit his car, instead leaving to chase after Mills. Id. at 22:5-20. Though he states that he was unsure where Aswell's arms were when he fell, Seals testifies that he did not see a weapon on Aswell. Id.
Finally, Aswell himself offers a very different version of events. His account initially matches those of Cassard, Sumrall, and Seals. He states that after stopping the Jeep by Sheila's Store, he exited and fled on foot away from the officers. Rec. Doc. 34-6 at 12:6-8; 14:7-20. He was shot twice, once in the right arm and once in the right hip, and fell to the ground face first. He does not know who fired the bullets that struck him. Id. at 15:1-17:21. He then states that handcuffs were put on him, and he was kicked and struck with a hard object, which he believes was either a baton or a gun, and that threats were made on his life. Id. at 20:1-5. 23:24-24:4, 31:19-24 Aswell avers that he was lying face down at the time and does not know who kicked him, but that he is sure it was a member of the Bogalusa Police Department, since he believed that only they were at the scene at that time (in fact Sumrall was also present). Id. at 21:24-22:17. Aswell denies struggling with the officer. Id. at 22:21-22. As a result of injuries sustained during this incident, Aswell underwent surgery to place a plate over the fracture in his skull. Id. at 29:15-25. He suffers headaches, ringing in his ears, confusion, hearing loss and memory loss. Id. at 29:4-8. Aswell's radial nerve in his right arm was severed by a bullet, and he can no longer lift his right hand or straighten his fingers. Id. at 30:1-3.
On April 19, 2012, Aswell brought this Section 1983 lawsuit against defendants for using excessive force in violation of his Constitutional rights, and additionally making state law claims of negligence, intentional infliction of emotional distress, negligent supervision, and vicarious liability. Rec. Doc. 1 at 8.
II. Standard of review
Summary judgment is proper when the record indicates that there is not a "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. A genuine issue of fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1996).
A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [discovery], together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the initial burden is met, the nonmoving party must "designate specific facts showing there is a genuine issue for trial" using evidence cognizable under Rule 56. Id. at 324, 106 S.Ct. at 2253. "[U]nsubstantiated assertions" and "conclusory allegations" will not defeat a properly supported motion for summary judgment. Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 871-73, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990). "If the evidence is merely colorable, or is not significantly probative, " summary judgment is appropriate. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (internal citations omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. at 2510.
When reviewing a motion for summary judgment, a court must view the evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Daniels v. City of Arlington, Texas, 246 F.3d 500, 502 (5th Cir. 2001). Summary judgment does not allow a court to resolve credibility issues or weigh evidence. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
III. Law and Analysis
a. Section 1983 claim against Lyons, Cassard, Seals and Sumrall
i. Failure to state a claim
Under the heading of a motion for summary judgment rather than a motion to dismiss, defendants first argue that Aswell's claim should be dismissed because Aswell fails to state a cause of action under Fed. R. Civ. Pro. 12(b)(6). Rec. Doc. 34-1 at 10. According to defendants, the complaint must be dismissed as it "fails to identify the person or persons that actually allegedly committed the constitutional violation." Id. at 11. However, the Fifth Circuit has explicitly rejected this reasoning. In Bohannan v. Doe, the Fifth Circuit considered a district court's dismissal of a Section 1983 claim on the ground that "[t]he court... does not consider claims against unknown defendants. 527 Fed.Appx. 283, 291-92 (5th Cir. 2013). The Fifth Circuit found that, to the contrary, "[t]his statement wholly mistakes the policy of federal courts in favor of permitting the preliminary adjudication of claims against ...