United States District Court, E.D. Louisiana
ORDER AND REASONS
MARTIN L. C. FELDMAN, District Judge.
Before the Court are two motions by the two remaining defendants, Rodney J. Strain, Jr., in his official capacity as Sheriff of St. Tammany Parish, and Deputy Adam Pailet: (1) motion for summary judgment; and (2) motion for partial summary judgment. For the reasons that follow, the motion for summary judgment is GRANTED, and the motion for partial summary judgment is DENIED as moot.
This is a civil rights lawsuit filed under 42 U.S.C. § 1983 in which a family alleges that St. Tammany Parish Sheriff's Office Deputy Adam Pailet used excessive force in the shooting death of their son and brother, Jason Glover.
Shortly after 11:00 p.m. on Friday, March 8, 2013, Christie Babin called 911 from her house in Covington, Louisiana. She reported a domestic violence aggravated assault incident involving her boyfriend, Jason Glover. St. Tammany Parish Sheriff's Office deputies responded to her house. Ms. Babin reported to the responding deputies that she had a heated argument with Jason Glover at his house in Abita Springs; that she had gone to Jason Glover's house to get her dog; that she sat in her car while Glover stood by yelling at her, and that he also spit on her through her partially rolled down window. Ultimately, she told deputies, Jason went inside his house and - instead of returning with her dog, Max - he returned with a handgun. Ms. Babin said she sped away as he fired one shot. Ms. Babin told responding deputies that she called 911 when she got home because "she was afraid that Glover was relocating to her home to kill her." According to the St. Tammany Parish Sheriff's Office Investigative Case Report, "[t]his information was broadcasted, via police radios, to responding deputies who were traveling to Glover's residence to investigate." In particular, the dispatcher "identified the male suspect [in an aggravated assault] as Jason Glover, who was intoxicated and threatened to kill the victim;" the dispatcher further advised law enforcement that "Glover was in possession of a handgun and [had] fired a gunshot." STPSO Deputy Adam Pailet and Corporal Michael Breazeale heard the police radio transmission of Ms. Babin's report. Because they were patrolling the same general Abita Springs area, Deputy Pailet and Corporal Breazeale (separately) drove to Jason Glover's residence to find and question him about Ms. Babin's allegations. When Deputy Pailet got close to Jason Glover's house, Deputy Pailet heard the dispatcher announce that Ms. Babin "believed Glover was traveling to her residence to kill her and he was driving a silver Toyota pick-up truck."
Deputy Pailet arrived at Mr. Glover's house first. He pulled into the driveway, left his marked police vehicle's bright headlights on,  and advised police dispatch that he had arrived at Mr. Glover's house and had that Jason's truck was on scene. As he opened his door to get out of his vehicle, Pailet saw Glover himself and so advised dispatch. Deputy Pailet says that he saw Jason exit the front door of the house and begin running toward the side of the house; the side of the house where Jason's pickup truck was parked and running in the driveway.
Believing that he might be attempting to flee, Deputy Pailet yelled at Mr. Glover, identified himself as a law enforcement officer, and ordered him to stop. Mr. Glover did not respond to Deputy Pailet's commands; instead, Mr. Glover ran to his pickup truck while in a crouched position, opened the driver's side door,  and retrieved a handgun from inside the truck.
By this time, Deputy Pailet had drawn his own pistol out of its holster. When he saw the gun in Mr. Glover's hand, Deputy Pailet aimed his weapon at Mr. Glover, and ordered Glover to drop his gun. Mr. Glover did not comply. Instead, Mr. Glover raised his pistol, advanced at an angle toward Deputy Pailet, and, according to the deputy, it appeared that Glover - who was looking toward Deputy Pailet and the high beams from Pailet's police unit - "was attempting to acquire a target." Deputy Pailet fired three rounds at Glover; at which point Glover falls to the ground on his right side but, according to Deputy Pailet, Glover "continued to point his weapon at [Deputy Pailet] attempting to acquire his target." After not more than a second or two, Deputy Pailet then fired three additional rounds at Glover, who died later at the hospital of his injuries.
Immediately after the shooting, Deputy Pailet and Corporal Breazeale secured the scene as other first responders, including other law enforcement officers and an ambulance, arrived at the scene. Pailet and Breazeale repositioned themselves but took cover; peering around the house, they noticed that Glover was still breathing and that he was still clutching his gun in his right hand. Although he was unsure if Glover had been hit by the gunshots, Corporal Breazeale requested from central dispatch additional units and an ambulance.
Moments later, Corporal Pam Baily and Sergeant Gordon Summerlin arrived on the scene. Deputy Pailet and Corporal Breazeale continued to guard Glover from their covered position as Baily and Summerlin repositioned themselves; once cover was established, Summerlin then approached Glover from the rear yard and removed the gun from his hand. Noticing that Glover was bleeding from his forehead, Summerlin immediately notified central dispatch that rapid response emergency medical service was needed. Summerlin assumed command of the scene, and relieved Deputy Pailet of his duties due to his involvement and in anticipation of the necessary impending investigation.
Meanwhile, a neighbor, Daniel Tonegal, heard the gunshots. As did Jason's mother, Bethany Glover, and Jason's sister, Janice Sullivan. When Mrs. Glover and her daughter, Jason's sister, Janice Glover, heard the gunshots, they went to the window, where they saw two police cars with flashing lights pulling up to Jason's house. Worried, Janice Sullivan drove from her parents' house to Jason's house, where she saw a third police car in the driveway with only its headlights on. Sitting in her car behind the police car with no blue lights on, she saw Jason's truck parked in his driveway under his carport with the driver's side truck door open. She saw her brother lying on the ground in the grass between the house and the carport; he was not moving. He was apparently still alive, yet no one was tending to him. When she exited her car and announced her presence to the three officers, one of them rushed to her and told her she could not approach; they did not answer her questions.
On May 13, 2013 Jason's parents, Jerry and Bethany Glover, and Jason's sister, Janice Sullivan, sued Deputy Adam Pailet, Corporal Michael Breazeale, and Rodney J. "Jack" Strain, Jr., in his official capacity as Sheriff of St. Tammany Parish. The plaintiffs allege claims under 42 U.S.C. § 1983 for excessive force and denial of medical treatment in violation of the Fourth Amendment, as well as failure to follow departmental policy regarding use of deadly force, and as to the Sheriff, inadequate policies and procedures, and failure to train or supervise, as well as negligent hiring. The plaintiffs also allege several state law claims. Mr. and Mrs. Glover seek to recover from the defendants under state law theories of wrongful death and survival; Mrs. Sullivan alleges a bystander claim under Louisiana law; and, finally, the plaintiffs also allege state law negligence and respondeat superior. On January 21, 2014, the Court granted the plaintiffs' motion to stay this case pending their counsel's treatment for serious health issues. A few months later, the plaintiffs were granted permission to substitute counsel and reopen the case. Invoking qualified immunity, Deputy Pailet and Sheriff Strain now seek summary judgment dismissing the plaintiffs' Section 1983 claims; they also urge the Court to dismiss the plaintiffs' derivative state law claims. In the alternative, the defendants seek summary relief dismissing Janice Sullivan's state law bystander claim.
Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine dispute of fact exists only "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 (1986).
The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative, " summary judgment is appropriate. Id. at 249-50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id . Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). "[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must "resolve factual controversies in favor of the nonmoving party, " it must do so "only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation marks and citation omitted).
Where, as here, the defendants have advanced the affirmative defense of qualified immunity, the usual summary judgment burden shifts to the plaintiffs to show that the defense is not available. ...