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Drumgole v. Frumveller

United States District Court, E.D. Louisiana

May 13, 2015



MARTIN L. C. FELDMAN, District Judge.

Before the Court is the defendants' motion to dismiss or for summary judgment.[1] For the reasons that follow, the motion is GRANTED.


This case arises from the allegedly unlawful seizure of and excessive force used against the plaintiffs' three minor children, Jakyren Bissant (male, age 15), Lanyla Desmond (female, age 11), and Devin Desmond (male, age 9). On the evening of December 15, 2013, the three children were walking in their neighborhood when they were stopped by Officers Frumveller, Coll, and Rappold of the Kenner Police Department. The officers were responding to a report of a robbery at 2621 Augusta Street in Kenner, LA, by "three black male juveniles, " one of whom was identified as wearing "a red and white t-shirt." The dispatch said that the juveniles were running towards Veterans Boulevard. The officers came across this group of children walking or running along 27th Street, which runs parallel to Veterans, and stopped them. Jakyren was wearing a polo shirt with red, white, black, and gray stripes.

The plaintiffs contend that the oldest child, Jakyren Bissant, who suffers from autism spectrum disorder and moderate intellectual disability, froze and said he had done nothing wrong when Officer Frumveller yelled at the children, "Get your f***ing hands on the car." Frumveller threw Jakyren to the ground, who then tucked his body to protect himself from the officer. Officer Coll then tasered the boy three times before handcuffing him and putting him in the back of a police car. When the younger children tried to run to a neighbor's house to get away from the police, Officer Rappold grabbed them, pushed Devin Desmond's arm up his back, and threw the children into the back of a police car. The robbery victim was brought to the scene, and he told the officers that the three children were not his robbers. The two younger children were released to their parents, and Jakyren was arrested for resisting arrest.

The plaintiffs contend that as a result of the children's unlawful seizures, the children suffered mental, emotional, and physical pain and suffering. They sue under 42 U.S.C. § 1983, contending that the arrests were made without probable cause and with excessive force, in violation of the Fourth and Fourteenth Amendments to the United States Constitution; they also bring claims under state law for battery and false arrest. The plaintiffs allege that the City of Kenner is liable for the tortious actions of its officers under the theory of respondeat superior, because the officers were acting in the course and scope of their employment with the City. Finally, believing that the officers' actions were malicious and wanton, the plaintiffs seek punitive damages.

The defendants now move for summary judgment, contending that the plaintiffs cannot establish that the stops were without probable cause and that the force used was unreasonable. The officers contend that qualified immunity protects them from suit. The defendants also submit that the City is not liable, because the plaintiffs have not suggested that there was a policy or decision that was officially adopted and promulgated by the City. The plaintiffs respond that more discovery-in particular, depositions of the defendant officers-is needed, and thus the Court should defer consideration of the motion for summary judgment. They submit, in the alternative, that material facts are in dispute.


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 claim. 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). Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.



Title 42, U.S.C. § 1983 creates a damages remedy for the violation of federal constitutional or statutory rights under color of state law; it provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any... person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.

To establish § 1983 liability, the plaintiff must satisfy three elements:

(1) deprivation of a right secured by the U.S. Constitution or federal law,
(2) that occurred under color of ...

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