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Babin v. The Parish of Jefferson

United States District Court, E.D. Louisiana

May 19, 2017


         SECTION "F"



         Before the Court are two motions: (1) Jefferson Parish's motion for summary judgment; and (2) Jefferson Parish Sheriff Deputy Micah Blange's and Sheriff Newell Normand's motion for summary judgment. For the reasons that follow, the Parish's motion is GRANTED insofar as it is entitled to judgment as a matter of law dismissing the plaintiff's facial vagueness challenge to the animal cruelty ordinance, and the law enforcement defendants' motion is DENIED without prejudice.


         On April 11, 2015, shortly after noon in Jefferson Parish, Louisiana, the temperature was in the low 70s with overcast skies.[1]Catheryn Babin was driving her two-door Mini-Cooper convertible.

         Riding as passenger was her two-year-old Catahoula/Labrador mix, Peyton Legion, a trained service dog. Ms. Babin and Peyton Legion were on their way home from a senior citizen center, where Peyton Legion had spent the morning working with residents there suffering from Alzheimer's disease. On the way from the center to her house, Ms. Babin stopped at Big Lots on Veterans Boulevard in Jefferson Parish to buy dog food. Leaving the windows rolled down, the car doors unlocked, and the convertible top pulled back to expose the front seats, [2] Ms. Babin went into the store; Peyton Legion waited in the car.

         Meanwhile, at 12:12 p.m., while Ms. Babin was shopping in Big Lots, a woman named Ashley McMurry[3] called the Jefferson Parish 911 operator to complain that a dog was left unattended for 10 minutes. Ms. McMurry apparently told the operator that the dog was panting and looked “uncomfortable, ” although she also told the operator that the windows were down, it was “not that hot, ” and that the dog did not appear to be in distress.[4] Jefferson Parish Sheriff's Office dispatched a law enforcement officer to the scene.

         When Ms. Babin exited Big Lots, Ms. McMurry confronted her, complaining that the dog was left alone in the car. Ms. Babin showed her that the door was unlocked; as soon as she opened the car door, Peyton Legion came to Ms. Babin and he was then on-leash at Ms. Babin's side in the parking lot. Nevertheless, Ms. McMurry continued to complain and berate Ms. Babin.

         At about 12:25 p.m., Jefferson Parish Sheriff's Office Deputy Micah Blange, in full police uniform, arrived on the scene in his marked vehicle. He first spoke with an unidentified individual as well as Ms. McMurry (whom “hurried after” Blange when he pulled into the parking lot).[5] Soon thereafter, another Jefferson Parish Sheriff's deputy, Michael Voltolina, Jr., arrived at Big Lots. Unlike Blange, Voltolina drove up to where Ms. Babin had parked, examined Ms. Babin's car, and explained to her that deputies were required to come to the scene to investigate, but that he did not see cause for issuing a summons.[6] After Voltolina left Ms. Babin, Deputy Blange drove over to where her car was parked and where she was standing next to her car with Peyton Legion. Blange parked his police cruiser to the rear and perpendicular to Ms. Babin's vehicle, blocking her into the parking space. Blange did not exit his vehicle, but instead called Ms. Babin over to his car, telling her “I need to see your driver's license, ” which she retrieved from her car and handed to him. Blange then asked her a couple questions regarding her identity, and then asked why she had not left her dog at home. Ms. Babin explained that she and Peyton Legion were on their way home from visiting a senior center.

         Without more, Blange told Ms. Babin that he was issuing her a criminal misdemeanor summons. Ms. Babin asked why, to which Blange responded that it was “two against one” (ostensibly referring to Ms. McMurry and the other “concerned citizen”). After completing the summons, Blange exited his car to hand it over to Ms. Babin. He then returned her driver's license, and got back in his car. At that point, Blange indicated to Ms. Babin (without verbalizing) that their encounter was over and that she could go. Ms. Babin asked if it was okay to, or suggested that she would, speak to the other officer (Voltolina) who was still somewhere in the Big Lots parking lot. Blange then left the scene in his car. Ms. Babin went to speak to Voltolina, apparently to complain about being issued a summons, but Voltolina simply said, “That's not under my control.”

         Blange had issued Ms. Babin a criminal misdemeanor summons for violating of Jefferson Parish ordinance proscribing animal cruelty. Section 7-126 of the ordinance provides:

Sec. 7-126. - Cruelty in general.
(a) No person shall ill-treat, neglect, abandon, or cruelly treat an animal. No person shall unnecessarily or cruelly beat, mutilate, kill, torture, inflict injury, or abuse, or cause or procure to be cruelly beaten, mutilated, killed, tortured, injured, or abused, any animal or commit any act which under any other law constitutes cruel treatment, or fail to provide obviously necessary veterinary care.
(b) No animal shall be tethered as a means of stationary confinement; such stationary confinement by tethering shall be considered as cruel treatment.
(c) No animal shall be denied access to proper food, water, shelter, sanitary and safe environment, or proper veterinary care as is provided in section 7-16 and in Division 6 of Chapter 7.
(d) No domesticated animal shall be transported or carried in or upon any vehicle in a cruel, inhumane, or dangerous manner. Any animal transported in the open bed of a vehicle must be safely and securely located in a secure crate or carrier that is fastened to the bed of the vehicle to prevent the animal from jumping out of such vehicle or otherwise injuring itself. Any other such transport shall be considered animal neglect. No animal shall be left inside a vehicle or in a crate/carrier while unattended unless there is reasonable containment during acceptable weather conditions or the animal is provided proper temperature control with regular monitoring conditions, including but not limited to during American Kennel Club sanctioned events.
(e) When a person is charged with cruelty to animals, said person's animal may be seized. Any animal so seized shall be impounded in the custody of the Jefferson Parish Animal Shelter or other location approved by the Director of the Jefferson Parish Animal Shelter.
(f) All charges subject to Division 6 are subject to the jurisdiction of the bureau of administrative adjudication and also the Jefferson Parish District Attorney's Office for criminal prosecution under relative procedures and law.

(emphasis added). Two weeks after issuing the summons, Blange drafted a report to support the citation.

         On May 15, 2015, the Jefferson Parish District Attorney's Office filed a bill of information in the First Parish Court for the Parish of Jefferson, charging Ms. Babin with cruelty to animals in violation of Code Section 7-126. Ms. Babin made three separate court appearances and ultimately retained a criminal defense attorney to defend her against the charge. On March 3, 2016, when she and her attorney appeared for the trial, the charge was dismissed.[7]

         Shortly thereafter, Ms. Babin filed this civil rights lawsuit under 42 U.S.C. § 1983, naming as defendants Jefferson Parish, Deputy Micah P. Blange, in his individual capacity, and Newell Normand, in his official capacity as Sheriff of Jefferson Parish. Ms. Babin advances several claims. She alleges two claims against Blange: that her Fourth Amendment right to be free from unlawful seizure was infringed when Blange seized her without probable cause, subjecting her to false arrest;[8] and that Blange defamed her under Louisiana law.[9] Ms. Babin also alleges that Sheriff Normand is liable under the theory of respondeat superior for her Louisiana claims because Blange was acting in the course and scope of his employment. Finally, Ms. Babin alleges that Jefferson Parish is liable because Section 7-126 violates her right to substantive due process; the provision is unconstitutionally vague on its face, Ms. Babin alleges, because it defines neither “acceptable weather condition” nor “proper temperature control.” Ms. Babin seeks three types of relief. First, Ms. Babin seeks declaratory relief with respect to the vagueness of the ordinance. Second, Ms. Babin seeks to enjoin the Parish and Sheriff Normand from enforcing the vague provision to prevent future deprivations of Ms. Babin's and other parties' rights to substantive due process. Finally, Ms. Babin seeks to recover money damages and attorney's fees from Jefferson Parish; she also seeks money damages from Blange for the emotional and mental distress, reputational damage, and attorney's fees she incurred defending the criminal charge.

         Jefferson Parish moved for summary judgment dismissing the plaintiff's claims against it, and the plaintiff cross moved for partial summary judgment that certain terms in the animal cruelty ordinance are unconstitutionally vague. On January 11, 2017, the Court denied both motions “[b]ecause neither the Parish nor the plaintiff persuades the Court that the plaintiff may pursue a facial challenge to the ordinance, and because neither has submitted any evidence that could serve as a factual predicate to analyze the plaintiff's ‘as applied' challenge.” See Order and Reasons dtd. 1/11/17.

         Jefferson Parish now (again) seeks summary judgment insofar as the plaintiff advances a facial challenge to the ordinance. Jefferson Parish Sheriff Newell Normand and Deputy Micah Blange also seek summary judgment in their favor dismissing the plaintiff's Section 1983 claim on the grounds that: the alleged Fourth Amendment violation fails as a matter of law because the plaintiff was not “seized;” Deputy Blange is entitled to qualified immunity; and the plaintiff lacks standing to challenge prospective application of the ordinance.[10]


         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 Corp., 475 U.S. 574, 587 (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 mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Ultimately, "[i]f the evidence is merely colorable . . . or is not significantly probative, " summary judgment is appropriate. Id. at 249 (citations omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted) (“[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of a claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must adduce competent evidence, including but not limited to sworn affidavits and depositions, to buttress his claims. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). However, affidavits or pleadings which contradict earlier deposition testimony cannot create a genuine issue of material fact sufficient to preclude an entry of summary judgment. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996); Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 137 n. 23 (5th Cir. 1992).

         In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted). 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).


         Standing is a threshold issue and, yet, it is raised as an apparent afterthought in only the law enforcement defendants' motion. Sheriff Normand and Deputy Blange challenge Ms. Babin's standing; their challenge is limited to her request for prospective relief, but they merely reiterate the core component of the standing requirement. Ms. Babin counters that she has satisfied the requirements for Article III standing. Ms. Babin submits that she does not merely allege a generalized citizens' interest in good government as suggested by the defendants. Like each of the issues presented by the parties' motions (whether the parties have identified relevant issues, or, more often, not), this issue is inadequately briefed and -- if there is evidence in the record directed to supporting or undermining the factual predicate for standing -- neither side points it out.

         "Article III of the Constitution limits federal courts' jurisdiction to certain 'Cases' and 'Controversies.'" Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1146 (2013)(“The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.”). “No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal court-jurisdiction to actual cases and controversies.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)(citation omitted). "One element of the case-or-controversy requirement" -- standing to sue -- commands that a litigant must have standing to invoke the power of a federal court. See Clapper, 133 S.Ct. at 1146 (citation omitted); see also National Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011).

         “To establish Article III standing, ” the Supreme Court has written on numerous occasions, “a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2341 (2014)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes -- that the injury is certainly impending.” Clapper, 133 S.Ct. at 1147 (citation omitted, emphasis in original). “Allegations of possible future injury are not sufficient.” Id. (citation omitted, emphasis in original). Put differently, “an allegation of future injury may suffice if the threatened injury is ‘certainly impending, ' or there is a ‘substantial risk' that the harm will occur.” Driehaus, 134 S.Ct. at 2341 (citing Clapper, 133 S.Ct. at 1147, 115, n.5).[11]

         The party invoking federal jurisdiction, here, Ms. Babin, bears the burden of establishing standing as to each claim alleged. Clapper, 133 S.Ct. at 1146; DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Miss. State Democratic Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008); Doe v. Tangipahoa Parish School Bd., 494 F.3d 494, 499 (5th Cir. 2007)(“Standing to sue must be proven, not merely asserted, in order to provide a concrete case or controversy and to confine the courts' rulings within our proper judicial sphere.”). Critically, “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Driehaus, 134 S.Ct. at 2342 (citing Lujan, 504 U.S. at 561).

         To meet the irreducible constitutional minimum of standing to seek injunctive relief, the plaintiff must establish that “[s]he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)(citations and internal quotations omitted).[12] However, the plaintiff may not simply rely on past injury to satisfy the injury requirement; she must show a likelihood that she will be injured in the future. See O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)(holding that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief...if unaccompanied by any continuing present adverse effects).

         Here, the plaintiff argues that she meets the irreducible constitutional minimum of standing: because she was detained, summoned, and prosecuted (her injury) by virtue of (and therefore traceable to) the allegedly inartfully drafted Jefferson Parish's animal cruelty ordinance and its unreasonable application to her, she submits that her injury will be redressed by a Court ruling (that the ordinance is unconstitutionally vague and that Deputy Blange violated her Fourth Amendment right) and an injunction issuing against its enforcement. It is clear in the record that Ms. Babin has supplied a predicate for retrospective relief for her detention, summons, and prosecution; however, the present state of the record does not permit a finding that Ms. Babin's past exposure to allegedly illegal conduct is accompanied by continuing, present adverse effects. And the Court will not speculate that Ms. Babin fears a repeat encounter with Jefferson Parish Sheriff's Office deputies.[13] Nevertheless, because the Court finds that the briefing and the record is likewise inadequate to resolve other issues raised by the parties' motions for summary judgment, the Court will allow supplemental briefing on the standing issue. Whether the plaintiff ...

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