United States District Court, M.D. Louisiana
ANDREW B. LEWIS
NICHOLAS LOCICERO, et al.
RULING AND ORDER
A. JACKSOW, CHIEF JUDGE.
the Court is a Motion for Summary Judgment (Doc.
39) filed by Livingston Parish Sheriff Jason Ard and
a Motion for Summary Judgment (Doc. 40)
filed by Deputy Nicholas LoCicero. Both
Sheriff Ard and Deputy LoCicero ("Defendants*') seek
an order dismissing Andrew Lewis' ("Plaintiff)
claims in their entirety. Also before the Court is a
Motion for Partial Summary Judgment (Doc.
41) filed by Plaintiff, seeking a finding
that Deputy LoCicero is liable under 42 U.S.C. § 1983
because he arrested Plaintiff without probable cause. Each
party has filed an opposition (Docs. 48 and 53), and replies
where applicable (Docs. 57 and 58). For reasons explained
fully herein. Sheriff Ard's Motion for Summary
Judgement (Doc. 39) is GRANTED IN PART AND
DENIED IN PART. Deputy LoCicero's Motion
for Summary Judgment is GRANTED IN PART AND
DENIED IN PART (Doc. 40), and Plaintiffs
Motion for Partial Summary Judgment (Doc.
41) is DENIED.
alleges that on March 6, 2014, he stopped at a Wahnart store
in Denham Springs, Louisiana to purchase some supplies. (Doc.
35 at ¶ 16). After stopping, Plaintiff fell asleep in
the parking lot in his truck, and at around 1:12 AM, Deputy
LoCicero of the Livingston Parish Sheriffs Office woke him
up. Id. at ¶ 17. Plaintiff avers that Deputy
LoCicero then searched his truck without reasonable cause and
found three Concerta pills. Id. at ¶¶ 18,
20, Concerta is a prescription drug that treats attention
deficit hyperactivity disorder ("ADD").
Id. at ¶ 21. It is a controlled substance under
Louisiana law. La. R.S. § 40:964(A)(C)(4). Plaintiff
alleges that he had a prescription, but that he could not
locate it. (Doc. 35. at ¶ 20). As a result, Deputy
LoCicero arrested him for possession of a controlled
substance. Id. at ¶ 23.
next day, Plaintiff alleges that he was released on bail and
went to work at Greystone Golf, LLC at 6:00 am. Id.
at ¶ 26-28. He alleges that after his release, Sheriff
Ard and Deputy LoCicero tried to convince Derek Lockhart, his
supervisor at Greystone Golf, to fire him because he was a
drug dealer. Id. at ¶ 29. Plaintiff alleges
that Mr. Lockhart and Sheriff Ard are friends. Id.
at ¶ 29(A). Mr. Lockhart suspended Plaintiff on March
11, 2014. Id. at ¶ 30. Plaintiff alleges that
Mr. Lockhart and Greystone Golf also fired him because he
took prescription medication for his ADD and treated him
differently based on a disability. Id. at ¶
filed the instant action on March 6, 2015, against Deputy
LoCicero, individually; Sheriff Ard, individually and
officially; Derek Lockhart; and Greystone Golf. (Doc. 35).
Plaintiff brings this action against Mr. Lockhart and
Greystone Golf under 42 U.S.C. §§ 1983 and 1988,
Americans with Disabilities Act, 42 U.S.C. § 12101, and
La. R.S. 23:301. Id. at ¶ 1. Plaintiff brings
this action against Deputy LoCicero and Sheriff Ard under 42
U.S.C. §§ 1983 and 1988 for violating his Fourth,
Fifth, Eighth, and Fourteenth Amendment rights. (Doc. 35 at
February 29, 2016, the Court dismissed all of Plaintiffs
claims against Derek Lockhart and Greystone Golf under
Fed.R.Civ.P. 12(b)(0) for failure to state a claim. (Doc.
26). On December 30, 2016, Defendants filed motions for
summary judgment, (Docs. 39 and 40), and Plaintiff filed a
cross-motion for partial summary judgment, (Doc. 41). On
March 27, 2017 the Court heard oral argument. (Doc. 61).
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and that the
movant is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(a). "[W]hen a properly supported motion
for summary judgment is made, the adverse party must set
forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986) (quotation marks and footnote
determining whether the movant is entitled to summary
judgment, the Court "view[s] facts in the light most
favorable to the non-movant and draw[s] all reasonable
inferences in her favor." Coleman v. Houston Indep.
Sch. DisL, 113 F.3d 528, 533 (5th Cir. 1997). At this
stage, the Court does not evaluate the credibility of
witnesses, weigh the evidence, or resolve factual disputes.
Int'l Shortstop, Inc. v. Rally's, Inc., 939
F.2d 1257, 1263 (5th Cir. 1991), cert, denied, 502
U.S. 1059 (1992). However, if the evidence in the record is
such that a reasonable jury, drawing all inferences in favor
of the non-moving party, could arrive at a verdict in that
party's favor, the motion for summary judgment must be
denied. Int'l Shortstop, Inc., 939 F.2d at 1263.
On the other hand, the non-movant's burden is not
satisfied merely upon a showing of "some metaphysical
doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of
evidence." Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994).
summary judgment is appropriate if, "after adequate time
for discovery and upon motion, [the non-movant] fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary
judgment will lie only "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits if any, show that there is no genuine issue
as to any material fact, and that the moving party is
entitled to judgment as a matter of law." Sherman v.
Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
Plaintiffs § 1983 Official Capacity Claims
§ 1983 suit against a government official, like a police
officer, in his official capacity cannot be based on a theory
of vicarious liability. Alton v. Texas A & M
University, 168 F.3d 196, 200 (5th Cir. 1999). Rather,
§ 1983 liability for a government official sued in his
official capacity requires proof of three elements: "(1)
an official policy (or custom), of which (2) a policymaker
can be charged with actual or constructive knowledge, and (3)
a constitutional violation whose moving force is that policy
or custom." Quinn v. Guerrero, 863 F.3d 353,
364 (5th Cir. 2017) (internal citation omitted). Further,
"each and any policy which allegedly caused
constitutional violations must be specifically identified by
a plaintiff[, ]" in order for the necessary
determination to be made on the policy's relative
constitutionality." Piotrowski v. Houston, 237
F.3d 567, 573 (5th Cir. 2001).
seeks summary judgment on Plaintiffs § 1983 claims
against Sheriff Ard in his official capacity because
Plaintiff has not identified an official policy that caused
Plaintiff to suffer a constitutional violation. (Doc. 39 at
p. 12-14). Plaintiff argues that it is undisputed that it is
the custom of the Livingston Sheriffs Office for officers to
arrest anyone who possesses a controlled substance, which can
be prescribed, unless they can produce a copy of the
prescription. (Docs. 41-3 at p. 6 and 48 at p.
Sheriff Ard concedes that he is a policymaker for the
Livingston Parish Sheriffs Office. (Doc. 39-2 at 12). He
asserts, however, that there is a dispute about whether this
is the policy of the Sheriffs Office. (Doc. 46-1 at ¶
1)- To support this assertion, he cites his own deposition
testimony, where he admits that it is the practice of
officers to write down anything the suspect says. (Docs. 46
at ¶ 1 and 46-3). He does not address any general
policies about whether officers consider these statements in
making probable cause determinations. Sheriff Ard therefore
has not shown that there is a genuine dispute of
matei'ial fact about the existence of the policy.
See Fed. R. Civ. P. ...