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Lewis v. Locicero

United States District Court, M.D. Louisiana

September 7, 2017

ANDREW B. LEWIS
v.
NICHOLAS LOCICERO, et al.

          RULING AND ORDER

          BRIAN A. JACKSOW, CHIEF JUDGE.

         Before 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.

         I. BACKGROUND

         Plaintiff 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.

         The 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 ¶ 37(A).

         Plaintiff 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 ¶ 1).

         On 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).

         II. LEGAL STANDARD

         Summary 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 omitted).

         In 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).

         In sum, 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).

         II. DISCUSSION

         A. Plaintiffs § 1983 Official Capacity Claims

         A § 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).

         1. Sheriff Ard

         Defendant 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. 3).[1] 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. ...


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