United States District Court, W.D. Louisiana, Monroe Division
L. HAYES, MAG. JUDGE.
G. JAMES, UNITED STATES DISTRICT JUDGE.
a civil rights action filed by Plaintiff Clarence Dean Roy
(“Roy”) against Defendants City of Monroe
(“the City”) and James Booth
(“Booth”). Pending before the Court is a Motion
for Summary Judgment [Doc. No. 23] filed by Defendants. For
the following reasons, the Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART.
FACTS AND PROCEDURAL HISTORY
a minister who often preaches with his followers near the
intersection of Pine and Third Streets in Monroe, Louisiana.
The Corner Bar, which is at that location and in close
proximity to several other bars, is known as a gathering spot
for homosexuals. Roy and his followers believe that
homosexuality is a sin. [Doc. No. 23-3, Exh. 3, Roy Depo., p.
22, ll. 1-6]. They preach against homosexuality, as well as
drinking alcohol, and other topics. Id. at ll.
13-14. On multiple occasions, the Monroe Police Department
has been called to the area because of a situation involving
Roy and his followers, both because of their statements and
actions toward patrons and actions taken by others against
Roy and his followers. City police officers receive training
on First Amendment rights as part of their law enforcement
training and are aware that people may peacefully protest as
long as they are not blocking streets or public passages.
[Doc. No. 23-3, Exh. 9, Jared Desadier Depo., p. 19, ll.
14-25, p. 20, l. 1; Exh. 11, Mark Johnson Depo., p. 45, ll.
17, 2015, Roy and his followers were at the same
intersection. At some point, Roy asked one of his followers
to call the police because someone was “putting her
hands all over” another follower. [Doc. No. 23-3, Exh.
3, Roy Depo., p. 15, ll. 16-23].
police arrived on the scene. During the time that they were
investigating the incident, another person in the area,
Jessica Falcon (“Falcon”), was watching the
commotion while her friend, Brooke Wood (“Wood”),
was talking to a police officer. Falcon then crossed the
street to her parked car to retrieve something from the front
passenger seat. Falcon and Wood have testified that Roy
followed after Falcon hurriedly, and Falcon testified that he
began calling her names like “little lesbo” and
telling her that she was “going to hell, ” and
her father was “the devil.” [Doc. No. 23-3, Exh.
5, Falcon Depo., pp. 19-23; Exh. 6, Wood Depo., p. 20, ll.
21]. Falcon further testified that Roy was within a couple of
feet of her car when she reached it and that she was scared
by his words and the manner in which he said them. She
grabbed the items she needed and hurriedly returned across
the street where Wood observed her to be crying and visibly
shaken up. During this time, Wood had asked the officer with
whom she had been talking if they could do anything about
Roy's and his followers' actions and was told she
would have to file a complaint. When Falcon returned, Wood
told her what the officer said, and Falcon made a complaint
to Sergeant James Booth, one of the supervisors on scene. She
identified the person about whom she complained as wearing an
orange jump suit and then pointed out Roy.
denies that he took the actions or made the statements
attributed to him.
Booth issued a summons to Roy for Disturbing the Peace. [Doc.
No. 23-3, Exh. 2]. The relevant City ordinance, Sec. 12-153,
provides as follows:
(a) It shall be unlawful to commit an act of disturbing the
(b) Disturbing the peace is the doing of any of the following
in such a manner as would foreseeably disturb or alarm the
public, or create any dangerous or violent conditions:
(1) Engaging in a fistic encounter; or
(2) Using profane or threatening language or making obscene
remarks, gestures, or indecent proposals to or toward another
which in the manner uttered has a tendency to incite an
ordinary addressee to violent retaliatory action and a breach
of the peace; or
(3) Appearing in an intoxicated condition; or
(4) Engaging in any act in a violent and tumultuous manner by
any three (3) or more persons; or
(5) Holding of an unlawful assembly; or
(6) Interruption of any lawful assembly of people.
Disturbing the peace shall also include the commission of any
act other than that permitted as an exercise of free speech
or free assembly guaranteed by the constitutions of the
United States and the State of Louisiana, in such a manner as
to disturb or alarm the public, or make such a disturbance
imminent, or to provoke another or other to retaliatory
action or violence. (Code 1958, § 10-27; Ord. No. 7087,
Booth's probable cause narrative stated:
On 7-17-2015 at approx 2247 hours I Sgt. Booth, was in the
500 Blk of North 3rd Street dealing with a distance. There
was [sic] group of people outside Club Neat and the Connor
[sic] Bar preaching at the customers. While there I was
approached by Jessica N. Falcon. Jessica stated while she was
crossing the street from Club neat to The Connor Bar a
whi[t]e male wearing an orange jump suite [sic] car[rying] a
large wooden cross Followed [sic] her across the street.
Jessica stated the man called her a homosexual and because of
this she was going to hell. Jessica also stated the man told
her that her father was the devil. Jessica stated this
offended her and it scared her the way he was following her
across the street. Jessica pointed out the suspect to me. The
suspected was id[ed] as Clarence D. Roy. Roy told me he was
not protesting but preaching. Roy was issued a summon (27563)
for disturbing the peace.
[Doc. No. 23-3, Exh. 2].
denies that Sergeant Booth told him the basis for the
April 11, 2016, a trial was held in Monroe City Court. The
case was prosecuted by James Pierre, who interviewed Falcon
and Wood prior to trial. At the conclusion of trial, Judge
Jefferson Joyce found Roy not guilty, although Judge Joyce
did state that he believed Roy had said the type of offensive
things alleged. [Doc. No. 23-3, Exh. 1].
his followers continued their protests and preaching after
this incident without interference by the Monroe Police
Department. However, they stopped their protests and
preaching for awhile because of the instant lawsuit. [Doc.
No. 23-3, Exh. 3, Roy Depo., p. 51, ll. 11-16; p. 52, ll.
11, 2016, Roy filed suit against Defendants asserting claims
that the Ordinance, on its face and as applied, violated his
rights of freedom of speech and free exercise of religion
under the First Amendment, as applied through the Fourteenth
Amendment; that the City's Ordinance, policies, and
practices violated his due process rights under the
Fourteenth Amendment; that Defendants' actions constitute
malicious prosecution in violation of the Fourth Amendment;
and that Sergeant Booth's actions constitute false arrest
in violation of the Fourth Amendment. [Doc. No. 14]. He seeks
declaratory and preliminary and permanent injunctive relief,
award of nominal or compensatory damages, and attorney's
fees and costs.
LAW AND ANALYSIS
Standard of Review
Federal Rule of Civil Procedure 56, summary judgment
“should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c)(2). The moving party bears the initial
burden of informing the court of the basis for its motion by
identifying portions of the record which highlight the
absence of genuine issues of material fact. Topalian v.
Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992). A fact is
“material” if proof of its existence or
nonexistence would affect the outcome of the lawsuit under
applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for
the nonmoving party. Id.
moving party can meet the initial burden, the burden then
shifts to the nonmoving party to establish the existence of a
genuine issue of material fact for trial. Norman v.
Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In
evaluating the evidence tendered by the parties, the Court
must accept the evidence of the nonmovant as credible and
draw all justifiable inferences in its favor.
Anderson, 477 U.S. at 255. However, “a party
cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.
Thus, Summary Judgment is appropriate if a reasonable jury
could not return a verdict for the nonmoving party.”
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,
343 (5th Cir. 2007)(citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248(1986)).
Civil Rights Claims
brought a number of civil rights claims pursuant to 42 U.S.C.
§ 1983. “Section 1983 is not itself a source of
substantive rights; it merely provides a method for
vindicating already conferred federal rights.”
Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003).
“To state a claim under 1983, a plaintiff must allege a
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted). A “person” under § 1983
may include a government entity if liability is premised on a
policy or custom that caused the alleged constitutional
deprivations. Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 694 (1978); Board of Cnty. Comm'nrs of
Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997);
Turner v. Houma Mun. Fire & Police Civ. Serv.
Bd., 229 F.3d 478, 483 n. 10 (5th Cir. 2000). An
official capacity suit against an official is the equivalent
of a suit against the entity of which the official is an
agent. Kentucky v. Graham, 473 U.S. 159, 165-166
(1985); Brandon v. Holt, 469 U.S. 464, 471-472
(1985); Hafer v. Melo, 112 S.Ct. 358, 361 (1991);
McMillian v. Monroe Cnty., Ala., 520 U.S. 781,
784-85, (1997); Burge v. St. Tammany Parish, 187
F.3d 452, 466 (5th Cir. 1999).
case, Roy contends that Defendants, acting under color of
state law, enacted and applied the Ordinance, which is
unconstitutional both on its face and as applied. Roy asserts
that Defendants' actions violated his rights under the
First, Fourth, and Fourteenth Amendments.
Freedom of Speech and Free Exercise of Religion under the
First Amendment provides Roy a right to freedom of speech and
the right to free exercise of religious expression. See
McDaniel v. Paty, 435 U.S. 618, 625 (1978) (religious
expression); Snyder v. Phelps, 562 U.S. 443, 453-55
(2011) (after examining content, form, and context, Supreme
Court found that First Amendment protection on free ...