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Bradley v. Ackal

United States District Court, W.D. Louisiana, Lafayette Division

October 22, 2017




         Currently pending is the motion for summary judgment filed by defendants, Iberia Parish Sheriff Louis M. Ackal and Iberia Parish Sheriff's Deputy Justin Ortis. (Rec. Doc. 55). The motion is opposed (Rec. Doc. 59), and oral argument was held on July 28, 2017. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, this Court finds that there are genuinely disputed issues of material fact that preclude summary judgment in the defendants' favor. Accordingly, the defendants motion for summary judgment is GRANTED IN PART and DENIED IN PART.


         It is undisputed that, in the early morning hours of March 3, 2014, Victor White, III died while in the custody of the Iberia Parish Sheriff's Office. He died as the result of a single gunshot wound while sitting in the back seat of a sheriff's office patrol unit with his arms handcuffed behind his back. White had been arrested by Deputy Ortis, handcuffed, and transported in the back seat of Otis' unit to the parking lot of the Iberia Parish Sheriff's Patrol Center where the fatal shooting occurred.

         This lawsuit was filed by Shandell Marie Bradley on behalf of her minor child AJW, who is also White's daughter. The plaintiff sued Sheriff Ackal and Ortis, individually and in their official capacities, under 42 U.S.C. § 1983. She alleged that the defendants subjected White to excessive force and acted with deliberate indifference to his medical needs, in violation of the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution, and further alleged that their actions and omissions led to White's death. The plaintiff also asserted another Section 1983 claim, in which she alleged that the defendants violated the Fourth and Fourteenth Amendments by depriving the child of the right to familial relationships. Additionally, the plaintiff asserted a wrongful death claim, a survival claim, negligence claims, and assault and battery claims under Louisiana state law. These claims included an allegation that the defendants failed to “properly observe, maintain or otherwise protect” White's safety while he was in police custody.

         In their motion, the defendants correctly point out that White was not a convicted inmate at the time of his death, and therefore, the plaintiff has no viable claim for violation of White's rights under the Eighth Amendment. The cruel and unusual punishment clause found in the Eighth Amendment only applies to treatment of individuals convicted of a crime.[1] Therefore, to the extent that the plaintiff seeks relief based on a violation of the Eighth Amendment (as opposed to the standard imposed by the Eighth Amendment but made applicable to pre-trial detainees under the Fourteenth Amendment), the Court will grant the motion and dismiss that aspect of plaintiff's claims under the Eighth Amendment.

         The defendants also contend that Ortis is entitled to qualified immunity as the plaintiff has not shown that there was any Constitutional violation on his part or evidence to support a deliberate indifference claim. They also contend that the plaintiff has failed to establish either an individual or official capacity claim against Sheriff Ackal. Finally, the defendants contend that there is insufficient evidence to support any claim under state law against Ortis or Sheriff Ackal. In support of their motion, the defendants rely heavily on the information, statements, and reports contained in the Louisiana State Police Case Report (the “LSP report”) prepared and supplemented by Master Trooper Katie Morel.[2] In addition, the defendants rely on the coroner's report, lab reports, records from Ortis, and deposition excerpts from the testimony of Lt. Jeffery Schmitt (sometimes spelled Schmidt) and Sheriff Ackal.[3]Ortis had not been deposed at the time the motion was filed or as of the date of this ruling.

         In opposition, the plaintiff contends that there are genuine issues of material fact with regard to the excessive force and the state-law claims. She relies heavily on the deposition testimony of Sheriff Ackal, Lt. Schmitt, Stacie Smith (an investigator for the Iberia Parish Sheriff's Office), Capt. Darren Bourque (the Director of Technical Services with the IPSO), video recordings of the interior of a convenience store (as well as its parking lot) where White was present prior to the shooting, and dash camera recordings from Ortis's unit. She also included a state police press release and an indictment of Sheriff Ackal and one of his supervisors at the IPSO, Gerald Savoy, in which both were charged with one count of conspiracy against rights in violation of 18 U.S.C. § 241 and deprivation of rights in violation of 18 U.S.C. § 242.[4] The charges stemmed from allegations of excessive force and physical abuse of pre-trial detainees at the Iberia Parish Jail in April 2011. The plaintiff supplemented her opposition, without objection from the defendant, with the report of an expert.

         Following the hearing on the motion, the Court raised the possibility of taking judicial notice, pursuant to F.R.E. 201, of the testimony adduced at the criminal trial of Sheriff Ackal, as well as the stipulated factual basis for guilty pleas by multiple deputies and the warden of the jail, who admitted to the conduct set forth in the indictment of Sheriff Ackal and Savoy. The parties were given an opportunity to be heard pursuant to F.R. E. 201(e), and briefs were submitted.


         Some of the facts contained in the record are not in dispute. However, many of the facts are taken from the LSP report, are based on hearsay, and a number of them are inconsistent to varying degrees. Since the LSP report was submitted in support of the defendants' motion for summary judgment without objection from the plaintiff, this Court has attempted to set forth all of the material facts contained within the report regardless of the source of the information.

         On the evening of Sunday, March 2, 2014, an anonymous 911 call reported a fight at the Hop In, a convenience store in New Iberia, Louisiana. The report to the dispatcher was that two black males were fighting in the parking lot and one mentioned having a gun. Ortis stated in his report, which is time stamped March 12, 2014 at 1234 - nearly twelve days after the incident - that he was given no further description of the subjects other than that they were running down Alvin Street.[5] The dispatcher remarks and narratives indicate “2 blk male fighting on the park, one mentioned a 95G and the [...illegible...] Y left running.”[6]

         In the “911 recording, ” the caller, Jason Mixon, described one of the black males as having an afro-type hair style who was wearing saggy pants with red boxers visible. Mixon further indicated that one of the men took off running down Alvin Street and said words to the other man that he was going to come back and “pop your ass.”[7]

         Mixon was interviewed by LSP approximately a month after the shooting regarding the 911 call. In that interview, Mixon described one of the individuals involved in the altercation as a younger man wearing sagging pants that exposed his boxer shorts and stated that he possibly had his shirt removed. The older man engaged in the fight made the comment “I have something for you” and said he was going to “put a bullet” in the other person's “ass.” Mixon stated that the two men began running down Alvin Street and that was when he made the 911 call. During what is described as a clarification phase of the interview, Mixon indicated that he told the 911 dispatcher that one the men who took off running down Alvin Street was wearing a white shirt and the other one had no shirt on.[8]

         Iberia Parish Sheriff's Deputies Justin Ortis and Jason Javier were dispatched to the scene. While approaching the vicinity of the Hop In, Ortis observed White and Isaiah Lewis walking together down Alvin street away from the Hop In. Ortis stopped them. The dash cam footage from Ortis's patrol unit indicates that neither Lewis nor White had an afro-style haircut, neither had sagging pants with boxer shorts exposed, and neither had his shirt off. However, White was wearing a light colored basketball jersey. In the LSP Crime Lab Report, this shirt was described as a “white and gray striped size men's large ‘Brooklyn Nets' basketball A-shirt (sleeveless muscle type).”[9]

         The two men identified themselves to Ortis and explained that they were not involved in the fight. According to MT Morel, “after a brief conversational exchange, Corporal Ortis was satisfied White and Lewis were not the persons involved in the fight at the Hop In store.”[10] Nonetheless, Ortis informed the two that they would be subjected to a “pat-down search” and that he would run a warrants check and if the checks were clear they would be free to go.[11] The record is undisputed that the warrants checks on both men were clear.

         In his report of March 12, Ortis stated that after Lewis and White advised they were not involved in the fight, he told them “that they would be checked for anything illegal and for outstanding warrants and if clear they would be on their way.”[12] In his statement given to MT Morel on March 5, 2014, Ortis indicated again that he told Lewis and White “if they were not carrying anything illegal and had no outstanding warrants for their arrest, they would be fee to leave.”[13]

         In the LSP report of the statement by Lewis, MT Morel indicated that Lewis said “the deputy asked White and Lewis where they were coming from. They replied they had just left the store. The deputy inquired as to if they knew anything about a fight occurring at that location. They told the deputy they had observed two men ‘scuffling, ' but those men had already left the area. The deputy told them he would check their information then would let them go.”[14]

         Deputy Javier had also observed two people walking down Alvin Street. He approached the two individuals, detained them momentarily, and checked their identities. According to the LSP report of Javier's statement, “[u]pon questioning, they informed him they were not the persons involved in the fight. As Deputy Javier was speaking with his two subjects, he observed a unit arrive in the area and stop the other two subjects who were walking in the opposite direction. Satisfied his detainees had not been involved in any fight, Deputy Javier allowed them to leave.”[15]There is no indication anywhere in the record that the two individuals stopped by Deputy Javier were subjected to a pat-down search or a warrants check.

         In both the statement given to LSP and in his report, Ortis indicated that both Lewis and White were very cooperative. There is no evidence in the record that either Lewis or White ever appeared to pose a threat to Ortis's safety.

         According to the LSP report, Lewis stated that “early on in the stop, Victor White told the first deputy (Cpl. Ortis) that he knew him. Cpl. Ortis acknowledged recognition of White and engaged in a conversation that lent itself to confirmation that Cpl. Ortis, in fact, knew White. Specifically, Ortis asked White how he was doing, and ‘did you get a warrant or something cleared...?' He also asked White how his dad was doing and other things that led Lewis to believe they knew each other. Sometime later, a second (back-up) unit arrived at their location. Victor also recognized that deputy, later identified as Deputy Jason Javier and Deputy Javier recognized him.”[16]

         According to the LSP report, in his interview, Deputy Javier indicated that he had handled a call involving White in November 2013. He remembered the day because it was his first day on the job with the IPSO. Cpl. Ortis was assigned as Javier's training officer and was present when the interaction took place. Javier arrested White on an outstanding warrant. White was cooperative and “very polite” but was upset because he thought the warrant had been recalled but it was still active. White was arrested and taken to the IPSO jail.[17]

         Ortis gave his initial interview to LSP on March 5, 2014 - two days after the shooting. The report of that interview indicates that “when asked if he knew Victor White, III, Cpl. Ortis said he looked familiar, but did not know him by name. He had no prior dealings with White that he could recall.”[18] On March 26, 2014, Ortis was interviewed a second time. He was asked “if he recalled having previous police interactions with Victor White, III. Cpl. Ortis acknowledged that in his first LSP interview, he denied having had prior dealings with White. However, following his first interview, at the request of LSP detectives, IPSO personnel conducted research through their CAD system. The IPSO personnel informed Cpl. Ortis he had, in fact, had a prior police interaction with White in November of 2013. Cpl. Ortis did not recall his previous interaction with White until it was brought to his attention.”[19]

         The dash cam video from Ortis's unit clearly shows, rather than a pat-down search for weapons outside of White's clothing as he did with Lewis, Ortis searched very thoroughly inside White's front left pants pocket and retrieved something before White was handcuffed. The audio is not activated. Immediately afterward, White was handcuffed behind his back and seated on the ground at the front of the unit where he remained while Lewis was patted down and for several minutes afterwards. At this point, the factual accounts of the searches and seizure become quite varied.

         In the LSP report, MT Morel reports “the initial pat-down of Victor White, III, revealed he had a small bag of (what appeared to be and what White confirmed it to be) marijuana concealed in the outer, right, front pants pocket of his jeans. White was then restrained behind his back in handcuffs by Cpl. Ortis. A second pat-down of White's outer clothing revealed a small bag of (what appeared to be) white powdered cocaine concealed in his small, right, front, ‘jewel-holder' pants pocket. Cpl. Ortis had not located any weapon on White, up to that point.”[20]

         In his report time stamped March 12, Ortis stated: “Cpl Ortis first did a pat down of White. Cpl Ortis detected a small bulge in the front right pants pocket. Cpl Ortis asked White what the bulge was and White replied, “that's marijuana.” Cpl Ortis then removed the suspected marijuana which was inside a jewelers bag or “dime bag” and placed the item into Cpl Ortis' left hand, which were holding White's hands. Cpl Ortis then started again with the pat down of White by raking my hand across the back and front waistband area and each remaining pockets. Cpl Ortis found nothing of interest and placed White into handcuffs. Cpl Ortis advised White he was being detained for a narcotics investigation and placed White sitting in front of the patrol unit.”[21]

         Ortis's report goes on to state that White was read his Miranda rights and questioned at the rear of the unit. This questioning was out of view of the dash cam. Ortis stated he “advised White he would remove his property to keep track of it in case he would have to go to jail. While removing White's property, Cpl Ortis located a small jewelers bag of powder cocaine, U.S. Currency, Cell phone, Leather Wallet, coins, a key and a pack of Cigarillos.”[22]

         In the initial interview given by Ortis to LSP on March 5 regarding the description of the searches and seizure, Ortis stated that he handcuffed White after he found the marijuana, then completed the “brief pat down” and “having felt no other bulges in White's outer clothing. . . had White sit down on the road.” In this version of the events of March 2, Ortis informed White that he was “going to remove the rest of his property from his pockets in order to keep all of it together, just in case he did go to jail. As he emptied White's pockets, he located a wallet; cell phone; U.S. Currency and coins, a house key; and in the small, right, front “jewel” pocket - a dime bag of white powdered cocaine.”[23]

         According to the LSP report of the interview of Lewis, “the pat-down of White's outer clothing revealed White had a small amount of suspected marijuana in his (left front) pants pocket. . . . Cpl. Ortis handcuffed White (behind his back) but informed him he would not be going to jail for such a small amount [of] marijuana. Later, Cpl. Ortis told White, though he was not going to jail at that point, he had to detain him. . . . Cpl. Ortis later put White in the back seat of [the] police unit and Lewis remained seated on the ground in front of the police unit.”[24]

         The dash cam video reveals the first search and Ortis finding what is not readily identifiable but was allegedly marijuana. Neither the other “pat-down” nor the retrieval of White's property from his pockets occurred in view of the camera. What is visible is that White was handcuffed with his hands behind him. According to the LSP report, the dash cam video from Javier's unit depicted White displaying “good mobility and much flexibility in his arms and hands, as he was able to reach around the left side of his body, bringing his hands towards, the front of and above his left pants pocket.”[25] The dash cam video from Javier's unit was not provided.

         According to the LSP report, “White immediately told Cpl. Ortis he did not want to go back to jail and requested to speak with a narcotics officer.”[26] According to Ortis in his first interview, “White was very concerned about the possibility of having to go to jail. He inquired several times if he was going to jail. He wanted Cpl. Ortis to promise him he would not go to jail.”[27]

         According to Ortis's statement in his first interview, after Ortis drove White to the patrol center ostensibly to meet with a narcotics agent, Ortis “exited his unit then opened the rear driver's side door and instructed White to get out of the vehicle so they could go inside and talk. White refused to get out of the unit. He said he could not go back to jail then he began to cry. He said he couldn't go to jail no more and to tell his people he loved them. . . Lt. Schmidt walked out to Cpl. Ortis' unit and positioned himself in the opened rear (driver's side) doorway, as Cpl. Ortis stood nearby. Lt. Schmidt leaned in and told White he needed to get out of the vehicle or they would have to ‘drag him out.'”[28]

         Lt. Schmitt's statement is slightly different but is consistent with regard to White's concern about going to jail. According to Lt. Schmitt's statement given to LSP, “he walked over to the opened rear door and said to White, ‘Come on, man. You gonna have to get out of the car. You know; one way or the other. White replied, ‘Nah, I don't want to go to jail. I don't want to go to jail. I said, Well, we haven't established that, yet. We still, still need to talk to the narcotics agent, but you have to get out of the car. And then White said ‘I'm gone!' And right after he said that, that's when I heard the gunshot.”[29]

         In his deposition testimony, Lt. Schmitt testified on multiple occasions about White's concern about going to jail. When Schmitt first approached White, “he was saying that he couldn't go to jail. He kept repeating that, and he needed to talk to somebody. So I asked him, I said, ‘Are you - are you wanting to talk to a narcotics agent?' and he said, ‘I just need to talk to somebody.' I said ‘Okay. Well it's not the end of the world yet, you know.”[30] Schmitt testified again “I told Mr. White, I said, ‘Look man, you're going to have to get out the car (sic). You can't stay in the car all night long.'” When asked what White said in response to this statement, Schmitt testified, “[h]e kept saying that he couldn't go back to jail and he couldn't go back to jail. And that's - that's just what he kept repeating.”[31]

         Lt. Schmitt did not remember saying to White that if he did not get out of the car, Schmitt would drag him out, but he did testify that “I just told him he was going to have to get out of the car, and he just kept saying, ‘I can't go to jail. I can't go to jail.”[32] Schmitt went on to testify, “I told him a couple of times to get out of the vehicle. He kept saying, ‘I can't go to jail. I can't go to jail, ' and - then he said, ‘I'm gone.'”[33]

         At that point, Lt. Schmitt heard what he described as a pop. He stepped back and drew his weapon which had a light on it. He observed White slumped over in the back seat. Schmitt testified that he removed White from the unit, removed the handcuffs, and began first aid. White ultimately succumbed to a gunshot wound that entered his right chest, perforated his right 5th intercostal space, right lung, heart, left lung, and 6th intercostal space, then exited his left lateral chest near his left armpit - a trajectory from right to left, slightly upward, and slightly front to back.[34] White also was noted to have two abrasions on the left side of his face, one above the left eyebrow and one on the left upper cheek.[35] There is conflicting evidence in the LSP report and autopsy report as to whether these abrasions existed before or after the arrest and/or the shooting.

         The plaintiff contends that the fatal gunshot wound was not self-inflicted and that Victor White, III was killed because (a) his hands were handcuffed behind his back; (b) he was thoroughly searched which leads to the presumption that if small amounts of drugs and various personal effects were retrieved from his clothing, the weapon would have been found; (c) there is a pattern and practice of excessive force by deputies toward arrestees within the IPSO; and (d) there are inconsistencies in the investigation conducted by the IPSO such that the cause of death is very much in controversy.

         The defendant contends that there is no such evidence and that all of the evidence suggests that White committed suicide. Even assuming that to be the case, there are additional facts set forth in the defendants' exhibits that make summary judgment improper.

         According to the LSP report, Victor White, II, the decedent's father, believed that his son, when arrested by the same officers in November of 2013, was targeted and injured by IPSO deputies.[36] According to the interview given to LSP:

Early on in this investigation, Reverend White expressed his concerns that the same two deputies who interacted with his son on the night of March 2nd and morning of March 3rd were the same two deputies who stopped and arrested his son in November of 2013.
According to Rev. White, while Victor III was incarcerated in November of 2013, he sustained injuries (that included a separated shoulder) at the hands of several deputies. Rev. White is of the belief that Iberia parish deputies have targeted and/or mishandled and/or injured his son in the past and may have done so again.[37]

         The record reflects that the decedent was arrested on November 14, 2013 and that there were “no documented notes, or medical notations, or hospital/doctor visits in Victor White's Incarceration/Medical Records file referencing any injury White received while in jail during his arrest in November of 2013, as stated by Reverend White.”[38]

         The decedent was also arrested on July 26, 2011, and while the record references a medical screening, there are no medical reports attached although there is a reference to “Attachment #25.”[39]

         On March 9, 2016, Sheriff Ackal and Gerald Savoy, a supervisor at the IPSO, were indicted by the Grand Jury on one count of conspiracy against rights in violation of 18 U.S.C. § 241, and Sheriff Ackal was also indicted on two counts of deprivation of rights in violation of 18 U.S.C. § 242.[40] The indictment identifies the warden at the Iberia Parish Jail, along with multiple members of the narcotics unit, as co-conspirators who participated in a “shakedown” at the jail in April 2011, approximately three months before White's arrest in 2011. It is alleged in the indictment that during the shakedown five pre-trial detainees were assaulted and beaten in a chapel, where the activities were not subject to video recording, when the detainees were not posing a threat to anyone.[41] The warden of the IPSO jail, who served from December 2009 until October 2013, and a number of deputies who served on the narcotics unit from as early as 2008 until after White's death pleaded guilty to federal criminal charges arising out of this incident and others which occurred at different times, including September 2011.[42] Sheriff Ackal was tried and acquitted.

         Video surveillance footage from the jail recorded on December 6, 2012, which was published in the news media, demonstrated an Iberia Parish jail inmate, Marcus Robicheaux, being assaulted and beaten by a deputy during a contraband sweep while a K-9 bit Robicheaux in the arms, legs, and torso.[43]

         Finally, there are admissions by a former member of the IPSO narcotics unit that on or about March 14, 2014, less than two weeks after White's death, he with the help of another narcotics agent, after meeting with a “high-ranking IPSO official and another IPSO supervisor” where he was told to “take care of” an individual, assaulted and battered an individual who was restrained and compliant.[44]

         In his deposition, Lt. Schmitt denied any knowledge of the incidents which formed the subject matter of the convictions referenced above.[45] If Ortis has been questioned on this subject, it is not contained in the record.

         It is well established law that Ortis was required to take measures to protect White while he was in custody. Ortis demonstrated for MT Morel the type of search that he said he conducted on White. He admitted that he did not conduct a thorough pat-down search when White was detained on the side of the road, it was not done the way he was trained to search, “nor did he do it the way he normally does it.”[46]However, other evidence in the record indicates, either as part of a second “pat-down” search, or as part of an inventory of White's belongings while he was handcuffed, that Ortis went through White's pockets and retrieved various personal items including a wallet, [47] cell phone, U.S. currency, a house key, and a small bag of cocaine in the right front “jewel pocket.”[48]

         Ortis suggested, and the LSP report indicates in multiple locations, that White was never “arrested” but was “detained” for a narcotics investigation when he was taken to the patrol center.[49] However, Lt. Schmitt testified repeatedly that this was a narcotics arrest.[50] The IPSO defines arrest consistently with Lt. Schmitt's characterization and not that of Ortis.[51] Lt. Schmitt also described what he considered a pat-down search that an officer can/should conduct and that it is limited to a pat-down of the outer clothing for weapons absent consent or probable cause to do an entire search.[52] On the other hand, with regard to the search of Victor White, III at the initial stop by Ortis, Sheriff Ackal testified:

Q: Let me ask you this: under what circumstances would Justin Ortis have been allowed to go in Victor White's pockets, and search his pockets?
A: Contraband.
Q: But he wasn't stopped for contraband, correct? . . .
A: It doesn't matter whether you're contraband or not, you're going to be searched. And your pockets are going to be checked, for the safety of the -
Q: regardless of - A: Absolutely.
Q: Regardless of whether he -
A: That's a - that's a right we have. Absolutely.[53]

         In the LSP report, the policy of the IPSO for a “stop” is defined as follows:

A stop is a temporary detention of a person for investigative purposes.
A stop occurs when a deputy uses his/her authority to compel a person to halt, . . .
The deputy may perform a frisk search of the person(s) for the deputy's personal safety if the deputy believes that the person may have a weapon.[54]

         After a thorough search of the record, this Court found no evidence to suggest that Ortis ever believed White had a weapon or that Ortis's safety was ever threatened. Rather, Ortis indicated that he was going to search for “anything illegal” after he had determined that White and Lewis had not participated in the incident which Ortis had been dispatched to investigate. In addition, Ortis described both as very cooperative. His search of White, whom he had known from a previous encounter (which he initially denied to LSP) was markedly different than the pat down of Lewis. Finally, after allegedly discovering contraband and conducting either another pat down or an inventory of personal items in White's possession while White was handcuffed, Ortis did not discover the weapon that ultimately was used in the shooting. Therefore, there is no direct evidence in the record where the gun was located at the time of the search, the transport or immediately before the shooting.

         According to the LSP report, Stacie Smith was at the crime scene prior to the arrival of LSP detectives where she “photographed the crime scene and bagged the hands of Victor White, III prior to his transport by Acadian Ambulance to Iberia Medical Center. She then traveled to the Iberia Medical Center where she conducted presumptive gunshot residue tests on both of Victor White, III's hands, using an X-CAT testing device. The tests results came back, gunshot residue ‘Detected.'”[55]However, in her deposition, Ms. Smith testified that she did not take the crime scene photographs, she did not bag White's hands, and in fact, she went directly to the hospital where White had been transported by ambulance to perform not one but two gun shot residue tests - the X-CAT referenced in the LSP report and a GSR test that she turned over but never saw the results.[56] She did not do any type of GSR test on either Ortis or Schmitt.[57]

         Law and Analysis

         A. The Standard for Resolving a Motion for Summary Judgment

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable governing law.[58] A genuine issue of material fact exists if a reasonable jury could render a verdict for the nonmoving party.[59]

         The party seeking summary judgment has the initial responsibility for informing the court of the basis for its motion and identifying those parts of the record that demonstrate the absence of genuine issues of material fact.[60] If the moving party carries its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of a material fact.[61] All facts and inferences are construed in the light most favorable to the nonmoving party.[62]

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that there is insufficient proof concerning an essential element of the nonmoving party's claim.[63] The motion should be granted if the nonmoving party cannot produce evidence to support an essential element of its claim.[64]

         B. The Standard for Evaluating a Section 1983 Claim

         The complaint states that the plaintiff's claims are brought pursuant to 42 U.S.C. §§ 1983 and 1988 as well as under Louisiana law. Section 1983 provides a cause of action against anyone who “under color of any statute, ordinance, regulation, custom, or usage, of any State” violates another person's Constitutional rights. Section 1983 is not itself a source of substantive rights; it merely provides a method for vindicating federal rights conferred elsewhere.[65] To state a section 1983 claim, a plaintiff must: (1) allege a violation of a right secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.[66] In this case, the defendants do not contest whether Sheriff Ackal and Deputy Ortis acted under color of law at any relevant time, but they do challenge whether the defendants' actions or omissions are Constitutional violations.

         C. The Standard for Evaluating Qualified Immunity

         Qualified immunity, an affirmative defense to a suit under 42 U.S.C. § 1983, protects government officials in their individual capacity, while performing discretionary functions, not only from suit, but from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[67] Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”[68]

         Although qualified immunity is “nominally an affirmative defense, the plaintiff has the burden to negate the defense once properly raised.”[69] A defendant's assertion of qualified immunity is analyzed under a two-prong test.[70] The first prong asks whether the plaintiff has shown sufficient facts to “make out a violation of a constitutional right.”[71] The second prong requires the court to determine “whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.”[72]14

         The Supreme Court articulated the analysis as follows:

In resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged inquiry. The first asks whether the facts, [t]aken in the light most favorable to the party asserting the injury, . . . show the officer's conduct violated a [federal] right[.] .When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures. The inquiry into whether this right was violated requires a balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.
The second prong of the qualified-immunity analysis asks whether the right in question was “clearly established” at the time of the violation. Governmental actors are shielded from liability for civil damages if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. [T]he salient question is whether the state of the law at the time of an incident provided “fair warning” to the defendants that their alleged [conduct] was unconstitutional.
Courts have discretion to decide the order in which to engage these two prongs. But under either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment. This is not a rule specific to qualified immunity; it is simply an application of the more general rule that a “judge's function” at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Summary judgment is appropriate only if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. In making that determination, a court must view the evidence in the light most favorable to the opposing party.
Our qualified-immunity cases illustrate the importance of drawing inferences in favor of the nonmovant, even when a court decides only the clearly-established prong of the standard. In cases alleging unreasonable searches or seizures, we have instructed that courts should define the “clearly established” right at issue on the basis of the specific context of the case. Accordingly, courts must take care not ...

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