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Hayes v. Dept. of Public Safety and Corr.

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

November 7, 2017


          KAY MAG. JUDGE.



         Before the court is a "Motion for Summary Judgment" (R. #39) filed by Defendants, Sheriff William Earl Hilton, in his individual and official capacities, and Deputy Jay McNutt in his individual and official capacities wherein these Defendants seek to be dismissed from the instant lawsuit. Sheriff Hilton asserts that there is no evidence of a policy or procedure which caused Plaintiff, Harry Hayes, injuries or any overt act by the Sheriff which might render him liable as a supervisor. Sheriff Hilton contends that he is entitled to qualified immunity in his individual capacity and there is no evidence to support a claim against him in his official capacity. Deputy McNutt asserts that there is no evidence to show that he should have interfered with Mr. Horton's actions in any way, and there is no evidence to support Mr. Hayes' state law claims. Deputy McNutt also seeks to be dismissed in his individual capacity based on qualified immunity.


         On February 1, 2015 Plaintiff, Harry Hayes and Bernard Odom, entered the Big Red Barn, a night club in Rapides Parish. At approximately 1:30 a.m. the State Fire Marshall's office conducted an inspection of the premises which included numerous Fire Marshal Personnel and Sheriff's deputies. Defendant, Deputy Jay McNutt, was dispatched to the Big Red Barn to assist in the inspection. In order to conduct the inspection, the proprietor of the business turned the lights on and the music off.

         The Big Red Barn has two side doors, one on the left and one on the right. At the time and place of the incident that is the subject of this lawsuit, Fire Marshal personnel, M/T Horton and other law enforcement personnel were present. Deputy McNutt stood near the right side door during the inspection of the premises and M/T Horton was near the left side door on the east side of the building.

         Mr. Hayes and his companion had entered the night club through the front door. Mr. Hayes approached the law enforcement officers at the left side door in an attempt to exit the building. The request to go outside was denied and Mr. Hayes was pushed and struck by Officer Horton with a baton, tased twice, arrested, handcuffed and taken into custody. Deputy McNutt testified that He was not present for and did not witness the initial incident which led M/T Horton to strike Mr. Hayes with his baton or discharge his taser. Deputy McNutt testified that even though he did not see the source of the taser discharging, he heard the sound. Mr. Hayes testified that Deputy McNutt was not a part of the group of law enforcement officers standing at the door which he attempted to exit.[1] Mr. Hayes testified that he did not know when Deputy McNutt arrived on the scene, but that he first saw him after he was tased the first time.[2]

         Upon locating the source of the sound, Deputy McNutt came upon M/T Horton standing near Mr. Hayes who was on the ground. The leads of the taser were stuck in Mr. Hayes and the taser was cycling. Shortly thereafter, Mr. McNutt assisted in placing handcuffs on Mr. Hayes.

         Mr. Hayes was arrested for resisting an officer and disturbing the peace while intoxicated. Mr. Hayes denied that he had drunk any alcoholic beverages that evening, but admits that prior to entering the Red Barn, he had visited another bar. The charges were dismissed and Nolle Prossed by the Rapides Parish District Attorney's office on March 3, 2016.[3]


         Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate 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.[4] A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under governing law."[5] A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.[6] As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim."[7] Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial.[8] The burden requires more than mere allegations or denials of the adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law.[9] There is no genuine issue of material fact if, viewing the evidence in the light more favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party.[10] If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.[11] The court will construe all evidence in the light most favorable to the nonmoving party, but will not infer the existence of evidence not presented.[12]


         Mr. Hayes has sued Sheriff William Earl Hilton and Deputy McNutt in their individual and official capacity for injuries he allegedly sustained as a result of his arrest. Mr. Hayes alleges that Sheriff Hilton encouraged, authorized, or acquiesced in the unlawful arrest, detention and use of force against Mr. Hayes. He further alleges that Sheriff Hilton's actions were part of the practices, policies or customs of the Sheriff and due in part to the Sheriff's failure to adequately train or supervise his employees. Mr. Hayes has also asserted state law claims against Sheriff Hilton based on the doctrine of respondeat superior.

         Mr. Hayes has also sued Deputy McNutt for his failure to interfere with Officer Horton's alleged use of excessive force. Mr. Hayes asserts state law claims claims pursuant to 42 U.S.C § 1983.

         Deputy Jay McNutt

         Mr. Hayes asserts bystander liability against Deputy McNutt for failure to intervene. Mr. Hayes relies on Whitley v. Hanna, [13] wherein the Fifth Circuit stated that "an officer may be liable under § 1983 under a theory of bystander liability where the officer (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent harm; and (3) chooses not to act."[14] Mr. Hayes also cites Hale v. Townley, [15] a Fourth Amendment case which held that "[a]n officer may be liable under § 1983 if he is 'present at the scene and does not take reasonable measures to protect' an individual from a colleague's actions when the officer knows that those actions violate the person's constitutional rights."

         Deputy McNutt maintains that he is entitled to qualified immunity as to both the bystander liability claim as well as the excessive force claims. Qualified immunity protects government officials from civil liability when their actions could reasonably have been believed to be legal.[16] Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."[17]A plaintiff seeking to overcome qualified immunity must show: "(1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct."[18] When qualified immunity is invoked, the burden shifts to the plaintiff to demonstrate the inapplicability of the defense.[19] If probable cause for an arrest even arguably existed, immunity cannot be lost.[20] A police officer has qualified immunity if he "reasonably but mistakenly concludes that probable cause is present."[21] "A defendant's acts are objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the plaintiff's rights."[22]

         The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law. Even law enforcement officials who reasonably relied but mistakenly committed a constitutional violation are entitled to immunity.[23]

         Mr. Hayes maintains that summary judgment should be denied because all of the elements for bystander liability have been met. Specifically, Mr. Hayes alleges that Deputy McNutt should have known that Officer Horton was violating his constitutional rights. This court disagrees. There is no evidence that Deputy McNutt was aware of any excessive force being used. The undisputed evidence reveals that Deputy McNutt observed Mr. Hayes on the floor after Deputy McNutt heard the sound of a taser being discharged. Deputy McNutt had not one clue as to what had transpired prior to the taser being discharged. This court will not speculate and or leap to the unfathomable conclusion that Deputy McNutt was completely aware that Mr. Hayes' constitutional rights were being violated, nor do we find that any of Deputy McNutt's actions resulted in excessive force. Accordingly, Deputy McNutt is entitled to qualified immunity and the claims of excessive force and bystander liability will be dismissed with prejudice.

         Sheriff Hilton

         Mr. Hayes asserts claims against Sheriff Hilton in both his individual and official capacity. "A governmental entity may be held liable under § 1983 only when the plaintiff can demonstrate that it engaged in a "policy or custom" that was the "moving force" behind the deprivation of the plaintiffs' rights.[24] A plaintiff must prove that the claimed act or failure to act amounted to deliberate indifference to his or her rights. The Sheriff can only be liable under § 1983 when his policies are the moving force behind the constitutional violation.[25] The Sheriff can only be liable when the execution of the policy or custom caused the injury.[26] The Sheriff cannot be held liable for the acts of Deputy McNutt under a theory of respondeat superior or vicarious liability.[27]

         Mr. Hayes contends that Sheriff Hilton can be held liable in his official capacity because the single action of the Sheriff, who possesses final policymaking authority, of not reprimanding Deputy McNutt is enough for municipal liability in this lawsuit. Mr. Hayes further contends that Sheriff Hilton may be held liable in his individual capacity because he acted with deliberate indifference to Deputy McNutt's alleged ...

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