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Loupe v. O'Bannon

United States District Court, M.D. Louisiana

January 8, 2018

KRISTIN LOUPE
v.
ROBIN O'BANNON, ET AL.

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE

         Before the Court are the Motions for Summary Judgment filed by Defendants Assistant District Attorney Robin O'Bannon, Sheriff of Ascension Parish Jeffrey Wiley, Ascension Parish Sheriffs Deputy James Wolfe and Jennifer Kernan. (Docs. 54, 68). Also before the Court is the Motion to Strike filed by Plaintiff Kristin Loupe. (Doc. 58). The parties filed oppositions. (Docs. 61, 62, 81). For the following reasons, the Motion for Summary Judgment (Doc. 54) is GRANTED, the Motion for Summary Judgment (Doc. 68) is GRANTED IN PART and DENIED IN PART, and the Motion to Strike (Doc. 58) is DENIED.

         I. BACKGROUND

         The undisputed facts taken in the light most favorable to Plaintiff are as follows. On the morning of June 15, 2012, Plaintiff called 911 and told the dispatcher that "the other night" her boyfriend had put her in a headlock, punched her in the head, and grabbed her arm "really hard." (Doc. 54-6 at p. 6). Plaintiff also reported bruises on her leg, ear, and arm. Id. at p. 7. Deputy James Wolfe was dispatched to respond, and when he arrived Plaintiff told him that she had been in several physical altercations with her boyfriend, David Adams. (Doc. 68-6 at p. 1). Plaintiff showed Deputy Wolfe a bruise on her right forearm that she said she sustained trying to keep her boyfriend "off of her" three days before. Id. Plaintiff said that she did not want to file charges, but she did want to file a restraining order. Id.

         Plaintiff also provided a signed written statement, stating that Adams had been violent toward her and that he had recently hit her in the head leaving bruises. Id. at p. 2. Deputy Wolfe then spoke to Adams, Plaintiffs boyfriend, who confirmed that he and Plaintiff had been in a physical altercation. Id. at p. 1. Deputy Wolfe testified in his deposition that he believed that Plaintiff told him the truth about what happened. (Doc. 68-4 at 14:9-15).

         About a week later, on June 23, 2012, Plaintiff called 911 again and told the dispatcher that she wanted to press charges against her boyfriend for hitting her based on the same incident she had previously reported to Deputy Wolfe. (Doc. 54-8 at p. 4-7). Deputy Blake Prejean was dispatched to respond, and when he interviewed Plaintiff she told him that her boyfriend "had beaten her up" on June 15, 2012. (Doc. 54-9). Deputy Prejean observed swelling on Plaintiffs face, and a bruise on her left eye and right forearm. Id. The next day, Deputy Prejean obtained a warrant to arrest Adams for domestic abuse battery. (Doc. 68-9 at p. 1). About five months later, on November 19, 2012, Plaintiff requested that the charges against Adams be dropped. (Doc. 68-10). Plaintiff recanted her allegations and claimed that Adams had not hit her. Id.

         On October 17, 2013, Adams was arrested on an unrelated second degree murder charge. (Doc. 68-5 at 71:24-72:10). Three months later, on January 24, 2014, a bail hearing was conducted in the 23* Judicial District Court in Louisiana to determine whether Adams was a danger to the community or a flight risk. (Doc. 68-12 at 4). At the hearing, Adams' defense attorney called Plaintiff to testify. Id. at 98:18-19. Plaintiff testified on direct examination about the June 15, 2012 incident with Adams when she called 911. Id. at 102. She testified that she had a "strictly verbal" disagreement with Adams, id. at 102:15-22, and that Adams did not hit her on the arm or in the eyes. Id. at 103:8-10.

         Assistant District Attorney O'Bannon then asked to approach the bench, and an off the record bench conference ensued. Id. at 104:24. According to an affidavit submitted by Judge Turner and Adams' attorney, O'Bannon informed Judge Turner that she believed Plaintiff was committing perjury. (Doc. 54-11 and 54-12). Judge Turner then permitted Adams' defense attorney to speak with Plaintiff about her obligation to testify truthfully. Id.

         On cross-examination, Plaintiff admitted that she and Adams had "an argument that went too far" and that she characterized as a "mutual disagreement." (Doc. 68-12 at 109:22, 112:25). She admitted that Adams grabbed her arm, id. at 109:28, but she repeatedly denied that Adams hit or touched her in the face. Id. at 109:29-110:2, 110:19-30, 111:21-112-4. Plaintiff ultimately admitted in a deposition that her testimony at the hearing was not true, and that Adams did hit her. (Doc. 54-10 at 119 at 13-20).

         Coincidentally, Deputy Wolfe, the same officer who first interviewed Plaintiff after she called 911, was working courtroom security that day. (Doc. 81-1 at ¶ 36). After Plaintiff testified, O'Bannon left the courtroom and went into the hall, and returned a short time later. (Doc. 66-7). After she returned, two deputies came into the courtroom, spoke to Plaintiff, and then escorted her into the hall, where they arrested her. Id. Deputy Wolfe arrested Plaintiff for making a false report in violation of La. R.S. 14:59. (Doc. 68-13). A few hours after he arrested Plaintiff, Deputy Wolfe wrote that while he "was conducting security in Judge Turner's Court, Kristin Loupe was said to have falsified a police report to testimony [sic]." Id. In a second report, likely completed that same day, Deputy Wolfe wrote that "I was informed by Ricky Babin's Office, District Attorney, that Kristin M. Loupe testified under oath where she gave a false police report[.f (Doc. 81-2 at 26:10-27:15, p. 31). In his deposition testimony, Deputy Wolfe testified that he arrested Plaintiff because he heard O'Bannon say that Plaintiff was lying during the hearing. (Doc. 68-4 at 9:9-10:8). He testified that he thought this meant that O'Bannon was under the impression that Plaintiff lied in her June 2012 police report. Id. at 25:6-9.

         After being arrested, Plaintiff was booked into a jail in Donaldsonville, Louisiana. (Doc. 81-10 at ¶ 2). It was extremely cold that day with temperatures plunging to 27° F. (Doc. 81-8). Deputy Kernan booked Plaintiff and placed her in a shower cell, she forced Plaintiff to remove her clothes and she conducted a strip search. (Doc. 81-10 at ¶ 4-5.) The Deputy left Plaintiff alone in the shower without clothes and shoes for about one hour. Id. at ¶ 6. Puddles of water had formed on the floor, and no mechanical heat was provided in the area. Id. at ¶ 7. Plaintiff repeatedly pressed the call button for help because she was freezing and needed to use the restroom. Id. at ¶ 8. After Plaintiff was released from jail, she was treated for the beginning stages of frost bite at a clinic. Id. at ¶ 9. The Ascension Sheriffs Department has admitted that it has no policies or procedures for the treatment of prisoners during extreme temperatures. (Doc. 78-15 at p. 2). On June 25, 2014, at a bench trial before Judge Marilyn Lambert in the 23rd Judicial District Court, Plaintiff was found not guilty of making a false police report. (Doc. 54-15).

         Plaintiff claims that: (1) O'Bannon, in her personal capacity, District Attorney Babin, in his personal and official capacity, and Deputy Wolfe, in his personal capacity are liable under § 1983 for violating Plaintiffs First and Fourth Amendment rights; (2) that Sheriff Wiley, in his official capacity, and Deputy Kernan, in her personal capacity, are liable under § 1983 for violating her Eighth Amendment rights; (3) Deputy Kernan and Sheriff Wiley are liable for negligence; (4) O'Bannon and Babin are liable for defamation; (5) O'Bannon, Babin, Sheriff Wiley, and Deputy Wolfe are liable for false imprisonment; (6) O'Bannon, Babin, Deputy Wolfe, Deputy Kernan, and Sheriff Wiley are liable for intentional infliction of emotional distress and negligent infliction of emotional distress; and (7) O'Bannon and Babin are liable for malicious prosecution. (Doc. 20 at ¶ 22-90).

         Plaintiff filed suit on September 11, 2014. (Doc. 1). She filed an Amended Complaint on March 13, 2015. (Doc. 20). The Court then dismissed all of Plaintiffs claims against Babin and O'Bannon. (Doc. 25).[1] Plaintiff appealed the dismissal of her claims against O'Bannon, and the United States Court of Appeals for the Fifth Circuit reversed the Court in part, holding that "O'Bannon is absolutely immune from suit for money damages based on her alleged malicious prosecution of Loupe." Loupe v. O'Bannon, 824 F.3d 534, 539 (5th Cir. 2016). However, the Fifth Circuit held that "O'Bannon is not absolutely immune from Loupe's federal and state actions based on O'Bannon's alleged order of Loupe's warrantless arrest, as that conduct was not part of O'Bannon's prosecutorial function." Id.

         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 u. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997) (citing Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994)). 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). 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).

         III. DISCUSSION

         Before addressing the motion for summary judgment, the Court must determine the universe of evidence before it. Plaintiff moves to strike the affidavits of Judge Marilyn Lambert and Morgan Gravois under Rule 12(f) because they are immaterial, impertinent, and scandalous. (Doc. 58-1 at p. 1). Gravois was the Assistant District Attorney who prosecuted Plaintiff for making a false police report, and Judge Lambert presided over the bench trial. (Doc. 54-15). Plaintiff contends that the affidavits were filed solely to attack the character of Plaintiffs counsel. Id. Among other things, Gravois' affidavit states that Plaintiffs counsel completely misrepresented the facts to Judge Lambert by presenting only portions of the hearing transcript to the court. (Doc. 58-1 at p. 3).

         Under Rule 12(f), a "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." An affidavit, however, is not a pleading, and therefore Rule 12(f) does not apply here. See Fed.R.Civ.P. 7(f). Apparently recognizing this problem, Plaintiff asks the Court to construe her motion to strike under Rule 12(f) as a motion to strike under Rule 56(h) in her reply memorandum. (Doc. 65).

         Rule 56(h) provides that when an affidavit is filed in connection with summary judgment and "is submitted in bad faith or solely for delay" the court "may order the submitting party to pay the other party the reasonable expenses, including attorney's fees[.]" Plaintiff, however, asked the Court to construe her motion to strike under Rule 12(f) as a motion to strike under Rule 56(h) for the first time in her reply memorandum. Courts should not consider arguments raised for the first time in reply memorandums. See Gillaspy v. Dallas Independent School Dist., 278 Fed.Appx. 307, 315 (5th Cir. 2008). Plaintiffs motion to strike is thus denied.

         A. Plaintiffs ยง 1983 ...


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