United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
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.
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.
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).
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
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.
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.
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
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.
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).
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).
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). 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.
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
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).
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).
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).
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.
Plaintiffs § 1983 ...