United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court are two motions: (1) Jefferson Parish's motion
for summary judgment; (2) Jefferson Parish Sheriff Deputy
Micah Blange's and Sheriff Newell Normand's motion
for summary judgment. For the reasons that follow, the
Parish's motion is GRANTED in part (insofar as it is
entitled to judgment as a matter of law dismissing the
plaintiff's claim for prospective relief for lack of
standing) and DENIED in part (insofar as it fails to
demonstrate entitlement to judgment as a matter of law as to
the plaintiff's as-applied vagueness challenge), and the
law enforcement defendants' motion is GRANTED in part
(insofar as Deputy Blange is entitled to qualified immunity
on the plaintiff's Section 1983 claim) and DENIED in part
(because the defendants fail to adequately brief the
plaintiff's state law false arrest claim).
April 11, 2015, shortly after noon in Jefferson Parish,
Louisiana, the temperature was in the low 70s with overcast
skies.Catheryn Babin was driving her two-door
Mini-Cooper convertible. With her was her two-year-old
Catahoula/Labrador mix, Peyton Legion, a trained service dog.
Ms. Babin and Peyton Legion were on their way home from a
senior citizen center, where Peyton Legion had spent the
morning working with residents suffering from Alzheimer's
disease. On the way from the center to her house, Ms. Babin
stopped at Big Lots on Veterans Boulevard in Jefferson Parish
to buy dog food. Leaving the windows rolled down, the car
doors unlocked, and the convertible top partly retracted to
expose the front seats, Ms. Babin went into the store; Peyton
Legion waited in the car.
at 12:12 p.m., while Ms. Babin was inside Big Lots and her
dog was unattended in her car, a woman named Ashley
McMurrycalled the Jefferson Parish 911 operator to
complain that a dog was left unattended for 10 minutes. Ms.
McMurry apparently told the operator that the dog had been
locked in a car for at least 10 minutes, that the dog was
panting and looked "uncomfortable, " although she
also told the operator that the windows were down, it was
"not that hot, " and that the dog did not appear to
be in distress. Jefferson Parish Sheriff's Office
dispatched a law enforcement officer to the scene.
Ms. Babin exited Big Lots, Ms. McMurry confronted her,
complaining that the dog was left alone in the car. Ms. Babin
says that she showed Ms. McMurry that the door was unlocked
and that, as soon as she opened the car door, Peyton Legion
came to Ms. Babin and he was then on-leash at Ms. Babin's
side in the parking lot. Nevertheless, Ms. McMurry continued
to complain and berate Ms. Babin.
about 12:25 p.m., Jefferson Parish Sheriff's Office
Deputy Micah Blange, in full police uniform, arrived on the
scene in his marked vehicle. He first spoke with an
unidentified individual as well as Ms. McMurry (whom
"hurried after" Blange when he pulled into the
parking lot). Soon thereafter, another Jefferson Parish
Sheriff's deputy, Michael Voltolina, Jr., arrived at Big
Lots. Unlike Blange, Voltolina drove up to where Ms. Babin
had parked, examined Ms. Babin's car, and explained to
her that deputies were required to come to the scene to
investigate, but that he did not see cause for issuing a
summons. After Voltolina left Ms. Babin, Deputy
Blange drove over to where her car was parked and where she
was standing next to her car with Peyton Legion. Blange
parked his police cruiser to the rear and perpendicular to
Ms. Babin's vehicle, blocking her into the parking space.
Ms. Babin submits that Blange did not exit his vehicle, but
instead called Ms. Babin over to his car, telling her "I
need to see your driver's license, " which she
retrieved from her car and handed to him. Blange then asked
her a couple questions regarding her identity, and then asked
why she had not left her dog at home. Ms. Babin explained that she
and Peyton Legion were on their way home from visiting a
more, according to Ms. Babin, Blange told Ms. Babin that he
was issuing her a criminal misdemeanor summons. Ms. Babin
asked why, to which Blange responded that it was "two
against one" (ostensibly referring to Ms. McMurry and
the other concerned citizen). After completing the summons,
Blange exited his car to hand it over to Ms. Babin. He then
returned her driver's license, and got back in his car.
At that point, Blange indicated to Ms. Babin (without
verbalizing) that their encounter was over and that she could
go. Ms. Babin asked if it was okay to, or suggested that she
would, speak to the other officer (Voltolina) who was still
somewhere in the Big Lots parking lot. Blange then left the
scene in his car. Ms. Babin went to speak to Voltolina,
apparently to complain about being issued a summons, but
Voltolina simply said, "That's not under my
had issued Ms. Babin a criminal misdemeanor summons for
violating of Jefferson Parish ordinance proscribing animal
cruelty. Section 7-126 of the ordinance provides:
Sec. 7-126. - Cruelty in general.
(a) No person shall ill-treat, neglect, abandon, or cruelly
treat an animal. No person shall unnecessarily or cruelly
beat, mutilate, kill, torture, inflict injury, or abuse, or
cause or procure to be cruelly beaten, mutilated, killed,
tortured, injured, or abused, any animal or commit any act
which under any other law constitutes cruel treatment, or
fail to provide obviously necessary veterinary care.
(b) No animal shall be tethered as a means of stationary
confinement; such stationary confinement by tethering shall
be considered as cruel treatment.
(c) No animal shall be denied access to proper food, water,
shelter, sanitary and safe environment, or proper veterinary
care as is provided in section 7-16 and in Division 6 of
(d) No domesticated animal shall be transported or carried in
or upon any vehicle in a cruel, inhumane, or dangerous
manner. Any animal transported in the open bed of a vehicle
must be safely and securely located in a secure crate or
carrier that is fastened to the bed of the vehicle to prevent
the animal from jumping out of such vehicle or otherwise
injuring itself. Any other such transport shall be considered
animal neglect. No animal shall be left inside a
vehicle or in a crate/carrier while unattended unless there
is reasonable containment during acceptable weather
conditions or the animal is provided proper temperature
control with regular monitoring conditions, including but not
limited to during American Kennel Club sanctioned
(e) When a person is charged with cruelty to animals, said
person's animal may be seized. Any animal so seized
shall be impounded in the custody of the Jefferson Parish
Animal Shelter or other location approved by the Director
of the Jefferson Parish Animal Shelter.
(f) All charges subject to Division 6 are subject to the
jurisdiction of the bureau of administrative adjudication and
also the Jefferson Parish District Attorney's Office for
criminal prosecution under relative procedures and law.
(emphasis added). Two weeks after issuing the summons, Blange
drafted a report to support the citation.
15, 2015, the Jefferson Parish District Attorney's Office
filed a bill of information in the First Parish Court for the
Parish of Jefferson, charging Ms. Babin with cruelty to
animals in violation of Code Section 7-126. Ms. Babin made
three separate court appearances and ultimately retained a
criminal defense attorney to defend her against the charge.
On March 3, 2016, when she and her attorney appeared for the
trial, the charge was dismissed.
thereafter, Ms. Babin filed this civil rights lawsuit under
42 U.S.C. § 1983, in which she advanced several claims
against Jefferson Parish, Jefferson Parish Deputy Micah P.
Blange, in his individual capacity, and Newell Normand, in
his official capacity as Sheriff of Jefferson
Parish. Ms. Babin alleges three claims against
Blange: that her Fourth Amendment right to be free from
unlawful seizure was infringed when Blange seized her without
probable cause, subjecting her to false arrest; that Blange
defamed her under Louisiana law by misrepresenting facts he
wrote in a report to support the summons issued; and that
Blange subjected her to false arrest under Louisiana law. Ms.
Babin also alleges that the sheriff is liable under the
theory of respondeat superior for her Louisiana claims
because Blange was acting in the course and scope of his
employment. Ms. Babin alleges that Jefferson Parish is liable
because Section 7-126 violates her right to substantive due
process; the provision is unconstitutionally vague on its
face, Ms. Babin alleges, because it defines neither
"acceptable weather condition" nor "proper
temperature control." Ms. Babin seeks three types of
Babin seeks declaratory relief with respect to the vagueness
of the ordinance. Second, Ms. Babin seeks to enjoin the
Parish and Sheriff Normand from enforcing the vague provision
to prevent future deprivations of Ms. Babin's and other
parties' rights to substantive due process. Finally, Ms.
Babin seeks to recover money damages and attorney's fees
from each of the defendants for the emotional and mental
distress, reputational damage, and attorney's fees she
incurred defending the criminal charge.
Parish moved for summary judgment dismissing the
plaintiff's claims against it, and the plaintiff cross
moved for partial summary judgment that certain terms in the
animal cruelty ordinance are unconstitutionally vague. On
January 11, 2017, the Court denied both motions
"[b]ecause neither the Parish nor the plaintiff
persuades the Court that the plaintiff may pursue a facial
challenge to the ordinance, and because neither has submitted
any evidence that could serve as a factual predicate to
analyze the plaintiff's xas applied' challenge."
See Order and Reasons dtd. 1/11/17.Jefferson
Parish then filed a second motion for summary judgment to
dismiss the plaintiff's facial challenge to the
ordinance, and the Sheriff and Deputy Micah Blange, again,
moved for summary judgment in their favor dismissing the
plaintiff's Section 1983 claim on the grounds that: the
alleged Fourth Amendment violation fails as a matter of law
because the plaintiff was not "seized;" Deputy
Blange is entitled to qualified immunity; and the plaintiff
lacks standing to challenge prospective application of the
ordinance. On May 19, 2017, the Court granted the
Parish's motion for summary judgment as to the
plaintiff's facial vagueness challenge to the animal
cruelty ordinance, and the Court denied without prejudice the
law enforcement defendants' motion. Now, for
still a third time, the Parish and the law enforcement
defendants seek summary judgment in their favor: Jefferson
Parish submits that the plaintiff is precluded from bringing
an as-applied vagueness challenge to the ordinance, Deputy
Blange moves for summary judgment on his defense of qualified
immunity, and the Sheriff appears to move for summary
judgment dismissing the plaintiff's false arrest claim
based on Louisiana law.
Rule of Civil Procedure 56 instructs that summary judgment is
proper if the record discloses no genuine dispute as to any
material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact
exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) . A genuine dispute of
fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) . The mere argued existence of a factual
dispute does not defeat an otherwise properly supported
motion. See id. Ultimately, "[i]f the evidence
is merely colorable . . . or is not significantly probative,
" summary judgment is appropriate. Id. at 249
(citations omitted); see also Hathaway v. Bazany,
507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks
and citation omitted)("[T]he nonmoving party cannot
defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla of
judgment is also proper if the party opposing the motion
fails to establish an essential element of a claim. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) .
In this regard, the non-moving party must adduce competent
evidence, including but not limited to sworn affidavits and
depositions, to buttress his claims. See Donaghey v.
Ocean Drilling & Exploration Co., 974 F.2d 646, 649
(5th Cir. 1992) . However, affidavits or pleadings which
contradict earlier deposition testimony cannot create a
genuine issue of material fact sufficient to preclude an
entry of summary judgment. See S.W.S. Erectors, Inc. v.
Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996);
Thurman v. Sears, Roebuck & Co., 952 F.2d 128,
137 n. 23 (5th Cir. 1992).
deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most
favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378 (2007) (citations omitted). Although the
Court must "resolve factual controversies in favor of
the nonmoving party, " it must do so "only where
there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830
(5th Cir. 2013) (internal quotation marks and citation
Court first considers a threshold issue leftover from prior
motion practice: whether Ms. Babin has standing to assert a
claim for prospective relief. Jefferson Parish submits that
Ms. Babin has no standing to assert a claim for prospective
injunctive relief on behalf of herself or third parties. Ms.
Babin has agreed to dismiss her claim for prospective relief.
Because Ms. Babin has agreed to dismiss her claim for
prospective relief, Jefferson Parish's motion for summary
judgment on this issue will be granted.
plaintiff's claim for prospective equitable relief
relative to the animal cruelty ordinance is dismissed.
42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under
color of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects, or
causes to be subjected, any ... person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.
Section 1983 merely provides a remedy for designated rights,
rather than creating any substantive rights, "an
underlying constitutional or statutory violation is a
predicate to liability." Harrington v. Harris,
118 F.3d 359, 365 (5th Cir. 1997) (citation omitted) . To
establish § 1983 liability, the plaintiff must satisfy
(1) deprivation of a right secured by the U.S. Constitution
or federal law,
(2) that occurred under color of state law, and
(3) was caused by a state actor.
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th
Cir. 2004) (citation omitted).
Babin's Section 1983 claims are based on alleged
deprivations of two constitutional rights: (1) the right to
be free from unreasonable seizure secured by the Fourth
Amendment, which she says Deputy Blange violated when Blange
arrested her without probable cause; and (2) the right to due
process secured by the Fourteenth Amendment, of which she
says Jefferson Parish deprived her because the animal cruelty
ordinance is so vague that it failed to give her, and fails
to give ordinary people, fair notice of the conduct it
punishes and that is so standardless that it invites
arbitrary enforcement. The law enforcement defendants seek
summary judgment dismissing Ms. Babin's Fourth Amendment
false arrest claim and the Louisiana false arrest claim on
the ground that she has failed to prove a constitutional
deprivation and because Deputy Blange enjoys qualified
immunity. And the Parish ...