United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
following motions are before the Court: Motion to Dismiss
Based on Prescription (Rec. Doc. 29), Motion to Dismiss For
Failure to State a Claim or Alternatively Qualified Immunity
(Rec. Doc. 30), Motion for Summary Judgment Based on Heck
(Rec. Doc. 31) by the City of Gretna. Plaintiff Matthias
Francois has filed a response in opposition (Rec. Doc. 35).
The motions, submitted to the Court on February 21, 2018, are
before the Court on the briefs without oral
to the City of Gretna (“Gretna”), these three
consolidated cases involve the same claims that were
previously presented in Civil Action 13-2640, which this
Court dismissed without prejudice in open court on February
17, 2016, due to Plaintiffs' failure to
prosecute. (CA13-2640, Rec. Doc. 130). According to
Gretna, all of the actions arise out of the same operative
facts that occurred on October 24, 2012, when officers of the
Gretna Police Department arrested Obadiah and Matthias
Francois and seized their cell phones. The claims asserted
pursuant to 42 U.S.C. § 1983 are for Fourth Amendment
violations (arrest without probable cause and seizure of the
cell phones), and for Sixth Amendment violations involving
the right to counsel, and due process violations.
Matthias's complaint quantifies the damages sustained at
$45 million dollars (exclusive of punitive damages).
trial is scheduled for March 19, 2018. The Court cancelled
the pretrial conference when it continued the submission date
on Gretna's motions in order to accommodate the request
for additional time to oppose the motions. (Rec. Doc. 33).
to Gretna, the general underlying facts of the case are as
follows: On October 24, 2012, the Gretna Police
Department received a 9-1-1 call advising that two black
males, wearing all black clothing, were selling illegal
narcotics in the 300 block of 5th Street in
Gretna. Upon arriving at the scene, Gretna police officer
Jerry Broome observed two black males (later identified as
Matthias and Obadiah) wearing all black clothing. (Rec. Doc.
30-3, Broome affidavit). One of the males made gestures and
actions as if to flee. The other reached into his waistband
as if reaching for a gun and then removed his hand and made
it into a fake gun using his index finger and thumb.
(Id.). Based on these actions, both subjects were
handcuffed and detained. The two subjects then admitted to
Broome that they had placed the 9-1-1 call themselves. The
cell phones were found during a search incident to arrest and
Broome seized them as evidence of the crime. (Id.).
pleaded guilty to two counts of public intimidation and one
count of false swearing in conjunction with the October 24,
2012 incident. (Rec. Doc. 30-4). During the plea colloquy,
Obadiah admitted to making the 9-1-1 call that led to his
arrest; he denied that his brother had made the call. Obadiah
characterized the 9-1-1 call as a
has no criminal convictions resulting from the October 24,
only defendant named in each complaint filed in these
consolidated cases is Gretna. As to both Obadiah and
Matthias, Gretna moves for dismissal for failure to state a
claim/summary judgment based upon the contention that the
pleadings and evidence fail to support a claim for municipal
liability under § 1983. As to Obadiah, Gretna moves for
dismissal based upon the bar to litigation recognized in
Heck v. Humphrey, 512 U.S. 477 (1994).
judgment is appropriate only 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-movant,
"show that there is no genuine issue as to any material
fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d
754, 759 (5th Cir. 2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). 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. Id. (citing Anderson, 477 U.S. at
248). The court must draw all justifiable inferences in favor
of the non-moving party. Id. (citing Anderson, 477
U.S. at 255). Once the moving party has initially shown
"that there is an absence of evidence to support the
non-moving party's cause, " Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986), the non-movant must
come forward with "specific facts" showing a
genuine factual issue for trial. Id. (citing
Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986)). Conclusional
allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a
genuine issue for trial. Id. (citing SEC v.
Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
both Obadiah and Matthias, Gretna is entitled to judgment as
a matter of law on the claim for municipal liability under
§ 1983. Municipal liability for § 1983 violations
results if a deprivation of constitutional rights was
inflicted pursuant to official custom or policy.
Piotrowski v. City of Houston, 237 F.3d 567, 579
(5th Cir. 2001). Official policy is ordinarily
contained in duly promulgated policy statements, ordinances
or regulations. Id. But a policy may also be
evidenced by custom, that is a persistent, widespread
practice of city officials or employees, which although not
authorized by officially adopted and promulgated policy, is
so common and well-settled as to constitute a custom that
fairly represents municipal policy. Id. (quoting
Webster v. City of Houston, 735 F.2d 838, 841
(5th Cir. 1984)). Actions of officers or employees
of a municipality do not render the municipality liable under
section 1983 unless they execute official policy as defined
above. Id. Thus, municipal liability under
§1983 requires proof of three elements: a policymaker;
an official policy; and a violation of constitutional rights
whose “moving force” is the policy or custom.
Id. (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978)). A municipality is not
liable based on the theory of respondeat superior.
Id. (citing Bd. of Comm'rs v. Brown,
520 U.S. 397, 403 (1997)).
outset, the Court notes that the first problem with
Plaintiffs' claims for constitutional violations arising
out of the October 24, 2012 incident is that all of the
evidence suggests that both of them were arrested (and had
their phones seized) based on probable cause to believe that
they had committed a crime related to the false 9-1-1 call.
That the charges were eventually dismissed as to Matthias is
irrelevant to the question of whether he was arrested based
on probable cause. Officer Broome's statements regarding
the arrests are undisputed in the record. The officer's
statements regarding Plaintiffs' conduct at the scene of
the arrest is corroborated by a witness. (Rec. Doc. 30-3,
even assuming that one or both of the plaintiffs was arrested
without probable cause, there is no evidence in the record to
suggest that any policy by Gretna caused the arrests.
Matthias included a statement in his complaint to the effect
that Gretna has a de facto policy of unlawfully arresting
individuals who have previously filed suit against the
municipality for misconduct. (16-14878, Rec. Doc. 1 at 1-2).
This unsupported statement does not withstand scrutiny under
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Matthias offers no evidence to create an issue of fact
regarding such a policy. As to Obadiah, the
“policies” that he recites in his complaint are
municipal criminal ordinances that have nothing to do with a
policy that would “cause” an arrest without
probable cause. Gretna is therefore entitled to summary
judgment on all federal claims pertaining to the October 24,
a moot issue, Gretna is also correct in that all of
Obadiah's claims are subject to the bar presented by
Heck v. Humphrey,512 U.S. 477 (1994). It is
well-settled under Heck that a plaintiff who has been
convicted of a crime cannot recover damages for an alleged
violation of his constitutional rights in conjunction with
that crime unless he proves that the conviction has been set
aside. Bush v. Strain,513 F.3d 492, 498
(5th Cir. 2008). Obadiah's conviction for
false swearing arises from the same October 24, 2012 arrest
upon which his civil ...