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Francois v. City of Gretna

United States District Court, E.D. Louisiana

February 23, 2018


         SECTION A(3)



         The 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 argument.[1]

         According 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.[2] (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).

         A jury 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).

         According to Gretna, the general underlying facts of the case are as follows:[3] 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.[4] (Id.).

         Obadiah 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 “misunderstanding.”[5]

         Matthias has no criminal convictions resulting from the October 24, 2012 incident.[6]

         The 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.[7] As to Obadiah, Gretna moves for dismissal based upon the bar to litigation recognized in Heck v. Humphrey, 512 U.S. 477 (1994).[8]

         Summary 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)).

         As to 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)).

         At the 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, Dazet declaration).

         But 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, 2012 incident.[9]

         Although 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 ...

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