United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY, MAGISTRATE JUDGE.
MAURICE HICKS, JR., CHIEF JUDGE, UNITED STATES DISTRICT
the Court is a Motion for Summary Judgment (Record Document
22) filed by Defendants, the City of Shreveport (“the
City”) and Corporal Phillip Tucker (“Cpl.
Tucker”). Defendants seek dismissal of the federal
claims against Cpl. Tucker on the ground of qualified
immunity. They seek dismissal of the Monell claims
against the City on the ground that there is no custom,
policy or practice of infringing constitutionally protected
rights. Defendants also seek dismissal of all state law
claims. Plaintiff Marjorie Shepherd (hereinafter
“Plaintiff” or “Ms. Shepherd”)
opposes the Motion for Summary Judgment, arguing there are
genuine disputes of material fact. See Record
Document 30. For the reasons set forth below, the Motion for
Summary Judgment is GRANTED and all claims
against Defendants are DISMISSED WITH
October 15, 2013, the Shreveport Fire Department received a
911 call regarding an individual who had possibly suffered a
seizure at 514 Americana Drive in Shreveport, Louisiana.
See Record Document 22-3 at ¶ 1; Record
Document 30-1 at ¶ 1; see also Record Document
22, Exhibit 1 (First 911 Call). The 911 caller, Jerri Zuniga
(“Zuniga”), indicated that the patient, John
Shepherd (“Shepherd”), was potentially violent
stating that “he's gonna kill me.”
Id. at ¶ 2; Record Document 30 at ¶ 2;
see also Record Document 22, Exhibit 1 at 4:30-
5:00. When asked by the dispatcher why, Zuniga responded
“because he has bad drug and alcohol problems”
and “it's like he knows I called somebody.”
Shreveport Fire Department requested assistance from the
Shreveport Police Department. See id. at ¶ 3;
Record Document 30-1 at ¶ 3; see also Record
Document 22, Exhibit 2 (Radio Dispatch). Cpl. Tucker was
dispatched after having received a communication from
dispatch that the patient, Shepherd, had suffered a seizure
and was “violent.” Id. Cpl. Tucker also
received a text dispatch that the male patient was
“getting combative with the female for calling”
and that the female caller “thinks he is going to hurt
her.” Id. at ¶ 3; Record Document 30-1 at
¶ 3; see also Record Document 22, Exhibit 4
Cpl. Tucker was en route to 514 Americana, Shreveport Fire
Department firefighters entered Shepherd's residence, at
which time Shepherd armed himself with a knife and confronted
the firefighters. See at ¶ 4; Record Document
30-1 at ¶ 4; see also Record Document 22,
Exhibits 6-9. Shepherd chased the firefighters out of the
residence while armed with the knife. See id. The
knife was eight inches long, with a four inch blade.
See Record Document 22, Exhibit 12. Based on the
conduct of Shepherd, the dispatch was updated to notify Cpl.
Tucker that the call had been expedited because the patient
was armed with a knife. See Record Document 22-3 at
¶ 5; Record Document 30-1 at ¶ 5; see also
Record Document 22, Exhibits 3 & 5 (MVS Recording).
the updated dispatch, a neighbor called 911 and reported that
there has been shots fired. See id. at ¶ 6;
Record Document 30-1 at ¶ 6; see also Record
Document 22, Exhibit 10 (Second 911 Call). The dispatch was
updated against to notify Cpl. Tucker that there was a report
of shots fired in the area. See id. at ¶ 7;
Record Document 30-1 at ¶ 7; see also Record
Document 22, Exhibits 2, 3 & 5. Shreveport Fire
Department Captain Michael Lawson, who was on scene at 514
Americana, updated dispatch that no shots were fired on
scene. See Record Document 30-3 at 49. It does not
appear that Cpl. Tucker treated the scene or approached the
scene as though shots had been fired. See Record
Document 30-1 at ¶¶ 6-7.
Tucker was the first police officer to arrive on the scene at
514 Americana. See Record Document 22-3 at ¶ 8;
Record Document 30-1 at ¶ 8; see also Record
Document 22, Exhibit 3 (Tucker Affidavit). He arrived on
scene at approximately 19:51:30 of the MVS recording.
See Record Document 22, Exhibit 5. The MVS recording
shows that it was raining at the time of Cpl. Tucker's
arrival. See id. The MVS recording also shows Cpl.
Tucker retrieving a shotgun from his car when he arrived on
scene. See id.; see also Record Document
30-1 at ¶ 31.
his arrival, the paramedics identified Shepherd as the person
with a knife and also told Cpl. Tucker that there was at
least one person in the residence, the female caller
referenced in the dispatch call. See Record Document
22-3 at ¶ 8; Record Document 30-1 at ¶ 8; see
also Record Document 22, Exhibit 3 (Tucker Affidavit).
While Cpl. Tucker knew Shepherd had possibly suffered a
seizure, he was not informed that Shepherd suffered from any
mental illness or disorder. See id. at ¶ 9;
Record Document 30-1 at ¶ 9; see also Record
Document 22, Exhibit 3.
19:51:50 of the MVS recording, Cpl. Tucker can be seen
walking toward the firetruck with his shotgun. See
Record Document 22, Exhibit 5. At the time Cpl. Tucker
arrived on scene, Shepherd was standing near the street,
between the firetruck and the house. See Record
Document 22-3 at ¶ 10; Record Document 30-1 at ¶
10; see also Record Document 22, Exhibits 3 and 5.
Shepherd was holding a knife. See id. Shortly after
arriving at 514 Americana and after exiting his vehicle and
moving toward the residence, Cpl. Tucker stated on the radio,
“Sarge, expedite.” See id. at ¶ 11;
Record Document 30-1 at ¶ 11; see also Record
Document 22, Exhibit 5. The dispatcher also asked Cpl. Tucker
if he needed a “33, ” which is a method to stop
all radio communications on one of the two radio channels
used and a procedure only used in serious incidents. See
id. Cpl. Tucker responded, “10-4.” Record
Document 22, Exhibit 5. While Shepherd never verbally
threatened Cpl. Tucker, Plaintiff admits that Shepherd cursed
two or three times by stating, “fuck you.” Record
Document 30-1 at ¶ 33.
following factual information is drawn from the Court's
careful and close review of the MVS recording from Cpl.
Tucker's patrol car dash-mounted camera. See
Record Document 22, Exhibit 5. Again, there is no dispute
that at the time Cpl. Tucker arrived on scene, Shepherd was
standing near the street, between the firetruck and the
house, and he was holding a knife. Cpl. Tucker made multiple
verbal commands for Shepherd to “get down”;
“lay down”; and “get down on the
ground.” Id. at 19:52:22-54. Shepherd
disregarded those commands and began to move away from Cpl.
Tucker towards the residence. See id. at 19:52:55.
As Shepherd began to move back towards the residence, Cpl.
Tucker tells Shepherd, “Come to me now.”
Id. at 19:52:55. This is the only time, as evidenced
by the video and audio recordings, that Cpl. Tucker told
Shepherd to move towards him.
entered the garage of the residence at approximately 19:53:07
on the MVS recording. See id. Shortly
thereafter, Cpl. Tucker can be heard asking, “hey, can
somebody give me some lights” and the video shows
firefighters returning to the firetruck. See id. At
approximately 19:53:28 on the MVS recording, Cpl. Tucker
instructs Shepherd, who is in the garage, to get his hands
up. See id. He gives this command two more times at
approximately 19:53:39 and 19:53:44 of the MVS recording.
See id. At approximately 19:53:49, Shepherd can be
seen leaving the garage. See id.
at approximately 19:53:45 of the MVS recording, Cpl. Tucker
begins backing up. See id. This is also the
approximate time that Shepherd begins to leave the garage and
the MVS recording shows Cpl. Tucker backing away as Shepherd
moves out of the garage. See id. At 19:53:48-49 of
the MVS recording, Cpl. Tucker tells Shepherd to “get
back.” Id. From 19:53:49 to 19:53:50, Shepherd
begins walking down the incline of the driveway toward Cpl.
Tucker. See id. Cpl. Tucker believed that Shepherd
was accelerating toward him. See Record Document
22-7 at ¶ 3. Ms. Shepherd contends that Shepherd
stumbled or shuffled toward Cpl. Tucker. See Record
Document 30-1 at ¶ 15.
Tucker shot Shepherd at approximately 19:53:51 of the MVS
recording. See Record Document 22, Exhibit 5. The
MVS recording shows Shepherd fall forward after he was shot.
See id. at 19:53:52-53. This was approximately two
minutes after Cpl. Tucker arrived on scene. Cpl. Tucker used
lethal force when Shepherd was approximately ten feet away
from him. See Record Document 22-7 at ¶ 3.
Plaintiff likewise admits that Shepherd was shot when he
“came within [ten] feet” of Cpl. Tucker.
See Record Document 30-1 at ¶ 42. As will be
discussed infra, while there is no dispute that
Shepherd was holding a knife at the time of the shooting,
there is a factual dispute regarding where the knife was
located, i.e., his arm raised with the knife above
his head versus his arm and knife by his side, at the time of
the shooting. The MVS recording is not clear enough to
determine the location of the knife at the time of the
shooting. Cpl. Tucker stated that Shepherd raised the knife
above his head as he approached Cpl. Tucker. See
Record Document 22-7 at ¶ 3. Firefighters David Morgan,
Daniel Marze, Sharon Sullivan, and Michael Lawson also stated
in their depositions that Shepherd raised the knife over his
head as he advanced down the driveway and immediately prior
to being shot. See Record Document 22-10 at 47;
Record Document 22-11 at 44; Record Document 22-12 at 46;
Record Document 22-13 at 75. Conversely, Ms. Shepherd
maintains that Shepherd did not have his hands raised with a
knife in a threatening manner and that his hands were by his
side. See Record Document 30-1 at ¶ 15. Ms.
Shepherd points to the declarations of Zuniga and neighbor
Laurel Brightwell (“Brightwell”), both of whom
maintain that Shepherd's hands were by his side at the
time of the shooting. See id.
the shooting, Shepherd was treated by the Shreveport Fire
Department medics on scene and was then transported to
University Health Shreveport. See Record Document 1
at ¶ 22. He was pronounced dead at University Health
Shreveport. See Id. at ¶ 23.
filed the instant lawsuit on behalf of her deceased son.
See Record Document 1. She alleges a Section 1983
excessive force against Cpl. Tucker; Monell claims
against the City; and state law claims against Cpl. Tucker
and the City. See id. Cpl. Tucker and the City have
now filed a Motion for Summary Judgment and seek dismissal
with prejudice of all claims. See Record Document
LAW AND ANALYSIS
Summary Judgment Standard.
of the Federal Rules of Civil Procedure governs summary
judgment. This rule provides that the court “shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” F.R.C.P.
56(a). Also, “a party asserting that a fact cannot be
or is genuinely disputed must support the motion by citing to
particular parts of materials in the record.” F.R.C.P.
56(c)(1)(A). “If a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact as required by Rule 56(c), the
court may . . . grant summary judgment.” F.R.C.P.
summary judgment motion, “a party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the pleadings . . . [and]
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553
(1986) (internal quotations and citations omitted). If the
movant meets this initial burden, then the non-movant has the
burden of going beyond the pleadings and designating specific
facts that prove that a genuine issue of material fact
exists. See id. at 324, 106 S.Ct. at 2553; see
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). A non-movant, however, cannot meet the burden of
proving that a genuine issue of material fact exists by
providing only “some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.”
Little, 37 F.3d at 1075.
reviewing a motion for summary judgment, the court is to view
“the facts and inferences to be drawn therefrom in the
light most favorable to the non-moving party.”
Tubos de Acero de Mexico, S.A. v. Am. Int'l Inv.
Corp., Inc., 292 F.3d 471, 478 (5th Cir. 2002); see
also Harris v. Serpas, 745 F.3d 767, 771 (5th Cir.
2014). However, when there is video evidence available in the
record, the court is not bound to adopt the nonmoving
party's version of the facts if it is contradicted by the
record, but rather should “review[ ] the facts in the
light depicted by the videotape.” Scott v.
Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 1776 (2007);
see also Carnaby v. City of Houston, 636 F.3d 183,
187 (5th Cir.2011) (“Although we review evidence in the
light most favorable to the nonmoving party, we assign
greater weight, even at the summary judgment stage, to ...