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Shepherd v. City of Shreveport

United States District Court, W.D. Louisiana, Shreveport Division

March 27, 2018

MARJORIE SHEPHERD
v.
CITY OF SHREVEPORT, ET AL.

          HORNSBY, MAGISTRATE JUDGE.

          MEMORANDUM RULING

          S. MAURICE HICKS, JR., CHIEF JUDGE, UNITED STATES DISTRICT COURT.

         Before 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 PREJUDICE.

         I. BACKGROUND

         On 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.” Id.

         The 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 (Text Dispatch).[1]

         While 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).

         After 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.

         Cpl. 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.

         Upon 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.

         At 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.

         The 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.

         Shepherd entered the garage of the residence at approximately 19:53:07 on the MVS recording. See id.[2] 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.

         Beginning 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.

         Cpl. 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.

         After 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.

         Plaintiff 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 22.

         II. LAW AND ANALYSIS

         A. Summary Judgment Standard.

         Rule 56 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. 56(e)(3).

         In a 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.

         In 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 ...


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