United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
Lloyd Perry ("Perry") brings this action under 42
U.S.C. § 1983 and Louisiana constitutional and tort law
to recover damages for wrongful arrest and excessive force.
[Record Document 1]. Defendants have moved for summary
judgment. [Record Document 23]. For the reasons given below,
the motion is GRANTED as to (1) the §
1983 substantive due process claims; (2) the § 1983
claim against the City of Bossier (the "City"); (3)
the claims against Chief Shane McWilliams
("McWilliams"); (4) the official capacity claims
against Officers Brandon Kowalzek ("Kowalzek") and
Lamond Wheatley ("Wheadey"); (5) the § 1983
and Louisiana constitutional claims against Kowalzek for
false arrest; (6) the § 1983 and Louisiana
constitutional claims against Kowalzek for the force used
while attempting to handcuff Perry; (7) the § 1983 and
Louisiana constitutional claims against Wheatley for the
force used when punching Perry; (8) the § 1983 claim
against Wheatley for failure to intervene; (9) the negligent
hiring, training, and supervision claim against the City; and
(10) the false arrest and false imprisonment tort claims
arising from the initial stop of Perry. Summary judgment is
DENIED as to (1) the § 1983 and
Louisiana constitutional claims against Kowalzek and Wheatley
for the force used to take Perry to the ground; (2) the false
arrest and false imprisonment tort claims for handcuffing and
arresting Perry; and (3) the tort claims for battery,
assault, and excessive force.
April 29, 2016, Perry was sitting inside of a home in Bossier
City, Louisiana. [Record Documents 23-3 at 1 and 23-11 at
39-40]. A truck driven by a man named Scoot allegedly hit
Perry's car, which was parked nearby; Scoot then drove
off. [Record Document 23-11 at 37-39]. Scoot's sister,
who was outside of the home, witnessed the accident and told
Perry what had happened. [Id. at 38-39]. After
examining his car, Perry called the Bossier City Police
Department ("BCPD") to report the hit-and-run.
[Record Documents 23-3 at 1 and 23-11 at 48]. Kowalzek
responded to the call, met Perry at his nearby apartment
complex, and drove him back to the accident site where Perry
had left his car. [Record Document 23-3 at 1-2]. All events
from the time Kowalzek restarted his police cruiser to return
Perry to the accident site were recorded by the cruiser's
dashboard camera. [Record Documents 23-3 at 1 and 23-5].
they arrived at the accident site, Kowalzek inspected
Perry's car and asked Perry for his license,
registration, and proof of insurance. [Record Document 23-3
at 2]. Perry handed over his license, prompting Kowalzek to
repeat his request. [Id]. Perry then moved slowly
back towards his car and seemed to search for his keys before
returning to Kowakek without the requested documents.
[Id.]. Kowalzek requested Perry's registration
and proof of insurance once again, and Perry retrieved them
from his car. [Id.].
instructed Perry to wait inside his car while Kowalzek
completed his report. [Id.]. Kowahek spoke briefly
to a bystander about the incident before continuing to work
on the report. [Id.]. At this point, Perry drove
away without warning, leaving Kowalzek with Perry's
license, registration, and insurance information.
[Id. at 3].
responded to this unexpected turn of events by following
Perry and conducting a traffic stop in the parking lot of
Perry's apartment complex. [Id.]. Perry exited
his car and began arguing with Kowalzek, who asked Perry to
stand in front of the police cruiser. [Id.]. Perry
complied, but continued arguing with Kowalzek.
[Id.]. Perry did, however, answer Kowalzek's
query as to why Perry had driven away from the accident site;
Perry explained that he drove off because Kowalzek was
"talking to everybody but me." [Record Document
23-5 at 18:28:30-:39]. After requesting a supervisor from
police dispatch, Kowalzek attempted to give Miranda
warnings to Perry, but emphasized that Perry was not under
arrest. [Record Documents 23-3 at 3 and 28-5 at 2]. Perry was
clearly frustrated and repeatedly interrupted Kowalzek's
attempts to give the warnings. [Record Documents 23-3 at 3
and 23-5 at 18:27:46-:29:25].
then announced that he was going to handcuff Perry for
officer safety. [Record Document 23-3 at 4]. After Kowalzek
grabbed Perry to apply the handcuffs, Perry began to struggle
by pulling his hands away from Kowalzek and using them to
brace himself against the hood of the police cruiser and push
back against Kowalzek. [Id. at 4-5]. Kowalzek called
for expedited help, and the dispatcher issued an emergency
call for all available officers to report to the scene.
[Id. at 4].
heard both calls and responded. [Id.]. As he drove,
he heard the sound of a struggle over the police radio, and
when he arrived in the parking lot, he saw Perry and Kowalzek
struggling. [Id. at 5]. By this point, Kowalzek had
placed one of Perry's hands in handcuffs, but had been
unable to cuff the other hand. [Id.]. Wheatley
approached the struggling pair and attempted to grab
Perry's left arm before moving around and to the right of
the pair. [Id.]. Wheatley then punched Perry in the
jaw once. [Id.]. At that point, Kowalzek and
Wheatley took Perry down to the ground where they
successfully applied the handcuffs. [Id. at 6]. At
the police station, Perry was booked for Resisting an Officer
with Force or Violence and Misrepresentation During Booking.
[Record Document 23-17 at 1]. These charges were dismissed.
[Record Document 1 at 5].
his encounter with Kowalzek and Wheatley, Perry alleges that
he suffered a broken jaw, a left eye hemorrhage, lacerations
to his liver, an aneurysm, and anemia associated with acute
blood loss. [Id. at 4]. The Court granted the
parties' joint motion to delay medical discovery until
the resolution of the summary judgment motion. [Record
Document 19]. Perry has opposed the instant motion, and
Defendants have filed a reply. [Record Documents 28 and 30].
Summary Judgment Standard
Rule of Civil Procedure 56(a) directs a court to "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." Summary judgment is
appropriate when the pleadings, answers to interrogatories,
admissions, depositions, and affidavits on file indicate that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When the burden at trial will rest on the non-moving party,
the moving party need not produce evidence to negate the
elements of the non-moving party's case; rather, it need
only point out the absence of supporting evidence. See
Id. at 322-23. However, "if the movant bears the
burden of proof on an issue, ... he must establish beyond
peradventure all of the essential elements of the
claim or defense to warrant judgment in his favor."
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Or.
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact, the nonmovant must
demonstrate that there is, in fact, a genuine issue for trial
by going "beyond the pleadings" and
"designating] specific facts" for support.
Utile v. Lquid Air Corp., 37 F.3d 1069, 1075 (5th
Or. 1994) (citing Celotex, 477 U.S. at 325).
"This burden is not satisfied with some metaphysical
doubt as to the material facts," by conclusory or
unsubstantiated allegations, or by a mere "scintilla of
evidence." Id. (internal quotation marks and
citations omitted). However, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor." Anderson v. Liberty
Lobby, Inc., Ml U.S. 242, 255 (1985) (citing Adickes
v. S H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
While not weighing the evidence or evaluating the credibility
of witnesses, courts should grant summary judgment where the
critical evidence in support of the nonmovant is so
"weak or tenuous" that it could not support a
judgment in the nonmovant's favor. Armstrong v. City
of Dull, 997 F.2d 62, 67 (5th Cir. 1993).
Local Rule 56.1 requires the movant to file a statement of
material facts as to which it "contends there is no
genuine issue to be tried." The opposing party must then
set forth a "short and concise statement of the material
facts as to which there exists a genuine issue to be
tried." W.D. La. R. 56.2. All material facts set forth
in the movant's statement "will be deemed admitted,
for purposes of the motion, unless controverted as required
by this rule.' Id.
degree of force that an officer may employ when arresting or
detaining a suspect depends in part upon the severity of the
suspected crime. Graham v. Connor' 490 U.S. 386,
396 (1989). Because Defendants argue that Kowalzek had
reasonable suspicion to stop Perry in the parking lot and
probable cause to arrest him, facts supporting these
determinations are critical. [Record Documents 23-1 at 9-14
and 29 at 1-3]. Defendants claim that Kowalzek could smell
alcohol on Perry from the moment of their first encounter and
in support reference medical reports from later that day
stating that Perry was intoxicated and that his breath
smelled of alcohol. [Record Documents 23-3 at 2, 23-18 at 1,
and 23-19 at 5]. Perry's evidence-that Kowalzek did not
mention the smell of alcohol in the police report, that
Kowalzek described the smell as one of "impurities"
in an interview during an Internal Affairs investigation, and
that Kowalzek ordered Perry to sit in the front seat of his
own car where he could easily leave the scene-calls
Defendants' claim into question. [Record Document 28 at
4-5]. Although Defendants' evidence suggests that Perry
did smell of alcohol on the day of the incident, the relevant
fact is whether Kowalzek perceived the smell of
alcohol, as it is the set of facts available to the arresting
officer from which probable cause is to be determined. From
Perry's evidence, a jury could conclude that Kowalzek had
not smelled alcohol on Perry.
parties also dispute whether Kowalzek had completed the
portion of the investigation that required Perry's car to
remain located where it had been hit. [Record Documents 23-3
at 3 and 28 at 3-4]. Although Kowalzek had not completed the
accident report before Perry drove off, it is unclear whether
he had finished inspecting Perry's car. In his Internal
Affairs interview, Kowalzek stated that he had enough
information by the time Perry drove away in order to complete
the hit-and-run report. [Record Document 28-3 at 3]. Because
on summary judgment the Court must make inferences in
Perry's favor, see Anderson, 477 U.S. at 255
(citing Adickes, 398 U.S. at 158-59), the Court will
infer, for purposes of this motion, that Kowalzek did not
smell alcohol on Perry and that Kowalzek had finished
inspecting Perry's car before Perry left the accident
Fourteenth Amendment Claims
asserts each of his § 1983 claims under both the Fourth
and Fourteenth Amendments. [Record Document 1 at 5-15]. To
the extent that Perry asserts the Fourteenth Amendment for
the unremarkable proposition that Fourth Amendment
protections apply to state actors by virtue of the Fourteenth
Amendment, see Sbaboon v. Duncan, 252 F.3d 722, 733
(5th Cir. 2001), his Fourteenth Amendment claims survive
summary judgment where the underlying Fourth Amendment claims
a particular Amendment 'provides an explicit textual
source of constitutional protection' against a particular
sort of government behavior, 'that Amendment, not the
more generated notion of "substantive due process,"
must be the guide for analyzing these claims.'"
Albright v. Oliver, 510 U.S. 266, 273 (1994)
(plurality opinion) (quoting Graham, 490 U.S. at
395). Because Perry's false arrest and excessive force
claims are cognizable under the Fourth Amendment, see
Petta v. Rivera, 143 F.3d 895, 900 (5th Cir. 1998)
(citing Graham, 490 U.S. at 395, 396 n.10), the
Court dismisses Perry's Fourteenth Amendment claims to
the extent that they purport to be substantive due process
Monell Claim Against the City
alleges that the City is liable for maintaining policies,
customs, or practices that allowed Kowalzek and Wheatley to
violate Perry's constitutional rights. [Record Document 1
at 13-15]. To impose liability on a municipality under §
1983, a plaintiff must prove three elements: a
"policymaker[J an official policy [J and a violation of
constitutional rights whose 'moving force' is the
policy or custom." Piotromki v. City of Hous.,
237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v.
Dep't of Soc. Sews,, 436 U.S. 658, 694 (1978)).
Defendants argue that Perry's claim fails because he
cannot establish an underlying constitutional violation and
because BCPD has no policy authori2ing or encouraging
constitutional violations. [Record Document 23-1 at 26].
Defendants' uncontroverted evidence reveals that BCPD
"do[es] not have a custom, policy [J or practice of
violating or allowing any police to violate the rights of any
citizen or any other person," [Record Document 23-22 at
1], that BCPD's use-of-force policies correspond to model
policies, [Record Document 23-21 at 5], and that Kowalzek and
Wheadey had completed required use-of-force training, [Record
Documents 23-21 at 5 and 23-23 at 1-3]. Although Perry
maintains that Kowalzek and Wheatley violated his rights, he
has produced no evidence suggesting that BCPD policies caused
their allegedly objectionable conduct. In the absence of any
countervailing evidence, the Court grants summary judgment
for the City on Perry's Monell claim.
Claims Against McWilliams
sues McWilliams, the BCPD chief, in his individual and
official capacities. [Record Document 1 at 2]. Although Perry
does not name McWilliams in any specific claim, the Court
construes Perry's claims against McWilliams as arising
under § 1983 as that is the context in which the
distinction between individual and official capacity claims
is legally significant. See Turner v. HoumaMun. Fire
'Police Civil Sew. Bd, 229 F.3d 478, 483 (5th Or.
2000). An official capacity suit a against municipal officer
duplicates a suit against the officer's municipality.
Id. (citing Kentucky v. Graham, 473 U.S.
159, 165 (1985)). Because the Court has held that Perry's
Monell claim against the City fails, his claim
against McWilliams in the latter's official capacity also
McWilliams's only involvement in the conduct forming the
basis of this complaint is in his role as Kowalzek and
Wheatley's supervisor, an individual capacity claim can
only arise from his alleged failure to train or supervise his
officers. An individual-capacity failure-to-supervise claim
is identical to a municipal-liability failure-to-supervise
claim. Terns v. Pugh, 289 Fed.Appx. 767, 771 (5th
Or. 2008) (citing Doe v. Taylor lndep. Sch. Dist.,
15 F.3d 443, 453 (5th Or. 1994)). The City is entitled to
summary judgment on Perry's § 1983 claims, and so
McWilliams is entitled to summary judgment on claims against
him in his individual capacity. The Court thus dismisses all
claims against McWilliams.
Official Capacity Claims Against Kowalzek and
brings claims against Kowalzek and Wheatley in their official
and individual capacities. [Record Document 1 at 2]. An
official capacity suit against a municipal officer is treated
as a suit against the officer's municipality.
Turner, 229 F.3d at 483 (citing Graham, 473
U.S. at 165). Municipalities are liable for their
officers' constitutional torts only when the
municipality's policy caused the constitutional
violation. Pembaur v. City of Cincinnati, 475 U.S.
469, 479, 484 (1986). Only a decisionmaker "possess[ing]
final authority to establish municipal policy with respect to
the action ordered" establishes official policy for
purposes of municipal liability under § 1983.
Id. at 481 (plurality opinion). KowaLzek and Wheatley
were BCPD officers, [Record Document 1 at 2], but no record
evidence establishes that either man had the authority to set
policy regarding arrests and use of force. Hence, they are
improper parties to sue in order to establish the City's
liability. The Court thus grants summary judgment as to all
§ 1983 claims against Kowalzek and Wheatley in their
Qualified Immunity Under § 1983
police officer who violates a person's Fourth Amendment
right to be free of unreasonable searches and seizures is
entitled to qualified immunity against individual-capacity
suits unless the officer's conduct was unreasonable in
light of clearly established law. District of Columbia v.
Wesby, 138 S.Ct. 577, 589 (2018) (citing Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011)). Once a defendant
asserts qualified immunity, a plaintiff must prove (1) that a
federal constitutional or statutory right was violated; and
(2) that the right was clearly established at the time of the
violation. King v. Handorf, 821 F.3d 650, 653 (5th
Cir. 2016) (citing Collier v. Montgomery, 569 F.3d
214, 217 (5th Cir. 2009); Morgan v. Swanson, 659
F.3d 359, 370 (5th Cir. 2011) (en banc)). These two prongs
may be evaluated in either order. Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
clearly established, a legal principle must be found in the
holdings of either "controlling authority" or a
"robust 'consensus of cases of persuasive authority,
"' al-Kidd, 563 U.S. at 741-42 (quoting
Wilson v. Layne, 526 U.S. 603, 617 (1999)), and
defined with a "high 'degree of specificity,
"' Wesby, 138 S.Ct. at 590 (quoting
Mullenix v. Luna, 136 S.Ct. 305, 309 (2015) (per
curiam)). Existing authority must do more than merely suggest
or imply the desired rule of law; rather, "[t]he
precedent must be clear enough that every reasonable official
would interpret it to establish the particular rule the
plaintiff seeks to apply." Id. (citing
Reichle v. Howards, 566 U.S. 658, 666 (2012)). The
"clearly established" test ensures that officials
have "fair warning" that particular conduct
violates the Constitution. Anderson v. Valdez 845
F.3d 580, 600 (5th Or. 2016) (quoting Kinney v.
Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc)).
only must the rule itself be clearly defined, its application
to the particular circumstances confronting the offending
officer must be similarly clear. Saucier v. Katz 533
U.S. 194, 202 (2001) (citing Wilson, 562 U.S. at
615) (identifying the relevant inquiry as "whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted"
(emphasis added)). Because the situations in which police
officers on patrol must apply the Fourth Amendment to the
facts before them are as varied as life itself, the
"'specificity' of the rule is 'especially
important in the Fourth Amendment context.'"
Wesby, 138 S.Ct. at 590 (quoting Mullenix,
136 S.Ct. at 308). For this reason, unless the conduct at
issue is so obviously unlawful that every reasonable officer
would be on notice of the unlawfulness without the assistance
of precedent, id. (citing Brosseau v.
Haugen, 543 U.S. 194, 199 (2004) (per curiam)), a
plaintiff seeking to overcome qualified immunity must
"identify a case where an officer acting under similar
circumstances . . . was held to have violated the Fourth
Amendment," White v. Pauly, 137 S.Ct. 548, 552
(2017) (per curiam). The operative word here is
"similar." There may be "notable factual
distinctions between the precedents relied on and the cases
then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated
constitutional rights." Kinney, 367 F.3d at 350
(quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).
False Arrest Claims Against Kowalzek
alleges that Kowalzek violated Perry's Fourth Amendment
rights by unlawfully seizing and detaining him. [Record
Document 1 at 5-7]. Defendants assert that Kowalzek had
probable cause to arrest Perry for obstruction of justice,
driving while intoxicated, and resisting an officer. [Record
Document 23-1 at 11-14].
Amendment rights vary depending on the nature of a police
encounter. Police may initiate consensual encounters without
any particular rationale, Florida v. Royer, 460 U.S.
491, 497 (1983) (plurality opinion), detentions require
reasonable suspicion that criminal activity "may be
afoot," United States v. Sokolow, 490 U.S. 1, 7
(1989) (quoting Terry v. Ohio, 392 U.S. 1, 30
(1968)), and arrests require probable cause, Dunaway v.
New York, 442 U.S. 200, 208 (1979). Reasonable suspicion
means "something more than an inchoate and
unparticularized suspicion or hunch." Sokolow,
490 U.S. at 7 (internal quotation marks omitted) (quoting
Terry, 392 U.S. at 27). Probable cause, a higher
standard, is a particularized ground to believe that the
arrestee committed a crime. Maryland v. Pringle, 540
U.S. 366, 371 (2003) (citing Ybarra v. Illinois, 444
U.S. 85, 91 (1979)). Because these standards are objective,
reasonable suspicion and probable cause determinations are
based on the facts available to the seizing officer at moment
of seizure without reference to that officer's subjective
intentions. Devenpeck v. Alford, 543 U.S. 146,
Stop in the Parking ...