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Perry v. City of Bossier

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

October 17, 2018

LLOYD PERRY
v.
CITY OF BOSSIER, ET AL.

          HAYES JUDGE

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. Background

         On 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].

         When 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.].

         Kowahek 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].

         Kowalzek 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].

         Kowalzek 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].

         Wheatley 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].

         From 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].[1] Perry has opposed the instant motion, and Defendants have filed a reply. [Record Documents 28 and 30].

         II. Summary Judgment Standard

         Federal 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."[2] 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. 1986).

         If the 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).

         Additionally, 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.

         III. Disputed Facts

         The 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.

         The 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 site.

         IV. Federal Claims

         A. Fourteenth Amendment Claims

         Perry 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 do.

         "Where 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 claims.

         B. Monell Claim Against the City

         Perry 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.

         C. Claims Against McWilliams

         Perry 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 fails.

         Because 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.

         D. Official Capacity Claims Against Kowalzek and Wheatley

         Perry 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 official capacities.

         E. Qualified Immunity Under § 1983

          A 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).

         To be 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)).

         Not 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)).

         F. False Arrest Claims Against Kowalzek

         Perry 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].

         Fourth 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, 153-55 (2004).

         1. Stop in the Parking ...


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