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Johnson v. Stewart

United States District Court, E.D. Louisiana

December 10, 2018

LEROY JOHNSON
v.
JAMES STEWART, ET AL.

          ORDER AND REASONS

          JAY C. ZAINEY, UNITED STATES DISTRICT JUDGE.

         The following motion is before the Court: Motion for Summary Judgment (Rec. Doc. 16) filed by defendants Sergeant Thomas Mushinsky, Officer Devin Milazzo, and Officer Leonel Gonzales.[1] Plaintiff Leroy Johnson opposes the motion. The motion, submitted for consideration on December 5, 2018, is before the Court on the briefs without oral argument.

         I. BACKGROUND

         Plaintiff Leroy Johnson filed this complaint pursuant to 42 U.S.C. § 1983 for various violations of his constitutional rights deriving from an encounter with officers of the Hammond Police Department on December 10, 2016. Johnson contends that the Defendants surrounded his vehicle without justification while he was parked in a relative's driveway, and ordered him from the vehicle at gunpoint. Johnson balked and attempted to leave the scene. The officers opened fire and Johnson was shot in the head, shoulder, and leg. Johnson was then arrested. Johnson claims that after the incident the officers attempted to cover up their unauthorized use of excessive force.[2]

         Johnson contends that Sergeant Thomas Mushinsky, Officer Devin Milazzo, and Officer Leonel Gonzales violated his Fourth Amendment right to be free from the use of excessive force. Johnson also alleges a state law battery claim against the defendant officers.[3]

         Defendants now move for summary judgment arguing that qualified immunity applies and bars all claims.

         II. DISCUSSION

         a. Governing Standards

         To prevail on an excessive force claim, the plaintiff must show 1) injury, 2) which resulted directly and only from a use of force that was clearly excessive, and 3) the excessiveness of which was clearly unreasonable. Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018) (quoting Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016)). Inquiries regarding whether a use of force was clearly excessive or clearly unreasonable are often intertwined. Id. (quoting Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017)). Excessive force claims are necessarily fact-intensive and whether the force used is “excessive” or “unreasonable” depends on “the facts and circumstances of each particular case.” Id. (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). In making this determination, a court should consider the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Id. (quoting Graham v. O'Connor, 490 U.S. 386, 396 (1989)). The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving, about the amount of force that is necessary in a particular situation. Id.

         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)).

         When faced with a well-supported motion for summary judgment, Rule 56 places the burden on the non-movant to designate the specific facts in the record that create genuine issues precluding summary judgment. Jones .v Sheehan, Young, & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996). The district court has no duty to survey the entire record in search of evidence to support a non-movant's position. Id. (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)).

         A qualified immunity defense alters the usual summary judgment burden of proof. Vann v. City of Southaven, 884 F.3d 307, 309 (5th Cir. 2018). Once an official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official's allegedly wrongful conduct violated clearly established law. Id. (quoting Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017)). The qualified immunity defense does not change, however, the requirement that the Court view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Id.

         A two-step analysis applies when evaluating an official's qualified immunity defense on summary judgment. The Court must determine 1) whether the facts that the plaintiff has alleged make out a violation of a constitutional right, and 2) whether the right at issue was clearly established at the time of the defendant's alleged misconduct. Darden, 880 F.3d at 727 (quoting Pearson v. Callahan,555 U.S. 223, 232 (2009)). A right may be clearly established without a case directly on point but existing precedent must have placed the statutory or constitutional question beyond debate. Id. (quoting Hanks, 853 F.3d at 746-47). In the excessive force ...


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