United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY, UNITED STATES DISTRICT JUDGE.
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. Plaintiff Leroy Johnson opposes the
motion. The motion, submitted for consideration on December
5, 2018, is before the Court on the briefs without oral
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.
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
now move for summary judgment arguing that qualified immunity
applies and bars all claims.
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.
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)).
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)).
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.
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