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Hegeman v. Harrison

United States District Court, E.D. Louisiana

March 20, 2019

LEAH HEGEMAN
v.
MICHAEL HARRISON, LARRY ADAMS, and THE CITY OF NEW ORLEANS

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATE DISTRICT JUDGE

         Before the Court is the defendants' Rule 12(c) motion to dismiss, or in the alternative, Rule 56 motion for summary judgment. For the reasons that follow, the motion is GRANTED, in part, as to the plaintiff's § 1983 claims against Officer Adams and Superintendent Harrison in their official capacities, and DENIED, in part, as to the plaintiff's claims against Officer Adams and Superintendent Harrison in their individual capacities, as well as to her Monell liability claim against the City for failure to discipline.

         Background

         This civil rights lawsuit arises from a young woman's claims that she sustained serious injuries at the hands of the New Orleans Police Department while protesting President Trump's inauguration.

         On the evening of January 20, 2017, NOPD officers were ordered to Lafayette Square in New Orleans, Louisiana to monitor the gathering of a protest. Upon arriving to the scene, the officers observed protestors dressed in black attire with masks or bandanas covering their faces. As the protestors began traveling towards Canal Street, what began as a rally turned into a riot. Members of the public were observed shattering windowpanes, spray painting local businesses and NOPD vehicles, and throwing homemade firecrackers at officers. Officer Larry Adams also witnessed rioters attempt to knock another officer off of his scooter. The officers kept a close eye on the disorderly protestors and arrested those who disturbed the peace of the demonstration.

         Leah Hegeman, a 26-year-old resident of New Orleans, was one of the many participants in the protest. Although it is undisputed that Officer Larry Adams encountered Ms. Hegeman in the 500 block of North Rampart Street, the two present strikingly different accounts of their exchange. According to an “Officer Force Statement” completed by Adams, he instructed protestors that the area in which he was apprehending suspects was being cordoned off. When Hegeman attempted to push past him, Officer Adams informed her that she was under arrest for violating a police corridor. Officer Adams further reported that, as he clasped Hegeman's wrists, she pulled away in an attempt to evade custody. Refusing to let Ms. Hegeman go, Officer Adams spun around until the pair “gradually went to the ground.”

         Ms. Hegeman presents her account of the incident in the form of an affidavit. Hegeman attests that, while standing in the 500 block of North Rampart Street, she observed an NOPD officer beating and choking an unarmed man on the ground. She further attests that, up until that point, she had not been told by law enforcement to disperse from her location, that she was impeding police work, or that she could not film or record the scene. As Ms. Hegeman began to film the altercation, Officer Adams charged toward her violently and pushed her back. However, he did not verbally order or command her to move back, nor did he command her to stop filming. Accordingly, Ms. Hegeman backed away but continued to film the altercation. As she was backing away, Officer Adams “suddenly and violently rushed [her], grabbed [her], and tackled [her] to the ground.” Hegeman further attests that she felt a tremendous amount of pressure on her back and the back of her neck and informed Officer Adams that she could not breathe before she briefly lost consciousness. Upon regaining consciousness, Hegeman was handcuffed, and her backpack was removed from her body with a knife.

         Suffering from a history of brain cancer, Ms. Hegeman becomes symptomatic and is required to seek medical attention whenever she experiences head trauma. Accordingly, while sitting in the rear of a police car, she informed officers of her condition and requested medical attention. Her requests were met with laughter and delay, and she later vomited due to a concussion.

         Ms. Hegeman was eventually transported to University Medical Center for treatment, after which she was taken to Orleans Parish Prison and booked with the following state law crimes: wearing masks in public (La. R.S. § 14:313), inciting a riot (La. R.S. § 14:329.2), and criminal damage to historic buildings or landmarks (La. R.S. § 14:56.5(C)(1)). All charges were subsequently dismissed by the Orleans Parish District Attorney's office.

         After investigating the incident, Sergeant Christina Watson of the Public Integrity Bureau's Force Investigation Team determined that the “use of force was justified and within department policy.”[1] Sergeant Watson explained in her report:

Hegeman accused Officer Adams [of] throwing her to the ground and standing on the back of her neck. There is no conclusive video evidence to refute Hegeman's claims, because Officer Adams lost his BWC [body worn camera] before he engaged Hegeman. Therefore, it is possible that Officer Adams may have fallen on her neck because she complained of neck pain . . . . The momentum of Hegeman and Officer Adams falling on the ground could have force[d] Hegeman to hit her head on the ground and irritate[d] her previous condition.

         On January 19, 2018, Leah Hegeman filed this 42 U.S.C. § 1983 civil rights lawsuit against the City of New Orleans; former Superintendent of the New Orleans Police Department, Michael Harrison; and NOPD officers, Larry Adams and Christopher Barbe. Hegeman seeks to recover from the defendants for various constitutional violations underlying her § 1983 claims, including violations of her First, Fourth, and Fourteenth Amendment rights; she also asserts Monell liability, as well as various state law claims including false arrest, false imprisonment, assault, battery, and intentional infliction of emotional distress.[2] The defendants now move to dismiss the plaintiff's claims under Rule 12(c), or in the alternative, for summary judgment under Rule 56.[3]

         I.

         A.

         The standard for deciding a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is the same as the one for deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6). Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010). A court may grant a Rule 12(c) motion only if the pleadings evince no disputes of genuine material fact and questions of law alone remain. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (citations omitted).

         In considering a Rule 12(b)(6), or a Rule 12(c) motion, the Court accepts all well-pleaded facts as true and draws all factual inferences in favor of the non-movant. See id. at 313 n.8; Alexander v. City of Round Rock, 854 F.3d 298, 303 (5th Cir. 2017) (citing Thompson, 764 F.3d at 502; Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)); Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). But, in deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Indeed, the Court must first identify pleadings that are conclusory and, thus, not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). A corollary: legal conclusions “must be supported by factual allegations.” Id. at 1950. Assuming the veracity of the well-pleaded factual allegations, the Court must then determine “whether they plausibly give rise to an entitlement to relief. Id.

         To survive a Rule 12 motion to dismiss or for judgment on the pleadings, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949 (2009)) (internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, citations, and footnote omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.”). This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (citing Twombly, 550 U.S. at 557) (internal quotations omitted).

         In deciding a motion to dismiss, the Court may consider documents that are essentially “part of the pleadings” -- that is, any documents attached to or incorporated in the plaintiff's complaint that are central to the plaintiff's claim for relief. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). Also, the Court is permitted to consider matters of public records and other matters subject to judicial notice without converting the motion into one for summary judgment. See United States ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003).

         B.

         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). “[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks and citation omitted). Ultimately, “[i]f the evidence is merely colorable . . . or is not significantly probative, ” summary judgment is appropriate. Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must “resolve factual controversies in favor of the nonmoving party, ” it must do so “only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and citation omitted).

         II.

         Title 42, United States Code, Section 1983 creates a damages remedy for the violation of federal constitutional or statutory rights under color of state law; it provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any . . . person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.

         Because § 1983 merely provides a remedy for designated rights, rather than creating any substantive rights, “an underlying constitutional or statutory violation is a predicate to liability.” Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted). To establish § 1983 liability, the plaintiff must satisfy three elements:

(1) deprivation of a right secured by the U.S. Constitution or federal law,
(2) that occurred under color of state law, and
(3) was caused by a state actor.

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted). Ms. Hegeman's § 1983 claims are based upon alleged deprivations of her constitutional rights to be free from excessive force and false arrest under the Fourth Amendment, to freedom of expression under the First Amendment, and to substantive due process under the Fourteenth Amendment.

         A. Claims Against Officer Larry Adams

         In pursuing her § 1983 claims, Hegeman has sued Officer Larry Adams in his official and individual capacities, alleging that he violated her Fourth Amendment rights to be free from excessive force and false arrest, as well as her rights to freedom of expression and peaceable assembly secured by the First Amendment. Because Hegeman also has asserted § 1983 claims against the City itself, her § 1983 claims against Adams in his official capacity are duplicative and must be dismissed. See Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (“The district court was [] correct in dismissing the allegations against all of the municipal officers . . . in their official capacities, as these allegations duplicate claims against the respective governmental entities themselves.”).

         Defendant Adams maintains that he is entitled to dismissal of the plaintiff's individual capacity claims because qualified immunity shields him from liability. To support his defense of qualified immunity, Adams contends that he did not violate Hegeman's rights to be free from false arrest or excessive force in light of Fourth Amendment principles because the arrest was supported by probable cause, he used a reasonable amount of force, and his conduct was objectively reasonable in light of clearly-established law.

“[Q]ualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established regulatory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity is designed to shield from civil liability all but the plainly incompetent or those who violate the law.” Brady v. ...

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