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Lee v. Ard

United States District Court, M.D. Louisiana

April 17, 2019

BRENT MIRONELLE LEE, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILDREN BRE'UNISTY LEE AND JAMAL LEE
v.
SHERIFF JASON ARD, IN HIS OFFICIAL CAPACITY AS SHERIFF OF LIVINGSTON PARISH, SERGEANT CARLCHILDERS, AND CONTINENTAL CASUALTY COMPANY

          RULING

          SHELLY D. DICK CHIEF JUDGE

         This matter is before the Court on the Motion for Summary Judgment[1] by Defendants, Sheriff Jason Ard, Sheriff of Livingston Parish (“Sheriff Ard”) and Sergeant Carl Childers (“Sgt. Childers”)(or collectively “Defendants”). Plaintiff, Brent Lee (“Plaintiff”), has filed an Opposition[2] to this motion, to which Defendants filed a Reply, [3]Plaintiff filed a Sur-Reply, [4] and Defendants filed a Sur-Sur-Reply.[5] For the following reasons, the Court finds that Defendants' motion should be granted.

         I. FACTUAL BACKGROUND

         Plaintiff alleges that, on or about January 11, 2016, he was traveling on Florida Boulevard in Denham Springs, Louisiana, when he allegedly changed lanes without using a turn signal. For this alleged traffic violation, Sgt. Childers and other responding officers attempted to initiate a traffic stop. Plaintiff contends that he did not immediately pull over because of his prior experiences with Livingston Parish Police officers which “led him to be extremely fearful” of what the officers might to do him if he stayed in the area.[6] Thus, Plaintiff contends he continued driving for approximately seven minutes until he reached a neighborhood in which he felt safer.[7]

         Upon entering the neighborhood, Plaintiff stopped and exited his vehicle. Plaintiff claims that Sgt. Childers deployed a K9 Apache dog (“the dog”) to assist in making the arrest. Plaintiff contends witness accounts establish that the dog viciously attacked him for between five and seven minutes after he had surrendered to police. Plaintiff further claims that, during this alleged attack, he was pleading with officers for relief as the dog was “chewing at his flesh.”[8] Plaintiff alleges that Sgt. Childers allowed the dog to attack Plaintiff for an unnecessary and excessive amount of time. Further, Plaintiff alleges that the dog continued to attack him even after Sgt. Childers ordered the dog to cease. As a result of this attack, Plaintiff alleges he has suffered severe physical injuries and the loss of quality and enjoyment of life.

         Plaintiff filed this lawsuit asserting various federal claims under 28 U.S.C. § 1983 and state law. Defendants filed a Motion to Dismiss, and the Court dismissed all official capacity federal claims brought against Sheriff Ard and Sgt. Childers with prejudice, dismissed the Section 1983 individual capacity claim against Sgt. Childers for the initial release of the canine, and held that all other claims remained before the Court.[9] Shortly after this Ruling, Plaintiff submitted a Status Report wherein he advised that he had pled guilty to all three criminal charges brought against him - aggravated flight from an officer, resisting an officer with force or violence, and relative to possession with intent to distribute marijuana - on August 28, 2017.[10]

         Defendants filed the instant Motion for Summary Judgment arguing that, as a result of Plaintiff's guilty pleas, his civil claims are foreclosed by Heck v. Humphrey.[11] Plaintiff opposes this motion and maintains that his underlying guilty plea for resisting an officer is not undermined by his claim that his constitutional rights were violated when Sgt. Childers allegedly allowed the canine to continue to attack him after he was subdued.

         II. LAW AND ANALYSIS

         A. Summary Judgment Standard

         “The court shall 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.”[12] “When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence.”[13] A party moving for summary judgment “must ‘demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case.”[14] If the moving party satisfies its burden, “the non-moving party must show that summary judgment is inappropriate by setting ‘forth specific facts showing the existence of a genuine issue concerning every essential component of its case.'”[15] However, the non-moving party's burden “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”[16]

         Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'”[17] All reasonable factual inferences are drawn in favor of the nonmoving party.[18] However, “[t]he Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.”[19] “Conclusory allegations unsupported by specific facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his allegations … to get to a jury without any “significant probative evidence tending to support the complaint.”'”[20]

         B. Heck v. Humphrey

         It is well-settled that a Section 1983 claim for damages cannot directly attack the constitutionality of a conviction, imprisonment, or other harm caused by unlawful actions unless that conviction or sentence has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.”[21] This burden placed on Section 1983 plaintiffs is for the purpose of avoiding collateral attacks by plaintiffs on convictions that are “still outstanding.”[22] In the absence of this circumstance, “the maturity of a § 1983 claim depends on ‘whether a judgment in favor of the [p]laintiff ... would necessarily imply the invalidity of [the plaintiff's] conviction.'”[23] However, the alleged constitutional violation should not be barred “if the factual basis for the conviction is temporally and conceptually distinct from the excessive force claim.”[24] Thus, “if the district court determines that [the plaintiff's] action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against [the plaintiff], the action should be allowed to proceed ... .”[25]

         The Fifth Circuit has explained that “a plaintiff's claim is Heck-barred despite its theoretical compatibility with his underlying conviction if specific factual allegations in the complaint are necessarily inconsistent with the validity of the conviction.”[26] This is because “factual assertions in pleadings are ... judicial admissions conclusively binding on the party that made them.”[27] Accordingly, “when a plaintiff contends that he did not resist arrest, that is, that he committed no offense and was instead unjustly victimized, the Fifth Circuit has uniformly concluded that his excessive force claim is Heck barred because the excessive force claim necessarily attacks the validity of the conviction for resisting arrest.”[28] “Moreover, when there is no temporal and conceptual distinction between the factual basis for the conviction and the excessive force claim, that is, when the complained of use of force is applied during or simultaneously with the arrest, Heck applies.”[29] In these cases, the “[p]laintiff's claims are dismissed with prejudice to their being asserted again until the Heck conditions are met.”[30]

         C. Application

         Plaintiff likens his claims to those in Bush v. Strain.[31] In Bush v. Strain, it was undisputed that the defendant detective was interviewing a witness when the plaintiff walked up and greeted him. When the plaintiff overheard the witness comment about plaintiff's sister, the plaintiff became enraged and threw a cup of ice water at the witness. The defendant detective attempted to arrest the plaintiff for simple battery, and when the plaintiff was partially handcuffed she pulled her right arm away in an apparent attempt to hit or intimidate the witness.[32] Stories diverged as to what happened next. The defendant detective testified that the plaintiff continued to resist arrest while he attempted to cuff her right hand. As they struggled, they both fell on the rear window of a car. In contradiction to the testimony of defendant detective, the plaintiff admitted that she pulled away when defendant detective attempted to arrest her, but she stated that she stopped resisting after he grabbed her right hand. She contended that after she ceased all resistance and both hands were cuffed, defendant detective placed his hand behind her neck and head and forced her face into the rear window of car injuring her jaw and breaking two of her teeth.[33]

         The Fifth Circuit determined that the plaintiff stated a claim for excessive force after she was restrained.[34] The court concluded that, because the plaintiff produced evidence that the alleged excessive force occurred after she stopped resisting arrest, the fact findings essential to her criminal conviction were not inherently at odds with this claim, and a favorable verdict on her excessive force claim would not undermine her criminal conviction for resisting arrest.[35]

         In contrast, in Daigre v. City of Waveland, Miss., officers responded to a domestic disturbance call and arrested Daigre after she refused the officers' commands to get out of bed.[36] As officers approached Daigre in the bed with tasers drawn, Daigre screamed obscenities and refused. When the officers attempted to physically pull Daigre from the bed, she pulled back against them, “using her body as leverage, initiating a kind of tug-of-war.”[37] When officers pulled back again, Daigre was slammed into the wall and also deployed the taser.[38] Daigre was arrested and charged with resisting arrest and simple assault on a police officer, and she ultimately pled guilty to resisting arrest.[39] Daigre sued the officers under Section 1985 alleging excessive force. The Fifth Circuit held that “Daigre's excessive-force claim is barred because she ‘still thinks [she is] innocent.'[40]Unlike the allegations in Bush, Daigre's broad claims of innocence relate to the entire arrest encounter, and not merely a discrete part of it.[41] The result is dismissal under Heck.”[42]

         Defendants maintains that it is a bright-line rule in the Fifth Circuit that, when a plaintiff pleads guilty to a charge of resisting an officer but alleges and/or testified in a later civil suit that he did not resist arrest, his claims necessarily imply an invalidity of the plea/conviction and are barred by Heck. Indeed, Plaintiff testified in his deposition that, at no time during the encounter did he use any kind of physical force against any of the police officers.[43] Further, in the Status Report submitted by Plaintiff regarding the resolution of the criminal charges brought against him, counsel states that Plaintiff “immediately submitted to the officers” upon his exit from his vehicle.[44] In Plaintiff's First Amended Complaint, Plaintiff alleges that Sgt. Childers and other officers “attempted to initiate a traffic stop, ”[45] and “[w]hen this attempt was unsuccessful, ”[46] the K9 was deployed “to assist with the arrest.”[47] While Plaintiff claims that the K9 was allowed to attack for “an unnecessary and excessive amount of time … even after being ordered to cease by the attending officers, ” Plaintiff's allegations do not address his own resistance and ostensibly imply that he was not resistant. Plaintiff's allegations cannot be transformed by arguments of counsel in a brief.

         Further, although Plaintiff appears to admit to some resistance on his part during the encounter in his late-filed Statement of Undisputed Material Facts, [48] Plaintiff cites to no record or summary judgment evidence in support of these alleged factual statements. Plaintiff states:

5. Despite the fact that Plaintiff pled guilty to Resisting an Officer pursuant to of La. R.S. §14:108.2, a genuine issue of material fact still exists as to the duration of Plaintiff's resistance;[49]
6. Despite the fact that Plaintiff pled guilty to Resisting an Officer pursuant to of La. R.S. §14:108.2, a genuine issue of material fact still exists as to whether or not Sergeant Childers allowed the police canine under his control attack Plaintiff after Plaintiff had ceased resistance and surrendered to Sergeant Childers' authority;[50]

         These statements constitute argument and are not supported by record evidence. Indeed, Plaintiff's complaint is void of allegations regarding his purported resistance, and as set forth above, Plaintiff's deposition testimony contradicts these statements. At the summary judgment stage, when the party moving for summary judgment meets its burden by showing the Court that there is an absence of evidence to support the non-moving party's case, the burden shifts to the non-moving party to “identify specific evidence in the record, and articulate” precisely how that evidence supports his claims.[51] To satisfy this burden,

the non-moving party may not rest upon mere allegations or denials in his pleadings, but rather must set forth “specific facts showing the existence of a ‘genuine' issue concerning every essential component of its case.” A party seeking to establish that a fact is genuinely disputed must support such an assertion by reference to “materials in the record, including depositions, documents ... affidavits or declarations ... admissions, interrogatory answers, or other materials.” The nonmovant's burden of demonstrating a genuine issue of material fact is not satisfied merely by creating “some metaphysical doubt as to the material facts, ” “by conclusory allegations, ” by “unsubstantiated assertions, ” or “by only a scintilla of evidence.” There is no genuine issue for trial “unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”[52]

         Plaintiff's Statement of Undisputed Material Facts cites to no record evidence whatsoever in support of his assertions. Further, Plaintiff has failed to controvert the facts contained in Defendants' Statement of Uncontested Facts with supporting evidence as required by Local Rule 56(b).

         Plaintiff contends he has been unable to gather evidence due to the stay of discovery, to which he agreed, during the pendency of this motion. However, Plaintiff has failed to demonstrate, as required by Rule 54(d), how the deposition testimony of Sgt. Childers or other witnesses will create a material issue of fact regarding the subject of the present motion - whether Plaintiff maintains his innocence for charges to which he pled guilty. Plaintiff's own deposition testimony and pleadings filed into the record of this matter undermine the statements set forth above. Plaintiff has failed to demonstrate how the testimony of any other witnesses will serve to correct this inconsistency for purpose of the application of Heck v. Humphrey to his claims; the same is true for the Affidavit of Lennon Rushing submitted by Plaintiff.[53]

         The Court finds the reasoning and analysis in Claunch v. Williams[54] applicable to the present case. In Claunch, the plaintiff alleged that he was transported from a bar to his home in Slidell, Louisiana and charged $17.10 instead of the allegedly correct cab fare of $8.00. The plaintiff also claimed that, when he failed to tender the fare charged, he was locked in the cab by the driver, who called the St. Tammany Sheriff's Office, and the defendant officers responded. According to the complaint, the plaintiff claimed that, when the officers ordered him to retrieve the additional fare from his house, we was struck from behind by one of the officers, handcuffed, tased, put into the sheriff's vehicle, transported a gas station where he was again beaten and tased before being taken to and detained at the St. Tammany Parish jail for 2-3 days without being allowed to use the phone to contact an attorney or family.[55] The plaintiff brought a variety of federal and state claims against the defendants, including excessive force, assault and battery, and unlawful detention.[56]

         The uncontroverted police record indicated that the plaintiff was intoxicated and arrested for disturbing the peace and resisting arrest at his home, and the plaintiff continued to act violently in the sheriff's vehicle during transport. The plaintiff was charged with two misdemeanor counts for disturbing the peace and resisting an officer and two felony counts for resisting an officer with force or violence and public intimidation. He was also charged in a bill of information with resisting an officer “by the intentional interference, obstruction or resistance to a law enforcement officer acting in his official capacity and authorized by law to make a lawful arrest knowing or having reason to know that the officer was acting in his official capacity” in violation of La.Rev.Stat. § 14:108 and for disturbing the peace in a manner “as would foreseeably disturb or alarm the public by being intoxicated” in violation of La.Rev.Stat. 103. Approximately one month prior to filing this suit, the plaintiff entered a plea of “no contest” to the charges contained in the bill of information and was sentenced.[57]

         The defendants moved for summary judgment on the plaintiff's claims arguing the Section 1983 claims were barred by Heck. The defendants presented the plaintiff's deposition testimony in support of their motion:

Claunch testified that he was “visibly intoxicated” at the bar on the night of the arrest, that he did nothing wrong at his home, that he was handcuffed at his home “for no reason” given the insignificant amount of cab fare owing, that he was not belligerent or hostile or resistant to the officers prior to being hit in the head at his home, that the officers did not tell him he was under arrest at his home and that his resistance did not start until after he was hit, handcuffed and tased, and that he was transported with leg restraints on. Rec. Doc. 60-11. Claunch did not remember kicking the doors or windows of the police car after leaving his home. Id. He testified that he exhibited no resistance to the officers' lawful commands at any time prior to being tased in handcuffs and that any resistance was in the nature of self-defense. Id. Claunch concluded his deposition by testifying that he did not at any time during his interaction with the officers do anything wrong insofar as resisting abusing or intimidating the officers, other than asking to be released because of his father's position. Id. Claunch did not pay the cab fare that night. Id.[58]

         The court noted that the plaintiff offered no deposition testimony to contradict the defendants' arguments.[59]

         The plaintiff argued that his claims were not barred by Heck by relying on the distinctions in Bush. The court summarized the plaintiff's reasoning:

Claunch claims that he “plead no contest only to resisting arrest when the Deputies attempted to place him in restraints” and “does not contest that he may have struggled and resisted at the point in time when the deputies actually placed him in handcuffs at his property.” Rec. Doc. 69 at 6. He supports his argument that the excessive force occurred before and after he was placed under arrest with an January 2012 affidavit in which he swears that he was not resisting arrest when he was hit over the head at his home, that his resisting arrest conviction only concerns the time when he was placed in restraints at his home because he “was shocked and rattled by the chain of events, ” and that he was not resisting arrest at the gas station. Rec. Doc. 69-2.2 Again, no deposition excerpts are offered by the plaintiff.[60]

         The defendants argued the plaintiff could not impeach his prior sworn testimony with a subsequent conflicting affidavit that failed to explain the inconsistencies. The plaintiff argued in response that his plea of no contest only related to resisting arrest when he ...


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