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Banks v. City of Gonzales

United States District Court, M.D. Louisiana

May 20, 2019




         This matter is before the Court on the Motion for Summary Judgment[1] filed by Defendants City of Gonzales, Sherman Jackson, Leland Sykes, Gary Ferrari, and Walter Taylor (“Defendants”). Plaintiffs Dorestine Banks, Fredrick Banks, Doretha Farlough, Stella M. Banks, Anna L. Young, Robert Banks, Jr., and Willie Mae Williams (“Plaintiffs”) have filed an Opposition[2] to this motion, to which Defendants filed a Reply.[3] For the reasons set forth below, the Defendants' motion shall be granted.


         This matter arises out of the death of the Plaintiffs' brother Michael Banks (“Banks”), who was arrested on suspicion of DUI on April 3, 2015.[4] Plaintiffs are the surviving siblings of Banks.[5] Plaintiffs allege that, while Banks was detained at the Gonzales Police Department on the date of his arrest, he had an altercation with some police officers and suffered a subdural hematoma when he hit his head on the floor.[6] Banks was transported to the hospital for treatment, [7] and, although he was released from the hospital, Plaintiffs allege he “never fully recovered” and was “unable to function normally” after this incident.[8] On August 27, 2015, Plaintiffs allege Banks was “found in his home with a breathing respiratory attached to his face, unresponsive.”[9] Banks was transported to the hospital where a hematoma was discovered, and he ultimately passed away on August 28, 2015.[10]

         Plaintiffs claim Banks' family was unaware of Banks' declining health and injuries until July 28, 2017, when a story in the Pelican Post newspaper revealed the alleged mistreatment and excessive force used on their brother by Defendants Ferrari and Taylor.[11] Plaintiffs filed this lawsuit against the Defendants advancing constitutional claims under 42 U.S.C. § 1983.

         Defendants now move for summary judgment on two grounds: (1) Plaintiffs lack standing to pursue a wrongful death or survival action because Banks had two children at the time of his death, and his children are the only persons entitled to bring these claims under Louisiana law; and (2) Plaintiffs' claims are prescribed. Plaintiffs oppose Defendants' motion, arguing that Banks' obituary referencing his two children is inadmissible “hearsay, ” and their claims are not prescribed under the doctrine of contra non valentum.


         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. Defendants' Statement of Material Facts are Deemed Admitted

         Plaintiffs have failed to comply with Local Rule 56(b), which requires a litigant to include with a summary judgment opposition “a separate, short and concise statement of the material facts as to which the opponent contends there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted, for purposes of the motion, unless controverted as required by this Rule.”[21] Accordingly, as a matter of law, Defendants' statement that, “[a]t the time of his death, Banks had two children, ” is deemed admitted for purposes of this motion. Further, Defendants cite to evidence supporting this statement.[22] Plaintiffs fail to controvert this statement or to submit any evidence whatsoever in opposition to Defendants' motion. It is “well established that arguments set forth in a brief in response to a motion for summary judgment, unsupported by ... adequate summary judgment evidence, are insufficient to raise genuine issue of material fact to defeat a properly supported motion for summary judgment.”[23]

         C. Survival/Wrongful Death Actions

         “As a threshold matter, any party bringing suit must have standing to do so, and the [United States Court of Appeals for the] Fifth Circuit has instructed district courts to evaluate state law concepts of paternity to establish standing in wrongful death and survivorship actions.”[24] Further, “[s]tanding under the Civil Rights Statutes is guided by 42 U.S.C. § 1988, which provides that state common law is used to fill the gaps in administration of civil rights suits. Therefore, a party must have standing under the state wrongful death or survival statutes to bring a claim under 42 U.S.C. §§ 1981, 1983, and 1988.”[25]

         Under Louisiana Civil Code Articles 2315.1 and 2315.2, the right of a survival or wrongful death action is afforded to four exclusive categories of survivors. However, the statutes do not allow for all of the classes of survivors to bring actions. Rather, the existence of a person qualifying within a higher class precludes a person in a lower class from filing suit.[26] The primary category under both 2315.1 and 2315.2 includes the surviving spouse and/or children of the decedent. Thus, pursuant to Articles 2315.1 and 2315.2, surviving siblings may only recover in the event that the decedent was not survived by a spouse or child, or a parent.[27] As made clear by the Louisiana Supreme Court, “[w]hen a tort victim is survived by a child, the parents of the tort victim have no right to recover for the damages sustained by the victim or for their own damages for the victim's wrongful death.”[28] The same is true as to siblings.

         Plaintiffs claim that Banks' obituary is hearsay and does not establish paternity. Plaintiffs also argue that it is Defendants' burden to establish Banks' paternity as to the alleged children. Plaintiffs are incorrect on both counts. “The party invoking federal jurisdiction-in this case the plaintiffs-bears the burden of establishing standing.”[29]Standing is a jurisdictional requirement that cannot be waived. Plaintiffs have the obligation of demonstrating through summary judgment evidence that they have standing to assert this right of action, and they have failed to do so.

         Further, Defendants cite applicable jurisprudence holding that an obituary can be admitted as an exception to the hearsay rule to establish paternity. In Succession ofRodgers, [30] the Louisiana Second Circuit Court of Appeal held that the trial court erred when it excluded a ...

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