United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE
James “Jay” Muslow, III (“Muslow”)
brings this action under 42 U.S.C. § 1983 and Louisiana
tort law to recover damages for the alleged excessive use of
force by officers of the Shreveport Police Department
(“SPD”). Now pending before the Court is
Defendants' Motion for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56(a). [Record Document 22].
Muslow has opposed the instant motion, and Defendants have
filed a reply. [Record Documents 30 & 32]. For the
reasons discussed below, the motion for summary judgment is
GRANTED IN PART and DENIED IN
PART. Summary judgment is GRANTED
as to the official capacity claims against Tyler Kolb
(“Kolb”), Daniel Meyers (“Meyers”),
and Alan Crump, Chief of Police for the City of Shreveport
(“Crump”), and as to the failure to train claims
against Crump and the City of Shreveport (“the
City”). Summary judgment is DENIED
without prejudice to refiling as to all remaining claims.
evening of September 12, 2016, SPD officers Kolb and Meyers
were dispatched to a residence in Shreveport's Highland
neighborhood where Muslow and his wife Kelly were allegedly
involved in an altercation with the residents of the home.
Record Document 22-1, p. 7. Muslow and Kelly left the scene
while the officers were present, and no further investigation
was conducted. Id. The residents told Kolb that
Kelly had a gun and was acting aggressively with it.
and Meyers, along with Officer Jess Camp (“Camp”)
and Sergeant Jeffrey Brown (“Brown”), were
dispatched to another house in an adjacent neighborhood in
response to a “shots fired” call less than an
hour later. Id. Two neighbors told the officers that
they heard gunshots coming from inside the house or in the
backyard and one neighbor stated that the occupants of the
house were known narcotics abusers. Id. The officers
determined that they needed to search the residence and the
backyard to make sure that no one was injured. Id.
at pp. 7-8. This is known as a “welfare check.”
Id. at 8. As the officers approached the residence,
Muslow came out of the front door and began recording them
with his cell phone. Id. Kolb requested to pat down
Muslow to make sure he did not have any weapons. Id.
After the pat down, Kolb asked Muslow about the location of
the gun that his wife Kelly allegedly possessed during the
earlier altercation in the Highland neighborhood.
Id. Muslow stated that there had never been a gun.
Id. According to Defendants, when Kolb asked Muslow
about the location of another person inside the house, Muslow
responded, “he's inside, he ain't coming out
here and y'all ain't going in there unless you got a
warrant.” Id. Muslow claims that he made this
statement in response to one of the officers asking where
Muslow's dog was. Record Document 30-3, p. 52. Meyers
told Muslow that the officers just wanted to get in the
backyard, but Muslow refused them entry. Record Document
22-1, p. 8. Brown stepped towards Muslow, asked him to stand
next to Kolb, and informed Muslow that the officers were
going in the house. Id. Muslow stated repeatedly
“you're not going in my house, ” to which
Brown responded, “yeah we are.” Id.
parties provide differing accounts of what happened after
Brown told Muslow that the officers were going to enter the
house. Kolb stated that Muslow stepped into the doorframe of
his house and attempted to block the officers from entering.
Id. This prompted Brown to grab Muslow's wrist
in a “control hold” to escort him away from the
door, but Muslow jerked away. Id. Kolb then grabbed
Muslow around his upper body and brought him to the ground.
Id. at 8-9. Defendants claim that Muslow
aggressively resisted Kolb and continued to attempt to record
the events with his cell phone. Id. at 9. Camp
grabbed Muslow's legs after he saw Muslow kicking.
Id. The officers instructed Muslow to put his arms
behind his back. Id. Kolb attempted to pull
Muslow's left arm behind his back, but Muslow pulled his
arm away. Id. Kolb then delivered two or three
short, quick strikes to Muslow's facial area.
Id. Kolb and Meyers were then able to place Muslow
in handcuffs. Id.
version of events is vastly different. Muslow states that he
complied with an order from Brown to move away from the front
door and onto the front porch near Kolb while the officers
entered the house. Record Document 1, ¶ 11. As he was
moving toward the corner of his porch and away from his door,
Muslow stated, “You are not going into my house.”
Id. Brown replied, “Yes we are . . . sir,
listen there were gun shots.” Id. Muslow said,
“I understand.” Id. Muslow claims that
“without further instructions or commands, ” Kolb
grabbed him by the midsection and forced him up against the
side of the house. Id. Next, Kolb and Meyers
“body slammed” him onto the concrete floor of the
porch, fracturing his lower left orbital rim and causing him
to begin to lose consciousness. Id. Kolb then
punched Muslow in the face several times with a closed fist,
breaking his jaw on both sides and rendering him fully
filed the instant lawsuit on August 16, 2017, against the
City and Crump, Kolb, and Meyers, in their individual and
official capacities. Record Document 1. Muslow alleges that
the City and Crump acted with deliberate indifference to his
constitutional rights and in violation of 42 U.S.C. §
1983 by (1) maintaining unconstitutional policies, practices,
and customs in the City of Shreveport Police
Department and (2) failing to properly train SPD
officers. Id. at ¶s 14- 23. Muslow also alleges
that all Defendants are liable to him for the Louisiana state
law torts of battery, assault, intentional infliction of
emotional distress, and negligent hiring, training, and
supervision. Record Document 1, ¶s 24-47.
Summary Judgment Standard
Rule of Civil Procedure 56(a) directs a court to “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.” Summary judgment is
appropriate when the pleadings, answers to interrogatories,
admissions, depositions, and affidavits on file indicate that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When the burden at trial will rest on the non-moving party,
the moving party need not produce evidence to negate the
elements of the non-moving party's case; rather, it need
only point out the absence of supporting evidence. See
Id. at 322-23. However, “if the movant bears the
burden of proof on an issue, . . . he must establish beyond
peradventure all of the essential elements of the claim or
defense to warrant judgment in his favor.” Fontenot
v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact, the nonmovant must
demonstrate that there is, in fact, a genuine issue for trial
by going “beyond the pleadings” and
“designat[ing] specific facts” for support.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (citing Celotex, 477 U.S. at 325).
“This burden is not satisfied with some metaphysical
doubt as to the material facts, ” by conclusory or
unsubstantiated allegations, or by a mere “scintilla of
evidence.” Id. (internal quotation marks and
citations omitted). However, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144,
158-59 (1970)). While not weighing the evidence or evaluating
the credibility of witnesses, courts should grant summary
judgment where the critical evidence in support of the
nonmovant is so “weak or tenuous” that it could
not support a judgment in the nonmovant's favor.
Armstrong v. City of Dall., 997 F.2d 62, 67 (5th
Local Rule 56.1 requires the movant to file a statement of
material facts as to which it “contends there is no
genuine issue to be tried.” The opposing party must
then set forth a “short and concise statement of the
material facts as to which there exists a genuine issue to be
tried.” W.D. La. R. 56.2. All material facts set forth
in the movant's statement “will be deemed admitted,
for purposes of the motion, unless controverted as required
by this rule.” Id.
Official Capacity Claims Against Crump, Kolb, and
brings claims against Crump, Kolb, and Meyers in their
individual and official capacities. Record Document 1, ¶
5. An official capacity suit against a municipal officer
duplicates a suit against the officer's municipality.
Turner v. Houma Mun. Fire & Police Civil Serv.
Bd., 229 F.3d 478, 483 (5th Cir. 2000) (citing
Kentucky v. Graham, 473 U.S. 159, 165 (1985)). A
district court faced with both claims may dismiss the
official capacity claim. Castro Romero v. Becken,
256 F.3d 349, 355 (5th Cir. 2001) (citing Flores v.
Cameron Cty., 92 F.3d 258, 261 (5th Cir. 1996)).
Therefore, the official capacity claims against Crump, Kolb,
and Meyers are DISMISSED WITH PREJUDICE as
duplicative of the municipal liability claims against the
§ 1983 Municipal Liability Claims
42, United States Code, Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or
other 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 . . . .
assert a claim for damages under this statute, a plaintiff
must demonstrate (1) a deprivation of a right secured by
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). The
Supreme Court has held that municipalities such as the City
are “persons” within the meaning of § 1983.
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
690 (1978). However, a municipality cannot be sued under
§ 1983 under a theory of respondeat superior
for a constitutional tort committed by one of its employees.
Id. at 691. A municipality is only responsible for a
constitutional harm if the execution of one its customs or
policies caused, or was the “moving force” of,
the injury. Id. at 694.
impose liability on a municipality under § 1983, a
plaintiff must prove three elements: (1) a policymaker; (2)
an official policy; and (3) a violation of constitutional
rights whose “moving force” is the policy.
Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th
Cir. 2001) (citing Monell, 436 U.S. at 694).
Requiring a plaintiff to identify an official policy ensures
that municipalities will only be held liable for
constitutional violations that result from the decisions of
government officials whose acts can be fairly attributed to
those of the municipality itself. Bryan Cty. Comm'rs
v. Brown, 520 U.S. 397, 404-05 (1997).
satisfy the “official policy” element of a
Monell claim, a plaintiff may either point to a
policy statement that was promulgated by an official
policymaker or to “a persistent widespread practice of
city officials or employees, which, although not authorized
by officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents a municipal policy.” Zarnow v. City of
Wichita Falls, Tex., 614 F.3d 161, 169 (5th Cir. 2010)
(quoting Webster v. City of Hous., 735 F.2d 838, 841
(5th Cir. 1984)). To establish the existence of a custom or
unofficial policy, a plaintiff must allege that the
unconstitutional conduct occurred in cases other than his own
or, in rare circumstances, that a final policymaker took a
single unconstitutional action. Zarnow, 614 F.3d at
169. “A customary municipal policy cannot ordinarily be
inferred from single constitutional violations.”
Piotrowski, 237 F.3d at 581.
“policymaker” element of municipal liability
requires that either actual or constructive knowledge of the
custom be attributable to the municipality's governing
body or to an official to whom a governing body has delegated
final policy-making authority. Valle v. City of
Hous., 613 F.3d 536, 542 (5th Cir. 2010) (quoting
Webster, 735 F.2d at 842). Finally, “there
must be a direct causal link between the municipal policy and
the constitutional deprivation.” Piotrowski,
237 F.3d at 580. In other words, the policy must be the
“moving force” behind the injury. Id.
Without this high threshold of proof, “municipal
liability collapses into respondeat superior
liability.” Id. (quoting Snyder v.
Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998)).