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Muslow v. City of Shreveport

United States District Court, W.D. Louisiana, Shreveport Division

June 12, 2019





         Plaintiff 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.


         On the 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. Id.

         Kolb 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.

         The 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.

         Muslow's 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 unconscious. Id.

         Muslow 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[1] 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.


         I. Summary Judgment Standard

         Federal 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).

         If the 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 Cir. 1993).

         Additionally, 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.

         I. Official Capacity Claims Against Crump, Kolb, and Meyers

         Muslow 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 City.

         II. § 1983 Municipal Liability Claims

         Title 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 . . . .

         To 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.

         To 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).

         To 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.

         The “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)).

         A. ...

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