Opinion
Civ. No. 99-537, SECTION "A".
February 3, 2000.
At the close of plaintiff's case, defense counsel moved for a judgment as a matter of law with respect to the defendants, the City of New Orleans, the New Orleans Police Department and Police Chief Richard Pennington. This Court granted the motion dismissing the City, Chief Pennington and his Police Department stating that written reasons would issue. Succinctly, the Court's reasons follow.
Plaintiff failed to adduce any evidence as to any wrongdoing on the part of the City of New Orleans and Chief Pennington. Plaintiff's counsel did not object to dismissal of the New Orleans Police Department in as much as it is simply a department of the city government and not amenable to suit.
As to Chief Pennington, a superior official, the plaintiff's evidence failed to make the requisite showing — that the defendant's failure to act amounted to gross negligence or deliberate indifference. The Court previously noted on the that there was not one mention of Chief Pennington during the entirety of the plaintiff's case. The evidence adduced at trial which might reflect on Chief Pennington, does so favorably — that is, his police integrity division did in fact proceed with an investigation of the complaints almost immediately following the incident which is the subject of this suit.
As to the City of New Orleans, it is a municipality. As such, it can be held liable for the deprivation of a Constitutional right if the deprivation was pursuant to governmental custom, policy, ordinance, regulation or decision. There was no evidence adduced regarding any governmental custom, policy, regulation or decision, much less a policy, custom, practice or regulation which would sanction or tolerate the violation of federal rights complained of in this suit.
The mere showing of a constitutional violation by a municipal employee is insufficient, for there is no respondeat superior liability for section 1983 violations. Monell v. New York City Department of Social Services, 98 S.Ct. 2018 (1978). As to individual supervisory liability, absent some showing of either direct participation in the wrong by a supervisor, or behavior by the supervisor that was "deliberately indifferent" to constitutional rights as called for by City of Canton, there is no such individual supervisory liability.
City of Canton v. Harris, 109 S.Ct. 1197 (1989).
In Monell, the Supreme Court held that cities were among the "persons" who could be sued under Section 1983, however, it concluded that Congress did not intend municipalities to be held liable "unless action pursuant to official municipal policy of some nature caused a constitutional tort." In short, the Monell Court ensured that a municipality would be liable under Section 1983 only when its custom or policy was the moving force behind the unconstitutional action of one of its officers.
At best, the evidence adduced in the plaintiff's case admits no more than an isolated incident involving of the use of excessive force by a police officer engaged in crowd control downtown at the 1998 Orpheus Mardi Gras parade. That is the sort of act for which the Monell Court sought to exclude municipal liability. The only nexus between the alleged acts of Officer Garrett in the case at bar and the City of New Orleans is the fact of employment — Monell says that is not enough for municipal liability under Section 1983.
Plaintiff's counsel argued orally that there was some evidence to the effect that defendant Officer Garrett was inadequately trained in the use of a PR-24. An unconstitutional policy of inadequate training simply cannot be inferred from a single incident involving the use of excessive force and that is all the evidence admits in the plaintiff's case. See, Oklahoma City v. Tuttle, 105 S.Ct. 2427 (1895). In any event, the plaintiff must show that the failure to train actually caused the unconstitutional action in question. The record is devoid of any such showing.
In summary, the limiting principles that federal courts have fashioned in the course of drawing the line between liability under state-law obligations and section 1983 are: (1) the refusal to impose vicarious liability; (2) the requirement of an official policy or custom; (3) the deliberate indifference standard; and (4) the moving force test. Doe v. Rains County Independent School District, 66 F.3d 1402, 1410 (5th Cir 1995). The Fifth Circuit instructs:
The force of this line is exemplified by our holding that vicarious liability can never be the basis for a Section 1983 claim, even where state law provides that the supervisor is vicariously liable for the conduct of his subordinates. We, as federal courts, have chosen to supply certain glosses in our construction of Section 1983 to bring into focus the difference between state-law breach and a constitutional violation. In other words, in asking the federal-law question whether a state-law duty imposed responsibility under Section 1983 for another person's constitutional wrong, we have chosen to say not all state law obligations are of such a nature that a person's breach subjects that person to federal liability. We have chosen to demand a heightened showing of fault and causation before concluding that a breach of a duty to act renders a supervisory state official or a municipality liable under Section 1983. Id. (citations omitted).
Considering these guiding principles which delimit supervisory state officials' liability and municipal liability under Section 1983, the Court concludes that the evidence adduced in the plaintiff's case falls far short of that required for the imposition of Section 1983 supervisory state official and/or municipal liability. Judgment as a matter of law dismissing the plaintiff's claims against the City of New Orleans, Police Chief Pennington and his department is appropriate in light of the complete failure of proof.
MINUTE ENTRY DUVAL, J. FEBRUARY 1, 2000