Opinion
CIVIL ACTION NO. 02-1427 SECTION "K" (3)
February 6, 2004
MEMORANDUM OPINION
On February 5, 2004, a bench trial was conducted by the undersigned United States Magistrate Judge on the complaint of pro se prisoner Leroy Banks, III ("Banks") filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this action against the following defendants, to wit: Toys R Us; William Bryant (former store director); James Butler (former store manager); Lisa Ferrie (claims adjuster for Toys R Us); Officer Quindell Baldwin of the New Orleans Police Department and the New Orleans Police Department ("NOPD").
Prior to trial, plaintiff's claims against Lisa Ferrie were dismissed. See Order and Reasons dated August 14, 2003 [Rec. Doc. No. 52].
The plaintiff's claims arise out of an incident that occurred on December 21, 2001 in a Toys R Us store located in New Orleans East. More specifically, on that date at approximately 1:45 p.m., Officer Baldwin arrested the plaintiff on charges of forgery and theft, while working a detail at the Toys R Us store.
Having considered the testimony at trial, exhibits and the applicable law, the Court now makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). To the extent that any of the following findings of fact constitute conclusions of law, and vice versa, they are so adopted.
I. EVIDENCE PRESENTED
Plaintiff testified that on December 21, 2001, he rode a bus to the Toys R Us store. When he entered the store, he approached Officer Quindell Baldwin and asked for directions to the baby doll section. Officer Baldwin directed Banks to the back of the store. According to the plaintiff as walked to the back he was approached by James Butler, the store's manager; then. both Butler and Officer Baldwin brought him to the office for questioning. Banks further testified that Officer Baldwin made some telephone calls, got angry and arrested him. The plaintiff testified that Officer Baldwin then escorted him to the parking lot, told him that he was going to jail for forgery and theft, and read him his rights. Banks testified at first that Officer Baldwin had him sit down in the parking lot to await the police unit dispatched to pick him up, but then testified that he was lying down in the parking lot when the unit picked him up; thereafter, he was taken to a handwriting expert and then to Central Lockup, where he was booked with theft and forgery.
Plaintiff explained that, on December 22, 2001, he appeared before the Magistrate Judge, who was confused by the charges. Nevertheless, the court set his bond at $3,000.00 and Judge Elloie bonded him out of custody on Christmas Eve, December 24, 2001. Banks did not attempt to contact the Toys R Us store until after the Christmas holidays. He spoke to the store director, William Bryant, by telephone on two occasions. Plaintiff testified that the first time he spoke to Mr. Bryant, he simply hung up the phone. Banks called Mr. Bryant again and was given the name and telephone number of Ms. Lisa Ferrie, a Toys R Us claims adjuster at corporate headquarters. Banks contacted Ms. Ferrie by telephone and, thereafter, he corresponded with her in writing regarding his claim against Toys R Us. (Plaintiff's Exh. "6").
Plaintiff highlighted the fact that there were two versions of the police report, but noted only one discrepancy between the two reports of the same incident. More specifically, the plaintiff noted that on the first report written by Officer Baldwin, the time of the incident was incorrectly reflected as 1:45 a.m. Pointing to a second report written by Officer Baldwin (Plaintiff's Exhibit "2"), plaintiff notes that the time of the incident was correctly reflected as 1:45 P.M. Otherwise, the reports of the subject incident are substantially the same.
On cross-examination, the plaintiff denied writing any checks or presenting any identification at the store other than his social security card. Banks further denied being accompanied by anyone, reiterating that he rode the bus to the store by himself. Plaintiff further testified on cross-examination that he entered the store only once and made no purchase of any merchandise whatsoever.
Officer Baldwin, a detective employed with the NOPD for the last seven (7) years, testified that on the afternoon in question he was working a detail at the New Orleans East Toys R Us store. Officer Baldwin testified that the did not see Banks enter the store; rather, the first time he noticed Banks. the plaintiff had a package in hand and waived a receipt in Officer's Baldwin's face as he exited the store. Thereafter, Officer Baldwin testified that he personally observed Banks place his package in a vehicle, which was stopped or waiting in the front of the store. Officer Baldwin testified that Banks reentered the store to pick up a "power wheels" toy that the store clerk had bring out from the back of the store.
According to Officer Baldwin, he was approached by Butler who explained that Banks had presented a check and identification to the store clerk which did not match. When Banks reentered, Baldwin and Butler approached the plaintiff Then, Baldwin questioned Banks regarding his identification and the check that had been tendered for store merchandise. Officer Baldwin explained that the thrust of his questioning was to confirm or verify Banks' identity and that he had authority to sign the check. In his effort to confirm Banks story, Officer Baldwin testified that he called two different telephone numbers that were given to him by Banks. The first number given by Banks was not a working number; the individual who answered the second call did not know the plaintiff. According to Officer Baldwin, in the interim, the vehicle that had been waiting in front of the store in which Banks had placed some store merchandise had driven off
As to Banks' arrest on the charges of forgery and theft, Officer Baldwin testified that pursuant to his investigation and questioning of the plaintiff, he believed he had probable cause to arrest the plaintiff on the aforesaid charges. Officer Baldwin testified that he arrested Banks when he was unable to verify the plaintiff's identity and to confirm his authority to sign the check. As to escorting the plaintiff in handcuffs to the parking lot, Officer Baldwin testified that this is standard procedure; sitting the arrestee down to await the NOPD unit is also standard procedure.
Officer Baldwin testified that, prior to the incident on December 21, 2001, he had no involvement with Banks and that the first time he ever saw or heard of plaintiff was that day, when he waived the receipt and exited the store. The officer further testified that he did not enter into an agreement with anyone to attempt to deprive the plaintiff of any of his constitutional rights. Finally, Officer Baldwin testified that, once the unit picked Banks up in the store parking lot to transport him to Central Lock Up. he had no further contact with the plaintiff
William Bryant, the New Orleans East Toys R Us store director, had no first hand knowledge of the incident in question. Bryant testified that he was not at the store on December 21, 2001, but was informed about the incident by Butler the next day. Bryant further testified that he spoke to the plaintiff by telephone sometime thereafter and gave Banks the number of the corporate office the second time he culled.
Bryant testified that he did not appear in court in connection with any charges filed. Bryant stated that he never received a subpoena to appear in court in connection with the charges and he was not aware of a subpoena having been issued for any other store employee to appear in connection with the criminal charges. As to plaintiff's documentary evidence. including Plaintiff's Arrest Record (Plaintiff's Exh. "3"), the report from the district attorney's office (Plaintiff's Exh. "4") and the Orleans Parish Criminal District Court Docket Master (Plaintiff's Exh. "5"), the Court notes that such evidence does not indicate that anyone from the Toys R Us store was ordered or subpoenaed to appear in criminal court.
II. ANALYSIS OF PLAINTIFF'S CLAIMS
Plaintiff alleges violations of the Fourth, Eighth and Fourteenth Amendments of the United States Constitution and conspiracy to commit the aforesaid violations pursuant 42 U.S.C. § 1983. Plaintiff further alleges several state law claims, to wit: false arrest and/or malicious fabrication of false charges, malicious prosecution, intentional infliction of severe emotional distress and defamation of character/slander. The Court addresses the plaintiff's claims in light of the evidence presented serially hereinbelow.
A. § 1983 Claims Against Toys R Us and Store Employees.
With regard to the plaintiff's claims that his constitutional rights were violated, 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, 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 in an action at law, suit in equity, or other proper proceeding for redress.
As a threshold matter. for a plaintiff to state a viable claim under § 1983 against any private defendant, such as Toys-R-Us and store employees, the conduct of the private defendant that forms the basis of the claimed constitutional deprivation must constitute state action under color of law, Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924, 928-32 (1982). Other than plaintiff's unsubstantiated allegations, the record is devoid of proof of the conspiracy alleged by the plaintiff's. However, that does not end the Court's inquiry. The focus of the inquiry into whether the private actor can be subjected to constitutional liability is whether "such a close nexus between the State and the challenged action" exists "that seemingly private behavior may be fairly treated as that of the State itself." Brentwood Acad v. Tennessee Secondary School Athletic Assoc., 531 U.S. 288, 295 (2001).
In Morris v. Dillard Department Stores, Inc., 277 F.3d 743 (5th Cir. 2001), the Fifth Circuit confronted circumstances with similar contours in the context of a § 1983 action, i.e., an off-duty police officer employed as a private security guard, who detained, searched and/or arrested the customer of his private employer subsequent to a report of suspicious conduct by another employee. The Morris court formulated a nexus-type test, which is a synthesis of all five of the Fifth Circuit's prior decisions addressing the issue of a private defendant's exposure to liability pursuant to § 1983 liability. The court opined:
Reading all five of this court's decisions beginning with Brookshire together indicates that we will not subject a merchant to § 1983 liability unless an officer has failed to perform an independent investigation, and that evidence of a proper investigation may include such indicators as an officer's interview of an employee, independent observation of the suspect, and the officer writing his own report.Morris, 277 F.3d at 749-50.
In the case at bar, credible evidence indicates that Officer Quindell Baldwin interviewed Banks and independently witnessed Banks suspicious activity on the day in question. Officer Baldwin testified that, out of the blue, Banks approached him upon leaving the store for the first time and displayed a store receipt for merchandise. Thereafter, Butler (store manager) alerted Officer Baldwin to the suspicious activity on the part of Banks involving his authority to sign checks presented to the store clerk as payment for merchandise. Officer Baldwin independently questioned Banks regarding the receipt, the check and his identification. When Banks could not verify that he had authority to sign the particular check at issue, there was more than reasonable suspicion and, in fact, reasonable cause to arrest. Officer Baldwin made every effort to confirm Banks' authority to sign the check to no avail. Because probable cause to arrest developed during his interview with Banks, Baldwin called the police station to check Banks's identification, to report the theft and request a unit to pick up the plaintiff.
Considering the facts and circumstances surrounding the arrest of the plaintiff on December 21, 2001 and Circuit precedent in Morris, supra, private defendants, including Toy R Us, William Bryant (Store Director) and James Butler (Store Manager), cannot be held liable pursuant to § 1983. Clearly, Officer Baldwin made an independent investigation, independently made the decision to arrest Banks and filled out his own police report on the incident. Officer Baldwin's personal observation and investigation formed the basis of "probable cause" to arrest. Accordingly, plaintiff's § 1983 claims against the aforesaid private defendants are without merit.
B. § 1983 Claims Against Officer Quindell Baldwin and the NOPD
The plaintiff's § 1983 claims against Officer Baldwin consist of false arrest and the deployment of excessive force during and/or after his arrest.
As to the arrest, Officer Baldwin is entitled to qualified immunity from suit based on article 215 of the Louisiana Code of Criminal Procedure, a statute which authorizes the arrest of a person on the merchant's premises, when the officer has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant. Banks was arrested and charged with both forgery (L.R.S. 14:72) and theft (L.R.S. 14:67). Article 215 further permits an officer to form probable cause for the arrest based upon the "complaint" of suspicion of "theft" made by a merchant's employee. Nevertheless, Officer Baldwin conducted an independent investigation with due haste.
Police officers, like other public officials acting within the course and scope of their official duties, are shielded from claims of civil liability, including § 1983 claims, by qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982). The Court applies a two-step analysis to determine whether an officer is entitled to qualified immunity from federal suit, to wit: (1) whether the plaintiff has alleged the violation of a clearly established constitutional right; and (2) whether the official's action was reasonable in light of the clearly established law at the time of the violation. See Chiu v. Piano Indep. School Dist., 260 F.3d 330, 343 (5th Cir. 2001).
The parties do not dispute that the plaintiff has alleged deprivation of the clearly established constitutional right to be free from arrest without probable cause and/or excessive force before, during and after the arrest. As to the alleged Fourth Amendment violation for arrest without probable cause, the parties only dispute whether Officer Baldwin had probable cause to arrest. An arrest is lawful if it is based upon probable cause. Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a reasonable person to believe that an offense has been or is being committed. As previously determined, probable cause clearly existed at the time of the arrest in question based upon Officer Baldwin's independent investigation of the incident in question. Officer Baldwin was present on the scene at all pertinent times and was the first to notice the suspicious activity on the part of the plaintiff.
As to the plaintiff's allegation that Officer Baldwin harbored some "angry" motive in affecting Banks's arrest, which somehow obviated the officer's entitlement to qualified immunity, the test for immunity is one of objective reasonableness. Any "subjective intent, motive, or even outright animus [is] irrelevant in a determination based on even arguable probable cause to arrest." Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000). Therefore, even assuming argnendo the existence of an angry motive, such a motive is immaterial to the determination that Officer Baldwin had probable cause to arrest.
The record is devoid of credible evidence of any violation of Banks' constitutional rights as a pretrial detainee. There is no credible evidence that either Officer Baldwin or the New Orleans Police Department deployed the use of excessive force or failed to accommodate any of the plaintiff's medical needs, serious or otherwise. Most notably, Banks' brief period of incarceration from December 21, 2001 until December 24, 2001, when he was released on bond, did not result from the conviction of a crime. Therefore, the Eighth Amendment's prohibition against cruel and unusual punishment is inapplicable this case. Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).
Turning to the plaintiff's substantive due process claims, whether under the Fourteenth or the Fifth Amendment, both proscribe depriving individuals of " life, liberty, or property without due process of law." The proper analysis applicable to a pretrial detainee's constitutional claims are considered under the rubric of "due process" and the challenge must first be classified as either an attack on a "condition of confinement" or an "episodic act or omission." Id. at 778. Banks has not launched an attack against any condition of his brief period of confinement. As to any "episodic act or omission," the focus of his complaint and proof concerns the circumstances of his arrest, which this Court has previously addressed finding no force excessive to the need which was deployed in affecting his arrest.
Regarding Banks's allegation of subjective "deliberate indifference," plaintiff has failed to adduce any evidence supporting this claim. More particularly, there is a complete failure of proof regarding any subjective knowledge of a substantial risk of harm on Officer Baldwin's part. The evidence is uncontrovertedly that the only encounter that Officer Baldwin ever had with the plaintiff was the one brief encounter on December 21, 2001 at or about 1:45 p.m., pursuant to his investigation and arrest of Banks on charges of theft and forgery. Plaintiff's claim in this regard is so lacking in substance that it is tantamount to being considered legally frivolous.
Accordingly, the plaintiff's § 1983 claims against Officer Baldwin and the NOPD are without merit.
C. State Law Claims
Notwithstanding the fact that all of the defendants' actions met the requirements for an authorized detention under Louisiana Code of Civil Procedure Article 215. and thus they are immune from civil liability in the instant case, the Court addresses the plaintiff's state law claims separately, in the alternative.
The plaintiff's pendent state law claims for false arrest, false imprisonment and malicious prosecution fail as a matter of law. That result necessarily follows because the store employees had "reasonable cause" to detain Banks for questioning and because Officer Baldwin had "probable cause" to arrest Banks. In Tabora v. City of Kenner, 650 So.2d 319 (1995), the court held that an essential element of claims under Louisiana law for false arrest, false imprisonment, and malicious prosecution is a lack of probable cause. Actual guilt or innocence is not an issue.
As to the plaintiff's claims of intentional infliction of emotional distress, this claim also fails. An emotional distress claim under Louisiana law requires that the plaintiff establish three elements: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that such distress would be substantially certain to result from the conduct. See White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). Louisiana courts have set a high threshold on conduct sufficient to sustain a claim for emotional distress. The Louisiana Supreme Court has stated that the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id.
The credible evidence of record, including the documentary exhibits submitted by the plaintiff and the testimony of Officer Baldwin, fails to describe conduct that rises to the level of extreme and outrageous as required to support liability for such a claim under Louisiana law. Moreover, the plaintiff has not submitted any medical records, progress or clinic notes documenting that he suffered any emotional distress on account of the incident. his arrest or the brief period of detention prior to his release on bond.
Finally, turning to plaintiff's claim for liable and slander, in order to prevail on a defamation claim pursuant to Louisiana law, a plaintiff must prove that the defendant maliciously published a false and defamatory message which caused injury. A successful defamation claimant must prove each of the following five elements: (1) defamatory words; (2) falsity; (3) malice; (4) publication; and (5) injury. See Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196, 198 (La. 1980); Mitchell v. Tracer Construction Co., 256 F. Supp.2d 520, 526 (M. D. La. 2003).
In the case at bar. the plaintiff has not identified specific defamatory words nor, has the plaintiff proved by a preponderance of the evidence any other material fact pertaining to his defamation claim. It is important to note that statements between employees, made within the course and scope of their employment, are not considered publicized for purposes of a defamation claim under Louisiana law. See Cangelosi, 390 So.2d at 198; Mitchell, 256 F. Supp.2d at 526. Additionally, statements made to the plaintiff himself also fail to meet the essential publication element.
Accordingly,
IT IS ORDERED that all of the federal and state law claims of the plaintiff, Leroy Banks, III, against the defendants, Toys R Us, William Bryant, James Butler. Officer Quindell Baldwin and the New Orleans Police Department, are hereby DISMISSED WITH PREJUDICE each party to bear their own costs.