Opinion
CIVIL NO. 21-00698
2022-09-08
Deanna THOMAS v. Robert TEWIS, Kirt Arnold, East Jefferson Levee District Police Department, and Chief of Police
Davida Finger, Loyola New Orleans College of Law, New Orleans, LA, Megan E. Snider, Southeast Louisiana Legal Services, New Orleans, LA, Nora Sam Ahmed, Pro Hac Vice, Erin Bridget Wheeler, American Civil Liberties Union Foundation of Louisiana, New Orleans, LA, Erica Sweeting, Pro Hac Vice, Nicholas John Standish, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Peter M. Skinner, Morrison & Foerster LLP, New York, NY, for Deanna Thomas. Mark Emerson Hanna, Trevor Matthew Cutaiar, Mouledoux Bland LeGrand & Brackett LLC, New Orleans, LA, Joseph Sebastian Trytten, Chicago, IL, for Robert Tewis, Kirt Arnold, East Jefferson LeVee District Police Department, Chief of Police.
Davida Finger, Loyola New Orleans College of Law, New Orleans, LA, Megan E. Snider, Southeast Louisiana Legal Services, New Orleans, LA, Nora Sam Ahmed, Pro Hac Vice, Erin Bridget Wheeler, American Civil Liberties Union Foundation of Louisiana, New Orleans, LA, Erica Sweeting, Pro Hac Vice, Nicholas John Standish, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Peter M. Skinner, Morrison & Foerster LLP, New York, NY, for Deanna Thomas. Mark Emerson Hanna, Trevor Matthew Cutaiar, Mouledoux Bland LeGrand & Brackett LLC, New Orleans, LA, Joseph Sebastian Trytten, Chicago, IL, for Robert Tewis, Kirt Arnold, East Jefferson LeVee District Police Department, Chief of Police.
SECTION: T(3)
ORDER Greg Gerard Guidry, United States District Judge
Before the Court is the Defendants' Motion for Summary Judgment. The Plaintiff Deanna Thomas filed a response. For the following reasons, the motion is GRANTED.
R. Doc. 112.
R. Doc. 115.
BACKGROUND
Deanna Thomas is homeless. In 2020, after a combination of events, Ms. Thomas began living in Laketown Park in Kenner, Louisiana. On April 6, 2020, Ms. Thomas was approached by two officers of the East Jefferson Levee District Police Department ("EJLDPD"), Kirt Arnold and Robert Tewis, regarding her presence in the park. The officers told Ms. Thomas she was unlawfully occupying a public space. After an alleged struggle, the officers arrested Ms. Thomas and brought her to the Jefferson Parish Correctional Center. Ms. Thomas, after being released that same day, returned to Laketown Park to discover her personal belongings were missing.
R. Doc. 57 at 5.
Id.
Id. at 7.
Id.
Id. at 7-8, 11.
Id.
Originally, Ms. Thomas brought claims against Officer Tewis, Officer Arnold, the EJLDPD, and the EJLDPD Chief of Police. Per this Court's July 11, 2022 Order, several of Ms. Thomas's claims were dismissed, including all claims against EJLDPD. Ms. Thomas was granted leave to amend her Monell claim against EJLDPD and its Chief of Police, but did not amend her complaint. Accordingly, her claims against the EJLDPD and its Chief of Police have been waived.
R. Doc. 107. Additionally, this Court abstained from hearing Ms. Thomas's constitutional challenges to the relevant Louisiana state laws.
Consequently, Ms. Thomas's remaining claims are those against Officers Tewis and Arnold. Specifically, against Officer Tewis, she advances (1) an excessive force, (2) an unreasonable seizure, (3) an intentional infliction of emotional distress, (4) a negligent infliction of emotional distress, (5) an assault, (6) a battery, (7) a negligence, and (8) a general tort claim. As for Officer Arnold, Ms. Thomas asserts (1) a failure to intervene, (2) an unreasonable seizure, (3) an intentional infliction of emotional distress, (4) a negligent infliction of emotional distress, (5) a negligence, and (6) a general tort claim.
In the present motion, the Defendants ask this Court to dismiss the remainder of Ms. Thomas's claims. Generally, the Defendants contend the "Officers are entitled to qualified immunity [because] there was no violation of Plaintiff's constitutional rights." Specifically, they raise three arguments. First, the Defendants maintain that Ms. Thomas "cannot overcome qualified immunity" because she "can show only a de minimis injury as a result of her arrest." The Defendants argue that, because Ms. Thomas has not put forth "competent medical evidence" proving she suffered a substantial injury, her excessive force claim is deficient. Instead, Ms. Thomas inappropriately advances "transient, generalized pain" and psychological harms that lack supporting evidence. Second, the Defendants argue that, because there was no use of excessive force, Ms. Thomas's bystander liability claim must fail, too. Third, the Defendants contend that, because the "Officers did not dispose of Plaintiff's property [and] any disposal was reasonable under the circumstances," they are not liable under Ms. Thomas's unreasonable seizure claims. The Defendants maintain that they did not personally remove the property and any such removal, "given the precautions being taken at that time to stop the spread of [COVID-19], was an objectively reasonable action to take."
R. Doc. 112.
R. Doc. 112-3 at 1.
Id. at 8.
Id. at 9.
Id. at 10.
Id. at 11.
Id. at 8.
Id. at 12-13.
Ms. Thomas advances four arguments in response. First, Ms. Thomas contends the "level of force [used] in arresting [her]" was "clearly excessive and unreasonable." Ms. Thomas contends she did not resist arrest, "did not pose [a] threat" to the officers' safety, and did not commit a serious crime. Consequently, the officers' level of force was not justified. Second, Ms. Thomas maintains she has properly asserted a "clearly established right" in response to the Defendants' qualified immunity defense. Third, Ms. Thomas argues she "suffered physical and psychological injuries" from the incident that satisfy the injury requirement of her excessive force claim. Ms. Thomas maintains the officers "slammed" her while she was handcuffed, breaking her eyeglasses and injuring her "face, nose, knuckles, shoulders, and wrists." Ms. Thomas also alleges that, as a result of the application of force, she lost control of her bowels. Additionally, she represents that she suffers from psychological trauma to this day. Fourth, Ms. Thomas argues the Defendants "acted unreasonably in throwing away [her] property" and, in doing so, violated her constitutional rights.
R. Doc. 115.
Id. at 8.
Id. at 8-9.
Id. at 10.
Id. at 11.
Id. at 13.
Id.
Id. at 15.
LAW & ANALYSIS
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The court must find "a factual dispute to be 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party and a fact to be 'material' if it might affect the outcome of the suit under the governing substantive law." The party seeking summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact and all reasonable inferences are drawn in favor of the nonmoving party. When assessing whether a dispute as to any material fact exists, the court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." However, "unsupported allegations or affidavits setting forth 'ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment."
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Civ. P. 56(c)).
Voelkel McWilliams Const., LLC v. 84 Lumber Co., 2015 WL 1184148, at *5 (E.D. La. Mar. 13, 2015) (quoting Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989)).
Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Under the doctrine of qualified immunity, a police officer may, "[d]espite their participation in . . . constitutionally impermissible conduct," be "shielded from liability for civil damages if their actions did not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.' "
Deville v. Marcantel, 567 F.3d 156, 166 (5th Cir. 2009) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). When an officer asserts a qualified immunity "defense and moves for summary judgment on that basis, a court must decide (1) whether the facts alleged or shown by the plaintiff made out a violation of a constitutional right, and (2) whether that right was 'clearly established' at the time of the defendant's alleged misconduct. Qualified immunity is applicable unless the defendant's conduct violated a clearly established constitutional right." Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009).
I. Qualified Immunity & Excessive Force
The "Fourth Amendment right to be free from excessive force during a seizure is clearly established." Consequently, the relevant qualified immunity inquiry is "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."
Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016).
Id. (quoting Graham v. Connor, 490 U.S. 386, 398, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "The use of force must be evaluated from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citation omitted).
To prove an excessive force violation in regard to qualified immunity, "[s]uccintly stated, a plaintiff must show (1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable." Excessive force claims are "necessarily fact-intensive" and benefit from a factor-based review, including an examination of "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." To "negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present 'absolute proof,' but must offer more than 'mere allegations.' "
Id.; Deville, 567 F. 3d at 167 (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)). "In determining qualified immunity, courts engage in a two-step analysis. First, they assess whether a statutory or constitutional right would have been violated on the facts alleged. Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004). Second, they determine whether the defendant's actions violated clearly established statutory or constitutional rights of which a reasonable person would have known." Griggs, 841 F.3d at 312-13.
Id. (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
Ontiveros, 564 F. 3d at 382.
Under the injury prong, a plaintiff is not required to establish a "significant injury," but instead prove they "suffered at least some form of injury." The injury requirement may be satisfied by evidence of lasting pain following the use of physical force like a kick, or minor injuries following clear indications of malice. Also, while some injuries are "so slight that they will never satisfy the injury element," a "purely psychological harm" may satisfy the requirement. However, a party must put forth evidence proving a "severe emotional harm," not a "temporary" injury. When assessing "excessive force claims, courts may look to the seriousness of [the] injury to determine 'whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction as is tantamount to a knowing willingness that it occur.' "
Williams v. Bramer, 180 F.3d 699 (5th Cir. 1999).
See United States v. Brugman, 364 F.3d 613, 618 (5th Cir. 2004) (holding that the plaintiff "clear[ed] the de minimus threshold" by testifying "that upon being kicked, he felt pain and lost his breath, and felt residual pain for approximately three days following the incident," even though "there was no visible manifestation of injury"); Williams, 180 F.3d at 704 ("[A]lthough suffering from dizziness, loss of breath, and coughing are not significant injuries, combined, they qualify as a cognizable injury when the victim is maliciously assaulted by a police officer"). Importantly, a plaintiff must put forward some evidence of an injury. See Deville, 567 F. 3d at 168.
Id. at 397-98, 401. See Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (holding that "handcuffing too tightly, without more, does not amount to excessive force").
Petta v. Rivera, 143 F.3d 895, 903, 907, (5th Cir. 1998).
Deville v. Marcantel, 567 F.3d 156, 168 (5th Cir. 2009).
Here, Ms. Thomas argues that the Defendants used excessive force during her arrest in violation of the Fourth Amendment and, in doing so, voided their qualified immunity defense. Consequently, Ms. Thomas must prove that she sustained an actionable injury. After reviewing the filings and the applicable law, the Court finds Ms. Thomas cannot do so. Ms. Thomas alleges she "suffered physical and psychological injuries," including damage to her "face, nose, knuckles, shoulders, and wrists" after being "slammed" to the ground while handcuffed. As a result, she continues to suffer from severe emotional trauma to this day. However, in raising these arguments, Ms. Thomas relies solely on her own declarations. Even after resolving all genuine factual disputes in her favor, Ms. Thomas's testimony alone is insufficient to support her claims of physical and mental injuries.
R. Doc. 115 at 11-13. Ms. Thomas also maintains that, after the "slam," her eyeglasses shattered and she lost control of her bowels.
Id.
As noted by Ms. Thomas, the parties contest exactly what happened when she was loaded up into the police cruiser.
First, Ms. Thomas does not offer objective proof of her physical injuries. Here, besides the initial injuries, Ms. Thomas indicates she has lasting pain and bruises from the incident. However, this Court requires more than sworn statements. Subjective experiences, without physical signs of harm coupled with objective indicia like clinical visits and medical evaluations, are not enough. Ms. Thomas presents no such corroborating evidence. At the same time, Ms. Thomas fails to show the officers harbored any malice that may warrant a closer look into her minor injuries. Furthermore, when examining the "extent" or "seriousness" of her injuries, the Court finds Ms. Thomas's fleeting harms followed her noncompliance with the instructions of the Defendant-Officers.
R. Doc. 57 at 19-20.
See Deville, 567 F. 3d at 168 ("The day after the arrest, Deville visited a doctor who observed contusions to both wrists, neuropathy of her hands, right shoulder strain, left shoulder bruising (with hand prints), and multiple cuts caused by broken glass (with one on her forehead). A week later, she visited her doctor complaining of left elbow and jaw pain, resulting from the arrest. Deville also complained in her deposition testimony of chronic, lasting injuries to her right elbow caused by the arrest. She also suffered neuropathy in her hands and fingers, which required four surgeries and multiple other injections. She testified that she missed 13 to 15 weeks of her work as a registered nurse because of these injuries.")
As the Defendants succinctly state, "Plaintiff has produced no medical records documenting any physical or psychological injuries. There are no contemporaneous photographs documenting any injuries. Nor has Plaintiff identified any medical records on her recent exhibit list or any treating medical providers on her recent witness list. In fact, one of the exhibits to Plaintiff's opposition, the arrest report, indicates that no injury was reported. R. Doc. 117-2 at 3.
Recounting a timeline of alleged harassment, without more, does not prove malice, whether by stalking or intimidation, as it simply indicates she had several encounters with the police officers.
"Officers may consider a suspect's refusal to comply with instructions during a traffic stop in assessing whether physical force is needed to effectuate the suspect's compliance." Deville, 567 F.3d at 167. Here, Ms. Thomas admittedly did not immediately comply with the officers' directions. R. Doc. 115 at 4.
As for her alleged psychological injuries, Ms. Thomas again fails to offer objective proof that corroborates her statements. Instead, through affidavits alone, Ms. Thomas maintains she experiences "anxiety, sleeplessness," embarrassment, and a "distrust" of the police after the incident. Without more, her claims cannot pass muster. In Petta v. Rivera, the Fifth Circuit found that psychological injuries can support a Fourth Amendment claim. However, the Petta court was faced with overwhelming evidence of trauma, including the plaintiffs' subjective experiences coupled with objective medical evaluations.
R. Doc. 57 at 19-20.
See id.
Although the Petta children fortuitously escaped physical injury, the evidence fully supports a reasonable inference that the Petta children have suffered psychological pain, injuries and disabilities as the result of Rivera's use of deadly force and extreme violence in attempting to shoot, break into, and pull over the Petta vehicle, after cursing, yelling at, and threatening to kill their mother. During their ordeal, the children exhibited intense fear as evidenced by Nikki's crying out repeatedly that Rivera was breaking their window and shooting at them, and by Cavin's groaning, shaking, and uncontrollable crying. Even three years after Rivera's attacks, the psychological evaluations recommended by the children's psychiatrist indicate that, as a consequence of the terrorization, Cavin is highly anxious and distressed, perceives himself as delicate and vulnerable, and experiences sleeplessness and separation anxiety at night; Nikki has phobic concerns about angry, mean, or sadistic male figures, feels the world is unsafe, and invests enormous emotional energy into maintaining hyper vigilance at the expense of her reasoning and creative abilities. The psychologist recommends continued treatment and counseling for both children to help them cope with their emotional problems.
Id. at 903 (emphasis added).
Unlike the plaintiffs in Petta, Ms. Thomas posits only her subjective suffering. Such evidence, by itself, cannot overcome qualified immunity. After all, to "negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present 'absolute proof,' but must offer more than 'mere allegations.' " Ms. Thomas has not done so. Consequently, the Defendant-Officers validly assert a defense of qualified immunity. Accordingly, the motion is GRANTED and Ms. Thomas's assertion of excessive force, bystander liability, and her related state law claims are DISMISSED.
"To survive summary judgment when alleging causation of an injury or condition outside of common knowledge, a § 1983 plaintiff in Louisiana must produce competent medical evidence that, when combined with other direct and circumstantial evidence, allows a jury to rationally infer that the defendant's conduct caused the injury or condition." Moore v. LaSalle Corr., Inc., No. 3:16-CV-01007, 2020 WL 6382911 at *10, 2020 U.S. Dist. LEXIS 203241, at *31 (W.D. La. Oct. 30, 2020).
Ontiveros, 564 F. 3d at 382.
II. Qualified Immunity & Unreasonable Seizure
Ms. Thomas also alleges the Defendant-Officers violated the Fourth Amendment when they "unreasonably" seized and disposed of her property. In response, the Defendants argue Ms. Thomas has not proffered "any clearly established law" that governs such claims, so her claim must be dismissed. After reviewing the filings and the applicable law, the Court agrees with the Defendants for two reasons. First, because the Defendant-Officers did not personally dispose of Ms. Thomas's property, it is not clear they are the proper parties for this lawsuit. Second, Ms. Thomas fails to direct this Court to any on-point case law regarding the improper disposal of property under the Fourth Amendment. Therefore, she fails to rebut, in accordance with Fifth Circuit precedent, the officers' assertion of qualified immunity by turning to a "clearly established" right. Accordingly, the motion is GRANTED, and Ms. Thomas's unreasonable seizure claim is DISMISSED.
R. Doc. 117-2 at 6-7.
Ms. Thomas does not rebut the officers' representations that they did not dispose of her property themselves. Additionally, Ms. Thomas failed to amend her complaint to add any other individuals or entities. Accordingly, the analysis may end there. See Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020) (Only "after determining that a plaintiff had plausibly alleged constitutional violations, [the courts then] turn to the qualified-immunity analysis.")
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion is GRANTED, and Ms. Thomas's claims against the Defendant-Officers are DISMISSED.