Opinion
Civil Action No. 03-3169 Section "N" (4).
June 6, 2005
ORDER AND REASONS
Before the Court are (1) the Motion for Partial Summary Judgment filed by Plaintiffs Claudia Sims, Carla Sims, individually and on behalf of her minor child Za'kia Sims, and Josh Crenshaw (Rec. Doc. No. 41); and (2) the Cross-Motion for Summary Judgment filed by Defendants City of New Orleans, New Orleans Police Department, Chief Edwin Compass, Lieutenant Dwayne Scheuermann, Officer Nicholas Gernon, Officer Warren Keller, Officer K.W. Jackson, Officer Eric Gillard and Officer Summer Turner (Rec. Doc. No. 47). For the reasons that follow, Plaintiffs' Motion is DENIED, and Defendants' Motion is GRANTED IN PART and DENIED IN PART.
I. FACTUAL BACKGROUND
On or about October 3, 2003, at approximately 8:30 p.m., members of the New Orleans Police Department ("NOPD") executed a search warrant at 1660 North Roman Street. The warrant authorized the search of the premises of 1660 North Roman Street, Apartments C and D, for certain property, namely: two ballistic body armour vests, a rifle, a shotgun, two license plates, a tactical holster and a stinger flashlight. In the October 3, 2003 application for the search warrant, Officer Nicholas Gernon explained that, earlier that day, he had been contacted by officers of the City of Kenner Police Department, who relayed to Gernon certain information they had received from a confidential informant regarding a Ford Taurus which had been reported stolen from the City of Kenner and which contained in its trunk certain police equipment belonging to the St. Charles Parish Sheriff's Department. Specifically, the informant stated that, on or about September 29, 2003, two individuals, known to him as "Josh" and "Boodie", were firing weapons in front of 1660 North Roman Street, and were bragging to others about having stolen an unmarked police vehicle which contained police equipment. According to the informant, the two individuals also stated that they had placed some of the stolen equipment into abandoned vehicles located on the lot adjoining the residence at 1660 North Roman Street, as well as in a rear shed of the residence. Officer Gernon took that information, corroborated it, and then applied for the issuance of a search warrant. Magistrate Judge Harry E. Cantrell, Jr. authorized the warrant.
Because the warrant was considered high-risk, members of the NOPD's Tactical Unit ("Tac Unit") first entered the building. This was done so that the premises could be secured. Once secure, the premises were turned over to the NOPD detectives so that they could begin their search for the items listed in the warrant.
Residing in Apartment D and present at the time of the search were Plaintiffs Claudia Sims, Carla Sims, and Za'kia Sims. It is not disputed that, at the time the Tac Unit entered Apartment D, Claudia Sims (the then-51-year old mother of Plaintiff Carla Sims, grandmother of Plaintiff Za'kia Sims and aunt of Plaintiff Josh Crenshaw) was in her bed; Carla Sims (the mother of Za'kia Sims) was in a bathroom; and then-one-year old Za'kia Sims was in a separate bedroom. At this point, however, the circumstances surrounding the execution of the warrant become highly disputed.
According to Plaintiffs, Claudia Sims was awakened by several armed and masked officers, who forced her to get out of bed. Carla Sims, who had just taken a bath and was partially nude, was ordered to the ground, and soon thereafter permitted to cloth herself. Claudia, Carla and the infant Za'kia were brought into the living room of their apartment. Some time thereafter (between 15 and 20 minutes), the premises were released to the investigative unit, and the search of the premises commenced. During this time, the three females were detained in their living room. While under said detention, Plaintiffs allege that Officers Summer Turner and Latoya Johnson, pursuant to orders of Lieutenant Dwayne Scheuermann and under the direct supervision of Sergeant Kim Lewis-Williams, strip-searched the two women and the child. Specifically, Plaintiffs allege that the female officers brought the two women individually into private rooms of the house; inspected each woman's breasts; and ordered each to remove her clothing, bend over and spread her buttocks open so that the officer could perform a visual inspection of the vaginal area. Plaintiffs also allege that the female officers ordered Carla to remove the infant Za'kia's diaper and that a female officer then visually inspected the infant's buttocks and vaginal areas. According to Plaintiffs, these "strip searches" were conducted without their consent and solely for the purpose of humiliating them.
Plaintiffs further allege that, prior to their final departure, that Johnson, Turner and Scheuermann ransacked Apartment D, breaking furniture and removing articles of clothing from drawers and throwing them down the stairway leading up to Apartment D. Plaintiffs also allege that, as he was getting into his police cruiser, Lt. Scheuermann stated over the PA system that he was looking for Claudia Sims' son "Boodie" and that, when he found him, he was going to kill him in front of his mother.
In the meantime, according to Plaintiffs, Plaintiff Josh Crenshaw, his son, his brother and a friend, Jon Williams, were in Apartment C, which is where Crenshaw's grandmother resided at the time. Plaintiffs state that Josh Crenshaw had been giving his young son an asthma treatment for approximately five to ten minutes when the Tac Unit arrived at Apartment C. At the time of the entry, Crenshaw was forced to the ground, asked his name and informed that he was a suspect. According to Plaintiffs, Crenshaw was handcuffed and struck several times before he was eventually taken outside and placed in a police vehicle. Once taken to Central Lock-Up, it is undisputed that Crenshaw was booked with possession of illegal carrying of weapons, possession of stolen property and resisting arrest by flight, as charged in the report prepared by Officer Gernon. Crenshaw remained in jail for two to three days, and, on October 10, 2003, the Orleans Parish District Attorney refused all charges.
On October 6, 2003, Plaintiff Claudia Sims telephoned the NOPD's Public Integrity Division ("PID") to register a formal complaint regarding the execution of the search warrant, in particular the strip searches, her apartment having been ransacked, and racial remarks and threats having been made by an officer. The matter was assigned to Sergeant Claudia Neal, who conducted an informal disciplinary investigation, or "DI-3." During that investigation, Sgt. Neal took statements from Claudia Sims and Carla Sims, and, via telephone and/or e-mail, she communicated with Sergeant Joseph (the supervisor of the Tac Unit at the time of the search), First District Captain Jeff Winn, Lt. Scheuermann and Sgt. Kim Lewis-Williams. Sgt. Neal found that there were numerous inconsistencies in the statements offered by Claudia and Carla Sims, that the officers had probable cause for the strip searches, and that there existed no evidence that any officer made any threats or racial remarks during the execution of the search warrant. Based on the foregoing, Sgt. Neal concluded that no formal investigation was warranted. As a result of the investigation, Lt. Scheuermann counseled Officers Michael Fields and Nicholas Gernon regarding the search not having been documented in the incident report. These findings and conclusion were communicated to Claudia Sims, via a letter dated December 1, 2003, from Lonnie H. Swain (Assistant Superintendent, Public Integrity Bureau), on behalf of Superintendent Eddie Compass.
This action asserting violations of Plaintiffs' constitutional and civil rights followed. Specifically, Plaintiffs seek relief for the following alleged acts:
1. The illegal and unlawful search of their home (apartment D), by Defendants Scheuermann, Gernon, Johnson and Turner, in violation of 42 U.S.C. § 1983 and La. Civ. Code art. 2315;
2. The illegal and unlawful search and seizure of the person of Claudia Sims, Carla Sims and Za'kia Sims, by Defendants Scheuermann, Gernon, Johnson and Turner, in violation of 42 U.S.C. § 1983 and La. Civ. Code art. 2315;
3. The illegal and unlawful strip search of Claudia Sims, Carla Sims and Za'kia Sims, by Defendants Scheuermann, Johnson and Turner, in violation of 42 U.S.C. § 1983 and La. Civ. Code art. 2315;
4. The illegal search and seizure of Josh Crenshaw, the use of excessive force on the person of Josh Crenshaw in execution of the warrant, and false arrest and malicious prosecution, all allegedly committed by Defendants Scheuermann and Gernon, in violation of 42 U.S.C. § 1983 and La. Civ. Code art. 2315;
5. Defendant Scheuermann's failure or refusal to supervise Gernon, Turner and Johnson in the warrant execution, search and seizure of the female Plaintiffs, and arrest of Crenshaw, all in violation of 42 U.S.C. § 1983 and La. Civ. Code art. 2315;
6. The failure to satisfy the affirmative duty to prevent each other from violating the Plaintiffs' constitutional and statutory rights, by Defendants Scheuermann, Gernon, Johnson and Turner, in violation of 42 U.S.C. § 1983 and La. Civ. Code art. 2315;
7. Intentional infliction of emotional distress upon each Plaintiff, by Defendants Scheuermann, Gernon, Johnson, Turner, Keller, Jackson and Gillard, in violation of La. Civ. Code art. 2315;
8. The custom, policy, practice and procedure of negligently and/or deliberately inadequately training, supervising, and retaining employees, by Defendant Chief Eddie Compass, in violation of 42 U.S.C. § 1983 and La. Civ. Code art. 2315; and
9. Defendants Chief Eddie Compass and the City of New Orleans' liability for the actions of the individuals Defendants, by way of "respondeat superior."
See Amd. Compl., ¶¶ 44-51 (Rec. Doc. No 27). All of the individual defendants, except for Chief Compass, are sued in both their individual and official capacities; Chief Compass is sued only in his official capacity.
Plaintiffs have filed a Motion for Partial Summary Judgment that is now before the Court. Through that motion, Plaintiffs seek summary judgment as to the issue of the Defendants' liability, i.e., that no genuine issue of material fact exists relative to (i) the strip search conducted on the female Plaintiffs in violation of their right to be free from unreasonable searches and seizures, as guaranteed by the Fourth and Fourteenth Amendments, and (ii) the false arrest of Plaintiff Josh Crenshaw, in violation of his right to be free from unreasonable seizures, as guaranteed by the Fourth and Fourteenth Amendments. Plaintiffs also seek summary judgment against Defendant Scheuermann on the basis that he was the ranking supervisor on the scene and participated in and/or ordered the strip searches of the three female Plaintiffs.
Defendants oppose Plaintiffs' motion and have filed their own Motion for Summary Judgment. Defendants seek dismissal of Plaintiffs' claims arising out of the allegedly unlawful search of the residence, strip searches, and arrest of Josh Crenshaw. Defendants also move for dismissal of any claims against the City of New Orleans and against Scheuermann in his supervisory capacity.
This Order will only address those claims for which Plaintiffs and Defendants seek summary judgment.
Having compared the parties' cross-motions with the theories of recovery set forth in the Amended Complaint, it is evident that the two motions do not address all of Plaintiffs' claims. The parties are the masters of their own pleadings and motions, and, while there may be little merit to those claims not addressed in this order, the Court declines to rule on same at this time. Those claims therefore remain to be presented to and determined by the trier of fact, or to be the subject of later motion practice. The Court cautions that this is a § 1983 case, and, for any defendant to be liable to Plaintiffs, they must have actively participated in the unlawful conduct and cannot be entitled to qualified immunity.
II. LAW AND ANALYSIS
A. Summary Judgment Standard"Summary judgment is proper `if 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 judgment as a matter of law.'" Kee v. City of Rowlett, Tex., 247 F.3d 206, 210 (5th Cir.), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986) (quoting Fed.R.Civ.P. 56(c)), cert. denied, 534 U.S. 892, 122 S. Ct. 210 (2001). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).
The moving party "bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of evidence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. Once the moving party meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Kee, 247 F.3d at 210 (internal quotations omitted).
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits." Anderson, 477 U.S. at 255. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Id. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Serv. Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987). With this standard in mind, the Court now turns to the substantive motions.
B. Qualified Immunity
1. Distinction between suits against officers in official and individual capacities
In Turner v. Houma Municipal Fire and Police Civil Service Board, 229 F.3d 478, 484 (5th Cir. 2000), the Fifth Circuit criticized omnibus assertions of liability and immunity, stating that "[t]he performance of official duties creates two potential liabilities, individual-capacity liability for the person and official-capacity liability for the municipality." Official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. However, to be liable in one's official capacity under § 1983, the defendant must have been delegated policy-making authority under state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 108 S.Ct. 915 (1988). In essence, suing a party in his official capacity is duplicative of an action against the municipality which the official serves as an agent.
In contrast, personal-capacity suits which seek to impose individual liability upon a government officer for actions taken under color of state law are recognized under § 1983. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358 (1991). A state official can be sued in his individual capacity and held personally liable under § 1983 if it can be shown that the official, acting under state law, caused the deprivation of a federal right. 502 U.S. at 25-31. However, such persons are entitled to assert the defense of qualified immunity.
Here, all officers but Chief Compass were sued both in the official and individual capacities. Because Defendants Scheuermann, Gernon, Keller, Turner, Jackson and Gillard are only subordinate police officers in the NOPD, they do not have final policy-making authority. For this reason, they cannot be held liable under § 1983 in their official capacity for any municipal policy that allegedly deprived the Plaintiffs of a constitutional right. Therefore, the Court examines the remainder of the parties' claims and defenses with respect to Lt. Scheuermann and Officers Gernon, Keller, Turner, Jackson and Gillard as actions strictly in their individual capacity. The claims against the municipality are properly addressed with respect to those claims against the City and Chief Compass.
Plaintiffs have not argued that any of these Defendants have been delegated final policy-making authority, and this Court is not aware of any case, statutory or local law or anything in the record giving those subordinate officers of the NOPD such authority.
2. Section 1983 and Qualified Immunity
Title 42, United States Code, Section 1983 provides that every person, who, under color of state law, subjects, or causes to be subjected, any person within the jurisdiction of the United States "a deprivation of any rights, privileges, or immunities under the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper preceding for redress." Id. Qualified immunity protects police officers charged with discretionary duties from suit unless their conduct violates a clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982). The burden is on the plaintiff to overcome a defendant's defense of qualified immunity. Saldana v. Garza, 684 F.2d 1159, 1163 (5th Cir. 1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1253 (1983).
When considering a claim of qualified immunity, courts engage in a bifurcated analysis. First, it must be determined whether the plaintiff has alleged a violation of a constitutional right. Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993). If so, the court must then determine whether the defendant's conduct was objectively reasonable, because, even if an official's conduct violates a constitutional right, that official is entitled to qualified immunity if the conduct was objectively reasonable. Id. (citing Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993)).
An official is subject to liability if the right was clearly established at the time of the action in question. "Because the focus is on whether the officer had fair notice that [his or her] conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct." Broussea v. Haugen, ___ U.S. ___, 125 S.Ct, 596, 599 (2004). The Supreme Court in Broussea emphasized that "this inquiry `must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Id. (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151 (2001)). A right is clearly established only when its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (quotations and citations omitted). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. (quotations and citations omitted).
The effect of qualified immunity is to grant officers immunity from reasonable mistakes as to the legality of their actions. Katz, 533 U.S. at 206. The objective reasonableness standard "provides ample protection to all but the plainly incompetent and those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092 (1986).
C. Plaintiffs' Motion for Partial Summary Judgment
1. The Alleged Strip Search of Claudia Sims, Carla Sims and Za'kia Sims
For this Court to find Defendants liable to Plaintiffs for having conducted an unlawful strip search, Plaintiffs would have to establish that there exist no genuine issues of material fact as to the following: (1) that the strip searches did in fact occur; (2) that the strip search violated each Plaintiff's rights to be free from unreasonable searches and seizures; and (3) that Defendants are not entitled to qualified immunity. Because genuine issues of material fact exist as to the first element upon which Plaintiffs will bear the burden of proof at trial, the Court finds that Plaintiffs are not entitled to summary judgment with respect to the alleged strip searches. In support of their motion, Plaintiffs themselves direct the Court to conflicting testimony. In particular, both officers alleged to have searched the Plaintiffs testified in their depositions that they did not conduct any strip searches nor did they witness any strip searches during the execution of the warrant. See Dep. of Latoya Johnson, pp. 15-16 (Pls.' Ex. 19); Dep. of Summer Turner, pp. 14-15 (Pls.' Ex. 20).
In an effort to reconcile with that testimony, Plaintiffs urge this Court to disregard the deposition testimony of Officers Johnson and Turner, in light of the evidence to the contrary, because, according to Plaintiffs, Johnson and Turner are not credible and because the absence of any reference in the report prepared by Detective Gernon evinces an intent on the part of the Police Department and its officers to secret the truth. It is well-settled, however, that such credibility determinations (particularly here where the credibility of the two officers who allegedly conducted the illegal searches is being called into question) are not within the province of this Court on a motion for summary judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097 (2000). Because Plaintiffs cannot establish the threshold factual issue that any strip search did occur, Plaintiffs are not entitled to summary judgment on this claim.
2. The Alleged False Arrest of Josh Crenshaw
Plaintiff Josh Crenshaw also seeks summary judgment in his favor finding that Defendants are liable to him for having falsely arrested him. To so find, this Court would have to conclude that the Defendants arrested Crenshaw without probable cause, and that Defendants are not entitled qualified immunity for such conduct. For the reasons set forth in Section D, Subpart 3, infra, granting Defendants' Cross-Motion on the false arrest claim, Plaintiffs' motion for partial summary judgment on this claim is denied.
3. The Alleged Supervisory Liability of Lt. Dwayne Scheuermann
Plaintiffs complain that Lt. Scheuermann is liable to them because, by ordering the search, he participated in the alleged unlawful conduct. Having reviewed the record, the Court finds that there are numerous inconsistencies in the evidence submitted by the parties as to who may have ordered a search and who may have conducted same. For instance, in responding to questions asked during his deposition relative to the circumstances of the search and his role in same, Lt. Scheuermann testified that he was the supervisor on the scene and had delegated to Sgt. Kim Lewis-Williams the authority to order any search in her duties in securing the people in the apartment after the Tac Unit had moved out. Dep. of D. Scheuermann, pp. 17, 43 (Defs.' Ex. 2). Such testimony, without more, does not elevate Scheuermann's role as one which would expose him to § 1983 liability. Further, while Lt. Scheuermann has testified that he delegated this authority to Sgt. Lewis-Williams, Sgt. Lewis-Williams testified in her deposition that she did not know who ordered the search of the female Plaintiffs. Dep. of K. Lewis-Williams, p. 14 (Pls.' Ex. 17). Additionally, Plaintiff Claudia Sims has testified that Andre Carter (who is not a defendant here) ordered a female officer to conduct the strip search. Dep. of Claudia Sims, p. 19 (Pls.' Ex. 1). Moreover, because the Court has already ruled that genuine issues exist as to whether a strip search actually occurred, the Court cannot impose liability against Scheuermann for his alleged participation in that search based on the record as it presently exists. For all the foregoing reasons, partial summary judgment in Plaintiffs' favor and against Lt. Scheuermann is not warranted.
D. Defendants' Cross Motion for Summary Judgment
1. The Alleged Illegal Search of the Residence
Plaintiffs Claudia Sims, Carla Sims and Za'kia Sims bring a Fourth Amendment claim against Defendants Scheuermann, Gernon, Johnson and Turner arising out of the search of their residence. The Plaintiffs do not dispute that the warrant to search the apartment was supported by probable cause or that they gave their consent to search the apartment. Rather, Plaintiffs challenge the extent to which their property was damaged by Defendants in the course of their search.
The text of the Fourth Amendment makes clear that all searches must be "reasonable." This reasonableness requirement applies not only to the circumstances under which a warrant may be issued, but also to the manner and scope of the search. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989); Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694 (1985). "The general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant." United States v. Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992 (1998).
While the destruction of property during a warranted search is not favored, officers executing a search warrant may need to damage property to perform their duties. Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct. 1682; United States v. Brown, 556 F.2d 304, 305 (5th Cir. 1977). "Therefore, the destruction of property during a search does not necessarily violate the Fourth Amendment." Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000). Rather, "[o]nly unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively, violates the Fourth Amendment." Id. (quotations and citations omitted).
Defendants assert that they are entitled to summary judgment dismissing this claim because Plaintiffs can offer no evidence demonstrating that the Defendants engaged in unnecessarily destructive behavior. Stated otherwise, Defendants argue that there exist no genuine issues of material fact as to their reasonableness in executing the particular search warrant. Defendants also submit that Plaintiffs have offered no evidence indicating what, if any, damages they suffered as a result of the alleged unreasonable search of the residence. In response, Plaintiffs only state in broad terms that the Defendants are not entitled to qualified immunity as to all of the alleged constitutional violations on which Defendants seek summary judgment. Plaintiffs do not, however, specifically respond to the Defendants' motion as it relates to this one claim. As a result, the Court has reviewed the Plaintiffs' pleadings and their materials in support of their own Motion for Summary Judgment in an attempt to determine precisely which elements of the search Plaintiffs believe to be unreasonable.
In their Amended Complaint, Plaintiffs alleged that "Defendants Johnson and Turner left the apartment but, within a few short minutes, several defendants, along with Lieutenant Scheuermann, returned and proceeded to ransack completely Claudia's home, overturning and breaking furniture, and removing articles of clothing from drawers and throwing them down a flight of stairs." See Amd. Compl., ¶ 18; see also P-1 through P-9, attached to the Amd. Compl. Plaintiff Carla Sims testified as follows:
A. . . . They searched the house three times. The third search, they just upsetted [ sic] the house. We couldn't walk. We had to step over stuff. The dresser drawers were broke.
* * * * *
Q. Who conducted the third search?
A. Lieutenant Scheuermann.
Q. Were the SWAT team folks still there?
A. They said, the SWAT team said, final search, final search, and that's when all of them went back upstairs and searched the house the third time. . . . we was on the porch.
When Lieutenant Scheuermann said, as he was leaving, don't worry about cleaning your house because we be back. Me and my mama . . . and my baby didn't sleep at home. We slept downstairs by my auntie. We couldn't sleep. It was stuff over stuff. We couldn't really move nothing.
Dep. of Carla Sims, p. 28 (Pl.'s Ex. 2). Additionally, Plaintiffs attach to their motion copies of certain photographs, which are also attached to their Amended Complaint. See Pls.' Ex. 6 in globo. Those pictures show what looks to be two rooms and a stairwell, all taken from a variety of angles, with clothes and children's toys strewn about the floor. The photographs also show a chest of drawers or dresser with the drawers removed, and some of those drawers broken. The photographs, however, are not authenticated and thus are not competent Rule 56 evidence which this Court can consider in opposition to Defendants' motion for summary judgment. Indeed, in submitting these photographs, Plaintiffs have failed to submit any affidavits or deposition testimony indicating (i) who took the photographs; (ii) the time the photographs were taken in relation to the execution of the search warrant on October 3, 2003; or (iii) that the premises were not disturbed between the time of the execution of the search warrant and the time the photographs were taken.
For the reasons that follow, the Court concludes that Plaintiffs' version of the facts falls short of establishing a constitutional violation. From the parties' submissions, taken in the light most favorable to Plaintiffs, the house was "upset" and some dresser drawers were broken. The Defendant officers were searching for firearms, and Plaintiffs have provided no evidence that the search was unnecessarily thorough to fulfil its purpose. Under these circumstances, the Court finds that Plaintiffs' claim regarding the nature of the search of the premises cannot constitute a Fourth Amendment violation. See, e.g., Lewis v. City of Mount Vernon, 984 F.Supp. 748, 756 (S.D.N.Y. 1997) (allegation that officers left plaintiffs' apartment "ransacked" did not state constitutional violation where plaintiffs "presented no evidence that the officers wantonly damaged or destroyed property or conducted the search in a manner inconsistent with its professed purpose of finding illicit drugs"; instead, "the only inference that can be drawn is that the officers conducted a thorough search, as they were permitted to do in executing a warrant").
Further, the law is clear that an individual plaintiff must set forth facts which show which officer or officers were personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged. See Roberts v. City of Shreveport, 397 F.3d 287, 291-92 (5th Cir. 2005) (quoting Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995)). Conclusory allegations are insufficient to state a constitutional violation. Streetman v. Jordan, 918 F.2d 555, 557 (5th Cir. 1990).
As evidenced by the deposition testimony of Carla Sims (the only evidence offered by Plaintiffs which addresses the alleged illegality of the execution of the warrant), Plaintiffs fail to identify which officer or officers — other than Lt. Scheuermann and the "SWAT team" — may have engaged in the destructive conduct. In his deposition, Lt. Scheuermann testified that, in general, "[the officers] try to take due care with people's property unless the warrant dictates that we have to destroy something in pursuit of evidence," and in executing the warrant for 1660 North Roman Street, "most of [his] searching was outside" and, inside, he "just looked around." Dep. of Scheuermann, pp. 35-36. Moreover, Plaintiffs have not offered any evidence of damages, such as a statement of the costs of repair and/or replacement of household goods, in response to the Defendants' motion. Accordingly, this Court finds that there exists no genuine issue of material fact that Defendants acted reasonably in their execution of the search warrant. Thus, Defendants are entitled to summary judgment on this claim.
2. The Alleged Strip Search of Claudia Sims, Carla Sims and Za'kia Sims
Plaintiffs Claudia Sims, Carla Sims and Za'kia Sims allege that each was subjected to a "strip search" in violation of their Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures. Specifically, Plaintiffs claim that Defendants Scheuermann, Turner and Johnson had no individualized reasonable suspicion or probable cause to order and to conduct the strip search of the three female plaintiffs.
Because Defendants have raised the defense of qualified immunity, the Court must first turn to the question of whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the Defendants' conduct violated a constitutional right. Roe v. Tex. Dep't of Protective Regulatory Servs., 299 F.3d 395, 401 (5th Cir. 2002).
The law is well-established that law enforcement officials must have reasonable justification for conducting a strip search. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979). In this vein, the Fifth Circuit has recognized:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case, it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.Stewart v. Lubbock County, 767 F.2d 153, 156 (5th Cir. 1985) (citing Bell, 441 U.S. at 559). In circumstances, such as the case at bar, where the individuals asserting the injury were searched during the execution of a premises warrant, were not named as suspects in that warrant, and were not under arrest, the Fifth Circuit has held that police must have either individualized "articulable reasonable suspicion to frisk an individual or probable cause to search him." Williams v. Kaufman County, 352 F.3d 994, 1004 (5th Cir. 2003) (emphasis in original). See also Ybarra v. Illinois, 444 U.S. 85,88, 100 S.Ct. 338 (1979).
As stated earlier, the facts surrounding the alleged search of the three female Plaintiffs are highly disputed. Indeed, having examined the parties' submissions, this Court is unaware of any facts which are not contested. Consequently, for purposes of this motion, the Court will assume as follows: Each female plaintiff was strip searched in a private room by a female officer without having given her consent to the search. Officer Latoya Johnson ordered Claudia Sims to take her top off, and Johnson proceeded to touch underneath Sims' breasts. Claudia Sims Dep., p. 18; Aff. of Claudia Sims, ¶ 5 (Pls.' Ex. 22). Johnson then ordered Claudia Sims to remove her shorts and underwear, to bend over and to open her buttocks, and the officer visually inspected Sims' vaginal and rectal areas. Claudia Sims Dep., pp. 18-19; Claudia Sims Aff., ¶¶ 5 and 6. Claudia Sims explained that she was embarrassed and humiliated and felt sexually violated as a result of the search. Claudia Sims Dep., p. 19. She also explained that the only touching was of her breasts, and that Officer Johnson made no rude or derogatory remarks during the search, which took less than 15 minutes. Id., pp. 19-20. Around the same time, Officer Summer Turner ordered Carla Sims to undergo a strip search. Aff. of Carla Sims, ¶ 5 (Pls.' Ex. 23). Like her mother, Carla was ordered to remove her clothes. After Turner searched underneath her breasts, Carla was instructed to bend over and spread her buttocks; Turner then visually inspected her vaginal and rectal areas. Id. at ¶ 6; Carla Sims Dep., p. 20. According to Carla, the search was not conducted in a violent manner and lasted less than three minutes, during which time Officer Turner touched only her breasts and did not make any rude or derogatory statements. Carla Sims Dep., pp. 20-21. Following the search of both women, Officer Turner ordered Carla Sims to remove Za'kia's diaper and to spread her legs. Id., p. 22; Carla Sims Aff., ¶ 5. Turner then visually inspected the child's vaginal area. Carla Sims Aff., ¶ 6. For all three of these searches, Sgt. Kim Lewis-Williams either stood in the doorway or was physically present in the room. Claudia Sims Aff., ¶ 8; Carla Sims Aff., ¶ 8. No contraband or weapons were found on any of the three female Plaintiffs. Claudia Sims Aff., ¶ 6; Carla Sims Aff., ¶ 7.
In arguing that there existed a reasonable suspicion or probable cause for each of these searches, Defendants appear to argue that exigent circumstances existed at the time of the strip searches. Specifically. Defendants point to testimony that the search warrant was considered high-risk given the type of stolen property the officers were searching for (including assault weapons). See Scheuermann Dep., pp. 18, 70. Defendants also state that the suspects were violent offenders; that there had been reports of shots fired from the residence; and that none of the Plaintiffs called to report that there had been shots fired from their own residence. See Application for Search Warrant, pp. 2-3 (Defs.' Ex. 1). Defendants also make the conclusory allegation that these women had a history of harboring violent repeat offenders at that address.
As further support for the asserted existence of probable cause for the strip searches, Defendants offer the deposition testimony of Lt. Scheuermann. When questioned as to the specific basis for the defendant officers' suspicion that the three female Plaintiffs could have been secreting weapons, Lt. Scheuermann explained that they "had a search warrant searching for evidence" and that items such as ammunition could have been concealed in any of the female Plaintiffs' vaginas. Scheuermann Dep., pp. 43-44. Lt. Scheuermann also explained the specific basis for their suspicion was based on a "combination" of factors: given the overall picture and the amount of weapons they were recovering (more than what they were originally looking for), the officers "had concerns whether there may be persons sympathetic to the suspects" and, with the amount of weapons present, "it was a concern for us to protect our officers." Id., pp. 45, 67. Lt. Scheurmann also testified that he "was aware that [officers] were going to do a search" to ensure "there was no evidence and weapons." Id., pp. 55-56. According to Lt. Scheuermann, the requirements for probable cause for the individual searches were met "in that the possibility was there" that weapons or contraband could be concealed Id., pp. 57, 67. While Lt. Scheuermann acknowledged that the females were not named in the search warrant, he also testified that, once some of stolen property was found in the residence, "technically [the women] are suspects." Id., pp. 39, 58.
Having considered the totality of the circumstances, the Court finds that the Defendants have failed to demonstrate that there exists no genuine issue of material fact as to the reasonableness of the alleged strip search. As set forth in the Plaintiffs' deposition testimony, they were constantly within the officers' sight while the detectives searched the house. Defendants have not offered any evidence that the Plaintiffs did not cooperate in allowing the search of their home. Indeed, Officer Warren Keller, a member of the Tac Unit, testified that he did not perceive the women as a threat. Dep. of W. Keller, p. 18 (Pls.' Ex. 3). Nothing in the record indicates that Defendants were prevented from maintaining a surveillance of the Plaintiffs while search warrants for the Plaintiffs' persons were sought and obtained. Nothing presented to this Court at this time indicates probable cause (or even a reasonable suspicion) that contraband was about to be removed or destroyed. Further, from a safety standpoint, nothing precluded Defendants from performing a pat-down search of each Plaintiff to ensure she was unarmed. While Scheuermann states that there existed a "possibility," this Court is unaware of any decision equating a possibility as to every person present on the searched premises with articulable probable cause that the individual to be searched was concealing weapons or contraband.
Additionally, none of the women were named as a suspect in the application for the search warrant. As the Fifth Circuit recognized in Williams v. Kaufman County, "because the Fourth Amendment requires particularity, `open-ended' or `general' warrants are constitutionally prohibited." 352 F.3d at 1005 (citing Ybarra, 44 U.S. at 92, n. 4). To construe the search warrant for the premises of 1660 North Roman Street as authorizing a general search of any person found in the residence "would sanction exactly the type of general warrant that the Constitution forbids." Id.
Because a genuine issue of fact exists as to the circumstances of the subject searches, the circumstances surrounding such, and the Defendants' bases for ordering and/or conducting same, the Court finds for purposes of the summary judgment motion, that Plaintiffs have overcome the first hurdle, i.e., Plaintiffs have alleged the violation of a clearly established constitutional right. The Court must next determine whether the Defendants' conduct was objectively reasonable.
In support of their assertion of qualified immunity, the Defendants argue that the law was not clearly established "in the more particularized and hence more relevant sense" at the time of the search so as to put defendants on notice that their conduct was unlawful. Defendants state that they are aware of no case in this Circuit that would put them on notice that the conduct was unlawful.
Defendants seize upon certain language employed by the Supreme Court in Brousseau v. Haugen, 125 S.Ct. 596, and appear to argue that Brousseau is a new statement on the law of qualified immunity. Having reviewed that decision — in particular, the sections addressing qualified immunity, this Court believes that the Supreme Court neither explicitly nor implicitly announced any new standard of law on qualified immunity in general. Rather, the Court was reaffirming and emphasizing its prior holdings. Defendants nevertheless elevate certain language ( e.g., "the right . . . must have been clearly established in a more particularized, and hence more relevant sense . . .", 125 S.Ct. at 599 (quotations and citation omitted)) to mean that a state actor can never be held liable for violative conduct unless there is a decision of the Supreme Court or the Fifth Circuit, at the relevant time, which clearly establishes that the particular conduct under near-identical circumstances violates the injured party's constitutional rights. The Supreme Court has never so held. Rather, the long-standing rule, as explained by the Supreme Court has been as follows: "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right . . . The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted." 125 S.Ct. at 599. Put another way, an official's conduct, is not protected by qualified immunity if, in light of preexisting law, it was apparent that the conduct, when undertaken, constituted a violation of the right at issue. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034 (1987). This is true even though the very action in question had not then been held to be a constitutional violation. See id.
This Court need only look to the Fifth Circuit's decision in William v. Kaufman County, 352 F.3d 994 (5th Cir. 2003) to conclude that the Defendants' arguments are not supported by the law as it existed on the date of the search in question. In Williams, after finding that the plaintiffs had alleged the violation of a constitutional right, the Fifth Circuit was faced with the question of whether the law was clearly established at the time of the search such that no reasonable officer could have believe that conducting a strip search under the circumstances was objectively reasonable. After reviewing the law at the time of the April 1995 raid, the Court concluded that the law was clearly established that strip searching individuals, about whom the police had no individualized probable cause of weapon or drug possession, was unlawful. 352 F.3d at 1005-06. In reaching this conclusion, the Court first looked to Ybarra v. Illinois, a 1979 decision, and stated that "even if hazardous circumstances had given rise to reasonable suspicion that plaintiffs, by being present, might have possessed weapons or contraband, [the defendant Sheriff] should have known that his officers were limited to a patdown of each plaintiff." Id. at 1006. The Fifth Circuit further noted that its own prohibition of strip searches in other contexts presented more than fair warning at the time that the subject strip searches were illegal. Id. In so reasoning, the Court looked to its earlier decisions in Stewart v. Lubbock County, 767 F.2d 153 (5th Cir. 1985), and Watt v. Richardson Police Department, 849 F.2d 195 (5th Cir. 1988).
While that decision was rendered on December 9, 2003, the searches at issue in that case occurred in April 1995, more than eight years before the alleged searches of the Sims women.
In that case, in April of 1995, the defendant sheriff had obtained a search warrant for a night club based on information received from a confidential informant. 352 F.3d at 999. The affidavit used to secure the warrant identified five individuals suspected of dealing crack cocaine, and included as suspects "all other person or persons whose names, identities and descriptions are unknown to affiant." Id. at 999-1000. The warrant itself only authorized the police to enter the suspected place and to there search for the personal property described and to seize same and to arrest and bring before the magistrate each suspected party named in the affidavit. Id. at 1000. Later that day, the defendant sheriff and about 40 other officers went to the club to execute what they considered a "hazardous" warrant, in that weapons were likely to be present. Id. The police eventually succeeded in securing the outer perimeter of the search area. Id. Upon entering the night club, the officers noticed drugs on the floors and tables. Id. The police detained approximately 100 people inside the club for about three hours. Id. During that time, officers conducted a pat-down search, strip search and warrant checks on each individual there. Id. (It was the defendant Sheriff's admitted unwritten standard policy to conduct a strip search on each individual within the search area, regardless of individualized probable cause. Id. After the strip searches, the individuals were re-handcuffed and continued to be detained until the entire search was completed. Id. A civil suit followed, and three plaintiffs — none who were named in the warrant — went to trial. Id.
In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338 (1979), the Supreme Court clarified the scope of a lawfully obtained warrant. Specifically, the Court held that the search or seizure of a person must be supported by "probable cause particularized with respect to that person." 444 U.S. at 91. In other words, "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Id.
In Ybarra, a judge authorized the search of a tavern and "the person of `Greg,' the bartender, a male with blondish hair appx. 25 years." The search warrant was based upon the testimony and affidavit of a confidential informant. Id. at 88. The warrant authorized the police to search for evidence of possession of a controlled substance. Id. When the police arrived to execute the search, the officers proceeded to pat-down all the customers in the tavern. Id. The law enforcement officers "knew nothing in particular about Ybarra except that he was present" when the search warrant was executed. The Supreme Court determined the officers lacked probable cause to believe that every person at the tavern, with the exception of the person specifically named in the warrant, would be or had been violating the law. Id. at 90. The Court stated "[w]here the standard is probable cause, a search or seizure of a person must be particularized. . . . This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be." Id. at 91.
In Stewart, the Fifth Circuit employed the test articulated by the Supreme Court in Bell, balancing law enforcement interests in the search against the level of invasion of personal rights caused by the search, and concluded that the strip search policy at issue there violated the Fourth Amendment because it applied to minor offenders about whom the police had no reasonable suspicion of possessing weapons or contraband. See Stewart, 767 F.2d at 156-57. Similarly, in Watt, the Fifth Circuit recognized that even though strip searches of inmates were often allowed to maintain institutional security, when an arrestee's offense is minor, his criminal history innocuous or ancient, and his personal characteristics at odds with reasonable fears about prison security, the strip search is illegal. See Watt, 849 F.2d at 197, 199. Looking at those two prior decisions, the Fifth Circuit in Williams distinguished the circumstances before it, as the search in Williams — like here — concerned individuals outside the prison context toward whom the police had even less individualized reasonable suspicion or probable cause. 352 F.3d at 1006. In short, the Fifth Circuit stated that Stewart and Watt provided fair warning to the defendant that law enforcement interests in safety did not justify the extreme intrusiveness of strip searches which occurred there. Id. at 1007.
Likewise, having considered the Ybarra, Stewart and Watt decisions (rendered in 1979, 1985 and 1988, respectively), this Court concludes that the law was clearly established that strip searching individuals, about whom the police had no individualized probable cause of weapon or contraband possession, was unlawful. Having considered the allegations in the light most favorable to the non-movants, Plaintiffs, and given the dearth of evidence submitted by Defendants to support the existence of probable cause and their assertion of qualified immunity, the Court finds that Defendants are not entitled to summary judgment dismissing Plaintiffs' claims arising out of the alleged strip searches.
The Court further notes that, at the time of the searches in question here, the district court's decision in Williams v. Kaufman County was over 18 months old. 2002 WL 519814 (N.D.Tex. Mar. 29, 2002). Additionally, in 1995, an order was issued by this Court (then-Magistrate Judge Africk) denying a motion for summary judgment filed by the St. Charles Parish Sheriff's Department based on facts fairly similar to those presented by the case at bar. See Henderson v. St. Charles Parish Sheriff's Dep't, 1995 WL 468226 (E.D.La. July 28, 1995). In Henderson, a search warrant had been issued authorizing the search of the plaintiffs' residence for the body of William Henderson's wife, for weapons and ammunition, and for any documentation regarding the use, sale, pawning and/or purchasing of weapons. Id. at *1. Upon searching the Henderson residence, deputies found weapons, ammunition, drugs and drug paraphernalia. Id. Thereafter, a female deputy strip searched Theresa Henderson (William Henderson's wife). Id. No drugs or weapons were found on Theresa Henderson's body, and Theresa Henderson was never arrested in conjunction with that incident. Id. Because the strip search was conducted without the authority of a warrant, the Court held that, "for the search to be lawful, Theresa Henderson had to either consent to the search, or the searching officers, faced with exigent circumstances, had to have probable cause to perform the search." Id. at *2. In denying the defendants' motion for summary judgment, the Court found that (i) genuine issues existed as to whether Theresa Henderon consented to the search, and (ii) no reasonable officer could have believed the strip search was justified by exigent circumstances. Id. at *3.
3. The Alleged False Arrest of Josh Crenshaw
Plaintiff Josh Crenshaw alleges he was subjected to a false arrest, in violation of his Fourth Amendment right to be free from arrest and search without probable cause.
A claim of unconstitutional false arrest requires a showing of no probable cause. Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001). The probable cause analysis only requires that the court find a basis for an officer to believe that there was a "fair probability" that a violation occurred. Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000). Claims for false arrest focus on the validity of the arrest, not on the validity of each individual charge made during the course of the arrest. Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). Whether the crime actually occurred or whether a suspect is eventually convicted is irrelevant to the probable cause analysis. Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 754 (5th Cir. 2001). If probable cause existed for any of the charges made, or if a reasonable police officer could believe probable cause existed, the false arrest claim fails. Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002).
Accepting the facts as alleged by Plaintiff and viewing them in the light most favorable to the party asserting the injury, Plaintiff's allegations are insufficient to show that the conduct of Officer Gernon and/or Officer Keller violated Plaintiff's right to be free from an arrest without probable cause. Hope v. Peltzer, 536 U.S. 730, 736, 122 S.Ct. 2508 (2002). In the instant matter, a set of keys was found on Josh Crenshaw's person at the time he was apprehended by members of the Tac Unit. See Incident Report, p. 9 of 37 (Pls.' Ex. 8). When the detectives searched the adjacent lot, those officers were able to unlock a brown Mercury minivan located thereon. Id. In that car, detectives found certain property, including a black glove and a pocket knife, identified by the victim as stolen from his vehicle. Id.
While the mode of apprehension is in dispute, see Keller Dep., p. 15, cf. Dep. of J. Crenshaw, pp. 8-10 (Pls.' Ex. 9), it is undisputed that officers retrieved from the person of Plaintiff a set of keys which were found to fit a Mercury minivan located on the lot adjacent to the residence.
The Fifth Circuit has consistently held that a warrant authorizing a search of `the premises' includes vehicles parked on the premises." See United States v. Singer, 970 F.2d 1414, 1417-18 (5th Cir. 1992). See also United States v. Freeman, 685 F.2d 942, 955 (5th Cir. 1982) (determining that a warrant for a search of the premises of a residence identified by an address is "sufficiently particular to permit a search of [the owner's vehicle] similarly parked on the premises off the street and close to the house").
In opposition to Defendants' motion for summary judgment, Plaintiff argues that there could be no probable cause for any reasonable officer to believe he was in possession of the stolen goods because he did not reside at 1660 North Roman Street, and he was not in actual physical possession of the stolen property nor was he in close physical proximity to same. Defendant's argument, however, ignores the legal principles surrounding "possession" as that term is used relative to criminal offenses of this sort. Under Louisiana law, to support a conviction for illegal possession of stolen property, the State does not have to prove actual possession; rather, it is sufficient if the State shows constructive possession. See State v. Hall, 03-906 (La.App. 5 Cir. 5/26/04), 875 So.2d 996, 1001, writ den., State v. Barnes, 2004-1875 (La. 12/10/04), 888 So. 2d 834. "Constructive possession exists when the property is within the defendant's dominion and control." Id.
In the instant matter, considering the record in the light most favorable to the Plaintiff, it was entirely reasonable for Officers Keller and Gernon to believe that the Plaintiff Josh Crenshaw had committed the crime of possession of stolen property. First, it is entirely reasonable for the officers to believe that, based on his possession of the car keys, Crenshaw was had dominion and control over, and hence constructive possession of, those stolen items found in the Mercury minivan and of all the stolen items recovered on the premises. It was further reasonable for the officers to believe that Crenshaw resided at the address based on the information supplied by the Confidential Informant, the fact that an individual named Joshua Crenshaw had listed his residence as 1660 North Roman Street as recently as February 24, 2000, and that Crenshaw was inside of 1660 North Roman Street at the time he was apprehended. See Application for Search Warrant, p. 21 of 37. Furthermore, the fact that the charges against Crenshaw were dismissed does not necessarily mean that probable cause was lacking for his arrest, as the amount of evidence required to establish probable cause to arrest is less than that necessary to support a conviction. See Martin v. Rodriguez, 154 F. Supp.2d 306, 312 (D.Conn. 2001).
Considering the foregoing, the Court finds that Officers Keller and Gernon reasonably believed that there was a fair probability that a violation had occurred. Moreover, considering the totality of the circumstances, and based on Plaintiff's allegations, any reasonably competent officer possessing the information that Defendant had at the time that he arrested Plaintiff could believe that he had probable cause for the arrest. Freeman v. County of Bexar, 210 F.3d 550, 553-54 (5th Cir.), cert. denied, 531 U.S. 933, 121 S.Ct. 318 (2000). Whereas here, there is probable cause for at least one of the charges made — possession of stolen property, the arrest is supported by probable cause, and the claim for false arrest fails.
4. The Monell Claim Against the City of New Orleans
The Supreme Court has recognized that a municipality is a "person" under § 1983, and it may be sued in law or equity for constitutional torts that are caused by some official municipal policy. Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Nevertheless, a municipal government's liability for constitutional torts under § 1983 is different and more narrow than its liability for traditional torts, and the doctrine of respondeat superior, does not apply to an action brought under § 1983. Id. at 691.
A municipality may be held liable under § 1983, however, when a constitutional deprivation is caused by the execution of a policy or custom of the municipality. Id. Consequently, municipal liability under § 1983 requires proof of three elements: (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose "moving force" is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 U.S. at 694). "An official policy is: (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [government entity] . . . or by an official to whom the entity ha[s] delegated policy-making authority; or (2) a persistent, widespread practice of 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 [the entity's] policy." Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 289 (5th Cir. 2002) (quoting Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)).
Although even a single decision by a final policymaker can establish official policy, Pembaur v. Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292 (1986), only the decisions of the official or officials possessing " final policy making authority" represent official policy. Jett v. Dallas Indep. School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702 (1988) (emphasis added).
Because this liability cannot be predicated on respondeat superior, "the unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimateur; isolated unconstitutional actions by municipal employees will almost never trigger liability." Id. (citing Bennett v. City of Slidell, 728 F.2d 762, 768, n. 3 (5th Cir. 1984), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476 (1985)).
In limited circumstances, the failure to train or the inadequate training of municipal officers can establish an official municipal policy or custom and subject a local government to liability under § 1983. City of Canton, Ohio v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197 (1989); see also Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382 (1997). Where municipal decision makers have notice that a training program does not prevent constitutional violations, "[t]heir continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees" may rise to the level of "deliberate indifference." Bryan County, 520 U.S. at 407. In fact, "the inadequacy of police training may serve as the factual basis for the § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Harris, 489 U.S. at 388 (emphasis added).
In an action for inadequate police training, two fundamental requirements must be met: culpability and causation. Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998), cert. dismissed, 526 U.S. 1083, 119 S.Ct. 1493 (1999). Culpability is shown by demonstrating that a municipal policy or custom was "adopted with `deliberate indifference' to its known or obvious consequences." Id. Causation requires proof that the municipality's actions or inactions were the "`moving force' behind the constitutional violation." Id. The culpable policy need not be facially unconstitutional; however, the City must have enacted the policy with "deliberate indifference" to the potential for violations of the civil rights of its citizens. Harris, 489 U.S. at 387-88. Deliberate indifference is a very stringent standard, and a "showing of simple or even heightened negligence will not suffice" to make a city liable. Bryan County, 520 U.S. at 407.
A plaintiff must identify each and any policy which allegedly caused the constitutional violation. Piotrowski, 237 F.3d at 579. In the case sub judice, Plaintiffs' specification of the challenged policies has been vague. In their Amended Petition, Plaintiffs alleged that Chief Compass is liable to them for his "custom, policy, practice and procedure of negligently and/or deliberately inadequately training, supervising, and retaining employees." Plaintiffs, however, have presented no evidence in support of their claims against Chief Compass (and thus, the City) arising out of his alleged policy of inadequate training, supervising and retaining employees. Indeed, in their opposition to Defendants' motion for summary judgment, Plaintiffs seem to abandon the claim that the City is liable for any official written policy or persistent conduct, and instead claim that the City should be held liable under a ratification theory. Plaintiff argues that the PID investigation was a sham and thus the City, acting through Chief Compass, ratified the unconstitutional conduct of the police officers.
For example, Plaintiffs fail to offer any proof that the violation — the alleged strip searches — could have been prevented if the defendant officer or officers had received better or additional training, and Plaintiffs do not identify any particular training program and specify how same is defective. See Benavides v. County of Wilson, 955 F.2d 968, 973 (5th Cir. 1992). Plaintiffs also do not allege or provide evidence that any failure to train resulted in any other incident in which an individual's federal constitutional rights were violated. Furthermore, Plaintiffs have not alleged and offer no evidence that the City acted with deliberate indifference as to the known or obvious consequences of its actions on constitutional rights.
On the other hand, the NOPD has a comprehensive policy on strip and body cavity searches. See NOPD Operations Manual — 1.19, Strip/Body Cavity Searches (Pls.' Ex. 13). Plaintiffs do not contest the constitutionality of that policy on its face; rather, Plaintiffs contest the alleged noncompliance with this policy relative to the one night in question. Also, any allegation of deliberate indifference would not be supported as the deposition testimony in the record demonstrates that the officers were knowledgeable of that policy. See, e.g., Scheuermann Dep., pp. 39-40; Gernon Dep., p. 45.
In City of St. Louis v. Prapotnik, 485 U.S. 112, 127, 108 S.Ct. 915 (1988), in considering when municipalities can be liable for single episodes of conduct, the Supreme Court stated that municipal liability may lie where an authorized policymaker approves a subordinate's decision and the basis for it. Recognizing the need to prevent ratification from becoming a theory of respondeat superior, the Fifth Circuit has cautioned that "the ratification theory, in whatever context it arises, is necessarily cabined in several ways." Milam v. City of San Antonio, 113 Fed.Appx. 622, 626-27 (5th Cir. 2004). For instance, "policymakers who `[s]imply go along with' a subordinate's decision do no thereby vest final policymaking authority in the subordinate, nor does a `mere failure to investigate the basis of a subordinate's discretionary decisions' amount to such a delegation." Id. at 627 (quoting Prapotnik, 485 U.S. at 130, 108 S.Ct. 915).
In the instant matter, the record as a whole does not present a situation where the policymakers have approved the "decision and the basis for it." Prapotnik, 485 U.S. at 127. Instead, the record reveals that a complaint was lodged by Claudia Sims and that the PID officer responded to those complaints, took detailed statements from the women and from the supervisors on the scene. See Informal Disciplinary Investigation, Control No. 2003-653-N (Pls.' Ex. 16). As a result of her investigation, Sgt. Neal concluded that no formal investigation was warranted, and she also noted that Lt. Scheuermann had counseled Sgt. Fields and Officer Gernon on the need to comply with the Police Department's strip search policy and document any searches in their reports. Id., p. 6 of 7. Subsequently, Plaintiffs were notified of Sergeant Neal's conclusion through a letter from Assistant Superintendent Lonnie Swain, on behalf of Compass. See Letter dated December 1, 2003 from Lonnie H. Swain to Claudia Sims (Pls.' Ex. 16).
There is no evidence in the record that Chief Compass was aware of the complaint lodged by Claudia Sms. Indeed, the DI-3 investigation form shows that, while copies of the investigation report were sent to the NOPD's Chief of Operations, the Sixth District Commander, and Claudia Sims, a copy of the report was not sent to Chief Compass. See Informal Disciplinary Investigation, p. 7 of 7.
The letter from Swain is the only piece of evidence in the record upon which Plaintiffs could base their ratification theory. Based on that scant evidence, this Court cannot find that a final policymaker approved the decision and basis for it such that the City would then be liable for the strip search which occurred almost two months prior to the date of that letter. Instead, through the letter, it is clear that the powers-that-be were "simply going along with a subordinate's decision." See Prapotnik, 485 U.S. at 130. The law is well-established that municipal liability cannot be established on that basis alone. Id. Moreover, it is difficult to see how a policymaker's ineffectual or nonexistent response to an incident, which occurs after the fact of the constitutional deprivation, could have caused the deprivation.
Finally, regardless of whether one disagrees with the conclusions, the PID file reveals no systematic inattention to the complaints. Even if Sgt. Neal, the PID officer who conducted the internal investigation, failed to thoroughly carry out her task by failing to determine which officers in fact searched the Sims' and to talk to those officers, the City is not duty-bound under respondeat superior to account for the shortcomings of Sgt. Neal even assuming plaintiffs' version of the events.
Because the Court finds that there exists no genuine issue of material fact as to any custom, policy, pattern of conduct or single incident upon which municipal liability may be based, Defendants Eddie Compass, in his official capacity, and the City of New Orleans are entitled to summary judgment in their favor.
5. The Alleged Liability of Lt. Dwayne Scheuermann in his Supervisory Capacity
Supervisory officials may be held liable in § 1983 cases if they (1) affirmatively participated in acts that cause the constitutional deprivation; or (2) implement unconstitutional policies that causally result in plaintiff's injury. See Mouille v. City of Live Oak, Tex., 977 F.3d 924, 929 (5th Cir. 1992), cert. denied., 508 U.S. 951, 113 S.Ct. 2443 (1993); Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987).
Because the Court has dismissed Plaintiffs' claims of constitutional violations arising out of the search of Apartment D and the arrest of Josh Crenshaw, the Court's inquiry here is limited to whether Lt. Scheuermann is entitled to summary judgment in his favor based on his role as the supervisor on the searched premises at the time the alleged strip searches occurred. As stated earlier, the evidence surrounding the alleged strip search is less than clear. While there is nothing in the record that suggests Lt. Scheuermann would be liable based on his implementation of any policy which resulted in the alleged deprivation, this Court finds that genuine issues of material fact exist as to Defendant Scheuermann's actual participation in the alleged strip search ( e.g., what his specific orders were, to whom he may have delegated such discretion and what he told that person), such that Lt. Scheuermann is not entitled to judgment as a matter of law on the claim against him in his supervisory capacity.
Also, Lt. Scheuermann could not face liability on that basis because he is not a supervisor with "final policy making authority."
6. The Liability of Jackson and Gillard
Defendants move the Court for summary judgment dismissing Plaintiffs' claims against Defendants K.W. Jackson and Eric Gillard. In their opposition memorandum, Plaintiffs respond that they have no opposition to the granting of Defendants' motion in this regard. Accordingly, the Court concludes that Defendants K.W. Jackson and Eric Gillard are entitled to summary judgment in their favor, dismissing Plaintiffs' claims against them with prejudice.
III. CONCLUSION
Accordingly, for all the foregoing reasons, IT IS ORDERED that:
1. The Motion for Partial Summary Judgment filed by Plaintiffs is DENIED;
2. The Cross-Motion for Summary Judgment filed by Defendants is GRANTED IN PART, insofar as Defendants seek dismissal of (i) Plaintiffs' § 1983 claims against Defendants Dwayne Scheuermann, Nicholas Gernon, Latoya Johnson and Summer Turner arising out of the search of their residence; (ii) Plaintiffs' § 1983 claims against Defendants Warren Keller and Nicholas Gernon arising out of the arrest of Josh Crenshaw; (iii) Plaintiffs' claims against Chief Eddie Compass and the City of New Orleans; and (iv) Plaintiffs' claims against defendants K.W. Jackson and Eric Gillard.
3. The Cross-Motion for Summary Judgment filed by Defendants is DENIED IN ALL OTHER RESPECTS.