Opinion
CIVIL ACTION NUMBER 99-3442 SECTION "L" (1).
December 28, 2000.
ORDER AND REASONS
Before the Court are three Motions for Summary Judgment. For the following reasons, the Motion of Defendant Drug Task Force of the City of Gretna Police Department is GRANTED, the Motion of Defendant City of Gretna Police Department is GRANTED, the Motion of Defendants B.H. Miller and Arthur Lawson is GRANTED. Also before the Court is Plaintiffs Motion for Leave to Amend the Complaint. For the following reasons, Plaintiffs Motion to Amend is DENIED.
I. Background
On November 23, 1998, Plaintiff Leo Washington was arrested at his home by a unit of police officers acting as part of the Multi-Jurisdictional Drug Enforcement Task Force. The officers were attempting to execute an arrest warrant for Washington's son. They did not have a search warrant for Washington's home. Plaintiff claims that after he refused entry to the officers, they forced their way into his home, beat him severely and arrested him. Washington avers that the defendant officers subsequently had him falsely convicted of battery on the officers, resisting arrest and threatening the police. He filed suit against the City of Gretna, the City of Gretna Police Department, the Drug Task Force of the City of Gretna Police Department, the Chief of Police for the City of Gretna, B.H. Miller, Jr., the Deputy Chief of Police for the City of Gretna, Arthur Lawson, Gretna Police Officers James Price, Douglas Zemlik, and Daniel Troxclair, Jefferson Parish, the Jefferson Parish Sheriffs Office, the Sheriff of Jefferson Parish, Harry Lee, unidentified officers relevant to the complaint, and the defendants' insurance company. Plaintiffs claims against defendants Jefferson Parish, Jefferson Parish Sheriffs Office and Sheriff Harry Lee have already been dismissed.
Plaintiff asserts causes of action under 42 U.S.C. § 1983, 1985, 1986 and 1988 for use of excessive force, inadequate medical treatment, false arrest, failure to instruct, and for violations of the Fourth, Fifth, Eighth and Fourteenth Amendments of the U.S. Constitution. He also asserts causes of action under state law for assault and battery, false imprisonment, defamation, intentional infliction of emotional distress and negligence. Defendants Drug Task Force of the City of Gretna Police Department, City of Gretna Police Department, B.H. Miller and Arthur Lawson now move for summary judgment as to Plaintiffs claims under 42 U.S.C. § 1983, 1985 and 1986.
These defendants do not address the state law causes of action in their motions for summary judgment. The Court takes no position as to whether any state law claims against these defendants have merit.
II. Summary Judgment Standard
A district court can grant a motion for summary judgment only 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986)."If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). If the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record contains insufficient proof concerning as essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 323. The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated if after "adequate time for discovery" the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial. See Celotex, 477 U.S . at 322. The Court does not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
III. Analysis
1. Drug Task Force of the City of Gretna Police Department's Motion for Summary Judgment and Plaintiffs Motion to Amend
The parties agree that the entity named in the complaint, the "Drug Task Force of the City of Gretna Police Department" does not exist. Therefore, the defendant's motion for summary judgment must be granted.
The correct name of the task force that went to Washington's home on November 23, 1998 is the Multi-Jurisdictional Drug Enforcement Task Force. The Multi-Jurisdictional Drug Enforcement Task Force consists of members of the Gretna, Kenner, Harahan, Westwego and the Town of Grand Isle police departments. Plaintiff has filed a Motion for Leave to Amend the Complaint to add the Multi-Jurisdictional Drug Enforcement Task Force as the proper party in place of the Drug Task Force of the City of Gretna Police Department.
Federal Rule of Civil Procedure 15(a) states that leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Court may deny leave to amend where there is undue delay, bad faith or dilatory motive, undue prejudice to the opposing party or futility of amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962).
Plaintiffs complaint was filed in November, 1999. The trial is set to begin on January 22, 2001. Plaintiff requested to have this Motion to Amend heard on December 20, 2000. Plaintiff explains that he did not move to add the Multi-Jurisdictional Task Force until now because he was unaware of the nature of the task force until he deposed defendant James Price earlier this month. While the Court recognizes that discovery in this. case has been contentious and difficult, this does not allow the Plaintiff to wait this long to add a new defendant. Gretna, Kenner, Harahan, Westwego and the Town of Grand Isle could not be prepared for trial on January 22, 2001. One month before trial is simply too late and, therefore, Plaintiffs motion to amend must be denied.
2. Motion of City of Gretna Police Department for Summary Judgment
The City of Gretna Police Department is not a "person" subject to suit within the meaning of 42 U.S.C. § 1983. See, e.g., Creppel v. Miller, 1993 WL 21408 (E.D.La. 1993) (finding that the Gretna Police Department is not a person subject to suit under 1983), Irvin V. Borough of Darby, 937 F. Supp. 446, 450 (E.D.Pa. 1996) (holding that municipal departments are not "persons" under Section 1983), PBA Local No. 38 v. Woodridge Police Department, 832 F. Supp. 808, 825-26 (stating, by extensive string citation, that courts unanimously agree that a police department is not a proper defendant in a section 1983 action).
42 U.S.C. § 1983 provides a cause of action against every "person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . subjects . . . any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws...."
The Police Department argues that the definition of person in section 1983 also applies to 42 U.S.C. § 1985, 1986. See US. ex rel. Lee v. People of the State of Illinois, 343 F.2d 120, 120 (7th Cir. 1965) (finding City of Chicago Police Department is not a "person" within the meaning of the Civil Rights Act); Thomapson v. State of New York, 487 F. Supp. 212, 227 (D.N.Y. 1979) (stating that the "only distinction between `persons' under Section 1983 and Section 1985(3) concerns private individuals" not government entities).
42 U.S.C. § 1985 provides a cause of action against "two or more persons" who conspire to interfere with certain civil rights.
42 U.S.C. § 1986 provides: Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented....
The Court agrees with the holding in Creppel and finds that the Gretna Police Department is not a "person" subject to suit under 42 U.S.C. § 1983, 1985 or 1986. Therefore, the Gretna Police Department is entitled to summary judgment as to the 1983, 1985 and 1986 claims.
3. Motion of B.H. Miller. Jr. and Arthur Lawson for Summary Judgment
Plaintiff has brought claims against defendants B.H. Miller, Gretna's Chief of Police, and Arthur Lawson, the Deputy Chief of Police, both in their official and individual capacities. Miller and Lawson now move for summary judgment with respect Washington's claims under 42 U.S.C. § 1983, 1985 and 1986.
There is no section 1983 liability under a respondeat superior theory for either a local government or a supervisor. See, e.g., Alton v. Texas AM Univ., 169 F.3d 196, 200 (5th Cir. 1999). A municipal employee is only liable in his or her official capacity under section 1983 "when execution of a government's policy or custom" inflicts the injury. See Snyder v. Trapagnier, 142 F.3d 791, 798 (5th Cir. 1998). A supervisory official's individual liability under section 1983 must rest on facts reflecting the defendant's personal participation or involvement in the alleged wrong, either by action or approval or custom or policy. See Murphy v. Kellar, 950 290, 292 (5th Cir. 1992), Jones v. St. Tammany Parish Jail, 4 F. Supp.2d 606, 611 (E.D.La. 1998). Washington has provided no evidence that Miller and Lawson were personally involved in the alleged misconduct. The only remaining inquiry is whether Miller or Lawson implemented a defective custom or policy that caused Washington's alleged injuries.
To show that there was a defective policy of training or supervising, Washington must show that: (1) the police department's training or supervising procedures were inadequate; (2) the City of Gretna's policy makers were deliberately indifferent in adopting the training or supervising policy; and (3) the inadequate training or supervising policy directly caused Plaintiffs injury. See Brown v. Doe, 1999 WL 1243057 at *5 (E.D.La. 1999) ( citing City of Canton v. Harris, 489 U.S. 378, 385-87 (1989)).
The Fifth Circuit has interpreted the Supreme Court's test in City of Canton v. Harris to require two fundamental showings for holding a supervisor liable under section 1983. See Snyder v. Trapagnier, 142 F.3d 791, 798 (5th Cir. 1998). First, the municipal policy must have been adopted with "deliberate indifference" to its known or obvious consequences and second, the municipality or the supervisor must be the "moving force" behind the constitutional violations. Id. To prevail on failure to train or supervise theories, Washington must show that Miller or Lawson were aware of prior incidents of constitutional violations by Gretna police officers and that they deliberately failed to address the problem. See Brown, 1999 WL 1243057 at *6.
In Brown v. Doe, the Court granted summary judgment for the City of Gretna and Chief Miller, finding that the Plaintiffs attempts to support his section 1983 claims with evidence of two previous complaints filed against the offending officer, evidence of six other lawsuits filed against the City alleging police brutality, and expert testimony was insufficient to survive summary judgment. See 1999 WL 1243057 *6.
In this case, Washington has provided even less evidence then the Brown plaintiff that the Police Department's supervising and training procedures were inadequate, or an offensive policy was adopted with deliberate indifference to its consequences, or that the defendants had notice of prior problems and failed to address them. Plaintiffs evidence consists of assertions that the officers were improperly supervised because the chain of command for Task Force operations may be different than for other Police Department operations. However, he does not show how, even if true, that amounts to the notice to Miller or Lawson of prior incidents of constitutional violations by Gretna police officers and a failure on their part to address those problems. This evidence cannot support a finding of deliberate indifference by Miller or Lawson.
Plaintiff argues that he cannot make the required showing because the defendants have failed to cooperate in the discovery process. While Plaintiff's allegations of bad faith in discovery, if true, cast the defendants in a very poor light, the are not sufficient survive summary judgment. Summary judgment is mandated if after "adequate time for discovery" the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Here, the time for discover should be over and the Plaintiff has not provided evidence of the elements that he must prove at trial and, therefore, defendants Miller and Lawson are entitled to summary judgment.
Next, Washington argues that the officers are improperly trained because Gretna police officers are not given tests on the contents of Department's policies and procedures manual and because the officers who arrested Washington were unfamiliar with the Department's policies. To prevail on a failure to train claim, the Plaintiff must demonstrate "at least a pattern of similar incidents" that would provide notice of inadequate training policies. Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998). Washington has provided insufficient evidence to support a finding that Miller or Lawson implemented a policy of inadequate training at the Department or evidence of a pattern of similar incidents that could establish such a policy existed.
Finally, Plaintiff argues that by failing to investigate Washington's claims Miller and Lawson ratified the officers conduct. Chief Miller testified in his deposition, that "[w]e certainly are not going to conduct an investigation because of a lawsuit or a mere complaint. If Washington would have complained to me about it or something we would have done an internal audit." Deposition of B.H. Miller, Jr., Dec. 8, 2000 at 44. Deputy Chief Lawson testified that, if a citizen files a lawsuit alleging excessive force or police brutality, instead of making a written or oral complaint directly to the Gretna Police Department, it is the Department's policy not to investigate the allegations. See Deposition of Arthur S. Lawson, Dec. 7, 2000 at 67. The Plaintiff relies on LeBlanc v. Lee, 2000 WL 282790 (E.D.La. 2000), to argue that by failing to investigate Washington's claims or take any disciplinary action against the officers, Miller and Lawson have ratified the actions of the officers sufficiently to impose liability under section 1983.
The LeBlanc court found that:
While the [defendant] Sheriff may have been unaware of his Deputies' transgressions at the time they occurred, there is some evidence, although slight, that he may have ratified their acts by failing to institute an investigation or appropriate disciplinary proceedings against the three deputies involved for filing a false police report and failing to obtain the names of witnesses to the alleged battery, or against Reserve Deputy Dubroc, who, although alleged to have struck and knocked down a citizen, causing severe injury, while in a state of intoxication, is now back on the roster as an active reserve officer. While this may or may not be sufficient to place Monell liability on Sheriff Lee, it is a question of fact sufficient to survive summary judgment.
Id. 2000 WL 282790, *3 (2E.D.La.)
However, Miller and Lawson's testimony in this case does not demonstrate that they ratified the officer's alleged behavior. The evidence shows that the Gretna Police Department does investigate citizen complaints made to the Department. Failure to investigate claims that are not reported to the Department does not amount to "deliberate indifference" that is "the moving force" behind the officers' allegedly unconstitutional acts.
C. Section 1985 and Section 1986 Claims
Miller and Lawson ask for summary judgment on the section 1985 and 1986 claims. Defendants do not make any arguments related to these section 1985 or 1986, but Plaintiff has failed to provide any evidence that these defendants conspired to interfere with Washington's civil rights either by preventing an officer from performing his or her duties, obstructing justice, or depriving Plaintiff of equal protection of the laws as described in 42 U.S.C. § 1985 (1)-(3). Therefore, Miller and Lawson are entitled to summary judgment as to plaintiffs section 1985 claim. Furthermore, a plaintiff must have a valid claim under 42 U.S.C. § 1985 in order to maintain a claim under 42 U.S.C. § 1986. See Hamilton v. Chaffin, 506 F.2d 904 (5th Cir. 1975). Therefore, Miller and Lawson are also entitled to summary judgment as to the 42 U.S.C. § 1986 claim.
IV. Conclusion
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of the Drug Task Force of the City of Gretna Police Department for summary judgment is GRANTED as to all claims against it, the motion of the City of Gretna Police Department is GRANTED as to the claims under 42 U.S.C. § 1983, 1985, and 1986, and the motion of defendants B.H. Miller and Arthur Lawson is GRANTED as to the claims under 42 U.S.C. § 1983, 1985, and 1986.