Barrios-Barrios v. Clipps, Civil Action No. 10–837.

• Citation: 825 F.Supp.2d 730
• Decision Date: 20 October 2011
• Docket Number: Civil Action No. 10–837.
• Parties: Monica Margarita BARRIOS–BARRIOS et al. v. Darrius CLIPPS et al.
• Court: U.S. District Court — Eastern District of Louisiana

825 F.Supp.2d 730

Monica Margarita BARRIOS–BARRIOS et al.

v.Darrius CLIPPS et al.

Civil Action No. 10–837.

United States District Court, E.D. Louisiana.

Oct. 20, 2011.

Daniel G. Abel, Daniel G. Abel, Inc., Metairie, LA, Craig Henry Stewart, Attorney at Law, Houma, LA, Rodney K. Littlefield, Martin E. Regan & Associates, PLC, New Orleans, LA, for Plaintiffs.

Darrius Clipps, Homer, LA, pro se.

Eraka V. Williams, Isaka R. Williams, James Bryan Mullaly, City Attorney's Office, New Orleans, LA, for Defendants.

ORDER AND REASONS ON MOTION

JOSEPH C. WILKINSON, JR., United States Magistrate Judge.

This is a civil rights action filed by plaintiffs, Monica Margarita Barrios–Barrios (“Monica”) and her brother, Christopher Antonio Barrios–Barrios (“Christopher”), against defendants, the City of New Orleans, the New Orleans Police Department, former Police Superintendent Warren Riley and former Police Officer Darrius Clipps. Plaintiffs allege that Clipps, while employed as a police officer, invaded plaintiffs' home under the pretense of a police drug investigation and, while in the home, sexually molested and threatened both plaintiffs. Clipps was arrested and pled guilty to sexual battery of Monica, home invasion and malfeasance in office. He is currently incarcerated. Plaintiffs seek damages for unlawful entry, unlawful arrest, sexual assault, excessive force, conspiracy, negligent hiring, and failure to train and supervise Clipps adequately pursuant to 42 U.S.C. § 1983, and for false arrest, home invasion, sexual battery and malfeasance in office under Louisiana state law. Record Doc. No. 1, Complaint.

This matter was referred to the undersigned magistrate judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 44.

The City of New Orleans and former Superintendent Riley (“the City Defendants”) filed a motion for summary judgment, supported by the entire transcript of Clipps's deposition, seeking dismissal of plaintiffs' claims against them. The City Defendants contend that they are not vicariously liable under Louisiana law for Clipps's intentional torts because his actions were taken outside the course and scope of his employment. They also argue that plaintiffs cannot establish that any official policy or custom of the City Defendants caused their injuries. Record Doc. No. 66.

Plaintiffs filed a timely opposition memorandum, Record Doc. No. 68, supported by the same transcript of Clipps's deposition already filed by defendants, Plaintiffs' Exh. A; Christopher's affidavit, Plaintiffs' Exh. B; Monica's affidavit, Plaintiffs' Exh. C; a 158–page report entitled “Investigation of the New Orleans Police Department” purportedly by the United States Department of Justice Civil Rights Division, dated March 16, 2011, Plaintiffs' Exh. D; the sworn report of plaintiffs' expert, Lee Dresselhaus, regarding the City Defendants' hiring and training practices in general and the hiring and training of Clipps in particular, Plaintiffs' Exh. E; Dresselhaus's curriculum vitae, Plaintiffs' Exh. F; and a few pages from the New Orleans Police Department's pre-employment background investigation report of Clipps, Plaintiffs' Exh. G (pp. 8, 9, 10 and 13 and two unnumbered signature pages of a 13–page report).

The City Defendants received leave to file a reply memorandum. Record Doc. Nos. 72, 75, 76. Their reply includes a new exhibit, consisting of the certified records of Clipps's convictions from the Orleans Parish Criminal Court. Record Doc. No. 76–1. Ordinarily, the court would be required to give plaintiffs a reasonable time to respond to the new exhibit. Fed.R.Civ.P. 56. However, it is undisputed that Clipps was convicted of sexual battery on Monica, home invasion and malfeasance in office. Thus, the new exhibit adds nothing of value to the record and is unnecessary to resolution of the summary judgment motion.

The City Defendants object to the admissibility of the Justice Department report submitted by plaintiffs on grounds that the report contains hearsay within hearsay, is unauthenticated, lacks foundation and is irrelevant. Some of these objections have merit. First, the report is not authenticated. Fed.R.Evid. 901. Second, the Justice Department's investigation of the New Orleans Police Department “covered incidents that occurred within the past two years and assessed practices as they exist currently.” Plaintiffs' Exh. D, Record Doc. No. 68–6 at p. 7 (p. iv of the report). Thus, the time frame of the report is after Clipps was hired and trained in 2007–2008, and just barely includes the date when he committed his tortious acts. Much of the report may be irrelevant simply based on the time frame. Third, although the report seems to fall within the hearsay exception for the factual findings of a government agency investigation, Fed.R.Evid. 803(8),¹ it contains inadmissible hearsay within hearsay, Fed.R.Evid. 805, and apparent expert opinions,² without any foundation for the introduction of those opinions. Fed.R.Evid. 702. On the other hand, an expert like Dresselhaus may rely in his opinion on facts or data that are not otherwise admissible. Fed.R.Evid. 703. Therefore, I have considered the Justice Department report only to the extent that Dresselhaus relies on it in his own report for his own opinions.

Because the deposition transcript filed by both parties contained the unredacted date of birth and social security number of the deponent, in violation of Fed.R.Civ.P. 5.2(a), I ordered the Clerk of Court to remove from the record page 8 of Record Doc. No. 66–2 and page 8 of Record Doc. No. 68–1, and ordered the parties to file substituted versions of these documents from which all but the last four numbers of the social security numbers and the year of birth have been redacted. Record Doc. No. 69. Both parties re-filed the redacted pages. Record Doc. Nos. 71, 73.

Plaintiffs received leave to file a supplemental memorandum in opposition after they deposed two New Orleans Police Department supervisors who are currently in charge of recruitment and training, Commander Bernell Nevil, Jr., and the Deputy Chief of Management Services, Stephanie Landry. Record Doc. Nos. 82, 84, 85. Plaintiffs initially filed a memorandum with a summary of the relevant new testimony. Record Doc. No. 85. They also included as Exhibit A to this memorandum the New Orleans Police Department's complete pre-employment background investigation report of Clipps, Record Doc. No. 85–1, which plaintiffs had previously submitted only partially as Plaintiffs' Exh. G, Record Doc. No. 68–9. After they received the transcripts of the depositions of Commander Nevil and Deputy Chief Landry, plaintiffs received leave to file the identical memorandum, but with the transcripts attached as Exhibits B and C. Record Doc. Nos. 83, 86, 87. Plaintiffs allege that the new testimony and the complete background investigation report support their Monell claims.

Having considered the complaint, the record, the submissions of the parties and the applicable law, IT IS ORDERED that defendants' motion for summary judgment is GRANTED IN PART, as to plaintiffs' Section 1983 claims against the City Defendants under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and DENIED IN PART, as to plaintiffs' claims against the City Defendants for vicarious liability as to their Louisiana law causes of action, for the following reasons.

I. STANDARD OF REVIEW

“A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 was revised to “take effect on December 1, 2010, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.” Order of the Supreme Court of the United States (Apr. 28, 2010), www. supremecourt. gov/ orders/ courtorders/ frcv 10. pdf. Because “the standard for granting summary judgment remains unchanged” by the revision, Federal Civil Judicial Procedure and Rules, 2010 Amendments Advisory Committee Notes, at 260 (West 2011 rev. ed. pamph.) (hereafter “Advisory Committee Notes”), I find it just and practicable to apply the revised Rule 56 in this proceeding.

Revised Rule 56 establishes new procedures for supporting factual positions:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed.R.Civ.P. 56(c).

Thus, the moving party bears the initial burden of identifying those materials in the record that it believes demonstrate the absence of a genuinely disputed material fact, but it is not required to negate...