Bennett v. City of Slidell, Civ. A. No. 76-977.

• Decision Date: 03 April 1981
• Docket Number: Civ. A. No. 76-977.
• Parties: Henry J. BENNETT, Jr. v. CITY OF SLIDELL et al.
• Court: U.S. District Court — Eastern District of Louisiana

518 F. Supp. 59

Henry J. BENNETT, Jr. v. CITY OF SLIDELL et al.

Civ. A. No. 76-977.

United States District Court, E. D. Louisiana.

April 3, 1981.

Oestreicher & Whalen, David W. Oestreicher, II, New Orleans, La., for plaintiff.

Edmund W. Golden and Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, La., for defendants Hinton, McDaniel, Cusimano, Giordano, Berrigan and Ingram.

Lloyd R. Walters, Slidell, La., for defendant City of Slidell.

ARCENEAUX, District Judge.

This Section 1983 action arose from plaintiff's claim that he suffered a deprivation of his constitutional rights to due process and equal protection. This deprivation allegedly arose as a result of the denial, by the Slidell City Council and city officials, of both plaintiff's application for a liquor license and his request for an occupancy permit. Plaintiff also alleged that the defendants had conspired to deny his permit application.

At the trial by jury, the City of Slidell, Gerry Hinton, B. E. McDaniel, Nunzio Giordano and Patrick Berrigan were found liable to the plaintiff. The two remaining defendants, Frank Cusimano and Keith Ingram, were found not liable. The jury also found that no conspiracy existed among the defendants.

Subsequent to trial, defendant the City of Slidell moved that this Court grant its motion for directed verdict or, in the alternative, grant it a new trial. The remaining defendants found liable to plaintiff moved for a judgment notwithstanding the verdict, or alternatively, for a new trial and/or remittitur. Counsel for plaintiff has also moved the Court for an award of attorney's fees.

After carefully reviewing the testimony and all memoranda of law, IT IS ORDERED that:

1. The City of Slidell's motion for directed verdict, or alternatively for a new trial, is DENIED.

2. The motion for judgment notwithstanding the verdict, or alternatively, for a new trial and/or remittitur filed by the remaining defendants found liable to plaintiff is also DENIED.

3. Plaintiff's motion for attorney's fees is referred for hearing to the magistrate in accordance with Rule 53(b). The magistrate will make Findings and Recommendations to this Court, with due attention to those factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

LAW

The City of Slidell alleges several alternative grounds as bases for its motion. The only ground which the Court will address is the allegation that the Court erred in failing to instruct the jury that the City of Slidell could be found liable only should plaintiff prove that action pursuant to official municipal policy caused the alleged civil rights violation. This instruction would arise, the City contends, under the holding of Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

This landmark decision holds that a municipality may be considered a "person" for § 1983 purposes, provided that the complained-of violation arose from the implementation or execution of a policy statement, ordinance, regulation or decision officially adopted and promulgated by the municipality's officers. The case goes on to state that:

Local governments, like every other § 1983 "person", by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decision making channels .... It is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under §

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