Besson v. Webre, Civil Action No. 09-6067

• Decision Date: 03 September 2010
• Docket Number: Civil Action No. 09-6067
• Citation: 738 F.Supp.2d 657
• Parties: Albert BESSON v. Craig WEBRE, et al.
• Court: U.S. District Court — Eastern District of Louisiana

738 F.Supp.2d 657

Albert BESSON

v.Craig WEBRE, et al.

Civil Action No. 09-6067.

United States District Court,

E.D. Louisiana.

Sept. 3, 2010.

L. Clayton Burgess, Lauren L. Gardner, L. Clayton Burgess, Attorney at Law, Christopher L. Trahan, Christopher L. Trahan, Attorney at Law, Lafayette, LA, for Albert Besson.

Lloyd Frederick Schroeder, II, USRY, Weeks & Matthews, Randall L. Kleinman, Law Offices of Randall L. Kleinman, New Orleans, LA, for Craig Webre, et al.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

In this action under 42 U.S.C. § 1983 and Louisiana law, defendant Ronald Macomber seeks summary judgment on qualified immunity grounds.¹ Because there are genuine issues of material fact as to whether Macomber violated clearly established rights of which a reasonable officer would have known, the Court DENIES Macomber's motion.

I. BACKGROUND

This case arises out an incident that occurred during the evening of September 4, 2008, shortly after Hurricane Gustav struck south Louisiana. That evening, plaintiff Albert Besson went to the Renovations Hardware Store in Cut Off, Louisiana.² Besson alleges that as he was leaving the store, he was approached by Lafourche Parish Sheriff Deputy Robert Macomber. Macomber told Besson, "I told you the store was closed." Besson alleges that Macomber grabbed him and dragged him to the parking lot, where Sheriff Deputies Montez, Chouest, Scott, and Macomber threw him to the asphalt and hit him with their feet, elbows, and fists. Besson also alleges that Macomber tased him three times. Besson was then arrested. Besson asserts that there was no probable cause for his arrest and that the Renovations Hardware store was open when Macomber stopped him. He further alleges that he did not resist the officers in any way.

On September 2, 2009, Besson filed a complaint in this matter.³ Besson claims that the defendants used excessive force and unlawfully arrested him under color of state law in violation of 42 U.S.C. § 1983. Besson also claims that defendants assaulted and battered him in violation of Louisiana state law and committed other state law torts. Macomber now moves for summary judgment on qualified immunity grounds.

II. STANDARD

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth 'ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985); Little, 37 F.3d at 1075.

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would 'entitle it to a directed verdict if the evidence went uncontroverted at trial.' " Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir.1991). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id. at 325, 106 S.Ct. 2548; Little, 37 F.3d at 1075; Isquith for and on Behalf of Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198 (5th Cir.1988), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988).

III. DISCUSSION

Macomber contends that Besson's claims against him fail as a matter of law because his actions were objectively reasonable under the circumstances. Macomber argues that he is entitled to qualified immunity under federal law, as well as state law immunity.

A. Federal Claims Under Section 1983

Qualified immunity protects government officials who perform discretionary functions from civil liability unless their conduct violates a clearly established federal statutory or constitutional right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Felton v. Polles, 315 F.3d 470, 477 (5th Cir.2002). An official will face liability only if (1) "the defendant's conduct violated a constitutional right," and (2) "the defendant's conduct was objectively unreasonable in light of clearly established law at the time of the violation." Terry v. Hubert, 609 F.3d 757, 761 (5th Cir.2010), citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009). A court may begin by addressing either aspect of the qualified immunity inquiry. Pearson, 129 S.Ct. at 818. The Fifth Circuit has stated:

The inquiry into reasonableness asks whether the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates the right. If reasonable public officials could differ as to whether the defendants' actions were lawful, thedefendants are entitled to immunity. Even if a defendant's conduct actually violates a plaintiff's constitutional rights, the defendant is entitled to qualified immunity if the conduct was objectively reasonable.

Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401, 407-08 (5th Cir.2007) (citations, quotation marks, and brackets omitted). Once an official raises a qualified immunity defense, the plaintiff has the burden of rebutting it. Zarnow, 500 F.3d at 407. To do so, the plaintiff may not rely on mere allegations, but "must produce competent summary judgment evidence raising a genuine issue of material fact." Morales v. Boyd, 304 Fed.Appx. 315, 318 (5th Cir.2008). The qualified immunity determination should be made before trial as a matter of law unless disputed facts are material to resolving whether the official acted in an objectively reasonable manner. Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir.1993). The Court will consider in turn Besson's federal constitutional claims for false arrest and excessive force.

1. False arrest

Individuals possess a Fourth Amendment right to be free from false arrest. Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir.1995); Duckett v. City of Cedar Park, 950 F.2d 272, 278 (5th Cir.1992). The Fourth Amendment, however, "does not guarantee that only the guilty will be arrested." Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir.1994), quoting Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). A warrantless arrest, such as the plaintiff's arrest in this case, must be based on probable cause. United States v. Ho, 94 F.3d 932, 935 (5th Cir.1996). Thus, to prevail on a false arrest claim under section 1983, the plaintiff must prove that the defendants lacked probable cause to arrest him. Price v. Roark, 256 F.3d 364, 369 (5th Cir.2001); Sorenson v. Ferrie, 134 F.3d 325, 330 (5th Cir.1998).

The probable cause standard deals with the considerations that cause reasonable people, not legal technicians, to act. See Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 799, 157 L.Ed.2d 769 (2003). Probable cause exists for a warrantless arrest "when the totality of the facts and circumstances within a police officer's knowledge at the moment of the arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." United States v. Cannon, No.Crim. A. 03-119, 2003 WL 21406180, at *2 (E.D.La.2003) (quoting Ho, 94 F.3d at 935-36). Probable cause is an objective determination that does not depend on the officer's subjective beliefs. Ho, 94 F.3d at 935. Rather, it depends on the facts known to the officer at the time of the arrest. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir.2009). Probable cause requires only a probability of criminal activity, not proof beyond a reasonable doubt. United States v. Froman, 355 F.3d 882, 889 (5th Cir.2004).

Even if an officer erred in concluding that probable cause existed for an arrest, he is entitled to qualified immunity if his decision was reasonable, albeit mistaken. Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir.1993). Thus, if "a reasonable officer could have believed" that the arrest was lawfully based on probable cause, the officer retains qualified immunity. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In that event, the officer is entitled to summary judgment on qualified immunity grounds even if the officer violated an individual's Fourth Amendment rights. Estep v. Dallas County, Texas, 310 F.3d 353, 360 (5th Cir.2002).

In this case, Besson was arrested and charged with three counts of public intimidation,one count of "remaining after being forbidden," and three counts of resisting an officer.⁴See La. R.S....