Deville v. Marcantel

Decision Date01 May 2009
Docket NumberNo. 07-31049.,07-31049.
Citation567 F.3d 156
PartiesMichell B. DEVILLE; Ricky James Deville, Plaintiffs-Appellants, v. Louis Dale MARCANTEL, individually and in his official capacity as Chief of Police of the Village of Turkey Creek, Louisiana; Dewayne Tarver, individually and in his official capacity as a duly commissioned law enforcement officer of the Village of Turkey Creek, Louisiana; Village of Turkey Creek, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

John Fayne Wilkes, III (argued), Borne & Wilkes, Lafayette, LA, for Marcantel.

Neal J. Favret (argued), Thomas Paul Anzelmo, Jr., Johnson, Johnson, Barrios & Yacoubian, New Orleans, LA, for Tarver.

Randall Brian Keiser (argued), David Heath Trahan, Keiser Law Firm, Alexandria, LA, for Village of Turkey Creek.

Appeal from the United States District Court for the Western District of Louisiana.

Before KING, DENNIS and ELROD, Circuit Judges.


Michell B. Deville ("Deville") and her husband, Ricky James Deville, appeal from the district court's grant of summary judgment to defendants on their § 1983 and state law claims, all of which stem from two separate arrests of Deville in August 2005 and May 2006. They primarily assert that the defendant officers arrested Deville without probable cause and used excessive force, causing her to suffer substantial physical injuries, and that the Village of Turkey Creek is liable as the officers' employer. For the reasons set forth below, we affirm in part and reverse in part, and remand for further proceedings.


The evidence, viewed in the light most favorable to plaintiffs, establishes: On the evening of August 5, 2005, Deville, a 45-year-old registered nurse, was driving with her two-year-old granddaughter through the Village of Turkey Creek, Louisiana, on her way to Monroe, Louisiana, where she planned to return her granddaughter to her daughter and spend the night. As she passed through Turkey Creek, Deville set her car's cruise control to 40 mph, which was the speed limit. However, she noticed a police cruiser with its lights on behind her, so she pulled to the side of the road, believing that it was merely attempting to go around her. When the cruiser came directly behind her, Deville realized that she was being pulled over. She moved completely off the side of the road and stopped her vehicle.

Turkey Creek Police Officer Dewayne Tarver, a defendant in this case, exited his cruiser and came to Deville's driver's side window. Tarver was in uniform and Deville immediately recognized him as a police officer. Tarver requested Deville's name and driver's license, which she provided. She also asked why he pulled her over. Tarver responded that he "clocked [Deville] speeding 50 on the hill," 10 mph over the speed limit. Deville responded, "[T]hat wasn't possible; I had my cruise on 40." Tarver again stated that he clocked her at 50 mph and Deville responded "that it was bullshit." Tarver asked for her registration papers and, as Deville reached into her glove compartment to retrieve the papers, she repeated that the stop was "bullshit." Tarver then asked her to step out of the vehicle, to which she responded, "I haven't done anything wrong" and did not comply with Tarver's request to exit the vehicle. Tarver then asked her again to step out of the vehicle and stated that he was calling child services to pick up Deville's two-year-old granddaughter. Rather than comply with these instructions, Deville rolled her window up, and called her husband, daughter-in-law, and son. Tarver walked back to his cruiser and called Turkey Creek Chief of Police Louis Dale Marcantel.

Deville's husband and son agreed to come to the location of the stop and assist her with her granddaughter. Meanwhile, Chief Marcantel, who was off-duty that evening, arrived at the scene, spoke with Tarver, and then approached Deville's driver's side window — which was still rolled up. Marcantel showed his badge and spoke first, telling Deville that she "needed to get the window down or he was going to break it." According to Deville, Marcantel did not ask her to exit the vehicle. Deville did not roll her window down, stating that she was waiting for her husband to arrive and "see about my baby." Deville recounted that Marcantel began hitting the window and her car with a black stick (said to be a heavy flashlight) and, even though she began to roll down the window, the glass broke before she was able to do so. Notably, Deville contends that she never saw a ticket, nor was she ever asked to sign one. The officers contend that they presented a ticket to her, but that she refused to sign it.

According to Deville, at that point Marcantel grabbed her through the window and opened the door, and "they" (presumably referring to Marcantel and Tarver) pulled her out of the vehicle. The officers did not hit her, although they threw her up against the vehicle, resulting in a blow to her abdomen area. She was placed in handcuffs and led towards the police cruiser. Deville fell to the ground on the way to the cruiser complaining of pain in her abdomen. The officers lifted Deville up and placed her in the back of the cruiser; her husband arrived shortly thereafter and took custody of the child.

Deville was taken to the Evangeline Parish Sheriff's Office. One of the officers had called an ambulance to meet them at the Sheriff's Office, and Deville initially refused medical treatment. Deville later requested treatment when she noticed that she was bleeding from her head, and the ambulance returned and transported Deville to the hospital. She was treated at the hospital, and a blood sample was taken and submitted to the Louisiana State Crime Laboratory for analysis. Deville's husband and nurses at the hospital remarked that Marcantel smelled like alcohol, implying that he was intoxicated. After Deville finished at the hospital, she was taken back to the Sheriff's Office and charged with speeding, aggravated battery, and resisting an officer. She was released that night. The parish district attorney subsequently dropped the charges against Deville.

The toxicology report from the blood sample taken at the hospital showed the presence of Phentermine and Sentraline (caused by Deville's legal use of prescription medications). Based on this report, Marcantel later sought and obtained an arrest warrant from a justice of the peace against Deville for driving while under the influence of a controlled substance and for illegal use of a controlled substance in the presence of a minor.1 The warrant issued on May 18, 2006, nearly nine months after the first arrest and approximately the same time Deville's counsel sent a letter to the Village of Turkey Creek giving notice that she would assert claims based on the first arrest. Deville was arrested pursuant to that warrant on June 13, 2006, and released. Deville alleges these controlled substance charges were baseless and motivated only by her threat of litigation against Marcantel and the other defendants. The parish district attorney later dropped these charges as well.

Defendants have a very different view of the August 2005 stop and arrest. They claim that Deville was speeding (Tarver states that he clocked her going 10 mph over the speed limit using his radar gun), that she became enraged during the stop, shouted obscenities at the officers, and refused to sign the speeding ticket. The officers state they were concerned about the welfare of the child, whom they felt was in clear distress as a result of Deville's behavior. Marcantel testified that he informed Deville that she was under arrest and commanded her to exit the vehicle. This led to the officers' forcible removal of Deville from the vehicle, although Marcantel testified that the officers "didn't shove her, . . . didn't push her, didn't beat on her" and that Deville threw a cell phone that hit Marcantel. The officers did not call protective services, however, but released the grandchild to Mr. Deville when he arrived at the scene.

On August 24, 2006, Deville and her husband filed suit in Louisiana state court against the Village of Turkey Creek, and Chief Louis Marcantel and Dewayne Tarver, both individually and in their official capacities. Defendants thereafter removed the case to the United States District Court for the Western District of Louisiana. Plaintiffs' complaint asserted claims under § 1983 against Tarver and Marcentel based on unreasonable search and seizure, false arrest, battery, excessive force, and malicious prosecution, the First Amendment, and the Ninth Amendment, as well as a claim that Tarver and Marcentel conspired to violate her civil rights in violation of § 1985. The plaintiffs also alleged § 1983 claims against the Village of Turkey Creek on the basis that it maintained policies or customs exhibiting deliberate indifference to Deville's civil rights. Finally, the plaintiffs asserted claims under Louisiana law for assault, battery, excessive force, false arrest, false imprisonment, and malicious prosecution (with the Village of Turkey Creek vicariously liable). The officers raised qualified immunity as a defense.

The Village of Turkey Creek moved for judgment on the pleadings under Rule 12(c), and all defendants — including the Village of Turkey Creek — moved for summary judgment. The district court considered these motions together, and concluded that plaintiffs did not meet their burden on summary judgment with respect to the federal claims. Accordingly, the district court granted the defendants' motions for summary judgment as to the federal claims, dismissing them with prejudice, and declined to exercise jurisdiction over the remaining state-law claims, dismissing them without prejudice. Because the Village of Turkey Creek's motion for judgment on the pleadings dealt with the state-law claims exclusively, ...

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