Hernandez v. Theriot

• Decision Date: 01 August 2016
• Docket Number: CIVIL ACTION 14-42-SDD-EWD
• Parties: LISA HERNANDEZ v. EARL THERIOT, ET AL.
• Court: U.S. District Court — Middle District of Louisiana

LISA HERNANDEZ v. EARL THERIOT, ET AL.

CIVIL ACTION 14-42-SDD-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

August 1, 2016

RULING

This matter was tried before the Court, sitting without a jury, on June 6, 2016. Having considered the testimony and evidence presented at trial, the pre-trial and post-trial briefs submitted by the parties, arguments of counsel, and the applicable law, the Court issues the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. The Court adopts by reference all factual findings and oral reasons given at the conclusion of trial and incorporates those findings and reasons into this opinion.

BACKGROUND & PROCEDURAL HISTORY

This case arises out of claims by Plaintiff Lisa Hernandez that, on November 1, 2013, at around 12:00 p.m., while severely inebriated, she was taken into custody by Sorrento Police Chief Earl Theriot who later sexually assaulted her. Plaintiff brought suit against the Defendants Earl Theriot and the Town of Sorrento under 42 U.S.C. § 1983 for allegedly violating her constitutional rights, and she also asserted various Louisiana state law tort claims. The Town of Sorrento filed a Motion to Dismiss,¹ which was denied by the Court in its August 5, 2014 Ruling.² Defendants Sorrento Mayor Mike Lambert and Risk Management, Inc. also filed Motions to Dismiss,³ both of which were granted without opposition.⁴ This matter proceeded to a bench trial on June 6, 2016.⁵

FINDINGS OF FACT

1. Plaintiff Lisa Hernandez is a major and resident of the Parish of Ascension, State of Louisiana.

2. Defendant Earl Theriot was the duly elected Chief of Police for the Town of Sorrento at all relevant times to this litigation.

3. Defendant Town of Sorrento is a municipal corporation located in Ascension Parish, Louisiana, and governed under the Lawrason Act (La. R.S. 33:321, et seq.).

4. On November 1, 2013, Plaintiff was heavily intoxicated and passed out in front of 61 Junk Street, 9291 Airline Highway in Sorrento, Louisiana.⁶ Plaintiff had in her possession a bottle of vodka.⁷

5. On November 1, 2013, 911 received a call regarding Plaintiff's intoxicated status at 61 Junk Street, which resulted in Defendant Earl Theriot responding to a call for service from Ascension Parish Sheriff's Office Dispatch.⁸

6. Defendant Theriot responded to this call while on duty, in uniform, and in his police unit.

7. Although Acadian Ambulance also responded to the scene because Plaintiff was initially unresponsive, Defendant Theriot "called off" the ambulance once Plaintiff regained consciousness.⁹

8. Defendant Theriot instructed Plaintiff to get into his police vehicle, to sit in the front seat, and placed her bottle of vodka in the car.¹⁰

9. While transporting Plaintiff to the Police Station, Defendant Theriot groped Plaintiff's chest, advised Plaintiff that it was her "lucky day,"¹¹ and that "he was going to do [her] a favor and [she] was going to do him a favor."¹²

10. Defendant Theriot drove Plaintiff to her house and advised her that this was because of the GPS locator in his police unit.¹³ Defendant Theriot instructed Plaintiff to remain quiet while he falsely called in to dispatch and reported taking Plaintiff home, although it was clear to Plaintiff that Theriot did not intend to leave Plaintiff at her home.¹⁴

11. Plaintiff ultimately returned with Defendant Theriot to his office where Plaintiff remained for some amount of time while Defendant Theriot conducted business with the Mayor.¹⁵

12. Plaintiff believed that she was locked inside Theriot's office, and, although she was able to sit outside the back door to smoke, she believed she could not leave based on the implied threat of being sent to jail if she failed to cooperate with Theriot's demands.¹⁶

13. While inside Theriot's office, Plaintiff used Theriot's telephone to call her boyfriend several times;¹⁷ however, Plaintiff did not call anyone for assistance or attempt to leave. While inside Theriot's office, Plaintiff took a set of keys and other objects from Theriot's desk and placed them in her purse.¹⁸

14. Following a phone call from Plaintiff's boyfriend Dewayne Hingle, Theriot returned to his office and admonished Plaintiff for having called Hingle.¹⁹

15. At Theriot's prompting, Plaintiff attempted to perform oral sex on Theriot twice; however, the act could not be completed because of Theriot's impotence. Theriot then instructed Plaintiff to attempt vaginal intercourse by sitting on his lap, but this was also unsuccessful.²⁰

16. Plaintiff was interviewed by the Federal Bureau of Investigation (FBI) about this incident.

17. On January 31, 2014, Earl Theriot entered a guily plea pursuant to a Plea Agreement with the United States to the charge of making false statements in violation of 18 U.S.C. § 1001(a)(2).²¹

18. In the January 31, 2014 Plea Agreement, Theriot agreed to the factual basis contained therein which stated that he "engaged in inappropriate sexual contact" with Plaintiff after she was taken to his office.²²

19. At trial, Earl Theriot was called to the stand and, to every question asked of him other than his name and address, Theriot responded: "Plead the Fifth."²³

CONCLUSIONS OF LAW

Earl Theriot

1. Section 1983 Liability

The Court has already held that Theriot is liable under Section 1983 in his official capacity for violating the Plaintiff's constitutional rights.²⁴ Theriot has also been sued in his individual capacity under Section 1983. Theriot is likewise liable in his individual capacity under the same facts established above.

"To state a section 1983 claim, 'a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.'"²⁵ The Fifth Circuit has recognized the "right to be free of state-occasioned damage to a person's bodily integrity is protected by the fourteenth amendment guarantee of due process."²⁶ The Supreme Court in DeShaney v. Winnebago County Dept. of Social Services,²⁷ recognized the relationship between the Fifth and Fourteenth Amendments as follows: "Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government 'from abusing [its] power, or employing it as an instrument of oppression.'"²⁸ Accordingly, the Fifth Amendment provides due process protection for the bodily integrity of citizens from harm imposed by federal actors.

The Court noted at the conclusion of the Bench Trial that, if the sexual contact between Plaintiff and Theriot was consensual, there was no constitutional violation. However, as the Court previously held, the sexual contact in this case could not have been consensual for two separate reasons. First, it is undisputed that Plaintiff was severely inebriated on November 1, 2013, when she was picked up by Theriot and taken to his office. It is also undisputed that she continued to drink vodka in the car and while in Theriot's office leading up to the sexual encounters. Louisiana Revised Statute 14:43 provides that:

A. Third degree rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:

(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity.

The Court finds that Plaintiff was unable to form consent due to her extreme intoxication on the date in question. There is also no question that Theriot was aware of Plaintiff's state; indeed, the 911 dispatch call to which Theriot responded reported Plaintiff's intoxication.

Second, the Court finds that Plaintiff lacked consent based on the position of power and authority which Theriot exercised. The Court is guided by the Fifth Circuit's decision in Bennett v. Pippin,²⁹ wherein a sheriff responding to a domestic violence call raped the female plaintiff after responding to the call. The sheriff was sued under Section 1983 in his official and individual capacities. The Fifth Circuit upheld the trial court's holding that the sheriff acted under color of state law when he raped the plaintiff:

We also find no error in the district court's conclusion that the Sheriff acted under color of state law when he raped Ms. Bennett. The district court found that the Sheriff questioned Ms. Bennett about the earlier shooting for 30-45 minutes as the two sat on her porch, just before the rape occurred. The court also found that, in response to Ms. Bennett's refusals to have sex, the Sheriff said, "I can do what I want, I'm the Sheriff." The Sheriff himself testified that he used his authority as Sheriff to ascertain whether Mr. Bennett would be released from the hospital on the night of the rape. The plaintiff needed the Sheriff's permission to retrieve her pickup truck and to change her place of residence. Under such circumstances, we cannot argue with the district court's observation that "it was not lost on Gail Bennett (or the Sheriff) that the Sheriff carried the keys to the Archer County Jail with him in his pocket and wielded coercive power over Gail Bennett." The Sheriff's actions were an abuse of power held uniquely because of a state position, see United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), and the explicit invocation of governmental authority constituted a "real nexus" between the duties of Sheriff and the rape. Doe v. Taylor Independent School District, 15 F.3d 443, 452 n. 4 (5th Cir.), cert. denied, 513 U.S. 815, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994).³⁰

The same analysis and reasoning applies in the present case. There was at least an implied, if not an overt, threat that Plaintiff would be...