Nowell v. Acadian Ambulance Service

• Decision Date: 13 April 2001
• Docket Number: No. Civ.A. 00-0696.,Civ.A. 00-0696.
• Citation: 147 F.Supp.2d 495
• Parties: Wendell NOWELL v. ACADIAN AMBULANCE SERVICE, et al.
• Court: U.S. District Court — Western District of Louisiana

147 F.Supp.2d 495

Wendell NOWELL v. ACADIAN AMBULANCE SERVICE, et al.

No. Civ.A. 00-0696.

United States District Court, W.D. Louisiana, LaFayette-Opelousas Division.

April 13, 2001.

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Leonard Radlauer, New Orleans, LA, for plaintiff.

Mark E. Stipe, Perret, Doise, et al, Lafayette, LA, for Acadian Ambulance Service.

James L. Pate, Laborde & Neuner, Lafayette, LA, for Sheriff Charles Fuselier, Sergeant Gerald Savoy, Corporal Charles Scott and Deputy Patrick Clay.

REASONS FOR JUDGMENT

TYNES, United States Magistrate Judge.

Pending before the court is the Motion for Summary Judgment filed by Sheriff Charles Fuselier ("Fuselier"), Sergeant Gerald W. Savoy ("Savoy"), Corporal Charles Scott ("Scott") and Deputy Patrick Clay ("Clay") on February 26, 2001 and the Motion for Summary Judgment or Alternatively Motion to Dismiss Pursuant to Rule 12 (b) filed by Acadian Ambulance Service, Inc. ("Acadian") on February 26, 2001. (Document Nos. 72 and 75). No opposition has been filed with respect to either motion, and the deadline for filing opposition has expired.¹

Nowell filed this civil rights action on April 7, 2000. In his Complaint and Amended Complaints, Nowell names the following defendants: Acadian Ambulance Service, Inc., Sheriff Charles Fuselier, Sergeant Gerald W. Savoy, Corporal Charles Scott and Deputy Patrick Clay. (Document Nos. 1, 25, 56). He asserts that his civil rights were violated when he was unlawfully detained and assaulted and battered on April 30, 1999. Plaintiff's claims are asserted under 42 U.S.C. §§ 1983 and 1988; the Fourth and Fourteenth Amendments to the United States Constitution; Louisiana Civil Code Article 2315 and Louisiana Constitution Article 1, Sections 2 and 5. By Partial Judgment entered on October 16, 2000, all federal claims asserted by plaintiff against Acadian were dismissed with prejudice. (Document No. 61).

In the instant motion, Fuselier contends that plaintiff's official capacity claim should be dismissed because plaintiff has failed to demonstrate that any official policy, custom or procedure caused his alleged constitutional violations. Fuselier further contends that plaintiff's individual capacity claims should be dismissed because he was not personally involved in the alleged constitutional deprivations nor has he implemented any inadequate policy, custom or procedure which caused the alleged constitutional deprivation. Deputies Savoy, Scott and Clay assert that they are not individually liable for any alleged deprivation of due process because Nowell's arrest was based upon probable cause, because he voluntarily committed himself to Vermillion Hospital, and as a result of his never being jailed or prosecuted he cannot claim deprivation of any legal procedure or hearing. Savoy, Scott and Clay also contend that Nowell's seizure and arrest were based on probable cause and therefore, he cannot prevail on his claims of unlawful seizure or false arrest or imprisonment. Savoy and Scott assert that they cannot be liable for the alleged use of excessive force as they were not present at the scene of the alleged incident, inside the Acadian ambulance. Clay contends that although he was present in the ambulance, the force used upon Nowell in response to Nowell's spitting on him and the EMT was reasonable. Additionally, he contends that Nowell is unable to sustain his burden of demonstrating the use of force was wanton or malicious, and also that Nowell did not receive a "substantial injury". Savoy, Scott and Clay contend that Nowell has no claim for malicious prosecution because amongst other things, his arrest was based upon probable cause and there has been no egregious misuse of a legal proceeding. Finally, Savoy, Scott and Clay contend that Nowell has no proof of his conclusory allegations that falsified documents were filed or that these alleged documents caused him any injury. Accordingly, these defendants request that all of Nowell's federal and state claims asserted against them should be dismissed.

Acadian contends that the sole remaining state law claims pending against it should be dismissed because under La.R.S. 40:1233 the Acadian emergency medical technicians were certified and acting pursuant to physician orders, thus, because Nowell has no expert witness he cannot sustain his burden of proof that there was any deviation from the applicable standard of care. Additionally, Acadian asserts that this action is premature as Nowell failed to seek review by a medical review panel prior to instituting the instant action.

Standard on Motion for Summary Judgment

Fed.R.Civ.Proc. Rule 56(e) provides, in pertinent part, as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Nowell has not submitted any evidence whatsoever in opposition to the Motion for Summary Judgment filed by Fuselier, Savoy, Scott and Clay, or the Motion for Summary Judgment or Alternatively Motion to Dismiss Pursuant to Rule 12(b) filed by Acadian Ambulance Service, Inc. Both motions are properly made and supported. Thus, plaintiff may not rest upon his allegations or denials in his pleadings, but rather must go beyond the pleadings and designate specific facts demonstrating that there is a genuine issue for trial. Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). However, metaphysical doubt as to the material facts, conclusory allegations, unsubstantiated assertions, and those supported by only a scintilla of evidence are insufficient. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). Moreover, summary judgment is mandated against a party who fails to make a showing sufficient to establish an essential element of that party's case, and on which that party will bear the burden of proof at trial. Celotex, 106 S.Ct. at 2552. Accordingly, summary judgment with respect to the federal claims asserted against Fuselier, Savoy, Scott and Clay is appropriate in this case based on the following grounds.

I. Sheriff Fuselier

Official Capacity Claims

An official capacity suit is the equivalent of a suit against the entity of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); McMillian v. Monroe County, Ala., 520 U.S. 781, 784-85, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997)²; Burge v. St. Tammany Parish, 187 F.3d 452, 466 (5th Cir.1999). Thus, such a claim requires Monell proof of an official policy³ or custom⁴ as the cause of the constitutional deprivation. Turner v. Houma Municipal Fire & Police Civil Service Board, 229 F.3d 478, 483 fn. 10 (5th Cir.2000) citing Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).⁵

In his original complaint, plaintiff alleges that the following official policies or customs of Sheriff Fuselier, the admitted official policy maker of the St. Martin Parish Sheriff's Office: Failing to properly train⁶ hire⁷, discipline and supervise deputies, failing to make and enforce proper regulations on the use of force on arrestees⁸, tolerating a pattern of police misconduct and use of excessive force by deputies, and failing to discipline employees who violate individuals' civil rights. In support of his Motion for Summary Judgment, the Sheriff submits his affidavit in which he details the department's policies on hiring, training, supervision, discipline, and use of force. Plaintiff fails to submit any evidence that these policies are in any respect inadequate, or that there is any custom or pattern of inadequate hiring, training, supervision or discipline. Moreover, the Sheriff submits Nowell's deposition testimony in which he admits that he has no knowledge of the existence of these alleged inadequacies nor any evidence in support of same. Finally, the undersigned's research fails to reveal any constitutional inadequacy with the Sheriff's policies. Accordingly, plaintiff fails to demonstrate a material issue of fact which precludes summary judgment herein with respect to the official capacity claims asserted against Sheriff Fuselier.

Individual Capacity Claims

A supervisor may not be held liable on a theory of respondeat superior. Rather, to be liable under § 1983, a supervisory official must be personally involved in the act causing the alleged constitutional deprivation, or must have implemented a policy so deficient that the policy itself acts as a deprivation of constitutional rights. Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir.1998); Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir.1987); Alton v. Texas A & M University, 168 F.3d 196, 200 (5th Cir.1999).

A sheriff not personally involved in the acts that deprived the plaintiff of his constitutional rights is liable under § 1983 if: 1) the sheriff failed to train or supervise the officers involved; 2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's rights; and 3) the failure to train or supervise constituted deliberate indifference to the plaintiff's constitutional rights. Thompson v. Upshur County, 245 F.3d 447, 458-59 (5th Cir.2001) citing Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998), Doe v. Taylor Independent School District, 15 F.3d 443, 452-54 & nn. 7-8 (5th Cir.1994) (en banc) (adopting the City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1205 n. 10, ...