Phillips v. Whittington

• Citation: 497 F.Supp.3d 122
• Decision Date: 28 October 2020
• Docket Number: Civil Action No. 17-cv-1524
• Parties: Todd PHILLIPS, et al. v. Julian C. WHITTINGTON, et al.
• Court: U.S. District Court — Western District of Louisiana

497 F.Supp.3d 122

Todd PHILLIPS, et al.

v.Julian C. WHITTINGTON, et al.

Civil Action No. 17-cv-1524

United States District Court, W.D. Louisiana, Shreveport Division.

Signed October 28, 2020

Ansel Martin Stroud, III, Elizabeth Patterson Grozinger, Nichole Marie Buckle, Stroud Carmouche & Buckle, Shreveport, LA, Michael L. DuBos, Breithaupt DuBos & Wolleson, Monroe, LA, for Todd Phillips, Jodi Phillips, Brooke Phillips, Abby Phillips.

Glenn L. Langley, Julianna Petchak Parks, Langley Parks et al., Parker Wayne Maxwell, Hargrove Smelley et al., Shreveport, LA, for Julian C. Whittington, Bruce Bletz, Shawn Phillips.

Patrick R. Jackson, 4442 Viking Dr Ste 100, Bossier City, LA, for Hugo A. Holland, Jr., J. Schuyler Marvin.

John Nathaniel Bokenfohr, Law Office of John N. Bokenfohr, Christopher D. Hatch, Hatch Law Firm, Shreveport, LA, J. Spencer Hays, II, 2250 Hospital Dr Ste 212, Bossier City, LA, for Gary Lee Wilson.

James Charles McMichael, Jr., W. Deryl Medlin, McMichael Medlin et al., Shreveport, LA, for Carrie W. Winford.

RULING

TERRY A. DOUGHTY, UNITED STATES DISTRICT JUDGE

The case arises from the investigation of a series of tire spikings, arsons, and vandalism of deer camps in Bossier Parish beginning in 2010. Plaintiff Todd Phillips ("Phillips") was investigated and charged, but it was later determined that another person committed the crimes. Phillips; his wife, Jodi Phillips ("Mrs. Phillips"); and his daughters, Brooke Phillips Lottinger ("Brooke") and Abby Phillips ("Abby"), brought suit against Defendants Julian Whittington ("Sheriff Whittington"), the Sheriff of Bossier Parish, in his individual and official capacities; Lieutenant Bruce Bletz ("Lt. Bletz"), in his individual capacity; Captain Shawn Phillips ("Capt. Phillips"), the supervisor of the investigation division, in his individual capacity; former Chief Deputy Charlie Owens ("Chief Deputy Owens"), supervisor of day-to-day operations and adviser to Sheriff Whittington, in his individual capacity; unknown Bossier Sheriff's Office employees (collectively "BSO Defendants"); J. Schuyler Marvin ("DA Marvin"), individually and in his official capacity as District Attorney for the 26^th Judicial District; and Hugo Holland ("ADA Holland"), individually and in his official capacity as an Assistant District Attorney (collectively DA Defendants); Gary Wilson, the alleged perpetrator of the crimes; and Carrie Lee Winford, Administratrix of the Estate of Coty Wilson, Gary Wilson's son and additional alleged perpetrator of the crimes.¹ [Doc. No. 81, Fourth Amended and Supplemental Complaint].

Pending before the Court are a Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim upon Which Relief Can be Granted ("Motion to Dismiss") [Doc. No. 139] and a Motion for Partial Summary Judgment [Doc. No. 141] filed by the DA Defendants. They move to dismiss the remaining claims against them on the basis of absolute, qualified, and/or sovereign immunity and, alternatively, move for summary judgment on all claims.

For the following reasons, the Motion to Dismiss is GRANTED IN PART AND DENIED IN PART, and the Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART.

I. FACTS AND PROCEDURAL HISTORY

The Phillips family moved to Benton, Bossier Parish, Louisiana, in 2004 when Mr. Phillips accepted a position as Vice-President of Finance for Frymaster, a worldwide supplier of commercial fryers and other equipment. Mr. Phillips continues to be employed by Frymaster, after having later been promoted to Chief Executive Officer.

The Phillips purchased 28 acres on Old Plain Dealing Road, which were heavily wooded and had a barn and pasture area for their horses. Their daughters, Brooke and Abby, were involved in barrel racing, and the family regularly attended rodeo events. Mr. Phillips also traveled frequently, both in and out of the country, for his job. As a result, the Phillips, who are not from Louisiana originally, did not know many people in Benton, other than their closest neighbors and persons they met through their daughters’ activities.

Around 2010, approximately six years after the Phillips moved to the area, there were a series of property crimes along Old Plain Dealing Road and Cottage Grove Road in Benton, particularly involving hunting leases. A number of items were stolen, and homemade metal spikes were placed on roads and trails to and from the leases, causing flat tires to trucks and ATV's. The crime escalated to vandalisms, arsons, and damage to property by gun fire. A number of strange letters were mailed to individuals in the area, as well as to law enforcement.

Between 2010 and 2017, there were over sixty (60) documented crimes that occurred. However, there were no witnesses who observed the perpetrators in the acts, and there were no fingerprints or DNA obtained from the scenes. From 2010 to 2012, the actual perpetrator also planted evidence at the crime scenes to mislead detectives and implicate other persons. See [Doc. No. 155-4, Exh. 1; Doc. No. 155-45, Exh. 43, BSO Report No. 10-4483; Doc. No. 155-46, Exh. 44, BSO Report No. 10-5374; Doc. No. 155-47, Exh. 45, BSO Report No. 11-2586; Doc. No. 155-53, Exh. 51, BSO Report No. 12-5816].

On October 2, 2010, Nicholas Osentoski ("Mr. Osentoski") reported to the BSO that several items were stolen from his deer lease on Cottage Grove Road. Mr. Osentoski found a hammer on his property with the initials "LC" written on the handle, and he believed the hammer might belong to Larry Coker, although no evidence was ever developed placing that person at or near the property.

On October 18, 2010, Jimmy Hope² ("Mr. Hope") reported finding a welded spike on a private gravel roadway and that it was believed to have caused flat tires.

On November 26, 2010, homemade metal spikes were found in the dirt driveway leading into the Burnt Pine Hunting Club. The spikes caused flat tires to three vehicles.

A few weeks later, on December 18, 2010, BSO deputies were again dispatched to the Burnt Pine Hunting Club when Kathy Naron reported finding two more homemade spikes. A red plaid men's shirt was found lying on the ground beside the access road approximately five feet from where the spikes were located, and deputies discovered a small walkie-talkie radio inside the pocket of the shirt. The name "L. Burns" was written in black marker on the radio, and Landon Burns, who lived in the area and hunted a nearby lease, was identified as a suspect. However, it was determined that the shirt was way too small for him, and no DNA evidence was found on the radio.

On June 3, 2011, Tammy Brunson ("Mrs. Brunson") reported to BSO that she received an anonymous telephone call from a female who stated that she needed to "clear her conscience" and that she was with Gregory Bickham when he vandalized the Brunsons’ camp house on Highway 160. The caller also stated that Gregory Bickham was responsible for all the recent thefts at the camp and that he hides the property under his mobile home until a friend picks up the property or he is able to pawn the property. Mrs. Brunson's husband, Johnnie, reported that they had repeated run-ins with Gregory Bickham and believed he was responsible for placing spikes on his hunting lease. BSO deputies followed the Brunsons to Highway 160 where they discovered their camp house in disarray. Items were removed from the camp and thrown along the roadway, the A/C unit was pulled from the house, threatening messages were carved into the front door, threatening messages were written on the television and other places inside the home, Bible verses were written on a chip bag and a piece of paper, and a bottle of lighter fluid was left upside down on a roll of toilet paper in a manner believed to be an attempt to burn down the camp house, although no form of ignition was found nearby.

A search warrant was obtained and executed at Gregory Bickham's residence based on the anonymous call. However, no stolen items were located at his residence, nor was there any evidence that the items had ever been located there. BSO deputies then spoke with Gregory Bickham who advised that he had been in East Texas for the last couple of weeks working, and cell phone records subpoenaed from AT&T confirmed his statement. As a result, he was cleared as a suspect, and the case was marked inactive on July 15, 2011.

In July 2011, Sheriff Whittington was elected to serve his first term as sheriff of Bossier Parish.

On September 11, 2011, Stephan Adams ("Mr. Adams") reported that he was at the "Four-N's" Hunting Club where he found a cell phone box suspended approximately 10-12 feet in the air. Mr. Adams opened the box and discovered a plastic baby-doll with the words "cry baby" and "kiss my ass" written on it. "Mark 13:35"³ was written on the box. Records from AT&T identified the cell phone box with an account registered to Billy Joe Fletcher. The Fletchers were contacted, and Leslie Fletcher, Billy Joe's wife, reported that their middle daughter, Kendra, had the same type of cell phone as shown on the box. Kendra was interviewed by Deputy Brandon Masters, but no suspects were identified.

In September 2011, Lt. Bletz was appointed as the lead investigator in connection with the various property crimes. He began reviewing reports of prior offenses and concluded that the real perpetrator had intentionally placed false information or evidence at various crime scenes to mislead investigators. He also determined that the real culprit appeared to know or have knowledge of Gregory Bickham and Landon Burns and that they had been named by victims as potential suspects. In connection with his investigation, Lt. Bletz spoke to some of the prior victims, particularly Defendant Gary Wilson. Mr. Wilson claimed that he was a victim of multiple property crimes. Lt. Bletz began using Gary Wilson as an informant; as a result, they developed a friendly relationship and began to communicate regularly. [Doc. No. 155-10, Exh. 7, Deposition of Lt. Bruce Bletz (...