Spann v. Bogalusa City Police Dep't
| Decision Date | 23 September 2021 |
| Docket Number | Civil Action 20-2780 |
| Parties | KELTON SPANN O/B/O GILDA SPANN v. BOGALUSA CITY POLICE DEPARTMENT |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION "B"(3)
Before the Court is defendants Bogalusa City Police Department and Chief Kendall Bullen's motion for summary judgment (Rec Doc. 18). Plaintiff has not filed an opposition or response to the motion. For the reasons discussed below, IT IS ORDERED that the motion for summary judgment is granted as unopposed and, moreover, because it has merit.
On September 3, 2020, plaintiff Kelton Spann filed a civil action for damages in the 22nd Judicial District Court for Washington Parish, Louisiana alleging that defendants Chief Bullen and the Bogalusa City Police Department failed to provide him with an administrative hearing pursuant to La. Rev. Stat. Ann. § 32:1727 after his mother Gilda Spann's car was towed by Bogalusa city police. Rec. Doc. 1-1 at 3. Broadly construing his pro se complaint, [1] Spann alleges that he was stopped for traffic violations by Bogalusa city police officers on May 22, 2020. Rec. Doc. 1-1, at 1-3; Rec. Doc. 18-1, at 2 (). Spann alleges that he was unaware that he was being followed by police when he made a u-turn on North Avenue in Bogalusa. Rec. Doc. 1-1, at 3. He turned into the driveway of his property at 908 Dan Street when officers ordered him out of the vehicle. Id., at 3-4. As a result of the stop, a police officer had the car towed and impounded despite proof that the car was insured. Id. at 1, 4. Spann claims that the officer acted with discriminatory motive or reasons in violation of his state and federal constitutional rights. Id. at 4.
He also claims that that the officer had no legal justification to authorize the tow and was intentionally motivated by discrimination. Id. He further claims that La. Rev. Stat. Ann. § 32:392.1 instructs that the car was not to be impounded. Instead, the officer was to issue a notice of non-compliance with La. Rev. Stat. Ann. § 32:863.1, a citation or violation ticket, and/or remove the vehicle's license plate. Id.
He further alleges that, after receiving a hearing notice from the tow company on May 30, 2021, he wrote Chief Bullen requesting an administrative hearing pursuant to § 32:1727. Id. at 1. When no response was received, Spann engaged a paralegal service to send a demand letter dated August 3, 2020, to Chief Bullen requesting the hearing. Id. at 3. Spann claims that, after receiving the demand letter, Chief Bullen stated during a telephone call that his office does not provide the administrative hearings required by the statute. Id.
On October 9, 2020, defendants removed the matter to this Court based on the plaintiff's allegations that defendants violated his rights under the U.S. Constitution. Rec. Doc. 10 at 1; see Rec. Doc. 1. Defendants asserted that federal jurisdiction exists pursuant to 28 U.S.C. § 1331 as the plaintiff's federal claims “raise substantial federal questions which must be interpreted using federal common law.” Rec. Doc. 1 at 2.
On April 8, 2021, Spann filed an amended and supplemental complaint, which he claims he presented to the state courts for filing before removal but it was never filed by the state court. Rec. Doc. 21. Spann asserted his claims under 42 U.S.C. § 1983 for violation of his First and Fourth Amendment rights as applied to the States by the Fourteenth Amendment to the U.S. Constitution. Id. at 1. He sued the City of Bogalusa Police Department and Chief Kendall Bullen for the malicious and unlawful violation of his constitutional right to redress his grievances and free speech and his statutory rights under Louisiana law.
He clarified his prior claim that, on November 4, 2020, Bogalusa city police officers went to his mother Gilda Spann's residence to retaliate against plaintiff and for him to dismiss his state court lawsuit. Id., ¶¶2-5, at 2-3. He claims that they entered the property “with an intimidating and bullying conduct.” Id., ¶3, at 2. Spann claims that the police were not called to the house, and instead entered the property to harass and intimidate him as his mother sat in a wheelchair at the side door under the carport. Id., ¶4-5, at 3. He claims that the four officers and one lieutenant wore black masks and gloves in an intimidating manner. Id. He further claims that the officers were disrespectful in their tone when answering his mother's questions. Id., ¶7, at 3.
Spann also avers that the defendants' written and unwritten, formal and informal policies, practices, and procedures encouraged and enabled the officers to conspire and violate his constitutional rights to seek redress for his grievances and exercise of free speech by filing his lawsuit. Id., ¶¶9-11, at 4.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As such, the court should view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixon Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006).
Courts are discouraged from automatically granting a motion for summary judgment simply because it is unopposed. Skinner v. Schlumberger Technology Corp., No. 13-03146, 2014 WL 12543925, at *1 (W.D. La. Nov. 21, 2014). Thus, the movant is still required to establish the absence of a genuine issue of material fact, and if he fails to do so, the court must deny the motion, even if there was no response. Id. (citing Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995)). Nevertheless, in the absence of an opposition to summary judgment, the court may deem the movant's statement of facts as undisputed. Loeber v. Bay Tankers, Inc., 924 F.2d 1340, 1345 (5th Cir. 1991) (per curiam), cert. denied, 502 U.S. 819 (1991); see also Fed. R. Civ. P. 56(e). Furthermore, “the court has no obligation to sift through the record in search of evidence to support the nonmovant's opposition to the motion for summary judgment.” Morgan v. Fed. Exp. Corp., 114 F.Supp.3d 434, 437 (5th Cir. 2015)(internal quotes omitted).
The Due Process Clause of the Fourteenth Amendment declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, Amend. XIV. To state a § 1983 claim for a due process violation, “a plaintiff must first identify a protected life, liberty or property interest and then prove that governmental action resulted in a deprivation of that interest.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (citation omitted). The Supreme Court has emphasized that “[t]he touchstone of due process is protection of the individual against arbitrary action of government ...” which includes both a substantive due process guarantee against the arbitrary and oppressive exercise of government power, and a procedural due process guarantee protecting against arbitrary takings. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (citations omitted).
Here, Spann asserts that he was denied the procedural protections provided in La. Rev. Stat. Ann. § 32:1727, which provides for post-impoundment notice and an opportunity for an administrative hearing at which the owner may demonstrate valid proof of insurance. See also, La. Rev. Stat. Ann. § 32:863.1(C)(1)-(6). Spann, however, has not established that he had a protected property or other interest in his mother's car.[2]
Spann complains that his mother's car was towed without proper notice or an opportunity to challenge the tow in a post-deprivation hearing. As specifically addressed by Spann's pleadings, Louisiana law provides that the owner receive post-impoundment notice and an opportunity for an administrative hearing on review of whether the vehicle was covered by insurance. La. Rev. Stat. Ann. § 32:863.1(C)(1)-(6) and La. Rev. Stat. Ann. § 32:1727.11. This right is given specifically to the owner of the vehicle. Spann, however, was not the owner of the vehicle. The car instead belonged to Spann's mother, Glenda Spann, who is not a party to this litigation (despite the caption on Spann's pro se complaints). Spann, therefore, had no discernable protected right to post-deprivation notice or a hearing under Louisiana law.
Furthermore, Spann has not demonstrated that his mother sought and was denied relief under the Louisiana statute. The unchallenged summary judgment evidence indicates that “Gilda Spann did not request an administrative hearing to determine why her car was towed and subsequently held at Meas Towing and Storage.” Rec. Doc. 18-4 (Affidavit of Chief Bullen). We also note that the documentation attached to Spann's original state court complaint reflects that the § 32:1727 notice of right to a hearing is imprinted on the towing notice addressed to Gilda F. Spann. Rec. Doc. 1-1, at 7.
As established by the defendants' summary judgment evidence at the time of the stop, Spann was unable to provide proof of current insurance at the scene of the stop. Louisiana law requires a police officer to determine whether proof of insurance is established before the...
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