Opinion
Civil Action No: 98-0501, Section: "D"(5)
January 9, 2001
Before the court is the "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" filed by Defendants, J. Edward Layrisson (Sheriff of Tangipahoa Parish), Glynn Cacioppo (Deputy Sheriff for Tangipahoa Parish), Kenny Giacone (Deputy Sheriff for Tangipahoa Parish), and Michael Dean (Deputy Sheriff for Tangipahoa Parish). Plaintiff, Wayne Manieri, filed a memorandum in opposition. The motion, set for hearing on Wednesday, December 27, 2000, is before the court on briefs, without oral argument.
Having reviewed the memoranda of counsel and the applicable law, the court now rules.
The court has repeatedly warned counsel for Defendants to follow Local Rule 7.8.1E, which sets forth a 25-page limit on memoranda filed in this court. ( See e.g., Minute Entry, Doc. No. 13, p. 2 at n. 1). While Defendants instant memorandum is 22 pages, counsel has incorporated numerous references to a previously filed memorandum, which if considered would exceed the 25-page limit. Thus, the court will not consider the references made in Defendant's original memorandum.
I. Background
Plaintiff, Wayne Manieri, alleges that Defendants violated his state and federal civil rights when they injured him during an arrest for resisting an officer on September 17, 1996. At the time, Defendants had appeared at Plaintiff's home looking for (and ultimately arresting) Plaintiff's brother-in-law, Richard Musacchia, who had been involved in ongoing domestic disputes with his estranged wife.
Plaintiff originally filed this suit on September 15, 1997, in the Middle District of Louisiana, which transferred the case to this court. This court then dismissed Manieri's claims as time-barred. On appeal, the United States Fifth Circuit Court of Appeals affirmed this court's dismissal of Manieri's state law claims, but reversed the dismissal of Manieri's claims based on federal law. ( See Doc. No. 30).
After the case was remanded from the Fifth Circuit, Plaintiff filed his First Amended Complaint on March 28, 2000, adding as new Plaintiffs, Linda Manieri (Wayne's wife) and Chad Manieri (Wayne's son). ( See Doc. No. 41). According to this First Amended Complaint, Linda and Chad were present at the time of Wayne's arrest, and "Defendants physically assaulted and battered Linda Manieri by pushing her n ( sic) in her chest causing her to fall back toward her son, Chad Manieri." ( Id. at ¶ 11a).
A Second Amended Complaint was filed on August 22, 2000 (Doc. No. 72), in response to this court's order instructing Plaintiffs to allege " with particularity all material facts on which they contend would establish their right to recovery, including Defendants' inability to maintain the defense of qualified immunity." ( See Minute Entry, Doc. No. 69, pp. 2-3).
In their instant motion, Defendants seek dismissal of Plaintiff's claims against them for a variety of reasons. As discussed below, the court rejects all of Defendants' arguments, except their argument that Plaintiffs have failed to properly allege their Monell claims.
II. Legal Analysis
A. The claims of Linda and Chad Manieri are not prescribed .
Plaintiffs assert that: "The cause of action brought by Chad and Linda Manieri are based on 42 U.S.C. 1983." (Opp. Memo, at 3). For a § 1983 action, the court looks to the forum state's personal-injury limitations period. Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998). In Louisiana, that period is one year. Id.
To the extent that the claims of Linda and Chad Manieri are based on state law, such claims are prescribed.
The § 1983 claims of Linda and Chad Manieri were filed well over a year after Wayne Manieri was arrested. However, Federal Rule of Civil Procedure 15(c) provides in part:
Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action.
Thus, for § 1983 claims of Linda and Chad Manieri to be timely, Louisiana law would have to permit them to relate back to the date of Wayne Manieri's original Complaint. Louisiana Code of Civil Procedure Article 1153 provides that:
When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the date of filing the original pleading.
In Gizoir v. South Louisiana Medical Center, 475 So.2d 1040 (La. 1985), the Louisiana Supreme Court interpreted Article 1153 and found that:
an amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.Id. at 1044.
In applying these factors to the claims of Linda and Chad Manieri, the court concludes that these claims should relate back to the filing of Wayne Manieri's original claim. Thus, the court rejects Defendants' argument that these claims are prescribed.
The court also rejects Defendants' argument that the claims of Linda and Chad Manieri are barred because Plaintiffs failed to serve Defendants with the Amended Complaint within the time period provided by Federal Rule of Civil Procedure 4(m). At a Pre-Trial Conference held by the court on August 2, 2000, the counsel for Defendants represented that Defendants had not been served with the Plaintiffs' First Amended Complaint. The court then ordered counsel for Plaintiffs to promptly serve both their First and Second Amended Complaints. (Minute Entry of August 3, 2000, Doc. No. 69, p. 3, n. 4).
Defendants claim that as of the filing of the instant motion, they have not been served with the Amended Complaint. (Defendants' Memo., p. 3, n. 1). However, counsel for Plaintiffs represent that service was completed upon mailing to Defendant's counsel on or about August 22, 2000. (Plaintiff's Ex. D).
Such service of subsequent pleadings is proper pursuant to Federal Rule of Civil Procedure 5(b).
B. Linda and Chad Manieri state § 1983 claims upon which relief can be granted .
Defendants argue that Linda and Chad Manieri's claims for witnessing the arrest of Wayne Manieri do not state a claim upon which relief can be granted under the Civil Rights Act. Further, they argue that Linda Manieri's battery claim arises under state law, not the Civil Rights Act. In support of their argument, Defendants cite Kipps v. Callier, No. 98-30978 (5th Cir. March 15, 2000). The court assumes that Defendants are relying on Kipps V. Callier, 197 F.3d 765 (5th Cir. 1999), rehearing en banc denied, 205 F.3d 203 (5th Cir. 2000).
However, such reliance is misplaced because in Kipps, the Fifth Circuit did not address whether the witness of a false arrest has a remedy under § 1983. Rather, Kipps found that the wife and son of a football coach who was fired when his son chose to play football at another school could not recover emotional distress damages under the Louisiana "bystander recovery" statute, where neither the wife nor the son actually viewed or were at the scene of the termination, but were merely notified of the event after it occurred. 197 F.3d at 770-71.
On the other hand, in Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir. 1986), the Fifth Circuit found that the four-year-old daughter of a man who was shot inside his trailer home by deputies after he had fired shots at them could recover fro violation of her civil rights. The daughter was in the trailer at the time of the incident, and the deputies fired shots into the trailer when they knew or should have known that persons other than the man were in the trailer. Id. However, the wife of the man could not recover for violation of her civil rights because she was with the deputies when the incident occurred. Id.
Linda and Chad Manieri, like all persons who claim a deprivation of constitutional rights, are required to prove some violation of their personal rights. Id. at 1160. However, the court concludes that they have sufficiently alleged claims under § 1983 to survive a Rule 12(b)(6) dismissal . Both Linda and Chad were allegedly present and witnessed the arrest of Wayne Manieri, and Linda was allegedly pushed backward into Chad.
C. Defendants are not entitled to sovereign immunity under the Eleventh Amendment .
Pursuant to the Eleventh Amendment of the Constitution, federal courts have no jurisdiction over suits . instituted by individuals against States. The issue here is whether the State of Louisiana is the real party in interest in a suit against a Louisiana Sheriff and his deputies. Applying the factors set forth in Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999), the court concludes that the Sheriff, and not the State of Louisiana, in the real party in interest in this lawsuit:
(1) state law deems the Sheriff to be a "political subdivision" of the state (LSA-R.S. 13:5102), and political subdivisions of a state are not protected from suit by the Eleventh Amendment ( Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572 (1977);
(2) any damages incurred by the Sheriff or his deputies will not be paid by the State (LSA-R.S. 42:1441.A);
(3) the Sheriff "is a virtually autonomous local official" ( Burge v. Parish of St. Tammany, 187 F.3d 452, 469 (5th Cir. 1999);
(4) the Sheriff's duties are limited to his local parish (La. Const. Art. V, § 27);
(5) the Sheriff may sue and be sued; and
However, the actual Sheriff's Office cannot be sued. Valentine v. Bonneville Ins. Co., 691 So.2d 665, 668 (La. 1997).
(6) the Sheriff may hold and use property (LSA-R.S. 33:1422(D); 33:1423(D); and 33:9010(A)).See also, George v. Wilson, 2000 WL 521450 (E.D.La. 2000).
Thus, the Sheriff and his deputies are not protected by the State's Eleventh Amendment immunity.
The court also rejects Defendants' argument that, even if the Sheriff is a local (and not a State) official, the Sheriff is still entitled to Eleventh Amendment immunity while acting pursuant to state law or performing ministerial duties imposed upon him by state law. The case cited by Defendants in support of this argument are either inapplicable, unpersuasive or distinguishable.
D. Plaintiffs' Monell claims against Sheriff Layrisson of inadequate training and lack of adequate policy regarding amount of force fail to state a claim upon which relief can be granted .
As previously set forth, the original Complaint in this matter was filed almost three and a half years ago, on September 15, 1997. Since then, Plaintiffs have amended their Complaint twice. The Second Amended Complaint was filed on August 22, 2000 (Doc. No. 72), in response to this court's order instructing Plaintiffs to allege " with particularity all material facts on which they contend would establish their right to recovery . . ." ( See Minute Entry, Doc. No. 69, pp. 2-3). In this same Minute Entry, the court had also questioned whether or not Plaintiffs had a Monell claim. ( Id. at 3).
In their Second Amended Complaint, Plaintiffs added the following paragraphs to assert their Monell claims:
13(a)
Defendant, Layrisson, is grossly negligent in failing to provide defendants, Giacone, Dean, and Cacioppo with an adequate policy regarding the amount of force to be utilized in making an arrest. This lack of adequate policy directly resulted in defendant ( sic), Giacone, Dean and Cacioppo, using excessive force against plaintiff, Wayne Manieri, as described herein.
13(b)
Defendant, Layrisson, is grossly negligent in failing to properly train defendants, Giacone, dean ( sic) and Cacioppo in the use of force making an arrest. This lack of training resulted in Defendants, Giacone, Dean and Cacioppo violating Plaintiff's civil rights as described herein.
( See Second Amended and Supplemental Complaint, Doc. No. 72).
In their instant motion, Defendants argue "[c]onduct amounting to mere gross negligence does not give rise to liability under the Civil Rights Act." (Defendants' Memo. at 11). Defendants further argue that Plaintiff has failed to identify the unconstitutional policy on part of the Sheriff's Office, and they attach the Affidavit of Sheriff Layrisson who states that:
It is the official policy of the Tangipahoa Parish Sheriff's Office that, in effecting an arrest, an officer use the amount of force reasonable to effect the arrest and to overcome any resistance offered by the suspect.
The policy of the Sheriff's Office prohibits the use of excessive force by deputies.
All deputies undergo formal training in the use of force in making an arrest and are taught the continuum of force in POST training. Deputies are further directed as to the use of force during the course of routine meetings and on-the-job training.
There is no pattern or practice or recurring instances on the part of Tangipahoa Parish deputies of using excessive force in making arrests. State differently, excessive force is not a problem in the Tangipahoa Parish Sheriff's Office.
( See Layrisson Affidavit, ¶ II-V)
Under Fifth Circuit precedent, a Sheriff's conscious decision not to train a deputy (even if this is a single decision) is a policy decision on which § 1983 liability can lie, if the failure to train constituted "deliberate indifference" to the constitutional rights secured under the Fourth Amendment, and the decision not to train was the "moving force" behind the injuries alleged. Brown v. Bryan, 219 F.3d 450, 465 (5th Cir. 2000)
With regard to the culpability element, "'deliberate indifference' is a stringent standard, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Id. at 457 (citation omitted). "A showing of simple or even heightened negligence will not suffice." Id.
Thus, the court concludes that Plaintiffs' allegations contained in Paragraphs 13(a) and 13(b) of their Second Amended Complaint fails to state a claim upon which relief can be granted because Plaintiffs failed to allege that Sheriff Layrisson made a "deliberate or conscious" decision not to provide an adequate policy regarding force and not to train, and further Plaintiffs failed to allege that the failure to do so constituted "deliberate indifference".
The court also concludes that Plaintiffs should not be granted another opportunity to properly state their Monell claims, when they have already been given the opportunity to do so and indeed have taken advantage of that opportunity by filing their Second Amended Complaint. This matter is now almost three and a half years old, and it cannot continue to reinvent itself. Accordingly, the court will dismiss Plaintiffs' Monell claims against Sheriff Layrisson.
In their opposition memorandum, Plaintiffs request that they be allowed to amend. (Opp. at 12).
E. Defendants are not protected by Quasi-Judicial immunity .
Defendants have failed to cite to the court any jurisprudence from the Fifth Circuit supporting their contention that a sheriff (or a sheriff deputy) in Louisiana is a court employee entitled to judicial immunity when faced with § 1983 claims. Thus, the court rejects their argument that they are so entitled.
F. No viable claim for defamation .
All of Plaintiffs' state law claims, which would include a claim for defamation, are prescribed. Plaintiffs concede this in their opposition, and apparently did not seek to pursue such a claim in light of the Fifth Circuit affirming this court's previous holding that all of Plaintiffs' state law claims are prescribed.
G. Is there a preclusive effect of subsequent determinations of probable cause?
Defendants argue that the subsequent determination of probable cause, issuance of an arrest warrant and filing of a Bill of Information charging Wayne Manieri for resisting an officer, bar his claim for false arrest/imprisonment, and conclusively establish the reasonableness of the force used by the deputies in arresting Plaintiff, thus barring Plaintiff's excessive force claim. In support of this argument, Defendants cite Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and its progeny in the Fifth Circuit.
In Heck, the Court held that a civil tort action, including an action under 42 U.S.C. § 1983, is "not [an) appropriate vehicle for challenging the validity of outstanding criminal judgments." 512 U.S. at 486. Heck dictates that when a person convicted of aggravated assault against a police officer brings a § 1983 claim against arresting officers the district court must first "consider whether a judgment in favor of plaintiff would necessarily imply the invalidity of his conviction or sentence." Hainze v. Richards, 207 F.3d 795, 798 (5th Cir. 2000), quoting Heck, 512 U.S. at 487. If so the claim is barred unless the conviction has been reversed or declared invalid.
Here, while Defendants assert that an arrest warrant was issued for Wayne Manieri and that the district attorney's office filed a bill of information against him, Plaintiffs have represented to the court in their previously submitted Pre-Trial Order, that these charges were set aside. Thus, Defendants reliance on Heck and its progeny is misplaced, and the court concludes that under the facts and circumstances presented here, there is no preclusive effect of the subsequent determinations of probable cause.
H. Defendants' entrance into the premises and use of force .
Finally, Defendants argue that they had authority to enter Wayne Manieri's home and that they did not use excessive force in arresting Manieri. However, the court finds that there are material issues of fact regarding these issues.
III. Conclusion
For reasons set forth above, the court GRANTS Defendants' Motion seeking dismissal of Plaintiffs' Monell claims against Sheriff Layrisson, but DENIES Defendants' Motion in all other respects.