Opinion
CIVIL ACTION NUMBER 02-3532, SECTION "L" (4)
February 12, 2004
ORDER REASONS
Before the Court are two motions filed by the Defendants. First, the Defendants move for partial summary judgment on the plaintiff's civil rights claims against the City of New Orleans. Second, the Defendants have filed a motion in limine to exclude evidence of prior complaints filed against Defendant Philibert, an officer employed by the New Orleans Police Department. For the following reasons the Defendants' motion for partial summary judgment is GRANTED IN PART and DENIED IN PART, and the Defendants' motion in limine is DENIED.
I. BACKGROUND
This litigation involves an altercation between Plaintiff Charlotte Hayward ("Hayward") and members of the New Orleans Police Department ("N.O.P.D.") following an October 19, 2001, traffic stop. Though the pleadings do not document the escalation of the incident, the limited record reveals that what began as a routine stop quickly and violently erupted
Officer Robin Ernest ("Ernest") initially stopped the Plaintiff for a minor traffic offense. According to the Plaintiff, Ernest's partner Officer Russell C. Philibert ("Philibert") then brutally beat her and sprayed her with pepper spray without provocation. Philibert then threw Hayward to the ground where she claims to have been battered by four unknown police officers of the N.O.P.D. Plaintiff Hayward lost consciousness, but she asserts that these unknown officers kicked her and threw her into a police car. Hayward sustained numerous physical injuries, emotional distress, and mental anguish during the incident.
Following the incident, Philibert prepared and submitted a police report alleging that he had been attacked by Hayward. Based on that report, the New Orleans District Attorney's Office prosecuted Hayward for battery of a police officer in violation of La. Rev. Stat. Ann. § 14:34.2(3). The Plaintiff was found not guilty of all charges.
Hayward brought suit in the Civil District Court for the Parish of Orleans against the City of New Orleans, Philibert, Ernest, and the four unknown police officers, both individually and in their official capacities as New Orleans police officers acting under color of law. She claims that the actions of Defendants Philibert, Ernest, and the four unknown police officers resulted in a violation of her civil rights, in particular her Fourth Amendment rights against the unreasonable search and seizure of her person. Her civil rights claims, which are brought pursuant to 42 U.S.C. § 1983, allege excessive force, false arrest and malicious prosecution. Hayward also claims that the Defendants' actions constitute battery, false arrest and malicious prosecution under Louisiana law.
Hayward also raises civil conspiracy claims against Philibert and Ernest. She contends that Philibert is liable under both Louisiana and federal law for the conspiracy to violate her civil rights and that Defendant Ernest is liable under 42 U.S.C. § 1983 as Philibert's co-conspirator. Hayward alleges that all named and unnamed defendants were acting within the course and scope of their employment with the City of New Orleans.
Finally, she asserts that the City of New Orleans is independently liable under 42 U.S.C. § 1983 for Philibert's actions because city officials were aware of a number of similar incidents involving Officer Philibert but took no action to punish or reprimand him.
The Defendants removed the matter to this Court pursuant to the provisions of 28 U.S.C. $1441(b), invoking this Court's federal question jurisdiction. The Defendants now move the Court for partial summary judgment on Hayward's § 1983 claim against the City of New Orleans based on the municipal liability rule established in Monell v. Department of Social Services, 436 U.S. 658 (1978). The Defendants also move the Court to exclude evidence of past complaints against Philibert.
II. LAW AND ANALYSIS
A. Summary Judgment
Summary judgment shall be granted only if "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
The burden is on the movant to demonstrate the absence of any genuine issue of material fact. Quorum Health Res. LLC. v. Maverick County Hosp. Dist., 308 F.3d 451, 471 (5th Cir. 2002). In reviewing a motion for summary judgment, the nonmovant's evidence "is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255(1986).
Once the moving party has shown an absence of evidence to support the nonmovant's case, the nonmovant must go beyond his mere pleadings and produce specific facts of a genuine issue for trial. Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001). If the nonmovant fails to produce specific facts of a genuine issue for trial, the movant is entitled to summary judgment.
B. Municipal Liability for Violations of Civil Rights
Section 1983 provides a remedy against "every person," who under color of state law, deprives another of any rights secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. A municipality is a "person" under § 1983, and it may be sued in law or equity for constitutional torts that are caused by some official municipal policy. Monell, 436 U.S. at 690-91. Nevertheless, a municipal government's liability for constitutional torts under § 1983 is different and more narrow than its liability for traditional torts. Moreover, the doctrine of respondeat superior does not apply to an action brought under § 1983. Id. at 691. "[A] city is not vicariously liable under § 1983 for the constitutional torts of its agents: It is only liable when it can be fairly said that the city itself is the wrongdoer." Collins v. City of Marker Heights, Tex., 503 U.S. 115, 122(1992).
A city may be liable for an official policy or custom that causes a municipal employee to violate a citizen's civil rights. Monell, 436 U.S. at 690-91. "[A]n official policy consists of, among other things, '[a] policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy — making authority/" Williams v. Kaufman County, 352 F.3d 994, 1013 (5th Cir. 2003) (quoting from Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984), aff'd on reh'g, 739 F.2d 993 (5th Cir. 1984)). Official policy may also be demonstrated by "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Webster, 735 F.2d at 841. For this custom to be official municipal policy, knowledge of the custom must be imputed to the city's governing body or to the city's delegated policymaker. Id.
In limited circumstances, the failure to train or the inadequate training of municipal officers can establish an official municipal policy or custom and subject a local government to liability under § 1983. City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989); see also Ed. of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 407 (1997). Where municipal decision makers have notice that a training program does not prevent constitutional violations, "[t]heir continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees" may rise to the level of "deliberate indifference." Brown, 520 U.S. at 407. In fact, "the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Harris, 489 U.S. at 388 (emphasis added).
In an action for inadequate hiring or police training, two fundamental requirements must be met: culpability and causation. Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998), cert. dismissed, 526 U.S. 1083 (1999). Culpability is shown by demonstrating that a municipal policy or custom was "adopted with 'deliberate indifference" to its known or obvious consequences." Id. Causation requires proof that the municipality's actions or inactions were the "'moving force' behind the constitutional violation." Id.
The culpable policy need not be facially unconstitutional; however, the city must have enacted the policy with "deliberate indifference" to the potential for violations of the civil rights of its citizens. Harris, 489 U.S. at 387-88. Deliberate indifference is a very stringent standard, and a "showing of simple or even heightened negligence will not suffice" to make a city liable. Brown, 520 U.S. at 407. The Defendants claim that Plaintiff Hayward fails to meet this standard as a matter of law and her claims against the city should be dismissed.
C. Plaintiff Hayward's Monell Claims Against the City of New Orleans
The Plaintiff alleges that the City of New Orleans has been deliberately indifferent to prior incidents involving Officer Russell Philibert, demonstrating an unconstitutional policy or custom condoning Fourth Amendment constitutional violations. Hayward asserts that two separate unconstitutional official customs or policies exist within the N.O.P.D. First, Hayward contends that the City of New Orleans condoned Officer Philibert's civil rights violations by employing a training program that intentionally limited the screening criteria necessary to qualify for the program. Second, Hayward states that the city's failure to discipline Officer Philibert based on prior complaints against him constituted deliberate indifference, which caused a violation of her constitutional rights. The Court examines each of these two allegations in turn.
1. Hayward's Inadequate Screening Claim
Plaintiff Charlotte Hayward first alleges that the City of New Orleans, by deliberately limiting the criteria employed to screen officers for retraining, deprived her of her civil rights to be free from unreasonable searches and seizures and free from the excessive use of police force. Since 1992, the city has employed a program, the Professional Performance Enhancement Program ("PPEP"), to retrain officers who have a history of complaints for the use of excessive force. The PPEP program is an official city program that is administered through the Public Integrity Division, Professional Standards Section, and is recorded in Chapter 13.27 of the N.O.P.D. Operations Manual.
The PPEP program makes use of personnel complaints, complaints for the use of force, and resisting arrest type charges that are made to the Public Integrity Division ("PID") to select officers for additional training or retraining. It identifies patterns of inappropriate behavior using three criteria. First, officers are referred for PPEP training where there are two or more abuse complaints in a twelve month period. Second, three or more abuse type complaints in a twenty — four month period with one complaint being sustained also trigger retraining. Third, officers may be enrolled in the PPEP program where a supervisor refers the officer based on a discernable pattern of inappropriate behavior.
For purposes of PPEP referrals, PED defines abuse complaints as complaints about courtesy, discrimination, verbal intimidation, unauthorized force, professionalism, abuse of position, or the officer's failure to act impartially. Complaints about personal behavior, when an officer is off — duty and not acting under color of law in a police officer capacity, are not considered in determining whether training is necessary, and PID does not consider unfounded, cancelled or exonerated complaints. Furthermore, the program is not used as discipline or punishment by supervisors.
The Plaintiff alleges that the city intentionally limits the screening criteria used to select officers for PPEP training. In addition to the PPEP program's limited definition of "abuse. complaint," the PPEP program does not gather information about civil litigation brought against officers for false arrest or the use of excessive force. Likewise, the program does not gather or evaluate data from the Office of Municipal Investigations or other law enforcement agencies. The program does not qualitatively evaluate complaints to assess the severity of the alleged abuse. According to the Plaintiff, the PPEP program's failure to consider this other information constituted deliberate indifference, which resulted in a violation of her constitutional rights.
Viewing the factual record in a light most favorable to Ms. Hayward, there is no evidence that New Orleans intentionally limited the screening criteria used by the PPEP program with deliberate indifference to the civil rights of citizens. In addition, there is no support for the allegation that the screening criteria used to make PPEP program referrals were the "moving force" behind any deprivation of Hayward's civil rights.
The city's policy of using official, on — duty "abuse" complaints as the PPEP program's principal screening criteria is not deliberately indifferent to the civil rights of citizens. The program previously identified Philibert for retraining, and he did go through the PPEP retraining program in November of 1996. Since October 2002, the city has increased the stringency of the PPEP program, reducing the number of complaints from three or more complaints in a twelvemonth period to two or more abuse complaints in a twelve month period, and from four or more complaints in a twenty — four month period to three or more complaints in a twenty — four month period, one of which was sustained. The PPEP program also enrolls officers based on referrals from police supervisors, the means by which Philibert was selected for training in 1996.
Hayward's complaints about the PPEP program focus on the wrongful exoneration or the deficient investigation of official abuse complaints. Those grievances do not implicate the PPEP program's screening criteria. Instead, they relate to the city's alleged failure to pursue complaints that fell within the ambit of the established program. The city was not "deliberately indifferent" to civil rights in setting the PPEP screening criteria, and, as mentioned above, nothing suggests that the search criteria employed by the PPEP program were the moving force behind the deprivation of Hayward's rights. Accordingly, the Defendants' motion for partial summary judgment on this theory of municipal liability is GRANTED.
2. Hayward's Failure to Discipline Claim
The Plaintiff also claims that the City of New Orleans was deliberately indifferent to her civil rights by its failure to retrain or discipline Philibert despite its knowledge of a plethora of prior complaints of abuse. The evidence indicates that Philibert has been the subject of fourteen PID complaints and seven lawsuits in a nine — year period. Thirteen of those PID cases contained abuse — type complaints. Although almost all of which were either withdrawn, not sustained, or dismissed, the Plaintiff calls into question the adequacy of the PID's investigation of those complaints, stating that the complaints were supported by sufficient evidence but deliberately were not pursued by police supervisors.
Philibert did receive PPEP training once in November 1996, but the Plaintiff suggests that this retraining was insufficient and ineffective. Moreover, the Plaintiff argues that based on the N.O.P.D.'s own published criteria Philibert should have been referred to PPEP in 1997.
In 1997 Officer Philibert received at least six official complaints.
The Plaintiff claims that the Public Integrity Division was deliberately indifferent in its investigations into these complaints. In support of this claim, Hayward points out that even police supervisors found the PID's investigation process inadequate. One PID investigation into an abuse complaint lodged against Philibert drew the ire of Police Superintendent Richard J. Pennington. Superintendent Pennington reviewed the police department's internal investigation of the complaint and found it to be inept. In an interoffice correspondence to the Chief of Operations of the N.O.P.D., Superintendent Pennington reported that his own review of the matter:
That complaint was case #97-531C, which was lodged after Philibert had undergone PPEP retraining in November 1996. On September 11, 1997, the complainant's son was being detained by Officer Philibert and another member of the N.O.P.D. for investigation of a curfew violation outside his home. The complainant left his home with his eight — month — old granddaughter in his arms to see what the problem was. He was holding the baby with his right hand when he approached the arresting officers.
The officers asked if the complainant had been drinking, and the complainant admitted that he had a drink while inside his house. At that point, one officer shoved him and Officer Philibert cuffed the complainant's left hand, while he was still holding the baby in his right arm. Philibert then drew his firearm and pointed it at the complainant's temple. The complainant's wife ran to the scene, took the baby, and the complainant was arrested and taken to the Sixth District police station. (Ex. 15, Pl.'s Mem. Opp'n Summ. J., Rec. Doc. No. 52)
indicates serious inadequacy in the quality of investigations of personnel complaints and the review process in place for the Operations Bureau. In this case, although supplied with names and contact numbers, the investigator returned an investigation without contacting and interviewing six witnesses. This after receiving three extensions to the due date on this investigation. (Ex. 16, Pl.'s Mem. Opp'n Summ. J., Rec. Doc. No. 52).
Superintendent Pennington instructed the Chief of Operations to "recommend any actions that should be initiated to improve the quality of future investigative reports from your bureau. Recommend improvements to your current review process and include recommendations for additional training if you feel it would assist in raising your standards." (Ex. 16, Pl.'s Mem. Opp'n Summ. J., Rec. Doc. No. 52). Despite this official determination of PID investigative deficiency, Harvard alleges that the city continued to ignore the need to train and discipline Philibert. She argues that the city's inaction in the face of repeated complaints constituted an official policy of deliberate indifference to constitutional rights under Monell.
In most cases, the deficient training of one officer in one aspect of law enforcement does not evidence deliberate indifference to civil rights. McClendon v. City of Columbia, Mississippi, 258 F.3d 432, 443 (5th Cir. 2001), rev'd on other grounds, 305 F.3d 314 (5th Cir. 2002) (en banc), cert. denied, 537 U.S. 1232 (2003). Nor does the failure to discipline officers in a single case trigger municipal liability. Piotrowski v. City of Houston, 237 F.3d 567, 582 (5th Cir. 2001).
The present case involves a single officer with multiple abuse complaints. Recent cases have left unresolved the question of whether a city's failure to discipline a single officer in light of multiple official abuse complaints can evidence an official policy of deliberate indifference to civil rights. Although Monell liability has yet to be imposed under this factual scenario, prior precedent indicates that a policy maker's failure to discipline an officer conduct could result in municipal liability.
The Fifth Circuit recently indicated that in certain circumstances a repeated pattern of lax discipline in light of official abuse complaints may evidence official deliberate indifference to civil rights. Piotrowski, 237 F.3d at 582. Moreover, proof of such a constitutionally inadequate official policy toward officer discipline might be supported by "a purely formalistic investigation in which little evidence was taken, the file was bare, and the conclusions of the investigator was perfunctory." Id. at 582.
Hayward presents evidence of many previous abuse complaints against Philibert and suggests that the investigations of those complaints were formalistic and inadequate. Hayward alleges that city officials, such as Superintendent Pennington, were aware that the investigations were cursory and insufficient. She suggests that the prior investigations reveal a systematic inattention to official police complaints by city policy makers.
In Piotrowski v. City of Houston, the Fifth Circuit indicated that a municipality's policy of inadequate officer discipline could be unconstitutional if it were pursued with deliberate indifference toward the constitutional rights of citizens. 237 F.3d at 581. Although the court noted that an inadequate disciplinary policy could support a Monell claim, there was no evidence that the City of Houston had engaged in a "purely formalistic investigation" or a "systematic inattention to official police complaints." Id. at 581-82. Therefore, no official policy or custom existed that was deliberately indifferent to civil rights.
Piotrowski alleged that two members of the Houston police department and one member of the Houston fire department were involved in a plot to harass and to murder her. Unlike the present case, Piotrowski's failure to discipline claim arose only from her and her associates' complaints against the defendant officers. Id. The City of Houston's internal affairs file revealed "no systematic inattention to complaints." Id. Moreover, "Piotrowski did not offer evidence of any other IAD complaints made against [the officers]." Id.
As in Piotrowski, Hayward alleges an official policy of lax discipline and investigation. Unlike in Piotrowski, Hayward presents police reports that document other complaints against Philibert, and evidence of lax investigation of police complaints.
The need to provide "specific officers" with more or different training can be so obvious and the inadequacy of existing supervision "so likely to result in a violation of constitutional rights that the city can reasonably be said to have been deliberately indifferent to the need for training." Brown v. Bryan County, Okla., 219 F.3d 450, 459 (5th Cir. 2000). City of Canton and Brown indicate that a municipality may face liability under § 1983 where a policy maker had sufficient notice that the failure to train an officer was likely to lead to a violation of citizens' civil rights. Brown, 219 F.3d at 460.
In the present case questions of fact exist on whether city policy makers had notice of the abuse complaints against Philibert, whether the city was deliberately indifferent to abuse complaints against Philibert, and — if the city was deliberately indifferent in its investigation of previous civil rights claims — whether the city's failure to train or discipline Philibert was the moving force behind Ms. Hayward's injuries. Accordingly, the Defendants are not entitled to summary judgment on the plaintiff's Monell claim for the city's failure to train or failure to discipline Philibert.
D. The Defendants' Motion in Limine
The Defendants next move the Court to bar the Plaintiff from introducing extrinsic evidence of a March 1996 incident involving Philibert and official records concerning Personal Integrity Division complaints made against Philibert. The Defendants argue that this evidence is irrelevant and, if admitted, would be more prejudicial than probative.
The evidence that the Defendants seek to exclude is relevant to the plaintiff's Monell claim against the City of New Orleans. The official records may be used to demonstrate that policy makers had knowledge of Philibert's abusive behavior yet failed to take adequate remedial measures. In light of the Court's ruling denying partial summary judgment on the Monell claim, the Defendants' motion in limine also is DENIED; but the Court will revisit this issue when and if the evidence is presented to determine whether it is cumulative or misleading or overly prejudicial when placed in context with other relevant evidence.
III. CONCLUSION
Genuine issues of fact exist on whether the Plaintiff has demonstrated that the city has an official policy or custom of deliberate indifference to civil rights based on the city's failure to train or to discipline Officer Philibert. Accordingly, the Defendants' Motion for partial summary judgment is GRANTED IN PART and DENIED IN PART. The Defendants' motion in limine is DENIED.