Cormier et al vs. Lafayette City-Parish Consolidated Government et al, 6:09-cv-00703, No. 102 (W.D.La. Nov. 8, 2011) (2024)

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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 2 of 29 PageID #: 1298
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`city police officers Heather Martin and Chase Guidry responded to an incident at a
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`vacant lot at the corner of South Pierce and West Simcoe Streets in Lafayette,
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`Louisiana, on April 29, 2008. Plaintiff Joseph Bowman Cormier, who has an
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`ownership interest in the lot, had called in a complaint concerning vagrants who were
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`trespassing, and the police were responding to the call. When they arrived, a female
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`witness, Melanie Green, stopped them and allegedly told them that a man she thought
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`was a police officer (Cormier) brandished a firearm, chased a man and pushed him
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`to the ground, and was cursing in a loud voice even after the man had fled on foot.1
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`When the officers approached Cormier and began to question him, he once again
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`began using profanities in a loud voice. When questioned, Cormier allegedly
`2
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`admitted to striking a homeless man from behind, causing him to fall. Cormier was
`3
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`not arrested at the time.
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`Greg Greer, who was the individual allegedly involved in the incident but was
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`not at the scene when the officers arrived, called 911 later that day to complain about
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`the incident. Officer Martin was dispatched to Greer’s location where Greer claimed
`4
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`1
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`2
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`3
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`4
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`Rec. Doc. 73-5, at p.15.
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`Id.
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`Id., at p. 16.
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`Rec. Doc. 73-7.
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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 3 of 29 PageID #: 1299
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`that Cormier had removed a handgun from the trunk of his car, and when he, Greer,
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`tried to flee, Cormier struck him from behind causing him to fall. According to the
`5
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`defendants, Greer indicated that he wished to press charges.6
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`Later that same day, Cormier was at the police department and at that time,
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`allegedly based on Greer’s complaint, a misdemeanor summons for simple battery
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`was issued to Cormier by Officer Martin.7
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`Cormier’s version of these events is substantially different. In his verified
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`complaint, Cormier attests that he called the police on April 29 to report the
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`trespassers on his property. According to Cormier, Officer Martin saw the homeless
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`people when she arrived on scene but did nothing. Cormier left the location to go
`8
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`to the police department to get a “no trespass” letter, and when he arrived he was
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`approached by Martin who asked him to come with her. According to the complaint:
`9
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`Defendant Martin falsely arrested Petitioner Joseph Bowman Cormier
`without probable cause, and by means of a false affidavit, falsely
`accusing Petitioner Joseph Bowman Cormier of committing the crime
`of simple battery against a homeless man named Greg Greer. At the
`time, Defendant Martin informed Petitioner Joseph Bowman Cormier
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`5
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`6
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`7
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`8
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`9
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`Rec. Doc. 73-5, at p. 17.
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`Id.
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`Id.
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`Rec. Doc. 1, at p. 6.
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`Rec. Doc. 1, at p. 7.
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`-3-
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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 4 of 29 PageID #: 1300
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`that he was being arrested because he had admittedly pushed Greg
`Greer. The illegal arrest occurred in the presence of Defendant Guidry
`and defendant Lafayette Supervising Police Lt. Nolvey Stelly. . . .10
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`Cormier further contends that he was fingerprinted and booked on the hood of
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`Martin’s police cruiser and arrested on the public sidewalk outside the police
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`headquarters, causing him to be publicly humiliated.11
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`On or about May 5, 2008, Lafayette City Marshall Earl “Nickey” Picard
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`received, allegedly from an unknown source, a copy of Martin’s statement regarding
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`the events of April 29, together with copies of two witness statements and the
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`misdemeanor summons that was issued to Cormier on that day.
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`12
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` Picard gave
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`Martin’s statement to a deputy city marshal, with instructions to deliver it to a local
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`television news anchor.13
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`On July 11, 2008, Cormier qualified to run against Nickey Picard for the post
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`of Lafayette City Marshal.
`14
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` The complaint alleges that, on July 21 or 22, the local
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`news anchor aired a story allegedly reporting that, based on an internal and
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`confidential police report, Cormier was charged with the misdemeanor criminal
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`10
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`11
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`12
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`13
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`14
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`Id.
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`Rec. Doc. 1, at pp. 7-8.
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`Rec. Doc. 59-3, at pp. 22-24.
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`Id.
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`Rec. Doc. 1, at 8.
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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 5 of 29 PageID #: 1301
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`offense of simple battery but should have been charged with a felony count of
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`aggravated battery.
`15
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` According to the complaint, “[t]he news report falsely stated
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`that . . .Cormier had pulled a gun while jumping onto a man on his property, striking
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`the man in the back of the head.” At about the same time that the news story aired,
`16
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`on July 22, 2008, the city prosecutor added an additional charge by bill of
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`information, charging Cormier with aggravated assault in connection with the April
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`2008 incident.
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`17
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` No contemporaneous affidavit supporting the bill of information has
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`been located in the suit record.
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`When Cormier wrote to the police to complain of the news report, the Chief of
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`Police responded that Officer Martin and Lt. Stelly had released the information to
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`defendant Timothy Picard, Chief Deputy Marshal for the City and the son of Nickey
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`Picard.
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` According to the complaint, Lt. Stelly and Timothy Picard are friends, and
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`Stelly arranged a meeting with Martin and Timothy Picard to discuss Cormier’s
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`arrest, which resulted in the disclosure of Martin’s illegally released and confidential
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`police report.
`19
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` During the course of this litigation, Nickey Picard admitted that he
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`15
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`16
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`17
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`18
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`19
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`Rec. Doc. 1, at pp. 8-11.
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`Rec. Doc. 1, at p. 9.
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`Rec. Doc. 73-5, at p. 31.
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`Rec. Doc. 1, at p. 10.
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`Rec. Doc. 1, at p. 10.
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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 6 of 29 PageID #: 1302
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`gave Martin’s report to a deputy city marshal with instructions to deliver it to the
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`news media.
`20
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` On the eve of the election, the same news anchor again aired a report
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`concerning Cormier, allegedly reported that Cormier had been charged with
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`aggravated assault, and if elected and subsequently found guilty, would have to be
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`removed from office.
`21
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` Cormier was not successful in his bid for election, and Nickey
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`Picard was re-elected.
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`After the election, when the matter was called for trial in November 2008,
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`neither Mr. Greer nor the witness, Melanie Green, were able to be located to appear
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`for trial, and the battery and aggravated assault charges were dismissed.
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`22
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` At the
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`same time, Cormier was charged by bill of information with one count of disturbing
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`the peace. Based on the affidavits of Martin and Stelly, however, the single charge
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`arose out of allegedly separate incidents on April 29 – Cormier’s actions at the vacant
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`lot and his actions at the police station later that day. 23
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`20
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`21
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`22
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`Rec. Doc. 59-3, at pp. 22-24.
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`Rec. Doc. 1, at pp. 9-10.
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`Rec. Doc. 73-6, at p. 3.
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`Rec. Doc. 73-6, at pp. 2-3; Rec. Doc. 73-5, at pp. 32-34. The affidavits in support
`23
`of the arrest warrants, and therefore, presumably in support of the bill of information, were executed
`by Officer Martin and Lt. Stelly on December 17, 2008, a month after the assault and battery charges
`were dismissed and the new charge was set forth by bill of information.
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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 7 of 29 PageID #: 1303
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`On December 17, 2008, nine months after the incidents occurred, Stelly and
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`Martin executed affidavits for warrants of arrest with regard to Cormier and the
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`events of April 29, 2008. Stelly’s affidavit indicates that Cormier was arrested on
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`April 29, 2008 and that the charge was disturbing the peace under La. R.S. 14:103.24
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`Martin’s affidavit indicates that Cormier was arrested on April 29, 2008, and that the
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`charges were disturbing the peace, simple battery, and aggravated assault.
`25
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` On April
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`29, 2008, however, Cormier was merely issued a summons charging him with simple
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`battery. In April 2009, Cormier was convicted in Lafayette City Court on the charge
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`of disturbing the peace with regard to the incident at the vacant lot.26
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`In this lawsuit, which asserts claims under 42 U.S.C. § 1983 and Louisiana
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`state law, Cormier alleges that, in connection with the April 2008 incident and the
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`news broadcast, his constitutionally-protected rights were violated by the
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`defendants.
`27
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` He seeks to recover damages he allegedly sustained as a result of his
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`having been falsely arrested, falsely prosecuted, and defamed. He claims that police
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`24
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`25
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`26
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`Rec. Doc. 73-5, at p. 34.
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`Rec. Doc. 73-5, at p. 33.
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`Rec. Doc. 73-4.
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`The defendants contend that the plaintiffs waived their claims under state law based
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`on the plaintiffs’ outline of claims (Rec. Doc. 58) submitted in response to the order of the district
`court. (Rec. Doc. 55). The undersigned does not agree, based on the citation to Louisiana Civil
`Code Article 2315 in Article III of the plaintiffs’ outline of claims.
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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 8 of 29 PageID #: 1304
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`officers Guidry, Martin, and Stelly, along with the city prosecutors, “engaged in a
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`conspiracy to violate his civil rights through his illegal arrest and malicious
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`prosecution for political gain” by assuring “Cormier’s defeat in the race against
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`Defendant Nickey Picard for City Marshal.” In his complaint, Cormier sued the
`28
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`City, two city prosecutors, and three city police officers, as well as other individuals.
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`The City, the prosecutors, and the police officers now argue that the claims against
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`them are barred by the Heck doctrine. They alternatively argue that they are entitled
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`to summary judgment in their favor under the doctrine of qualified immunity.
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`Finally, they argue that the plaintiffs are not entitled to recover punitive damages.
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`ANALYSIS
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`A.
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`THE SCOPE OF THIS RULING
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`Although styled “Defendants’ Motion for Summary Judgment Based on the
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`Heck Doctrine,” the instant motion (Rec. Doc. 73) actually seeks summary judgment
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`on three separate bases. First, the City, the prosecutors, and the police officers
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`contend that all claims against them are barred by the Heck doctrine. Second, or
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`alternatively, the City, the prosecutors, and the police officers contend that they are
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`entitled to qualified immunity with regard to all claims asserted against them in this
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`28
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`Rec. Doc. 1, at p. 14.
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`lawsuit. Third, the City, the prosecutors, and the police officers contend that the
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`plaintiffs’ punitive damages claims should be dismissed. This ruling will address all
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`three of those subjects.
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`A separate motion (Rec. Doc. 75) sought dismissal of the claims against the
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`prosecutors under the doctrine of absolute prosecutorial immunity. That motion was
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`granted in a separate ruling, and the plaintiffs’ claims against the prosecutors have
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`been dismissed.
`29
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` (Rec. Doc. 99, 100). Accordingly, the issues raised in the instant
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`motion (Rec. Doc. 73) will be analyzed only with regard to the plaintiffs’ claims
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`against the police officers and the City.
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`B.
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`SUMMARY JUDGMENT STANDARD
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`Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment
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`is appropriate when there is no genuine dispute as to any material fact and the moving
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`party is entitled to judgment as a matter of law. A fact is material if proof of its
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`existence or nonexistence might affect the outcome of the lawsuit.
`30
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` A genuine issue
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`29
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`Rec. Doc. 98.
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Minter v. Great American
`30
`Insurance Co. of New York, 423 F.3d 460, 465 (5 Cir. 2005).
`th
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`of material fact exists if a reasonable jury could render a verdict for the nonmoving
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`party.31
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`The party seeking summary judgment has the initial responsibility of informing
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`the court of the basis for its motion, and identifying those parts of the record that it
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`believes demonstrate the absence of a genuine issue of material fact.
`32
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` If the moving
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`party carries its initial burden, the burden shifts to the nonmoving party to
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`demonstrate the existence of a genuine issue of a material fact.
`33
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` The evidence is
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`viewed in the light most favorable to the nonmoving party,
`34
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` and all facts and
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`inferences are construed in the light most favorable to the nonmovant.
`35
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` The
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`allegations in a verified complaint are competent summary judgment evidence.36
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`If the dispositive issue is one on which the nonmoving party will bear the
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`burden of proof at trial, the moving party may satisfy its burden by pointing out that
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`Brumfield v. Hollins, 551 F.3d 322, 326 (5 Cir. 2008), citing Anderson v. Liberty
`31
`th
`Lobby, Inc., 477 U.S. at 252.
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`Washburn v. Harvey, 504 F.3d 505, 508 (5 Cir. 2007), citing Celotex Corp. v.
`32
`th
`Catrett, 477 U.S. 317, 323 (1986).
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`33
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`34
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`Id.
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`Gillis v. Louisiana, 294 F.3d 755, 758 (5 Cir. 2002).
`th
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`Brumfield v. Hollins, 551 F.3d 322, 326 (5 Cir. 2008), citing Matsush*ta Elec. Indus.
`35
`th
`Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
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`36
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`Hart v. Hairston, 343 F.3d 762, 765 (5 Cir. 2003).
`th
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`there is insufficient proof concerning an essential element of the nonmoving party's
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`claim.
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` The motion should be granted if the non-moving party cannot produce
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`evidence to support an essential element of its claim.38
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`C.
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`THE HECK DOCTRINE
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`The City and the police officers contend that Cormier’s conviction on the
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`disturbing the peace charge precludes him from asserting a § 1983 claim with regard
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`to the simple battery and aggravated assault charges under the Heck doctrine. In Heck
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`v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court determined that:
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`allegedly
`for
`recover damages
`to
`[I]n order
`unconstitutional . . . imprisonment or for other harm caused
`by actions whose unlawfulness would render a conviction
`or sentence invalid, a § 1983 plaintiff must prove that the
`conviction or sentence has been reversed on direct appeal,
`expunged by executive order, declared invalid by a state
`tribunal authorized to make such determination, or called
`into question by a federal court's issuance of a writ of
`habeas corpus, 28 U.S.C. § 2254.
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`The purpose of this doctrine is to avoid collateral attacks on valid convictions. If a
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`§ 1983 action would imply the invalidation of the plaintiff’s conviction, the complaint
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`should be dismissed unless the plaintiff can demonstrate that the conviction has
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`Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
`37
`F.3d 409, 412 (5 Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. at 325.
`th
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`38
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`Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5 Cir. 2005).
`th
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`already been expunged or reversed.
`39
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` On the other hand, however, when the
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`plaintiff’s § 1983 action, if successful, “will not inherently imply the nullification of
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`the criminal judgment against the Plaintiff, the action should be allowed to
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`proceed.” 40
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`The City and the police officers contend that, since Cormier was convicted on
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`the disturbing the peace charge, Heck precludes him from challenging his prosecution
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`on the simple battery and aggravated assault charges that arose out of the same
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`incident despite the fact that the simple battery, aggravated assault, and disorderly
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`conduct charges were initiated at a different times and even though the battery and
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`assault charges were dismissed prior to trial.
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`To support that contention, the City and the police officers rely in large part on
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`the Fifth Circuit’s decision in Wells v. Bonner, 45 F.3d 90 (5 Cir. 1995). A close
`th
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`reading of Wells reveals, however, that it is inapposite. Wells was arrested and
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`charged with resisting a search and disorderly conduct. The disorderly conduct
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`charge was dropped, and he was convicted of resisting the search. He then filed a §
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`1983 action, alleging false arrest, excessive force, and malicious prosecution. In
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`Arnold v. Town of Slaughter, No. 01-902-D, 2003 WL 25729166, at *1 (M.D. La.
`39
`Sept. 5, 2003), aff’d 100 Fed. App’x 321 (5 Cir.), cert. denied, 543 U.S. 966 (2004), citing Heck
`th
`v. Humphrey, 512 U.S. at 477.
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`40
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`Id.
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`support of his § 1983 claims, Wells argued that the police lacked probable cause for
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`the arrest on either charge. Thus, he was contesting his conviction on the resisting
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`a search charge, and his § 1983 claims were clearly barred by Heck. As the court
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`said: “Wells’s § 1983 claims for false arrest and malicious prosecution are not
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`cognizable under Heck because each of these claims imply the invalidity of his
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`conviction.”41
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`In the instant case, the City and the police officers argue that even if there was
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`no probable cause to arrest Cormier for each of the crimes charged, proof of probable
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`cause to arrest him for a related offense triggers the Heck bar. In support of that
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`proposition, they cite Pfannstiel v. City of Marion and Arnold v. Town of
`42
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`Slaughter.
`43
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` But that argument confuses two separate and distinct concepts.
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`Pfannstiel and Arnold stand for the proposition that a showing of probable cause for
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`an arrest is a substantive defense to a § 1983 claim for false arrest. But Heck bars the
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`assertion of a § 1983 claim of any sort when the claimant is attacking his criminal
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`conviction. Therefore, Pfannstiel and Arnold are inapplicable with regard to the
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`pending motion.
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`41
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`42
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`43
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`Wells v. Bonner, 45 F.3d 90, 96 (5 Cir. 1995).
`th
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`Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5 Cir. 1990)
`th
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`Cited supra.
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`In the instant case, the plaintiffs are not attacking Cormier’s conviction on the
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`disturbing the peace claim of which he was convicted. They are arguing, instead, that
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`Cormier was falsely arrested, maliciously prosecuted, and defamed with regard to the
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`simple battery and aggravated assault claims that were dismissed. Once a claim has
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`been dismissed, the person charged may have a valid § 1983 claim.
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`44
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` The
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`undersigned has found no authority for the proposition that any conviction
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`automatically triggers Heck and bars any potential § 1983 claim that might arise out
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`of the same underlying facts. Instead, the critical inquiry is whether the claimant’s
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`§ 1983 claims constitute a collateral attack on his conviction.
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`Cases in which it was determined that Heck bars § 1983 claims help to clarify
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`the issue. In Muller v. St. Tammany Parish, Muller was convicted on a charge of
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`false impersonation of a peace officer. He then brought a § 1983 action, alleging that
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`law enforcement officers falsified police reports and affidavits and illegally searched
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`his home and vehicle to obtain evidence used to prosecute him. His claims were
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`barred under Heck because “[a] claim of illegal search and seizure implicates the
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`validity of a criminal conviction where the conviction is based on evidence
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`discovered during that search or the resultant arrest.” 45
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`44
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`Webb v. Parole Division, 234 F.3d 29 (5 Cir. 2000).
`th
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`Muller v. St. Tammany Parish, No. 09-3362, 2010 WL 2464802, at * 11 (E.D. La.
`45
`Apr. 28, 2010).
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`Similarly, in Connors v. Graves, the plaintiff pleaded guilty to discharging a
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`firearm from a motor vehicle, attempted simple burglary, and negligent injury. He
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`then filed a § 1983 action, alleging excessive force, unlawful seizure, and conspiracy
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`claims against the law enforcement officers. The court held that the Heck doctrine
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`barred those claims, “because success on those claims would necessarily impugn
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`Connors’s state criminal convictions . . . .” 46
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`In the instant case, however, it is conceivable that Cormier’s conviction on the
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`disorderly conduct charge would not be challenged if he is ultimately successful on
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`his § 1983 claims. The disorderly conduct charge does not require evidence of “the
`47
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`intentional use of force or violence” as the battery charge does nor does the
`48
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`disorderly conduct charge require evidence of the involvement of a firearm or other
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`weapon as the aggravated assault charge does.
`49
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` Furthermore, the battery and assault
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`46
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`Connors v. Graves, 538 F.3d 373, 375 (5 Cir. 2008).
`th
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`Cormier was charged with disturbing the peace and disorderly conduct under
`47
`Ordinance No. 62-38(a)(2) of the Code of Ordinances of the Lafayette City-Parish Consolidated
`Government, which is defined as using unnecessarily loud, offensive, or insulting language in a
`manner as would foreseeably disturb or alarm the public.
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`La. R.S. 14:33 (definition of battery under Louisiana state law); Ordinance No. 62-67
`48
`of Code of Ordinances of the Lafayette City-Parish Consolidated Government (definition of battery
`under the City’s Code of Ordinances).
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`La. R.S. 14:37 (definition of aggravated assault); Ordinance No. 62-78(b) of Code
`49
`of Ordinances of the Lafayette City-Parish Consolidated Government (definition of aggravated
`assault under the City’s Code of Ordinances).
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`claims were dismissed, and Cormier was not convicted on those charges. Therefore,
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`Cormier’s contention that he was falsely arrested, maliciously prosecuted, and
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`defamed with regard to the simple battery and aggravated assault charges does not
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`necessarily impugn his conviction on the disorderly conduct charge. Consequently,
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`the Heck doctrine does not bar the plaintiffs’ § 1983 claims with regard to the battery
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`and assault claims. The defendants’ motion for summary judgment based on the Heck
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`doctrine is denied.
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`D.
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`QUALIFIED IMMUNITY
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`The City and the police officers seek dismissal of the § 1983 claims against
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`them on the basis of qualified immunity.
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`[A] court applies a two-step analysis to determine whether
`a defendant is entitled to summary judgment on the basis
`of qualified immunity. First, we determine whether,
`viewing the summary judgment evidence in the light most
`favorable to the plaintiff, the defendant violated the
`plaintiffs constitutional rights. If not, [the] analysis ends.
`If so, we next consider whether the defendant's actions
`were objectively unreasonable
`in
`light of clearly
`established law at the time of the conduct in question. To
`make this determination, the court applies an objective
`standard based on the viewpoint of a reasonable official in
`light of the information then available to the defendant and
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`the law that was clearly established at the time of the
`defendant's actions.50
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`Applying this analysis, the Court finds that Officer Guidry is entitled to qualified
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`immunity but Officer Martin and Lt. Stelly are not.
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`A.
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`OFFICER GUIDRY
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`The first inquiry in the requisite analysis is whether the defendant violated the
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`plaintiff’s constitutional rights. The only allegations against Officer Guidry are that
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`he was a trainee at the scene of the April 2008 incident but played virtually no role
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`in deciding whether charges should be brought against Cormier or what those charges
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`should be. He was also allegedly present at the time of the arrest at the police station
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`in April 2008, but there is no allegation that he actually did anything beyond
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`observing the other police officers’ interaction with Cormier. While there are
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`allegations that Guidry testified falsely at the trial, that conduct would be protected
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`by the absolute immunity from civil liability afforded to witnesses in a criminal trial.51
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`Finally, there is no evidence linking Guidry to the release of information to the news
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`media. In summary, there is no evidence that anything he did violated the plaintiffs’
`
`50
`
`Freeman v. Gore, 483 F.3d 404, 410–11 (5 Cir. 2007) (internal citations omitted).
`th
`
`Enlow v. Tishomingo County, 962 F.2d 501, 511 (5 Cir. 1992), citing Briscoe v.
`51
`th
`LaHue, 103 S.Ct. 1108, 1121 (1983).
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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 18 of 29 PageID #: 1314
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`constitutional rights. Accordingly, Officer Guidry is entitled to qualified immunity,
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`and the claims against him will be dismissed with prejudice.
`
`B.
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`OFFICER MARTIN AND LT. STELLY
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`With regard to Officer Martin and Lt. Stelly, however, a genuine dispute
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`concerning material facts precludes a finding that they are entitled to qualified
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`immunity. Officer Martin responded to the scene of the January 2008 incident, she
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`interviewed and obtained statements from the alleged victim Greg Greer and witness
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`Melanie Green, neither of whom showed up at the trial to confirm what they allegedly
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`stated to her, and she issued the battery summons to Cormier, after she obtained
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`information from Greer and Green. The parties concede that Cormier was “arrested”
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`when Martin issued the simple battery summons to him. If the arrest for simple
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`battery was made by Officer Martin without probable cause, then she violated
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`Cormier’s constitutional rights.
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`The defendants contend that there was probable cause for the issuance of a
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`simple battery summons to Cormier, arguing that the existence of probable cause
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`mandates a finding that Officer Martin is entitled to qualified immunity. Probable
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`cause exists “when the totality of the facts and circ*mstances within a police officer's
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`knowledge at the moment of arrest are sufficient for a reasonable person to conclude
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`that the suspect had committed or was committing an offense.” Louisiana law
`52
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`defines battery as “the intentional use of force or violence upon the person of
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`another,” and defines simple battery as “a battery committed without the consent of
`53
`
`the victim.” The City defines simple battery as “the intentional use of force or
`54
`
`violence upon the person of another, without the consent of the victim, committed
`
`without a dangerous weapon.” Cormier contends in his verified complaint that he
`55
`
`was falsely accused of having battered Greer. When this is accepted as true, as it
`
`must be at this time, there is a genuine issue of material fact concerning whether
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`Martin had probable cause to arrest Cormier on April 29. This is sufficient to
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`preclude summary judgment in Martin’s favor with regard to qualified immunity.
`
`But there is more. Cormier also alleges that the police officers conspired to
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`violate his civil rights and to defame him in order to assure Nickey Picard’s re-
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`election as City Marshal. According to Cormier’s complaint, he was told by the
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`City’s Chief of Police that Martin and Stelly released the information that was aired
`
`Vance v. Nunnery, 137 F.3d 270, 276 (5 Cir. 1998); United States v. Levine, 80 F.3d
`52
`th
`129, 132 (5 Cir. 1996).
`th
`
`53
`
`54
`
`La. R.S. 14:33.
`
`La. R.S. 14:35.
`
`55
`Government.
`
`Ordinance No. 62-67, Code of Ordinances of the Lafayette City-Parish Consolidated
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`-19-
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`on television to the news anchorman.
`
`56
`
` If there was, as alleged, a conspiracy to
`
`interfere with Cormier’s candidacy and aid Picard’s campaign, then the release of
`
`Martin’s statement to the media was an act in furtherance of that conspiracy. Cormier
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`alleged in his verified complaint that the information set forth in the statement, and
`
`reported on TV, was false. In the television news reports, Cormier was first accused
`
`of having committed aggravated battery and later accused of having committed
`
`aggravated assault. The second news story allegedly suggested that if Cormier was
`
`elected and subsequently found guilty on the aggravated assault charge, he would be
`
`found guilty of committing a felony, and would have to be removed from office.57
`
`Louisiana law does not recognize an independent cause of action for civil
`
`conspiracy. Instead, Article 2324 of the Louisiana Civil Code states: “He who
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`conspires with another person to commit an intentional or wilful act is answerable,
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`in solido, with that person, for the damage cased by such act.” Louisiana
`
`jurisprudence is clear the actionable element of a civil conspiracy claim is not the
`
`conspiracy itself but the underlying tort that the conspirators agree to perpetrate and
`
`56
`
`Rec. Doc. 1, at 10.
`
`Rec. Doc. 1, at 9-10. It should be noted that although the December 2008 affidavits
`57
`for Cormier’s arrest reference state charges, Cormier was actually charged with violating City
`ordinances, not with violating state laws. (Rec. Doc. 73-5, at 20, 31, 32). According to Ordinance
`No. 62-2 of the City Code of Ordinances, any act or omission constituting a crime or offense that is
`prohibited by a City ordinance is a misdemeanor.
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`actually commit in whole or in part.
`
`58
`
` In this case, Cormier alleges that the police
`
`officers conspired to defame him in order to assist with Nickey Picard’s political
`
`campaign and derail his own. Under Louisiana law, a statement that imputes the
`
`commission of a crime to another is defamatory per se; as a result, falsity and malice
`
`
`
`are presumed. 59
`
`It is well settled that an injury to a person’s reputation, even if defamatory, is
`
`not cognizable, standing alone, under § 1983. However, “damage to an individual’s
`
`reputation as a result of defamatory statements made by a state actor, accompanied
`
`by an infringement of some other interest, is actionable under § 1983.” 60
`
`The stigma prong of the “stigma-plus” test is satisfied when the plaintiff shows
`
`that the stigma was cause by concrete, false assertions by a state actor.
`61
`
` In this case,
`
`Thomas v. North 40 Land Development, Inc., 2004-CA-0610 (La. App. 4 Cir.
`58
`th
`01/26/2005), 894 So.2d 1160, 1174, citing Ross v. Conoco, Inc., 2002-0299 (La. 10/15/2002), 828
`So.2d 546, 552.
`
`See, e.g., Cluse v. H & E Equipment Services, Inc., 2009-574 (La. App. 3 Cir.
`59
`03/31/10), 34 So.3d 959, 969, writ denied, 2010-0994 (La. 09/17/2010), 45 So.3d 1043; Anders v.
`Andrus, 2000-00332 (La. App. 3 Cir. 12/06/2000), 773 So.2d 289, 293, writ denied, 2001-C-0066
`(La. 03/23/2001), 788 So.2d 427; Redmond v. McCool, 582 So.2d 262, 265 (La. App. 1 Cir. 1991);
`Trahan v. Ritterman, 368 So.2d 181 (La. App. 1 Cir.1979); Makofsky v. Cunningham, 576 F.2d
`1223, 1236 n. 23 (5 Cir. 1978).
`th
`
`Texas v. Thompson, 70 F.3d 390, 392 (5 Cir. 1995), citing Paul v. Davis, 424 U.S.
`60
`th
`693, 710-712 (1976).
`
`Texas v. Thompson, 70 F.3d at 392; San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697,
`61
`701 (5 Cir. 1991).
`th
`
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`Case 6:09-cv-00703-PJH Document 102 Filed 11/08/11 Page 22 of 29 PageID #: 1318
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`Cormier alleged in his verified complaint that he was accused in a false affidavit of
`
`committing the crime of simple battery and that this false accusation was leaked to
`
`the media, where the false accusation was repeated. These allegations must be taken
`
`as true. Therefore, the sti