Sanders v. CEOC LLC

586 F.Supp.3d 519

Jordan K. SANDERS

v.CEOC LLC et al.

CASE NO. 5:20-CV-01544

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

Signed February 22, 2022

John Marshall Rice, William Fabian Kendig, Jr., Rice & Kendig, Shreveport, LA, for Jordan K. Sanders.

Scott R. Wolf, Daniel James Baker, Stacey D. Williams, Blanchard Walker et al, Shreveport, LA, for Jumaraca N. Broadway, Eldorado Casino Shreveport Joint Venture.

Nichole Marie Buckle, Carmouche Bokenfohr et al., Shreveport, LA, for City of Shreveport, Ben Raymond, K. Anderson.

MEMORANDUM RULING

TERRY A. DOUGHTY, UNITED STATES DISTRICT JUDGE

Before the Court is a Motion for Summary Judgment [Doc. No. 36] filed by Defendants City of Shreveport ("Shreveport"), Ben Raymond ("Raymond"), and Lt. Kevin Anderson ("Anderson").

An Opposition [Doc. No. 52] was filed by Plaintiff Jordan K. Sanders ("Sanders") on January 22, 2022. A Reply [Doc. No. 55] was filed by Shreveport, Raymond, and Anderson on January 28, 2022.

For the reasons set forth herein, the Motion for Summary Judgment filed by Shreveport, Raymond, and Anderson is GRANTED.

I. BACKGROUND

On November 6, 2020, Sanders filed a Petition for Damages against the Defendants, Eldorado Casino Shreveport Joint Venture ("Eldorado"), Jumaraca N. Broadway ("Broadway"), and against Anderson, Raymond, and Shreveport in the First Judicial District Court, Parish of Caddo, State of Louisiana. The matter was removed to this Court by Notice of Removal [Doc. No. 1] on December 4, 2020. Sanders claims damages as a result of injuries received on the dance floor of the Celebrity Lounge inside of Eldorado. on November 8, 2019, at approximately 12:20 a.m.

Broadway was working security for Eldorado on the night of the incident. After receiving complaints from customers about Sanders, who was dancing on the dance floor, Broadway asked Sanders to leave. Sanders allegedly ignored these requests and continued to dance. Thereafter, Anderson, who had also received complaints about Sanders, approached Sanders. Anderson was a Shreveport Police Department ("SPD") officer who was working security at Eldorado the night of the incident. Anderson was wearing an SPD uniform.

Anderson's recollection of the events are as follows. Anderson went into the Celebrity Lounge and approached Sanders on the dance floor. Anderson said he told Sanders and advised Sanders that Eldorado management wanted him to leave the property.¹ Also according to Anderson, Sanders responded, "I'm not going anywhere."² Anderson then grabbed Sanders’ arm in an effort to escort Sanders from the lounge. Anderson testified Sanders pushed him off and Anderson saw Sanders making a fist.³ According to expert Jason Latham ("Latham"), his frame-by-frame analysis of the videos shows Sanders’ right hand moving toward Anderson's face and head beginning at approximately 00:18:59 of the video.⁴

Anderson testified that Sanders then raised his right hand toward his head and shoulder area, an action that Anderson perceived as an attempt by Sanders to punch him in the face.⁵ Sanders raising his right hand in a "striking position" was also confirmed by Broadway.⁶ Anderson stated that he then deflected Sanders’ punch and struck Sanders with his right fist, which resulted in Sanders falling to the ground.⁷ Sanders’ struck the back of his head on the dance floor when he fell, causing a laceration to the back of his head. Sanders either passed out or was knocked unconscious as he hit the floor.⁸

Anderson lifted Sanders under his arms and brought him into a back hallway. EMS was called to provide medical treatment to Sanders. The EMS record⁹ shows that Sanders was "highly intoxicated," and that Sanders was transported to Ochsner LSU, where he received five (5) staples in the back of his head. Sanders was released from Ochsner LSU a few hours later, and he was booked into the Shreveport City Jail on charges of entering/remaining after forbidden, public drunkenness, and resisting an officer.¹⁰

On April 30, 2021, Sanders pled no contest to the charge of entering/remaining after forbidden. Sanders received a thirty (30) day sentence, which was suspended, and Sanders was placed on ninety (90) days of unsupervised probation.¹¹

Sanders does not remember the incident and cannot dispute the video evidence or the testimony of Broadway or Anderson.¹² An independent witness, Jamie Garber¹³ , saw Sanders dancing on the dance floor and does not recall either Broadway or Anderson coming up to Sanders to tell him to leave. She also said she did not see Sanders ball his fist.

Although it is disputed what occurred, the incident was recorded on video from several different angles¹. This Court has reviewed all of the videos. The following details depict what the Court observed on the videos. Anderson approached Sanders on the dance floor. It appeared that Anderson grabbed Sander's shirt around his right shoulder.

This Court also reviewed the Affidavit of Jason Latham, along with his report, frame analysis, and CV.¹⁴ Latham is the co-founder and Laboratory Director for Complete Digital Forensic Solutions, Inc. Latham was retained as an expert in the field of forensic video analysis. Latham's CV attached shows he is well qualified in this area. Latham sought to clarify the video evidence of the altercation on the Celebrity Lounge dance floor between Anderson and Sanders. Latham conducted a frame analysis of the videos just prior to and during the altercation. Latham found the frame analysis of the videos showed Sanders’ right hand being raised in the general direction toward Anderson's left shoulder and head area. The movement of Anderson's right hand was just prior to Anderson striking Sanders and was captured on three different cameras at different angles. The condition of Sanders’ right hand, (open, closed, or fist), could not be determined due to the lighting conditions, camera distance, and overall quality of the videos.

Also reviewed was the Affidavit, CV, and report of Kerry J. Najolia¹⁵ ("Najolia") who was hired as an expert witness to review the use of force by Anderson in this incident. Najolia's CV and report show he is also qualified in and has been accepted as an expert witness in police use of force. After reviewing the videos and other information, Najolia's opinion was (1) Anderson's training was current based upon POST and SPD's training requirements; and (2) the use of non-lethal force by Anderson based upon what Anderson perceived to be a threat, was justified and in compliance with POST and SPD policies.

Sanders makes claims of excessive force, false arrest, Monell claims against Raymond and Shreveport based upon vicarious liability, failure to supervise, and/or insufficient policies and customs. Additionally, a claim is made against Eldorado under vicarious liability as an alleged employer of Anderson and Broadway, under both state and federal law.

II. LAW AND ANALYSIS

A. Summary Judgment, Standard of Review

Summary judgment is appropriate when the evidence before a court shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Anderson , 477 U.S. at 247, 106 S.Ct. 2505 ). "The moving party may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that the record contains no support for the non-moving party's claim." Stahl v. Novartis Pharms. Corp. , 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is unable to identify anything in the record to support its claim, summary judgment is appropriate. Id. "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).

In evaluating a motion for summary judgment, courts "may not make credibility determinations or weigh the evidence" and "must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party." Total E & P USA Inc. v. Kerr–McGee Oil and Gas Corp. , 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted). While courts will "resolve factual controversies in favor of the nonmoving party," an actual controversy exists only "when both parties have submitted evidence of contradictory facts." Little v. Liquid Air. Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994). To rebut a properly supported motion for summary judgment, the opposing party must show, with "significant probative evidence," that a genuine issue of material fact exists. Hamilton v. Segue Software, Inc. , 232 F.3d 473, 477 (5th Cir. 2000) (emphasis added). " ‘If the evidence is merely colorable, or is not significantly probative,’ summary judgment is appropriate."

Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co. , 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ).

Relatedly, there can be no genuine dispute as to a material fact when a party fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. , 477 U.S. at 322-23, 106 S.Ct. 2548. This is true ...