Bryan E. Mobley v. City of Deridder

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1069

BRYAN E. MOBLEY

VERSUS

CITY OF DERIDDER, JOSE CHAPA,
INDIVIDUALLY AND IN HIS
CAPACITY AS A DERIDDER CITY
POLICE OFFICER, LANCE GRANT,
INDIVIDUALLY AND IN HIS
CAPACITY AS A BEAUREGARD
PARISH DEPUTY SHERIFF, DEREK
SMITH, INDIVIDUALLY AND IN HIS
CAPACITY AS A BEAUREGARD
PARISH DEPUTY SHERIFF, BEAUREGARD
MEMORIAL HOSPITAL, KIM LAMITINA,
INDIVIDUALLY AND IN HER CAPACITY AS
A R.N. AT BEAUREGARD MEMORIAL HOSPITAL

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, DOCKET NO. C-2011-0486 “B”
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and James T. Genovese, Judges.

AFFIRMED.

Mitchel M. Evans, II
416 North Pine Street
DeRidder, Louisiana 70634
(337) 462-5225
COUNSEL FOR PLAINTIFF/APPELLANT:
Bryan E. Mobley

David R. Lestage
Hall, Lestage & Landreneau
Post Office Box 880
207 West 2nd Street
DeRidder, Louisiana 70634
(337) 463-8692
COUNSEL FOR DEFENDANTS/APPELLEES:
Derek Smith and Lance Grant,
individually and as Deputies
Sheriff of Beauregard Parish, Louisiana

Bradley C. Myers
Kean Miller LLP
Post Office Box 3513
Baton Rouge, Louisiana 70821
(225) 387-0999
COUNSEL FOR DEFENDANTS/APPELLEES:
City of DeRidder and Jose Chapa

Terrence D. McCay
Kean Miller LLP
One Lakeshore Drive, Suite 1150
Lake Charles, Louisiana 70629
(337) 430-0350
COUNSEL FOR DEFENDANTS/APPELLEES:
City of DeRidder and Jose Chapa

GENOVESE, Judge.

Plaintiff, Bryan E. Mobley, filed suit for damages against Defendants, the

City of DeRidder, Jose Chapa (Officer Chapa), Lance Grant (Deputy Grant), Derek

Smith (Deputy Smith), Beauregard Memorial Hospital, and Kim Lamitina (Nurse

Lamitina).1 Mr. Mobley alleges he sustained personal injury when Beauregard

Parish Sheriff Deputies Grant and Smith, DeRidder City Police Officer Chapa, and

Beauregard Memorial Hospital Nurse Lamitina forcibly obtained a urine sample

from him through the use of a catheter subsequent to his arrest for driving while

intoxicated. Defendants, the City of DeRidder, Officer Chapa, Deputy Grant, and

Deputy Smith, filed motions for summary judgment which were granted by the

trial court. Mr. Mobley appeals the trial court‟s grant of these motions for

summary judgment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 24, 2010, Deputies Grant and Smith arrested Mr. Mobley for

driving while intoxicated. Before his arrest, Mr. Mobley refused to submit to a

field sobriety test. After his arrest, Mr. Mobley also refused to submit to a

breathalyzer test. A search warrant was procured to obtain bodily fluids—both

blood and urine—from Mr. Mobley. In order to effectuate the search warrant,

Mr. Mobley was taken to Beauregard Memorial Hospital. Though he initially

resisted efforts to execute the search warrant, Mr. Mobley ultimately complied and

permitted the withdrawal of a blood sample by medical personnel; however, he

forcefully refused to render a urine sample. A urine sample was obtained from

Mr. Mobley through the use of a catheter by medical personnel and the use of

physical restraint by law enforcement officers.

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Beauregard Memorial Hospital and Kim Lamitina were dismissed from this matter
pursuant to an exception of prematurity.

Mr. Mobley filed a Petition for Damages pro se2 on May 23, 2011. In his

petition, Mr. Mobley alleged that he “was restrained by excessive force” while

medical personnel and law enforcement officers “used a catheter to forcefully take

[his] urine[.]” His pleading requested damages for the physical and psychological

injuries he claims he suffered from the alleged use of excessive force.

On December 9, 2011, Deputies Grant and Smith filed a motion for

summary judgment, asserting that they “used only that force reasonable and

necessary against [Mr. Mobley] in order to effectuate the execution of the search

warrant for [his] bodily fluids.” Deputies Grant and Smith sought summary

judgment pursuant to La.Code Civ.P. art. 966(C)(2) on the basis that Mr. Mobley

“cannot establish lack of probable cause for the issuance of the warrant or the use

of unreasonable force in its execution[; therefore], he cannot prove essential

elements necessary for him to prevail at a trial in this case[.]”

On January 13, 2012, the City of DeRidder and Officer Chapa also filed a

motion for summary judgment, asserting that Mr. Mobley “has not and cannot

present sufficient factual support showing that [Officer] Chapa used force, much

less excessive force, in assisting [Deputies Grant and Smith] in obtaining blood

and urine samples from [him] pursuant to the valid warrant obtained by the

Deputies.” Therefore, the City of DeRidder and Officer Chapa joined Deputies

Grant and Smith in seeking summary judgment pursuant to La.Code

Civ.P. art. 966(C)(2).

The evidence before the trial court in support of the motions for summary

judgment included affidavits of Officer Chapa, Deputy Smith, and Deputy Grant,

with each disputing the use of unreasonable or excessive force in the execution of

2
Since December 19, 2011, Mr. Mobley has secured counsel and is no longer pro se.
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the search warrant. Also offered were the Search Warrant Application and the

Order of Search signed by the trial court judge.

In opposition to the motion for summary judgment, Mr. Mobley offered:

Exhibit A, Incident Report Number E-00686-10; and, Exhibit B, an in globo

offering which contained the Search Warrant Application, the Order of Search, the

report from Southwest Louisiana Criminalistics Laboratory, and a document

entitled “Urinalysis to Determine Blood Alcohol in DUI Investigations” to which

Mr. Mobley refers in his opposition memorandum as “Learned Treatises.”

The matter was heard on March 12, 2012, at which time both motions for

summary judgment were granted. On May 10, 2012, the trial court issued written

Reasons for Judgment, wherein he stated:

A judge may issue a search warrant authorizing the search of a
person for bodily samples. La.C.Cr.P. Art. 163.1. In order to execute
a search warrant, a peace officer may use such means and force as are
authorized for arrest. La.C.Cr.P. Art. 164. A person making a lawful
arrest may use reasonable force to effect the arrest and detention, and
also to overcome any resistance or threatened resistance of the person
being arrested or detained. La.C.Cr.P. Art. 220. Therefore, it follows
that a peace officer executing a search warrant may use reasonable
force to execute the search, and also to overcome any resistance or
threatened resistance of the person being searched.

Of particular note is that in the underlying criminal matter
entitled “State of Louisiana v. Bryan E. Mobley”, Docket
No. CR-2010-0462 in this court, the defense asserted that the search
warrant violated Mr. Mobley‟s constitutional rights. The trial court
upheld the issuance of the search warrant and writs to the Third
Circuit Court of Appeal were denied[,] and the trial court‟s judgment
was upheld.

....

The use of excessive force by the defendants is an essential
element in . . . Mr. Mobley‟s case. Defendants have submitted
affidavits which attest that Defendants used only the level of force
necessary to execute the search and to overcome the resistance of
Mr. Mobley. These affidavits, along with the defendants‟ pleadings
and briefs, point out a lack of factual support for Mr. Mobley‟s
claims. At this point in the proceedings, the burden shifted to
Mr. Mobley to produce factual support sufficient to establish that he

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would be able to satisfy his evidentiary burden at trial of proving the
use of excessive force. Mr. Mobley failed to produce any factual
support of this claim. There was no evidence offered, other than the
mere allegations of Mr. Mobley‟s pleadings, to show that defendants
struck, choked, or otherwise used force disproportionate to
Mr. Mobley‟s resistance. Additionally, Mr. Mobley has offered no
evidence of physical injury as a result of being restrained by police.
Therefore, the Court concludes that Mr. Mobley has failed to produce
factual support sufficient to establish that he will be able to satisfy his
evidentiary burden at trial.

On the same day, the trial court signed two judgments granting the motions for

summary judgment, and Mr. Mobley‟s claims against the City of DeRidder,

Officer Chapa, Deputy Smith, and Deputy Grant were dismissed. It is from these

judgments that Mr. Mobley appeals.

ASSIGNMENT OF ERROR

In his sole assignment of error, Mr. Mobley asserts that “[t]he trial court

committed an abuse of discretion in failing to consider expert treatises, which

address[] the inappropriate use of urinalysis for determining an arrestee‟s blood

alcohol concentration at time of arrest.”

LAW

Our Louisiana Supreme Court has instructed us on the standard of review

relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the
relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363
(La. 11/29/06)], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A
summary judgment is reviewed on appeal de novo, with the appellate
court using the same criteria that govern the trial court‟s determination
of whether summary judgment is appropriate; i.e. whether there is
any genuine issue of material fact, and whether the movant is entitled
to judgment as a matter of law. Wright v. Louisiana Power & Light,
[06-1181 (La. 3/9/07)], 951 So.2d 1058[]; King v. Parish National
Bank, [04-337 (La. 10/19/04)], 885 So.2d 540, 545; Jones v. Estate of
Santiago, [03-1424 (La. 4/14/04)], 870 So.2d 1002[.]

Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 (footnote

omitted).

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Louisiana Code of Civil Procedure Article 966(C)(2) provides:

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant‟s
burden on the motion does not require him to negate all essential
elements of the adverse party‟s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for
one or more elements essential to the adverse party‟s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material fact.

DISCUSSION

Mr. Mobley‟s sole assignment of error confines the issue before this court to

a rather narrow inquiry: whether the trial court‟s holding is wrong because it

presumably failed to rely on treatises which disapprove of the use of urinalysis to

determine an individual‟s blood alcohol concentration. Mr. Mobley concedes in

his appellate brief that “there is no factual dispute as to the existence of probable

cause at the time of . . . arrest.” He asserts that “the inquiry herein should be

focused on the use of force by the arresting agency in securing samples of . . .

bodily fluids, in order to determine Blood Alcohol Concentration[] (BAC) at the

time of [his] traffic stop.” Mr. Mobley argues that “the [j]udgment of the [t]rial

[c]ourt should be reversed, as it failed to take judicial notice of expert treatises,

which frown[] upon the use of urinalysis in Blood Alcohol Concentration

determinations[.]”

Deputies Grant and Smith counter, arguing that “[t]he [c]ourt found that

based upon the submissions to it, there was not any dispute as to material fact.

Counsel for Mr. Mobley has not demonstrated any error of the [t]rial [c]ourt in that

regard.” The City of DeRidder and Officer Chapa assert that “[a]lthough Judge

Anderson did not specifically reference „the learned treatises‟ favored by

[Mr. Mobley], there is no evidence in the record that Judge Anderson failed to

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consider the information in reaching his decision.” The City of DeRidder and

Officer Chapa contend that “Judge Anderson was not required to take „judicial

notice‟ of such „learned treatises.‟” We agree.

We find no merit to Mr. Mobley‟s appeal. The trial court is not bound to

take judicial notice of what Mr. Mobley contends are “Learned Treatises”

wrangling over the use of urinalysis. See La.Code Evid. 201 and 202. Nor is the

trial court bound by treatises, period. The trial court is bound to consider the facts

in evidence, to apply the law to those facts, and to render a decision. Based on the

evidence, the trial court found no genuine issues of material fact and that

Defendants were entitled to summary judgment as a matter of law.

Pursuant to our de novo review of the record, we conclude that the trial court

was correct in holding that Mr. Mobley failed to produce sufficient evidence to

establish that he will be able to prove his claim at trial. There is no genuine issue

of material fact and the City of DeRidder, Officer Chapa, Deputy Grant, and

Deputy Smith are entitled to judgment as a matter of law.

DECREE

For the foregoing reasons, the motions for summary judgment granted in

favor of Defendants/Appellees, the City of DeRidder, Joseph Chapa, Lance Grant,

and Derek Smith are affirmed. Costs of this appeal are assessed against

Plaintiff/Appellant, Bryan E. Mobley.

AFFIRMED.

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