Estate of Lelia Marie Shelvin v. Michael J. Neustrom, Lafayette Parish Sheriff

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-63

ESTATE OF LELIA MARIE SHELVIN, ET AL.

VERSUS

MICHAEL J. NEUSTROM, LAFAYETTE PARISH SHERIFF

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20134024
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Marc T. Amy, Judges.

AFFIRMED.

Jason T. Reed
James L. Pate
Neuner Pate
P.O. Drawer 52828
Lafayette, LA 70505-2828
(337) 237-7000
COUNSEL FOR DEFENDANT/APPELLEE:
Michael J. Neustrom, Lafayette Parish Sheriff

Jarvis Jerome Claiborne
Attorney at Law
814 North Main Street
Opelousas, LA 70570
(337) 948-4336
COUNSEL FOR PLAINTIFF/APPELLANT:
Estate of Lelia Marie Shelvin
Toshia Robertson
Terrance Shelvin
Tyrone Shelvin

SAUNDERS, Judge.

Plaintiffs, Estate of Lelia Marie Shelvin, Toshia Robertson, Terrance

Shelvin, and Tyrone Shelvin (hereafter collectively “Appellants”), appeal from the

trial court’s grant of summary judgment in favor of Defendant, Mike Neustrom, in

his official capacity as Sheriff of Lafayette Parish (hereafter “Appellee). For the

reasons that follow, we affirm the trial court’s judgment in all respects.

FACTS AND PROCEDURAL HISTORY

In the very early morning hours of August 9, 2012, Lelia Marie Shelvin

(hereafter “Ms. Shelvin”) was arrested for aggravated battery with a dangerous

weapon. She was booked and placed into the custody of the Lafayette Parish

Correctional Center. On the afternoon of August 9, 2012, Ms. Shelvin tragically

committed suicide in her cell.

Toshia Robertson, Terrance Shelvin, and Tyrone Shelvin are Ms. Shelvin’s

surviving children. On August 9, 2013, Appellants filed a petition for damages

against Appellee alleging he was at fault for Ms. Shelvin’s suicide. Thereafter, on

June 2, 2014, Appellee filed an exception of no right of action, in which he

asserted that the estate of Lelia Marie Shelvin was not a proper plaintiff pursuant to

La.Civ.Code art. 2315.1, and motion for summary judgment, in which he asserted

that Appellee had breached no duty to Ms. Shelvin because her suicide was “a

sudden and completely unpredictable event.” Appellees facsimile filed an

opposition on July 21, 2014, followed by a hard copy on July 28, 2014. Following

a hearing held on July 28, 2014, the trial court granted Appellee’s exception of no

right of action and motion for summary judgment and dismissed the suit. Formal

judgment to that effect was signed on August 7, 2014. Appellants appeal the

judgment of the trial court granting summary judgment in favor of Appellees.

ASSIGNMENTS OF ERROR

Appellants assert the trial court erred in granting summary judgment in

Appellee’s favor because:

1. it erroneously found that Appellants had not filed an

opposition to Appellee’s motion;

2. it failed to perform an analysis of whether a genuine

issue of material fact existed;

3. genuine issues of material fact did exist; and

4. Appellants had not had an opportunity to conduct

adequate discovery.

ASSIGNMENT OF ERROR NUMBER ONE

In briefing their first assignment of error, Appellants focus on the trial

court’s treatment of Appellee’s motion as unopposed and its determination that

Appellants forfeited the privilege of oral argument. We find this assignment of

error to lack merit.

Louisiana Code of Civil Procedure Article 966(B) and La.Dist.Ct. Rule 9.9(c)

establish the time limits within which affidavits opposing a motion for summary

judgment must be served. The time limits imposed are mandatory. Buggage v.

Volks Constructors, 06-0175 (La. 5/5/06), 928 So.2d 536. However, a trial court

has the discretion to allow the late-filing of affidavits in opposition to summary

judgment. Phillips v. Lafayette Parish Sch. Bd., 10-373 (La.App. 3 Cir. 12/08/10),

54 So.3d 739. But, “affidavits not timely filed can be ruled inadmissible and

properly excluded by the trial court.” Buggage, 928 So.2d at 536. A trial court

“does not abuse its discretion in choosing to follow the mandatory eight-day limit;

nor is there abuse in choosing to allow late-filed opposition materials if there is no

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prejudice to the mover.” Tolliver v. Broussard, 14-738, p.10 (La.App. 3 Cir.

12/10/14), 155 So.3d 137, 144, writ denied, 15-0212 (La. 4/17/15), 168 So.3d 401.

Thus, a trial court’s determination to exclude a late-filed opposition to summary

judgment is reviewed for abuse of discretion. Phillips, 54 So.3d 739; Buggage,

928 So.2d 536.

In the instant matter, Appellee’s motion was filed on June 2, 2014. Hearing

on the motion was set for July 28, 2014; Appellants’ opposition was due on July 18,

2014. See La.Code Civ.P. art. 966(B); La.Dist.Ct. Rule 9.9. Appellants did not

move to continue the hearing. Thus, the motion had been pending for eight weeks

at the time Appellants’ opposition was finally filed. In brief, Appellants assert that,

because their counsel suffered from an illness, there was good cause for allowing

the late-filed opposition. However, Appellants fail to explain how counsel’s illness

prevented him from timely filing an opposition and why a continuance was not

sought. Appellants additionally assert Appellee would not have been prejudiced by

acceptance of the late-filed opposition, as is demonstrated by the fact that Appellee

filed two additional memoranda in support of summary judgment after Appellants

filed their opposition. Nevertheless, there is no requirement that the trial court

make a finding of prejudice to the movant in order to disallow late-filed

oppositions. Mahoney v. E. Carroll Parish Police Jury, 47,494 (La.App. 2 Cir.

9/26/12), 105 So.3d 144, writ denied, 12-2684 (La. 2/8/13), 108 So.3d 88.

In further support of their assertion that the trial court erred in granting

summary judgment in favor of Appellee, Appellants make reference to the trial

court’s statement that “[Appellants] really lost [their] right to argue anyway.” We

first note that counsel for Appellants did not attend the hearing on the motion.

Although Appellants cite their attorney’s health issues as the cause, no motion for

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a continuance was filed, and we note that the record reveals counsel for Appellant

was aware of his health issues in advance of the hearing. Additionally,

La.Dist.Ct.R. 9.9(e), provides that “[p]arties. . . may forfeit the privilege of oral

argument” by failing to timely serve supporting memoranda. Thus, it is clear that

the trial court has the discretion to disallow oral argument when supporting

memoranda are not timely served.

We note finally that La.Dist.Ct.R. 9.10(c) provides that memoranda in

opposition to a motion for summary judgment “shall contain (1) A list of material

facts that the opponent contends are genuinely disputed; and (2) A reference to the

document proving that each such fact is genuinely disputed, with the pertinent part

designated.” In the instant matter, Appellants’ opposition memorandum consisted

of ten short paragraphs of facts alleged to be disputed, but with no references to

any documents that potentially proved their statement of disputed facts. In fact,

there was not a single document attached as an exhibit to support their assertions in

the ten paragraphs or prove the facts alleged to be disputed. The memoranda

contained nothing more than conclusory and unsupported allegations. Thus, even

if the trial court had admitted the memoranda in opposition, it would not have

shown genuine issues of material fact for trial. Thus, summary judgment in favor

of Appellee was proper on these grounds, as well.

In light of the foregoing, we find that the trial court did not abuse its

discretion in excluding the opposition and ruling on the pleadings. Thus, the trial

court did not err in granting the motion for summary judgment in favor of the

defendant.

ASSIGNMENTS OF ERROR NUMBER TWO AND THREE

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We now turn to Appellants’ second and third assignments of error, both of

which focus on whether a genuine issue of material fact existed, in light of our

conclusions that Appellants’ memoranda in opposition to summary judgment was

properly excluded, that the trial court did not commit an abuse of discretion in

refusing to hear oral argument in opposition, and that the opposition memoranda

would not have raised a genuine issue of material fact even if it had been admitted.

Because they raise essentially the same issues, we address these assignments

together.

Standard of Review on Summary Judgment

Summary judgments are subject to a de novo review under the same criteria

as the trial court. Menard v. City of Lafayette, 01-4 (La.App. 3 Cir. 5/23/01), 786

So.2d 354.

“The summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of every action.... The
procedure is favored and shall be construed to accomplish these
ends.” La.Code Civ.P. art. 966(A)(2). A motion for summary
judgment “shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions, together with the affidavits,
if any, admitted for the purposes of the motion for summary judgment,
show that there is no genuine issue as to material fact, and that mover
is entitled to judgment as a matter of law.” La.Code Civ.P. art.
966(B)(2). The movant bears the burden of proof on the motion.

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 need not negate all essential elements of the
adverse party’s claim, action, or defense, but rather must 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.
La.Code Civ.P. art. 966(C)(2). Thibodeaux v. Lafayette Gen. Surgical
Hosp., LLC, 09–1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544.

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Guilbeau v. Domingues, 14-328, p.3 (La.App. 3 Cir. 10/1/14), 149 So.3d 825, 827,

writ denied, 14-2283 (La. 1/16/15), 157 So.3d 1132.

Once the movant satisfied his initial burden, the non-moving
party may not simply rely on the allegations or denials contained in
the pleadings. La.Code. Civ.P. art. 967; Ardoin v. Pitre, (La.App. 3
Cir.1983), 430 So.2d 815. Instead, the non-moving party must submit
affidavits or other evidence or state specific facts that would show a
genuine issue for trial. Id.

Phillips, 54 So.3d at 743.

Negligence Pursuant to La.Civ.Code art. 2315

Whether an act constitutes negligence pursuant to La.Civ.Code 2315 is

determined using a duty/risk analysis. Mathieu v. Imperial Toy Corp., 94-0952 (La.

11/30/94), 646 So.2d 318.

[I]n order for liability to attach under a duty/risk analysis, a plaintiff
must prove five separate elements: (1) the defendant had a duty to
conform his or her conduct to a specific standard of care (the duty
element); (2) the defendant failed to conform his or her conduct to the
appropriate standard (the breach of duty element); (3) the defendant’s
substandard conduct was a cause-in-fact of the plaintiff’s injuries (the
cause-in-fact element); (4) the defendant’s substandard conduct was a
legal cause of the plaintiff’s injuries (the scope of liability or scope of
protection element); and, (5) actual damages (the damages element).

Id. at 322. “If the plaintiff fails to prove any one element by a preponderance of

the evidence, the defendant is not liable.” Perkins v. Entergy Corp., 00-1372, 00-

387, 00-1440, p. 7 (La. 3/23/01), 782 So.2d 606, 611.

Prison officials must exercise reasonable care to protect inmates from harm,

including harm from suicide or other self-inflicted injury. Scott v. State, 618 So.2d

1053 (La.App. 1 Cir.), writ denied, 620 So.2d 881 (La.1993). However, the

actions of the prison officials are examined in the surrounding circumstances, and

“in order to recover for the negligence of prison authorities, the plaintiff must

prove that the authorities knew or should have known that there was a risk that the

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inmate would harm himself and that they failed to take reasonable precautions to

guard against such harm.” Id. at 1058.

Discussion

In the instant matter, Appellees submitted the affidavits of six employees of

the Lafayette Parish Correctional Center. Marty Miller (“Miller”), a captain and

jail commander at Lafayette Parish Correctional Center swore that Appellee

requires that each deputy assigned to work at the Lafayette Parish Correctional

Center complete suicide prevention training upon hire and, thereafter, on an annual

basis. He further attested that each arrestee undergoes a preliminary medical

examination prior to intake into the jail; that the preliminary screening is designed

to identify any potential medical issue, including mental health issues and suicide

risk; and that if any significant medical issue is identified during the preliminary

screening, a licensed practical nurse performs a second screening. He also swore

that any arrestee identified as having a potential mental health issue or who

demonstrates any potentially suicidal behavior is promptly referred to a mental

health professional and/or placed on suicide watch. Finally, Miller attested that it

is the policy at the jail to conduct wellness checks on the inmates every thirty

minutes.

In her affidavit, Carolyn Woods (“Woods”), an intake deputy, stated that she

conducted a preliminary medical screening of Ms. Shelvin. Woods attested that

she referred Ms. Shelvin for a second medical exam because Ms. Shelvin reported

untreated high blood pressure, but that Ms. Shelvin did not exhibit any behavior

that indicated she might suffer from a mental health issue or attempt suicide. In

her affidavit, Dianna Beaugh (“Beaugh”), a licensed practical nurse, declared that

she conducted a medical screening of Ms. Shelvin, during which she was initially

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tearful, but that she “calmed down almost immediately and was lucid and

cooperative,” and that Ms. Shelvin advised her she suffered from high blood

pressure, which was not treated at the time. Beaugh further swore that Ms. Shelvin

did not indicate she was in any distress that she expressly denied any thoughts of

suicide. Daneisha Marks (“Marks”), also a licensed practical nurse, swore that she

conducted a wellness check of Ms. Shelvin on the date of the incident and that,

following the check, she documented that Ms. Shelvin was “lying on bunk. With

no complaints voiced.”

Latuachier Charles and Samanta Hayes, both deputies, stated in their

affidavits that they underwent suicide prevention training at hire and annually

thereafter. Each further swore that they conducted wellbeing checks on all inmates

on the date of the incident, including on Ms. Shelvin. Finally, each attested that,

although Ms. Shelvin was placed in administrative segregation due to her refusal to

remove hair accessories, Ms. Shelvin “appeared well” at each check thereafter and

did not “appear to pose a threat of suicide and/or self[-]harm.”

In light of the affidavits submitted in support of Appellee’s motion for

summary judgment, which indicated that Ms. Shelvin expressed no behaviors

indicative of mental health issues or suicide potential, that each employee of the

jail was trained in suicide prevention, and that Ms. Shelvin was checked on and

appeared to be no risk to herself, we conclude that Appellee has made a prima

facie showing that none of the jail staff knew of or should have been known that

Ms. Shelvin presented a risk of harm to herself. Therefore, we conclude that

Appellee has made a prima facie showing that there was no breach of the duty

owed to Ms. Shelvin. Thus, the burden shifts to Appellants to produce evidence

sufficient to raise a genuine issue of material fact on this issue. We conclude that,

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because Appellants’ opposition was properly excluded by the trial court, and

moreover, because it contained no controverting evidence, Appellants failed to

carry their burden of production on the motion. Thus, we find no error in the trial

court’s grant of summary judgment in favor of Appellee.

ASSIGNMENT OF ERROR NUMBER FOUR

Appellants assert in their final assignment of error that the trial court erred in

granting summary judgment because Appellants had not yet had an opportunity to

conduct adequate discovery. We find this assignment to lack merit.

The record reveals that Appellants filed suit on August 9, 2013. Appellee

filed the motion for summary judgment on June 2, 2014. Hearing on the motion

was not scheduled until July 28, 2014, nearly an entire year after suit was filed.

Appellants propounded no discovery during that time and did not move for a

continuance of the hearing.

As we explained in Gunter v. Jefferson Davis Parish, 11-1018, pp. 4-5

(La.App. 3 Cir. 2/1/12), 84 So.3d 705, 708:

Louisiana Code of Civil Procedure Article 966(A)(1) provides
that a defendant may move for summary judgment “at any time.”
Further, La.Code Civ.P. art. 966(C)(1) provides that “[a]fter adequate
discovery or after a case is set for trial, a motion which shows that
there is no genuine issue of material fact and that the mover is entitled
to judgment as a matter of law shall be granted.”

The provision for adequate discovery does not
grant a party an absolute right to delay a decision on a
motion for summary judgment until all discovery is
complete. West v. Watson, 35,278 (La.App. 2 Cir.
10/31/01), 799 So.2d 1189, writ denied, 01–3179
(La.2/8/02), 809 So.2d 140. Unless the party opposing
the motion for summary judgment shows a probable
injustice, a suit should not be delayed pending discovery
when it appears at an early stage that there are no genuine
issues of fact. Advance Products & Systems, Inc. v.
Simon, 06–609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788,
writ denied, 07–26 (La.3/9/07), 949 So.2d 444. The

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abuse of discretion standard is used to determine if the
trial court allowed adequate time for discovery. Id.

Appellee’s motion was filed more than nine months after suit was filed.

Hearing on the motion was set nearly a year after suit was filed. In light of the fact

that Appellants propounded no discovery during that time, yet failed to file a

motion for a continuance of the hearing on the motion, we find no merit to

Appellants’ assertion that they had inadequate time to conduct discovery and thus,

that the trial court did not err in granting summary judgment in favor of Appellee.

CONCLUSION

For the foregoing reasons we affirm the trial court’s judgment. All costs of

this appeal are assessed to Appellants.

AFFIRMED.

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