Mary James v. Iberia Parish Sheriff's Office

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-286

MARY JAMES, ET AL.

VERSUS

IBERIA PARISH SHERIFF’S OFFICE, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 125919
HONORABLE VINCENT J. BORNE, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AFFIRMED.

Samuel David Abraham
Attorney at Law
5040 Ambassador Caffery Parkway
Lafayette, LA 70508
(337) 234-4524
Counsel for Plaintiffs/Appellants:
Mary James
Richard James, Jr.
Sheryl Theodile

James B. Mullaly
Usry & Weeks
1615 Poydras St., Suite 1250
New Orleans, LA 70112
(504) 592-4600
Counsel for Defendants/Appellees:
Iberia Parish Sheriff Louis M. Ackal
Sergeant Stoney Penn
Deputy Jordan Robeaux
Deputy Eric Bell

KEATY, Judge.

Plaintiffs appeal a trial court judgment granting summary judgment in favor

of Defendants and dismissing Plaintiffs’ claims against them with prejudice. For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This wrongful death and survival action was filed by Mary James, Richard

James, Jr., and Sheryl Theodile, the widow and two children, (collectively

“Plaintiffs”) of Richard James, Sr. (James), who died by suicide on March 12, 2014.

Plaintiffs’ Petition for Damages named as Defendants the Iberia Parish Sheriff’s

Office (IPSO),1 Sergeant Stoney Penn, Deputy Jordan Robeaux, and Deputy Eric

Bell (collectively “Defendants”). After Plaintiffs moved to set the matter for trial,

Defendants filed a Motion for Summary Judgment seeking to have the case against

them dismissed on the following bases: 1) Defendants are statutorily immune from

suit pursuant to La.R.S. 9:2798.1 and/or La.R.S. 46:2142; 2) Plaintiffs failed to

establish that Defendants owed any duty to them to protect them from the risk of

James committing suicide, nor that such duty was breached; and 3) Plaintiffs failed

to allege or prove that any action or inaction by Defendants was the factual or legal

cause of James’ suicide.

Plaintiffs opposed the motion on the basis that the IPSO had “Standard

Operating Procedures and Procedural Orders, and Generally Accepted Police

Practices and Procedures dealing with mentally ill and barricaded citizens,”

including “Crisis Intervention protocols,” which were allegedly ignored by

Sgt. Penn, Dep. Robeaux, and Dep. Bell, all of whom knew that James suffered from

mental illness, thus contributing to his death.

1
In Answer to the Petition, Sheriff Louis M. Ackal stated that he had been incorrectly
designated as Iberia Parish Sheriff’s Office.

Defendants filed a Statement of Uncontested Background Facts as well as a

Statement of Uncontested Material Facts. Plaintiffs did not object to those

statements of facts. Instead, Plaintiffs submitted that because Defendants admitted

to knowing and failing to follow the IPSO procedures regarding how mentally ill

and barricaded citizens should be dealt with, their actions amounted to reckless

misconduct to which the statutory immunity provisions found in La.R.S. 9:2798.1

and/or La.R.S. 46:2142 do not apply. Moreover, Plaintiffs submitted that the IPSO

procedures set out duties that Defendants were bound to follow in interaction with

James, who had barricaded himself within the residence and who was known by

Defendants to suffer from mental illness. In light of each of the officer/Defendants’

admissions that they did not follow those procedures, Plaintiffs submitted that

Defendants’ actions, and/or inactions, were both the cause-in-fact and the legal cause

of James’ death.

Given Plaintiffs’ lack of objections thereto, we now repeat the Statements of

Uncontested Facts contained in Defendants’ motion for summary judgment:

A. UNCONTESTED BACKGROUND FACTS

On March 12, 2014, Sergeant Stoney Penn assisted Deputy
Jordan Robeaux, Deputy Eric Bell and Deputy Eric Boyer in serving an
eviction notice. See Incident Report of Sgt. Stoney Penn, attached as
Exhibit 1; Incident Report of Jordan Robeaux, attached as Exhibit 2;
Incident Report of Eric Bell, attached as Exhibit 3; Plaintiffs’ Petition
at ¶ 2. On the eviction notice Mrs. Mary James stated she feels
threatened by Mr. James. Exh. 1, 2. Mrs. James advised Mr. James
stated he was going to kill her, everyone around and then kill himself.
Id. Mrs. James advised Mr. James has a .357 magnum. Exhs. 1, 2, 3.

Upon arrival, Deputies spoke with the recipient, who was
identified as Mr. Richard James, Sr. Deputies advised Mr. James that
his wife filed to evict him and Mr. James was served with the eviction
notice. Exhs. 1, 2, 3, Plaintiffs’ Petition at ¶ 2.[2]

2
Paragraph 2 of Plaintiffs’ Petition alleged that “On or about March 12, 2014, at
approximately 6:15 p.m., the decedent, RICHARD JAMES, SR. was served with a Temporary
Restraining Order at his home located at 1014 East Pershing Street, New Iberia, Iberia Parish,
Louisiana by Deputies Eric Bell, Jordan Robeaux and Stoney Penn of the Iberia Parish Sheriff’s
Office.”
2

Mr. James was agitated with the situation, but was cooperative
with the Deputies. Exh. 1. Mr. James asked, if he wanted to return to
the residence to get the rest of his items, what did he need to do. Id.
Sgt[.] Penn advised Mr. James to call the Sheriff’s office and Deputies
would return to assist. Id. Mr. James then grabbed several articles of
clothing and left the residence. Exhs. 1, 2, 3.

Before leaving the residence, Sgt[.] Penn asked Mr. James if he
had someone to take care of his dog; he replied that his daughter could
care for it. Exh. 1. Sgt[.] Penn contacted Mr. James’ daughter and
advised her of the situation. Id. Sgt. Penn advised Mr. James’ daughter
that Deputies would place the key in the mail box for her. Id.; Plaintiffs’
Petition at ¶ 3.

About twenty to thirty minutes after leaving the James residence,
dispatch broadcasted that Mr. James was back at his residence and
stated he was going to kill himself. Exhs. 1, 2, 3, Plaintiffs’ Petition at
¶¶ 4,[3] 5.[4]

Sgt. Penn arrived on scene and Deputy Robeaux and Deputy Bell
arrived seconds later. Id. Sgt. Penn knocked on the front door with no
response. Id.

Deputy Robeaux then grabbed the key for the front door from the
mail box. Id. Sgt. Penn unlocked the door and attempted to open the
door with resistance. Id. However, Mr. James had barricaded himself
in the residence by placing a metal pipe against the door. Exhibit 2;
Exhibit 3. Sgt. Penn then pushed on the door once more and the door
opened. Exhs. 1, 2, 3.

Mr. James came into sight and Sgt. Penn identified himself. Id.
Mr. James then yelled, “if y’all want me out, y’all have to come get me
out”. Sgt. Penn observed Mr. James with a black in color handgun,
which was later identified as a .357 revolver pointed at his chest. Id.
Sgt. Penn advised Mr. James to drop the weapon. Id. Before Sgt. Penn
could talk any further to Mr. James[,] he then ran toward the bedroom
area of the residence. Id.

Deputies heard Mr. James yelling really loudly and then heard
the sound of a gunshot. Id.

3
Paragraph 4 of Plaintiffs’ Petition alleged that “At approximately 6:44 p.m. a 911 caller
contacted the Iberia Parish Sheriff’s office regarding RICHARD JAMES, SR.’s mental state as
suicidal and emotionally distraught (crying)[.] They further indicated he had gone into his home
alone threatening to kill himself. The 911 caller also had the residence in view and had not
expressed any other person was present or in danger.”
4
Paragraph 5 of Plaintiffs’ Petition alleged that “At approximately 6:45 p.m., the deputies
were informed via radio that RICHARD JAMES, SR. had returned to his home and had made
statements to family members that he wanted to kill himself.”
3

Sgt. Penn then ran into the residence with Deputy Robeaux
behind him and Deputy Bell behind deputy Robeaux. Id. Sgt. Penn
rounded the corner of the dining room and entered the hallway. Id. Sgt.
Penn observed Mr. James lying face down on the hallway floor with the
revolver to the right side of his body. Id. Sgt. Penn moved the revolver
away from Mr. James with his foot so not to contaminate any evidence
on the revolver. Id.

Sgt. Penn then grabbed Mr. James by the hands and pulled him
to an open area of the hallway near the bathroom to start CPR. Sgt.
Penn and Deputy Robeaux continued CPR. Id. K-9 Deputy Trevor
Picard arrived on scene a few minutes later to assist with CPR. Id.
Deputies continued CPR until Acadian Ambulance medics arrived on
scene. Id. Mr. James was immediately moved to the ambulance where
he was taken to the Iberia Medical Center Emergency Room.

B. UNCONTESTED MATERIAL FACTS

Plaintiffs’ Petition makes clear, and it is uncontested, that on
March 12, 2014, Mr. James barricaded himself in a private residence.
See Exhs. 1, 2, 3, Plaintiffs’ Petition, at ¶ 16(p) and (q); see also
Deposition of Sgt. Penn, attached as Exhibit 5, at 20:2-3, 27:20-24.
Plaintiffs’ Petition makes clear, and it is uncontested that Mr. James
was, and the Defendants knew that Mr. James was armed with a
handgun and threatening suicide when he barricaded himself in a
private residence. Exhs. 1, 2, 3, Plaintiffs’ Petition at ¶¶ 4, 5; see also
the Temporary Restraining Order, attached as Exhibit 4. The
Temporary Restraining Order informed the Defendants that Mr. James
was psychotic, suicidal, suffered from hallucinations, and was off of his
medications. Exh. 4, p. 2.

Sgt. Penn was the Supervisor on scene. Exh. 5 at 21:7-8. He was
the first to arrive on scene. Id. at 14:11-12. Sgt. Penn was the one who
ultimately decided to enter the residence in which Mr. James had
barricaded himself. Id. at 33:6-10.

Upon first arriving at the residence, Sgt. Penn and Deputies
Robeaux and Bell knocked on the front door of the residence several
times, with no response from Mr. James. Exh. 5 at 15:1-15. Sgt. Penn
elected to take the key from the mailbox that had been left for Mr.
James’ daughter to care for the dog and open the front door. Id. at
15:11-16:2. After opening the door, the Defendants again attempted to
contact Mr. James, to no avail, at which time they pushed the door open
further. Id.

Once the door was open, Sgt. Penn called out for Mr. James two
more times, after which Mr. James appeared from behind a wall. Id. at
16:21-25. Mr. James was armed with a revolver, which was pointed at
his chest. Id. at 17:2-3. The situation evolved rapidly. Id. at 17:5-9.
Mr. James yelled out “if you want me out, you are going to have to
come get me out,” then ran away screaming and shot himself. Id.
4

Sgt. Penn entered the residence because he thought that Mr.
James may have hurt himself and wanted to respond to assist him. Id.
at 20:6-13. Sgt. Penn’s first “priority [was the] preservation of life.”
Id. at 30:13-24.

At the conclusion of a hearing held on November 30, 2018, the trial court

granted Defendants’ motion from the bench. A written judgment was signed on

January 11, 2019, granting Summary Judgment in favor of Defendants and

dismissing Plaintiffs’ claims against them with prejudice.

Plaintiffs appealed the judgment and are now before this court asserting that

the trial court erred in granting summary judgment in favor of Defendants because:

1) La.R.S. 46:2142 “does not provide immunity when officers are not exercising due

care;” 2) “La.R.S. 9:2798.1 does not provide immunity for acts or omissions which

constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless,

or flagrant misconduct;” 3) La.R.S. 9:2798.1 “does not provide immunity for acts or

omissions which are not reasonably related to the legitimate governmental objective

for which the policymaking or discretionary power exists;” and 4) “because a duty-

risk analysis shows Defendants to be liable for the death of Richard James, and

summary judgment cannot determine whether Defendants breached the duty they

owed.”

LAW

When reviewing a trial court’s judgment on a motion for
summary judgment, an appellate court employs the de novo standard of
review “using the same criteria that govern the trial court’s
consideration of whether summary judgment is appropriate, i.e.,
whether there is a genuine issue of material fact and whether the mover
is entitled to judgment as a matter of law.” Supreme Servs. & Specialty
Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d
634, 638. The burden of proof remains with the movant. La.Code
Civ.P. art. 966(C)(2). If the moving party, however, will not bear the
burden of proof at trial and shows that “factual support for one or more
elements essential to the adverse party’s claim, action, or defense” is
lacking then the non-moving party must produce “factual support
sufficient to establish that he will be able to satisfy his evidentiary
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burden of proof at trial[.]” Id. If the opponent of the motion fails to do
so, there is no genuine issue of material fact and summary judgment
will be granted. Id. The motion for summary judgment is granted “if
the pleadings, depositions, answers to interrogatories, and admissions,
together with the affidavits, if any, admitted for 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).

Leblanc v. Bouzon, 14-1041, pp. 2-3 (La.App. 3 Cir. 3/4/15), 159 So.3d 1144, 1146.

“Our inquiry is whether there is any dispute as to material facts, and, if not, is the

moving party entitled to judgment as a matter of law. Id.; La. C.C.P. art. 966(B)(2).”

Haab v. E. Bank Consol. Special Serv. Fire Prot. Dist. of Jefferson Par., 13-954, p.

4 (La.App. 5 Cir. 5/28/14), 139 So.3d 1174, 1178, writ denied, 14-1581 (La.

10/24/14), 151 So.3d 609.

Louisiana Revised Statutes 9:2798.1, titled “Policymaking or discretionary

acts or omissions of public entities or their officers or employees,” provides, in

pertinent part:

B. Liability shall not be imposed on public entities or their
officers or employees[5] based upon the exercise or performance or the
failure to exercise or perform their policymaking or discretionary acts
when such acts are within the course and scope of their lawful powers
and duties.

C. The provisions of Subsection B of this Section are not
applicable:

(1) To acts or omissions which are not reasonably related to the
legitimate governmental objective for which the policymaking or
discretionary power exists; or

(2) To acts or omissions which constitute criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct.

5
“As used in this Section, ‘public entity’ means and includes the state and any of its
branches, departments, offices, agencies, boards, commissions, instrumentalities, officers,
officials, employees, and political subdivisions and the departments, offices, agencies, boards,
commissions, instrumentalities, officers, officials, and employees of such political subdivisions.”
La.R.S. 9:2798.1(A).
6

The Temporary Restraining Order (TRO) Defendants served on James on the

evening of his death was obtained by his wife under the Protection from Family

Violence Act (The Family Violence Act). See La.R.S. 46:2135. It directed the IPSO

to evict James from 1014 East Pershing Street in New Iberia and it ordered James to

stay at least one hundred (100) yards away from that residence. The Family Violence

Act provides that “[i]f a law enforcement officer has reason to believe that a family

or household member . . . has been abused and the abusing party is in violation of a

temporary restraining order . . . issued pursuant to . . . [La.R.S.] 46:2131[-2143], the

officer shall immediately arrest the abusing party.” La.R.S. 46:2140. The Family

Violence Act further provides that:

Any law enforcement officer reporting in good faith, exercising
due care in the making of an arrest or providing assistance pursuant to
the provisions of [La.]R.S. 46:2140 and 2141 shall have immunity from
any civil liability that otherwise might be incurred or imposed because
of the report, arrest, or assistance provided.”

La.R.S. 46:2142.

DISCUSSION

Defendants’ motion for summary judgment was supported by five exhibits.

Those exhibits consisted of Incident Reports filed by Sgt. Penn, Dep. Robeaux, and

Dep. Bell; the deposition of Sgt. Penn; and a Temporary Restraining Order against

James obtained by his wife on March 12, 2014, ordering James to vacate and stay at

least 100 yards away from the residence located at 1014 East Pershing Street in New

Iberia. The following information was noted on the TRO:

IF NEED BE THE PETITIONER IS REQUESTING A COUPLE OF
TRIPS TO HER HOUSE ACCOMPANIED BY THE IBERIA
PARISH SHERIFF’S OFFICE IF THE COURT CHOOSES NOT TO
EVICT THE DEFENDANT. SHE IS DISABLE[D]. THE PETIONER
STATED THAT THE DEFENDANT THREATENS TO KILL HER,
HIMSELF OR ANYONE ELSE AROUND HIM DAILY. THE
DEFENDANT IS PSYCHOTIC AND EXPERIENCES
HALLUCINATIONS, BUT HE REFUSES TO STAY ON HIS DAILY

7

MEDICATION REGIMENTE THAT HIS PERSONAL DOCTOR
HAS ASSIGNED TO HIM.

Plaintiffs attached five exhibits to their opposition to Defendants’ motion,

three of which were the depositions of Sgt. Penn, Dep. Robeaux, and Dep. Bell. The

fourth exhibit was a report written by Andrew Scott, III, whom classified himself as

an expert in Police Practices and Procedures, wherein he opined that:

The actions of Sergeant Penn, Deputy Robeaux and Deputy Bell
contributed to the death of Mr. James, Sr. by failing to adhere to Iberia
Parish Sheriff’s Office Procedural Orders and generally accepted police
practices and procedures dealing with mentally ill citizens when they
forced their way into the premises where Mr. James, Sr. was located.

The items of evidence Mr. Scott reviewed in formulating his opinion regarding the

facts submitted to him were listed in his report, as well as in an affidavit he executed,

which Plaintiffs filed as an additional exhibit.

At the start of the hearing on Defendants’ motion, the trial court explained

that it had read, and was familiar with, the evidence filed in support of and in

opposition to the matter before it. After entertaining the arguments of counsel, the

trial court granted Defendants’ motion from the bench, issuing the following oral

ruling:

[T]he first ground for Summary Judgment was pursuant to
Louisiana Revised Statutes 9:2798.1, which basically grants immunity
to folks such as the deputies when they are in the performance of the
course and scope of their employment, which I think is not disputed,
and perform policy-making, or discretionary acts, which is kind of the
argument that the attorney for the Defendants is making, that obviously
when faced with the circumstances that the deputies in question were
faced with, they have the discretion to — you know, what path of
conduct they are going to take.

The Plaintiff points out that pursuant to a local manual, the
Sheriff s manual on circumstances that he argues are similar to this,
they should have done A, B C, so they violated a policy.

The attorney for the Defendants point[s] out that those policies,
although, you know, present and may or may not have been violated, I
don’t think is not really a dispute. I think there is some
acknowledgment through the depositions, and specifically of Mr. Penn
8

that I reviewed, there may have been some, you know, not strict
adherence to the local policy, but that is not what is controlling. The
duty imposed by the law that applies to this situation, in essence, state
law, and not a local administrative policy. That being the predominant,
or overlying restrictor of conduct, it was a discretionary act by an
officer in the course and scope of his employment, therefore immunity
should render — Excuse me — the provisions of Louisiana Revised
Statutes 9:2798.1 should apply in this particular case. I do find that that
is the case in this matter and I’ll grant Summary Judgment based upon
the Court’s finding that 9:2798.1 is applicable to this matter.

Based upon that ruling, the Court does not render any opinion as
to immunity 46:2142, or any opinion as to the alternate duty-risk
analysis that was gone through by the Defendant. I find that under
42:2142, the immunity provision of the protective order, or temporary
restraining order statute, basically has an incorporation of the same
analysis.

Immunity under La.R.S. 46:2142

The undisputed facts show that James’ wife sought relief under the Family

Violence Act because her husband was “PSYCHOTIC AND EXPERIENCES

HALLUCINATIONS BUT HE REFUSES TO STAY ON HIS DAILY

MEDICATION REGIMENTE THAT HIS PERSONAL DOCTOR HAS

ASSIGNED TO HIM.” Defendants served James with the TRO evicting him from

the residence that he shared with his wife at 6:15pm on March 12, 2014. In

conjunction with his eviction, Sgt. Penn inquired about whether someone would be

able to care for James’ dog. James told Sgt. Penn that his daughter could possibly

do so, so Sgt. Penn called James’ daughter to let her know about James’ eviction and

Sgt. Penn told her that he would put a key to the residence in the mailbox. At

approximately 6:44pm, which was about twenty to thirty minutes after Defendants

left the James’s residence, someone called 911 to report that James, whom they

described as “suicidal and emotionally distraught (crying),” had returned to the

residence. Defendants received a radio call that James “had returned to his home

and had made statements to family members that he wanted to kill himself,” and

they promptly returned to the James’s residence.
9

Under the undisputed facts of this case, we conclude that Defendants’ actions

upon their quick return to the James’s residence were rendered “in good faith” and

that Defendants were “exercising due care in . . . providing assistance” in

conjunction with the eviction that they had performed pursuant to the Family

Violence Act less than one hour before. La.R.S. 46:2142. In addition, the

depositions of Sgt. Penn, Dep. Robeaux, and Dep. Bell lead us to find that they

collectively acted in a manner that was professional, courteous, and compassionate,

seeking not to arrest James, as claimed by Plaintiffs in their briefs to this court, but

to prevent any loss of life to James or anyone else. Thus, Defendants are “immune

from any civil liability that otherwise might be incurred or imposed because of

the . . . assistance provided.” La.R.S. 46:2142. Moreover, unlike the provisions

found in La.R.S. 9:2798.1 that restrict the limited immunity granted therein to “the

exercise or performance or the failure to exercise or perform their policymaking or

discretionary acts,” with the exception of “acts or omissions which are not

reasonably related to the legitimate governmental objective for which the

policymaking or discretionary power exists; or . . . acts or omissions which constitute

criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant

misconduct[,]” the immunity found in La.R.S. 46:2142 need only be exercised “in

good faith” and with “due care.” Accordingly, we hold that, under the specific facts

of this case, the immunity based upon the application of La.R.S. 46:2142 is not lost

or waived by Defendants’ admitted failure to follow IPSO guidelines regarding

barricaded subjects.

Defendants met their burden of proving that they were entitled to judgment as

a matter of law finding that they are entitled to the protection of immunity found in

the Family Violence Act. Plaintiff’s first assigned error lacks merit. Thus, the trial

court did not err in granting summary judgment in favor of Defendants and
10

dismissing the Plaintiffs’ suit against them with prejudice. Because we have

determined that Defendants were entitled to summary judgment based on the

immunity afforded in La.R.S. 46:2142, we need not address Plaintiffs’ remaining

assignments of error.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of

Defendants, Iberia Parish Sheriff Louis M. Ackal, Iberia Parish Sheriff’s Office

Sergeant Stoney Penn, Deputy Jordan Robeaux, and Deputy Eric Bell, and against

Plaintiffs, Mary James, Richard James, Jr., and Sheryl Theodile, is affirmed. All

costs of this appeal are assessed against Plaintiffs.

AFFIRMED.

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