Shorts et al v. St. Charles Parish Sheriff's Office et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RODRIC JUAVON SHORTS, #556968

CIVIL ACTION
VERSUS

NO. 24-2759
ST. CHARLES PARISH SHERIFF’S OFFICE,
ET AL.
SECTION: “G”(3)

REPORT AND RECOMMENDATION
Plaintiff, Rodric Juavon Shorts, a state prisoner, filed this pro se and in forma
pauperis complaint pursuant to 42 U.S.C. § 1983 against St. Charles Parish Sheriff’s
Office, St. Charles Parish Hospital, Judge Lauren Lemmon, and Detectives
1
Paul
Quick, Harold Kingsmill, Allan Tobora, Kenneth Latour, Barrett Pearse, Philip
Ibbitson, Erin Flynn, Christopher Waguespack, Anthony Wetta, Ginger Blange,
Angelica Dunlap, Jody Fahrig, David Kilday. Having considered the record, including
Shorts’s complaint, Spears hearing testimony, and the applicable law, the
undersigned enters the following findings and recommendations.
I. Background
Plaintiff Shorts is an inmate at Morehouse Detention Center. In his complaint,
Shorts broadly claims that defendants Detectives Quick, Kingsmill, Tabora, Latour,
Pearse, Ibbitson, Flynn, Waguespack, Wetta, Blange, Dunlap, Fahrig and Kilday

1
Shorts claims that each of these defendants is a detective employed by the St.
Charles Parish Sheriff’s Office. R. Doc. 4 at 5–6. The police report provided by Shorts
related to his arrest lists defendants Blange, Dumlap, Fahrig, and Kilday as
employees of St. Charles Emergency Medical Services. R. Doc. 17 at 9.
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2

falsely arrested him for crimes he did not commit.
2
He further claims that the
detective defendants used excessive force in effectuating his arrest and also illegally
searched his vehicle and home.
3
He claims that Detectives Quick, Kingsmill, Tabora
and Latour threatened and harassed him when they interrogated him at the
hospital.
4
He also alleges that Judge Lemmon issued a false warrant for his arrest.
5

Shorts alleges that St. Charles Parish Hospital failed to give him adequate medical
care.
6
Shorts seeks a declaratory judgment as well as monetary damages.
7

A. Factual Allegations in the Complaint
Shorts alleges the following facts relative to his arrest on or about December
12, 2023.
8
On that date, law enforcement stopped a vehicle in which Shorts was a
passenger. Shorts remained in the vehicle with the doors locked because he thought
it was a traffic stop.
9
Shorts heard someone on a loud speaker direct him to exit the
vehicle.
10
When he did so, multiple detectives were pointing assault rifles at him, and
Detective Quick was “hollering vague commands.”
11
He appears to claim that the
brandishing of assault rifles was excessive force.
12

2
R. Doc. 4 at 2, 5–6, 8, 13.
3
Id. at 7–12.
4
Id. at 12.
5
Id. at 12–13.
6
Id. at 13.
7
Id. at 14.
8
Id. at 7, 13.
9
Id. at 7.
10
Id.
11
Id. at 7–8.
12
Id. at 8.
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3

In compliance with the defendants’ commands, Short knelt, raised his shirt,
and then laid on the ground.
13
Two unnamed detectives grabbed his arms and
handcuffed him tightly. Shorts felt like his shoulder was dislocated, and his arms
and hands felt numb.
14
He was then picked up off the ground and slammed on an
unmarked police vehicle.
15

Detectives repeatedly threatened Shorts and hit him while t hey conducted a
search incident to his arrest.
16
When nothing was found, Detective Quick said that
they had a warrant to go into the house and asked Shorts if he had the house keys
and whether the door was open.
17
Shorts shook his head side to side in response to
Detective Quick’s questions.
18
Shorts was not shown a search warrant. An unnamed
detective approached the rear of the house with a battering ram and said, “that’s ok,
I got something.”
19
A detective yelled that the door was open.
20
At that point, some
detectives surrounded the residence with assault rifles drawn; other detectives had
their assault rifles pointed at Shorts and the driver of the vehicle.
21

As the detectives entered the house, Shorts was told to walk down the street
to an unmarked vehicle.
22
He took a few steps, but then was dragged down the street

13
Id.
14
Id. at 9.
15
Id.
16
Id.
17
Id.
18
Id.
19
Id. at 9–10.
20
Id. at 10.
21
Id.
22
Id.
Case 2:24-cv-02759-EJD Document 18 Filed 03/27/25 Page 3 of 24

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and slammed on the hood of a vehicle.
23
Shorts claims he was repeatedly slammed on
the hood and felt fists, elbows, knees, and boots hitting him and that “unclear threats”
were yelled at him.
24
He then heard an unnamed detective yell, “Somebody give me
your pepper spray, I’m going to spray it in his nose.”
25

Shorts’s head was slammed on the hood of the car. Someone punched him in
the back of the head and the right side of his face. His head was jerked causing a
whiplash effect.
26
An unidentified detective sprayed pepper spray in his eyes and
nose until the can was empty, which caused Shorts to vomit.
27
He then screamed for
help.
28

Multiple unidentified detectives walked Shorts around the vehicle and threw
him inside, causing the right side of his face to hit the floor and his head to hit
something.
29
They then slammed the vehicle door shut.
30
Minutes later, Shorts was
pulled out of the vehicle and sprayed with a hose, worsening the effects of the pepper
spray.
31
Shorts asked for an ambulance for fifteen to twenty minutes and drifted in
and out of consciousness with a K-9 unit dog in his face.
32

23
Id.
24
Id. at 11.
25
Id.
26
Id.
27
Id.
28
Id.
29
Id. at 11–12.
30
Id. at 12.
31
Id.
32
Id.
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5

An ambulance took Shorts to St. Charles Parish Hospital. There, he was
threatened and harassed during an interrogation by Detectives Quick, Kingsmill,
Tabora and Latour.
33
Shorts claims that Judge Lemmon improperly issued an arrest
warrant at some point.
34

Shorts was admitted to the hospital because he was at risk of a heart attack or
stroke due to lack of oxygen.
35
The hospital staff were deliberately indifferent to his
medical needs when he was discharged on December 13, 2023, despite his continued
complaints of pain.
36
He was not given any discharge instructions or medication.
37

Shorts had four eye surgeries because of his injuries and now wears prescribed
glasses.
38
Shorts claims that St. Charles Parish Sheriff’s Office “allowed this
negligence and breach of duty by their employees without stopping them even
falsifying warrants getting signed by the Judge leading up to false arrest and
wrongful conviction.”
39

B. Spears Hearing Testimony
On February 21, 2025, this C ourt held a Spears hearing in this case. See Spears
v. McCotter, 766 F.2d 179 (5th Cir. 1985). “[T]he Spears procedure affords the plaintiff
an opportunity to verbalize his complaints, in a manner of communication more
comfortable to many prisoners.” Davis v. Scott, 157 F.3d 1003, 1005–06 (5th Cir.

33
Id.
34
Id. at 12–13.
35
Id. at 13.
36
Id.
37
Id.
38
Id.
39
Id.
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6

1998). The United States Fifth Circuit Court of Appeals has observed that a Spears
hearing is in the nature of a Fed. R. Civ. P. 12(e) motion for more definite statement.
Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). Spears hearing testimony becomes a
part of the total filing by the pro se applicant. Id.
At the hearing, Shorts admitted that he was originally charged with: (1)
possession with intent to distribute hydrocodone; (2) possession with intent to
distribute crack cocaine; (3) illegal carrying of weapon in presence of a controlled
dangerous substance; (4) possession of firearm/carry concealed weapon by convicted
felon; (5) possession of marijuana; (6) obstruction of justice -
destruction/damage/vandalism; (7) possession or distribution of drug paraphernalia;
(8) sale, distribution or possession of legend drug without prescription or order
prohibited; and (9) resisting an officer.
The Court questioned Shorts about the alleged actions or inactions of each
individual detective defendant. Shorts testified that all of the defendant detectives
were at the scene when he was falsely arrested. He specifically testified that Detective
Quick sprayed pepper spray in his face. He testified that Detectives Quick, Kingsmill,
Tabora, Pearse, and Ibbitson hit and “slammed” him and dragged him down the
street. Shorts testified Detective Latour used a water hose to spray the pepper spray
off him, worsening his condition. He was unsure whether Latour used any other force
against him. He testified that Detective Waguespack also may have dragged him
down the street. He additionally testified that Detectives Pearse, Ibbitson, and Flynn
had brandished firearms in his face despite his compliance.
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Shorts testified that Detectives Flynn, Waguespack, Wetta, Blange, Dunlap,
Fahrig and Kilday performed an illegal search of the vehicle and of the residence and
illegally seized evidence.
40
He testified these defendants also falsified the police
report.
Shorts admitted that on September 26, 2024, he pleaded guilty to attempted
possession of a firearm or carrying a concealed weapon by a convicted felon,
attempted illegal carry of weapons while in possession of a controlled dangerous
substance, and possession of hydrocodone with the intent to distribute. He was
unsure regarding the disposition of the charge for resisting an officer. The remaining
felony charges were dismissed.
After the conclusion of the hearing, the Court ordered Shorts to provide it with
a copy of the police report related to his arrest.
41
The St. Charles Parish Sheriff’s
Office submitted records concerning Shorts’s state criminal proceedings, including
the arrest warrant and affidavit in support, the waiver of Shorts’s constitutional
rights, the guilty plea and sentence, and the uniform sentencing commitment order.
42

Shorts filed a copy of his guilty plea and sentence, as well as pages from the police
report related to his arrest.
43

40
Shorts recalled that Detective Wetta was involved in the crime scene investigation
and took pictures and collected evidence.
41
R. Doc. 13.
42
R. Docs. 13, 13-1, 13-2, and 13-3.
43
R. Doc. 17.
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8

II. Screening Standards
“There is no absolute right to be allowed to proceed in forma pauperis in civil
matters; rather it is a privilege extended to those unable to pay filing fees when the
action is not frivolous or malicious.” Startti v. United States, 415 F.2d 1115, 1116 (5th
Cir. 1969). Section 1915(e)(2) thus directs, in relevant part, that courts “shall dismiss
[an in forma pauperis plaintiff’s] case at any time” if the plaintiff’s complaint fails to
state a claim upon which relief may be granted or is determined to be frivolous. 28
U.S.C. 1915(e)(2).
In addition, because Shorts is incarcerated, screening is also required by 28
U.S.C. § 1915A. That statute mandates that federal courts “review, before docketing,
if feasible or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. § 1915A(a).
44
Regarding such lawsuits,
the statute similarly provides:
On review, the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint –

(1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or

(2) seeks monetary relief from a defendant who is immune from such
relief.

28 U.S.C. § 1915A(b).

44
“As used in this section, the term ‘prisoner’ means any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(c).
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A complaint is frivolous “if it lacks an arguable basis in law or fact.” Berry v.
Brady, 192 F.3d 504, 507 (5th Cir. 1999). This standard, “when applied to a
complaint, embraces not only the inarguable legal conclusion, but also the fanciful
factual allegation.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
45
A complaint fails
to state a claim upon which relief may be granted when it lacks sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Rogers
v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)).
II. Analysis
Shorts filed this action under 42 U.S.C. § 1983. In pertinent part, that statute
provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress ....

42 U.S.C. § 1983. Accordingly, “[t]o state a claim under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

45
Nietzke discusses a prior version of Section 1915 in which the analogous dismissal
provisions were located at 28 U.S.C. § 1915(d).
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10

Broadly construing Shorts’s complaint
46
and fully considering his Spears
testimony, the Court finds that he is asserting claims against the detectives for false
arrest for crimes he did not commit, illegal search and seizure, falsification of police
reports, and excessive force. He further asserts that the St. Charles Parish Hospital
denied him adequate medical care. He also asserts that Judge Lemmon issued a false
warrant for his arrest.
A. St. Charles Parish Sheriff’s Office
Shorts named St. Charles Parish Sheriff’s Office as a defendant.
47
St. Charles
Parish Sheriff’s Office is not a proper defendant, however, because it lacks capacity
to sue or be sued as required by Rule 17(b) of the Federal Rules of Civil Procedure
and state law. An entity’s capacity to be sued must be determined by reference to the
law of the state in which the district court sits. Fed. R. Civ. P. 17(b). To possess such
a capacity under Louisiana law, an entity must qualify as a “juridical person,” which
is defined by the Louisiana Civil Code as “an entity to which the law attributes
personality, such as a corporation or partnership.” La. Civ. Code art. 24. The State of
Louisiana grants no such legal status to any Parish Sheriff’s Office. Liberty Mutual
Insurance Co. v. Grant Parish Sheriff’s Department, 350 So. 2d 236, 238–39 (La. App.
3d Cir.), writ refused, 352 So.2d 235 (La. 1977). Thus, the St. Charles Parish Sheriff’s
Office is not a juridical person capable of being sued under § 1983. Cozzo v.
Tangipahoa Parish Council-President Government, 279 F.3d 273, 283 (5th Cir.2002)

46
The court must liberally construe a pro se civil rights complaint. See Moore v.
McDonald, 30 F.3d 616, 620 (5th Cir.1994).
47
R. Doc. 4 at 1–2, 5.
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(“ [A] sheriff’s office is not a legal entity capable of being sued....”). Thus, Shorts’s
claims against St. Charles Parish Sheriff’s Office should be dismissed as frivolous.
B. St. Charles Parish Hospital
Shorts also named the St. Charles Parish Hospital as a defendant to this
action.
48
The hospital is owned by Hospital Service District No. 1 of St. Charles
Parish, a political subdivision of the State of Louisiana. Center for Restorative Breast
Surgery, L.L.C. v. Blue Cross Blue Shield of Louisiana, No. 11- 806, 2016 WL 9439243,
at *4 (citing La. Rev. Stat. § 46.1072(2)(a)). Political subdivisions of a state, however,
as well any subdivision’s officials acting in their official capacity, are not considered
to be “persons” within the meaning of § 1983. Will v. Michigan Dept. of State Police,
491 U.S. 58 (1989). In addition, the Eleventh Amendment bars citizens’ suits in
federal court against states, their alter egos, and state officials acting in their official
capacity. Champagne v. Jefferson Parish Sheriff’s Office, 188 F.3d 312, 313–14 (5th
Cir. 1999) (citing Voisin’s Oyster House v. Guidry, 799 F.2d 183, 185 (5th Cir. 1986));
see Darlak v. Bobear, 814 F.2d 1055, 1059 (5th Cir. 1987) (The Eleventh Amendment
bars suits in federal court for money damages and injunctive relief filed by citizens of
a state against their own state or state agency); Will, 491 U.S. at 70 (states and “arms
of the state” are not “persons” under Section 1983). Therefore, Shorts’s claims against
St. Charles Parish Hospital also should be dismissed.

48
R. Doc. 4 at 1-2, 5, 12-13.
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C. Official Capacity Claims Against the Detectives
Shorts did not indicate whether he has named the defendants in an individual
capacity or an official capacity. To the extent Shorts may have intended to seek relief
against the defendant detectives in an official capacity, his claims are frivolous.
“Official-capacity suits may be brought only against an official acting as a
policymaker, such that his decisions represent the official policy of the local
government unit.” Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 750 (5th Cir. 2023).
Here, Shorts does not allege that any of the defendant detectives have any policy-
making authority. That is a fundamental flaw in any official-capacity claim against
them. See Kimble v. Jefferson Par. Sheriff’s Office, No. 22-30078, 2023 WL 1793876,
at *3 (5th Cir. Feb. 7, 2023).
49

Shorts was provided an opportunity to state his best case as allowed by Spears.
See Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991). Without some suggestion
from Shorts that a policy decision by the detective defendants was a cause of his
alleged deprivation, he has not stated a basis to hold any of the detective defendants
liable in their official capacity.
Accordingly, any official-capacity claims asserted against the defendant
detectives should be dismissed for failure to state a claim.

49
Nor has Shorts identified any St. Charles Parish policy that led to a constitutional
violation during his arrest.
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D. Individual Capacity Claims Against Detectives
Shorts has also asserted a number of individual capacity claims against
Detectives Quick, Kingsmil, Tobora, Latour, Pearse, Ibbitson, Flynn, Waguespack,
Wetta, Blange, Dunlap, Fahrig and Kilday. Those claims are addressed below.
1. False Arrest, Illegal Search and Seizure, False Police Report
For the following reasons, Heck v. Humphrey, 512 U.S. 477 (1994), currently
bars Shorts’s claims of false arrest, illegal search and seizure and falsification of the
police report. Claims barred by Heck are considered to be “frivolous” such that they
are subject to dismissal at the screening stage. See Hamilton v. Lyons, 74 F.3d 99,
102 (5th Cir. 1996); see also Anderson v. Galveston County District Clerk, 91 F. App’x
925 (5th Cir. 2004).
In Heck, the United States Supreme Court stated:
We hold that, in order to recover damages for allegedly unconstitutional
conviction or 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. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable
under § 1983. Thus, when a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already
been invalidated.

Heck, 512 U.S. at 486–87 (emphasis and footnote omitted). Heck has been extended
to bar claims for declaratory and injunctive relief. See, e.g., Walton v. Parish of
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LaSalle, 258 F. App’x 633, 633–34 (5th Cir.2007); Collins v. Ainsworth, 177 F. App’x
377, 379 (5th Cir.2005); Shaw v. Harris, 116 F. App’x 499, 500 (5th Cir.2004).
Thus, Heck bars a false arrest claim brought by a convicted prisoner until such
time as he obtains a favorable disposition of the underlying criminal charges for
which he was arrested. See Wallace v. Kato, 549 U.S. 384, 394 (2007); Queen v. Purser,
109 F. App’x 659, 660 (5th Cir. 2004).
As indicated, at the Spears hearing, Shorts confirmed that he pleaded guilty to
attempted possession or carrying a concealed weapon by a convicted felon, attempted
illegal carry of weapons while in possession of a controlled dangerous substance, and
possession of hydrocodone with the intent to distribute. Any allegations to the
contrary at this point are in direct conflict with the factual basis of his guilty plea.
Thus, a finding in Shorts’s favor relative to an alleged “false arrest” would necessarily
imply the invalidity of his resulting convictions in state court. Therefore, Heck clearly
bars his false arrest claims until such time as he obtains a favorable disposition on
all of the underlying criminal charges for which he was arrested. See Walter v.
Horseshoe Entertainment, 483 F. App’x 884, 887 (5th Cir.2012) (“In order to support
a claim for unlawful arrest, a plaintiff must show that he was arrested without
probable cause. Here, the plaintiffs were arrested for crimes of which they were
ultimately convicted. Heck therefore bars recovery for the false arrest claim, because
the conviction necessarily implies that there was probable cause for the arrest.”
(citation omitted)); see also Thomas v. Pohlmann, 691 F. App’x 401, 406 (5th Cir.
2017) (“Given that Plaintiffs ultimately pleaded guilty to all the charges for which
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15

they were arrested, allowing them to proceed on their false arrest claim would
necessarily implicate the validity of their convictions because the same conduct that
formed the probable cause for their arrest also provided the basis for their
convictions.”).
Heck likewise bars Shorts’s related illegal search and seizure claims as a
finding in his favor would necessarily imply the invalidity of his convictions which
resulted, in least in part, from the same search and seizure. See Cougle v. County of
DeSoto, Mississippi, 303 F. App’x 164, 165 (5th Cir .2008). The same is true of his
claims alleging falsification of the police report. See Kahoe v. Laborde, No. 22-3111,
2023 WL 3025083, at *1–2 (E.D. La. March 2, 2023), adopted, 2023 WL 2570141 (E.D.
La. March 20, 2023); Brignac v. Smith, No. 15-4907, 2016 WL 3033543, at *3 (E.D.
La. Jan. 14, 2016) (“The strictures of Heck apply with equal force to the allegations
that Plaintiff makes against Deputies Smith and Stoltz in the ‘Falsifying Police
Reports’ portion of his complaint....”), adopted, 2016 WL 3020855 (E.D. La. May 26,
2016).
As a result, Heck currently bars Shorts’s claims of false arrest, illegal search
and seizure, and falsification of the police report against Detectives Quick, Kingsmill,
Tobora, Latour, Pearse, Ibbitson, Flynn, Waguespack, Wetta, Blange, Dunlap, Fahrig
and Kilday. Those claims should be dismissed with prejudice to being asserted again
until the Heck conditions are met.

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2. Interrogation
Shorts alleges that defendants Quick, Kingsmill, Tabora and Latour orally
harassed and threated him during his hospital interrogation. At the Spears hearing,
Shorts testified that they failed to give him his Miranda warning, did not allow him
to have an attorney present, and questioned him while he was on medication.
To the extent that Shorts is claiming that the interrogation violated Miranda
or otherwise violated his right against self-incrimination, his claim is barred by Heck.
Conlan v. King, 682 F. App’x 345, 345 (5th Cir. 2017) (per curiam); Bickham v. Blair,
228 F.3d 408, 2000 WL 1056096, at *1 (5th Cir. July 17, 2000). As such, that claim
against defendants Quick, Kingsmill, Tabora and Latour should be dismissed with
prejudice to being asserted again until the Heck conditions are met.
Shorts’s claims based on alleged verbal abuse or threats during the
interrogation are meritless and must also be dismissed. See, e.g., Robertson v. Plano
City, 70 F.3d 21, 24 (5th Cir. 1995) (internal quotation marks, alteration, and citation
omitted) (providing that “our circuit has recognized as a general rule that mere
threatening language and gestures of a custodial officer do not, even if true, amount
to constitutional violations”); Rader v. Lubbock Cnty., No. 5:01-CV-258-C, 2003 WL
21145788, at *13 (N.D. Tex. Apr. 25, 2003) (dismissing prisoner’s claim that
defendant verbally taunted and threatened him because mere threats do not rise to
the level of a constitutional violation). Verbal threats, abusive language, or other
harassment, “while unprofessional and inexcusable, are simply not sufficient to state
a constitutional claim under 42 U.S.C. § 1983.” Johns v. Miller, No. 05-2489, 2005
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17

WL 3592248, at *7 (E.D. La. Oct. 26, 2005) (quoting Slagel v. Shell Oil Refinery, 811
F. Supp. 378, 382 (C.D. Ill. 1993), aff’d, 23 F.3d 410 (7th Cir. 1994)); see Collins v.
Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (per curiam) (holding that a sheriff’s threat
to hang a prisoner did not constitute an actionable claim under § 1983).
Shorts does not have a constitutional right to be free from verbal harassment.
Lamar v. Steele, 698 F.2d 1286, 1286 (5th Cir. 1983) (per curiam) (“Threats alone are
not enough. A section 1983 claim only accrues when the threats or threatening
conduct result in a constitutional deprivation.”). Thus, his claims against Detectives
Quick, Kingsmill, Tabora and Latour relating to the interrogation at the hospital
should be dismissed with prejudice.
3. Excessive Force
Shorts claims that defendant detectives used excessive force in effectuating his
arrest. When a plaintiff alleges excessive force during an arrest, “the federal right at
issue is the Fourth Amendment right against unreasonable seizures.” Tolan v.
Cotton, 572 U.S. 650, 656 (2014) (citation omitted). “[A]ll claims that law enforcement
officers have used excessive force - deadly or not - in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the
Fourth Amendment and its ‘reasonableness’ standard, rather than under a
‘substantive due process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989)
(emphasis in original).
Unlike for false arrest claims, Heck does not operate as a per se bar on
excessive force claims. See Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008). In Bush ̧
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18

the Fifth Circuit explained, “Although the Heck principle applies to § 1983 excessive
force claims, the determination of whether such claims are barred is analytical and
fact-intensive, requiring [the Court] to focus on whether success on the excessive force
claim requires negation of an element of the criminal offense or proof of a fact that is
inherently inconsistent with one underlying the criminal conviction.” Bush, 513 F.3d
at 497. Stated differently, the Court should determine whether the excessive force
claim is “conceptually different from his conviction ... such that ‘a successful suit on
the former would not necessarily imply the invalidity of the latter.’ ” Ballard v.
Burton, 444 F.3d 391, 400 (5th Cir. 2006) (citation omitted).
For example, if the factual basis for a plaintiff’s excessive force claim is
“temporally and conceptually distinct” from the facts underlying the crime charged,
the claim would not be barred by Heck, and a stay would not be required. Bush. 513
F.3d at 498. On the other hand, “when there is no temporal and conceptual distinction
between the factual basis for the conviction and the excessive force claim, that is,
when the complained of use of force is applied during or simultaneously with the
arrest, Heck applies.” Price v. City of Rayne, No. 13-0790, 2016 WL 866945, at *3
(W.D. La. March 3, 2016) (citations omitted).
At this time, there is no evidence that Shorts was convicted of resisting arrest.
As noted, Shorts pleaded guilty to and was convicted of attempted possession of a
firearm or carrying a concealed weapon by a convicted felon, attempted illegal carry
of weapons while in possession of a controlled dangerous substance and possession of
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hydrocodone with the intent to distribute.
50
A judgment in favor of Shorts on his
excessive force claims would not necessarily invalidate these convictions and,
therefore, his excessive force claims are not precluded by Heck. Lewis v. Huval, No.
6:16-CV-01280, 2020 WL 2544811, at *3–4 (W.D. La. May 4, 2020), adopted, 2020 WL
2551032 (W.D. La. May 19, 2020).
To prevail on an excessive force claim, a plaintiff must show “(1) an injury (2)
which resulted directly and only from the use of force that was clearly excessive to
the need and (3) the force used was objectively unreasonable.” Orr v. Copeland, 844
F.3d 484, 492 (5th Cir. 2016). “The test used to determine whether a use of force was
reasonable under the Fourth Amendment is not capable of precise definition or
mechanical application.” Trammel v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017)
(internal quotation marks omitted). “Rather, its proper application requires careful
attention to the facts and circumstances of each particular case, including (1) the
severity of the crime at issue, (2) whether the suspect poses an immediate threat to
the safety of the officers or others, and (3) whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. “Officers may consider a suspect’s refusal to
comply with instructions ... in assessing whether physical force is needed to effectuate
the suspect’s compliance. However, officers must assess not only the need for force,
but also the relationship between the need and the amount of force used.” Id.
Accepting Shorts’s asserted facts as true, as the Court must do at this stage,
he alleges that Detective Quick sprayed him with a chemical agent without need or

50
R. Doc. 13-1 at 1–2; R. Doc. 13-2 at 1.
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provocation. He further alleges that Detective Quick along with Detectives Kingsmill,
Tabora, Pearse, and Ibbitson hit and “slammed” on various parts of his body and
dragged him down the street. He believed that Detective Waguespack also dragged
him down the street. He believed Detective Latour may have sprayed water on him,
worsening the effects of the pepper spray, and also may have used other force against
him. Shorts alleges that the injuries to him as a result of the alleged excessive force
used by these detectives required him to undergo four eye surgeries. At this time, the
Court must take as true Shorts’s allegations. Thus, his claims of excessive force
against defendants Detectives Quick, Kingsmill, Latour, Tabora, Pearse, Ibbitson
and Waguespack should be allowed to proceed forward for further proceedings.
Shorts, however, has not stated a claim of excessive force against defendants
Flynn, Wetta, Blange, Dunlap, Fahrig and Kilday. Personal involvement is an
essential element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381,
382 (5th Cir.1983). Furthermore, “[a] plaintiff alleging an excessive force violation
must show that she has suffered ‘at least some injury.’” Flores v. City of Palacios, 381
F.3d 391, 397 (5th Cir. 2004) (citing Jackson v. R.E. Culbertson, 984 F.2d 699, 700
(5th Cir. 1993)).
Shorts merely listed these defendants in his complaint and stated that they
were on the scene at the time of his arrest.
51
Even after an opportunity to plead his
best case at the Spears hearing, when questioned regarding what action he claims
each defendant took, Shorts testified that Detective Flynn had his gun pointed at him

51
R. Doc. 4 at 2, 6, 8.
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during the arrest and illegally searched the vehicle and house. Notably, he did not
testify that Detective Wetta, Blange, Dunlap, Fahrig and Kilday were involved in
effectuating his arrest. Rather, he claimed that those defendants illegally searched
the house and vehicle and illegally seized evidence and falsified the police report.
Here, Shorts has not alleged that he suffered an injury as a result of Detective
Flynn pointing a gun at him. As a result, he fails to state a claim of excessive force
against defendant Flynn. Additionally, his failure to set forth any facts to suggest
that defendants Wetta, Blange, Dunlap, Fahrig and Kilday were personally involved
in his physical apprehension precludes his efforts to state a claim against them for
excessive force.
For these reasons: (1) any claim of excessive force against defendants Flynn,
Wetta, Blange, Dunlap, Fahrig and Kilday should be dismissed, and (2) Shorts’s
claims of excessive force against defendants Quick, Kingsmill, Latour, Tabora, Pearce
and Ibbitson, and Waguespack should be allowed to proceed and should remain
referred to the undersigned Magistrate Judge.
E. Judge Lauren Lemmon
Shorts has sued Judge Lemmon in her role as the judge who issued an arrest
warrant for him.
52
“ But a suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the official's office.” Will v.
Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); see also Boyd v. Lasher, No.
09-7645, 2010 WL 677663, at *2 (E.D. La. Feb. 24, 2010) (explaining that a judge is a

52
R. Doc. 4 at 1-2, 5, 12-13; see R. Doc. 13-3 at 1–6.
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state official and that state officials acting in an official capacity are not considered
to be “persons” within the meaning of § 1983). As a state court judge, any judgment
against Judge Lemmon in her official capacity would be satisfied out of the state
treasury, rendering the State liable for any alleged wrongs. La. Stat. Ann. §
13:5108.1; see also Voisin’s Oyster House, Inc., 799 F.2d at 188. Thus, the claims
against Judge Lemmon in an official capacity are considered claims against the State
of Louisiana itself, and are barred by the Eleventh Amendment. Wallace v. Texas
Tech Univ., 80 F.3d 1042, 1047 n. 3 (5th Cir. 1996).
53

Absolute judicial immunity bars any claim against Judge Lemmon in her
individual capacity. Immunity applies to a judge acting in her authority as a
presiding officer, regardless of whether the judge’s actions were erroneous, malicious,
or in excess of her authority. Mays v. Sudderth, 97 F.3d 107, 111 (5th Cir. 1996)). “A
judge’s immunity is overcome only for actions not taken in the judge’s judicial
capacity or for actions taken in complete absence of all jurisdiction.” Id. (citing Boyd
v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994)). Shorts’s claim against Judge Lemmon
involves an action taken in her judicial capacity, and he has not urged the action that
was nonjudicial in nature. Instead, the claim against Judge Lemmon involves a
challenge to the Judge’s issuance of an arrest warrant. As such, Shorts has failed to

53
The State of Louisiana has not waived its sovereign immunity or consented to the
exercise of federal judicial power in civil actions against it. La. Stat. Ann. §
13:5106(A); La. Const. art. I, § 26; Harris v. La. Office of Juvenile Justice, No. 18-
13356, 2019 WL 2617175, at *4 (E.D. La. June 26, 2019) (citing, inter alia, Holliday
v. Bd. of Sup’rs of LSU Agr. & Mech. Coll., 149 So. 3d 227, 229 (La. 2014)).
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state a plausible claim for relief against Judge Lemmon in her individual capacity
that would overcome the Judge’s absolute immunity from suit.
For these reasons, Shorts’s claim against Judge Lemmon, whether in her
official or individual capacity, is frivolous, seeks relief against an immune defendant,
or otherwise fails to state a claim for which relief can be granted, and should be
dismissed.
RECOMMENDATION
It is therefore RECOMMENDED that any claims against defendants St.
Charles Parish Sheriff’s Office, St. Charles Parish Hospital, and Judge Lemmon be
DISMISSED WITH PREJUDICE as frivolous or for failure to state a claim.
IT IS FURTHER RECOMMENDED that any official-capacity claims
asserted against defendants Quick, Kingsmill, Latour, Tabora, Pearse, Ibbitson,
Flynn, Waguespack, Wetta, Blange, Dunlap, Fahrig, and Kilday should be
DISMISSED WITH PREJUDICE for failure to state a claim.
It is FURTHER RECOMMENDED that the false arrest, illegal search and
seizure, and falsification of police report claims against defendants Quick, Kingsmill,
Latour, Tabora, Pearse, Ibbitson, Flynn, Waguespack, Wetta, Blange, Dunlap,
Fahrig, and Kilday in their individual capacities be DISMISSED WITH
PREJUDICE to their being asserted again until the Heck conditions are met.
It is FURTHER RECOMMENDED that Shorts’s interrogation-related
claims against Quick, Kingsmill, Tabora, and Latour in their individual capacities
should be DISMISSED WITH PREJUDICE for failure to state a claim.
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It is FURTHER RECOMMENDED that Shorts’s claims of excessive force
against defendants Flynn, Wetta, Blange, Dunlap, Fahrig and Kilday in their
individual capacities be DISMISSED WITH PREJUDICE for failure to state a
claim.
It is FURTHER RECOMMENDED that Shorts’s § 1983 claims of excessive
force against defendants Quick, Kingsmill, Latour, Tabora, Pearse, Ibbitson and
Waguespack in their individual capacities be allowed to proceed and remain referred
to the undersigned Magistrate Judge for further proceedings.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
fourteen (14) days after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court, provided that the party
has been served with notice that such consequences will result from a failure to object.
New Orleans, Louisiana, this 27
th

day of March, 2025.

__________________________________________
EVA J. DOSSIER
UNITED STATES MAGISTRATE JUDGE

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