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Ray v. City of Bossier City10/24/2003
nt in retaliation for statements plaintiffs had made concerning Halphen and Jones driving while under the influence of alcohol. Plaintiffs contend that after Jones filed a harassment claim against them, an Internal Affairs ("IA") investigation ensued and thereafter, Chief Dison coerced Patten to resign and Ray to retire. Ray and Patten now claim that they were constructively discharged.
The City claims that plaintiffs solicited other officers to make a stop or arrest of Halphen and Jones "on the basis of created probable cause or suspicion." The city correctly contends that such solicitation is an abuse of police power and is not a constitutionally protected activity.
Standard of Review for Summary Judgment
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La. 07/07/99), 739 So. 2d 191. After 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. La. C.C.P. art. 966 C(1).
The mover may point out to the court that there is an absence of factual support for one or more elements essential to the plaintiff's claim. The burden then shifts to the plaintiff who must demonstrate that he has evidence which if believed would support the essential elements of his claim. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La. 09/08/99), 744 So. 2d 606. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., 00-0078 (La. 06/30/00), 764 So. 2d 37. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 02/29/00), 755 So. 2d 226; Belt v. Wheeler, 36,585 (La. App. 2d Cir. 12/18/02), 833 So. 2d 1256; McEachern v. Mills, 36,156 (La. App. 2d Cir. 08/16/02), 826 So. 2d 1176. Thus, the appellate court asks the same questions the trial court asked in determining whether summary judgment was appropriate. Magnon, supra.
Appellate Evidentiary Record
We must first address the trial court's rejection of exhibits submitted by plaintiffs in opposition to the summary judgment motions.
As previously noted, the trial court allowed an extension of time for plaintiffs to submit an opposition memorandum. The trial court, however, specifically denied plaintiffs' motion for an extension of time to submit "counter affidavits." The trial court stated that it would consider depositions already submitted by defendants.
All of the exhibits submitted with plaintiffs' memorandum to the trial court were gathered during discovery and included excerpts from depositions given by plaintiffs and defendants. The request for an extension was clearly considered a motion for a continuance by the trial court. At the November 14 hearing, the trial court stated to plaintiffs' counsel:
The Court: . . . I think you filed a request for a continuance, didn't you?
Mr. Walker: Yes, your Honor.
The Court: And I converted the request for a continuance . . . you asked for an ex parte continuance and I had hand-written in that I would convert that to a Rule to Show Cause . . . .
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