Cain et al v. New Orleans City et al, No. 2:2015cv04479 - Document 125 (E.D. La. 2016)
Court Description: ORDER & REASONS granting 12 Motion to Dismiss for Failure to State a Claim. Party Marlin N. Gusman (Orleans Parish Sheriff) dismissed. Signed by Judge Sarah S. Vance on 5/13/2016. (mmm)
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Cain et al v. New Orleans City et al Doc. 125 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ALANA CAIN, ET AL. CIVIL ACTION VERSUS NO: 15-4479 CITY OF NEW ORLEANS, ET AL. SECTION: R(2) ORD ER AN D REASON S Nam ed plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights action under 42 U.S.C. § 1983 seeking to declare the m anner in which the Orleans Parish Crim inal District Court collects post-judgm ent court costs from indigent debtors unconstitutional. According to plaintiffs, the Crim inal District Court and other, related actors m aintain a policy of jailing crim inal defendants who fail to pay their court costs solely because of their indigence.1 Sheriff Gusm an now asks the Court to dism iss plaintiffs' claim s against him under Federal Rule of Civil Procedure 12(b)(6). Sheriff Gusm an argues that plaintiffs' allegations are conclusory and unsupported by facts dem onstrating that plaintiffs are entitled to relief. Sheriff Gusm an also argues 1 See generally R. Doc. 7 (Plaintiffs' First Am ended Class Action Com plaint). Dockets.Justia.com that his office is legally required to execute the arrest warrants and enforce the bail bond fee statutes challenged in plaintiffs' First Am ended Com plaint.2 For the following reasons, the Court grants the m otion. I. BACKGROU N D A. Factu al Alle gatio n s In this section 1983 civil rights lawsuit, plaintiffs allege, on behalf of them selves and those sim ilarly situated, that the City of New Orleans, the Orleans Parish Crim inal District Court, its judges and judicial adm inistrator, and Orleans Parish Sheriff Marlin Gusm an m aintain an unconstitutional schem e of jailing indigent crim inal defendants and im posing excessive bail am ounts for nonpaym ent "offenses" in an effort to collect unpaid court courts. According to plaintiffs, the Crim inal District Court m aintains an internal "Collections Departm ent," inform ally called the "fines and fees" departm ent, that oversees the collection of court debts from form er crim inal defendants. The "typical" case allegedly proceeds as follows. 2 R. Doc. 12. Sheriff Gusm an also argues that a Fifth Circuit case, Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 20 0 3), forecloses plaintiffs' claim that defendants' "schem e of m oney bonds" to fund judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Am endm ent. Because the Court resolves Sheriff Gusm an's m otion on other grounds, the Court does not reach this particular argum ent and does not address plaintiffs' constitutional challenge to the funding system established in Louisiana Revised Statutes §§ 13:1381.5 and 22:822. 2 When a person is charged with a crim e, the Crim inal District Court judges first determ ine whether the crim inal defendant is legally "indigent," which m eans they qualify for appointm ent of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175. According to plaintiffs, eight-five percent of the crim inal defendants in Orleans Parish are legally indigent.3 With assistance of counsel, the defendants either plead guilty to their crim inal charges or proceed to trial. If convicted, the crim inal defendants m ust appear before a judge at the Crim inal District Court for sentencing. At sentencing, in addition to im posing a term of im prisonm ent or probation, the court m ay assess against the crim inal defendants various "court costs." These costs m ay include restitution to any victim , a statutory fine, fees, or other costs im posed at the judge's discretion. According to plaintiffs, the discretionary assessm ents "fund the District Attorney's office, the Public Defender, and the Court[,]" which rely on these collections "to fund their operations and to pay em ployee salaries and extra benefits."4 Plaintiffs allege 3 R. Doc. 7 at 5. 4 Id. at 22-23 ¶ 88. 3 that the Crim inal District Court judges im pose court costs without inquiring into the crim inal defendants' ability to pay.5 If the crim inal defendants cannot im m ediately pay in full, the Crim inal District Court judges allegedly direct them to the Collections Departm ent, or "fines and fees." There, a Collections Department employee allegedly imposes, at his discretion and without inquiring into a defendant's ability to pay, a paym ent schedule--usually requiring a certain am ount per m onth.6 Plaintiffs contend that Collections Department employees also warn the defendants that failure to pay the m onthly am ount, in full, will result in their arrests. Collections Departm ent em ployees allegedly refuse to accept anything less than full paym ent.7 When crim inal defendants fail to pay, a Collections Departm ent em ployee allegedly issues a pre-printed warrant for the defendant's arrest by forging a judge's nam e.8 According to plaintiffs, the Collections Departm ent often issues these warrants "years after a purported nonpaym ent," and the 5 Id. at 23 ¶ 91. 6 Id. at 27-28 ¶ 10 3. 7 Id. at 28 ¶ 10 6. 8 Id. at 29 ¶ 10 9. 4 warrants are "routinely issued in error" or without regard to a debtor's indigence.9 Plaintiffs also allege that each Collections Departm ent arrest warrant is "accom panied by a preset $ 20 ,0 0 0 secured m oney bond required for release."10 According to plaintiffs, defendants' adherence to this "autom atic $ 20 ,0 0 0 secured money bond" requirement results from defendants' financial interest in state-court arrestees' paying for their release.11 Plaintiffs contend that the Crim inal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney's office, the Orleans Public Defenders' office, and the Orleans Parish Sheriff each collect 0 .4% of each bond.12 When crim inal defendants are arrested for nonpaym ent, they allegedly are "routinely told" that to be released from prison, they m ust pay for the $ 20 ,0 0 0 secured m oney bond, the entirety of their outstanding court debts, or som e other am ount "unilaterally determ ine[d]" by the Collections Departm ent.13 9 As a result, these indigent debtors allegedly "languish" in Id. at ¶ 110 . 10 Id. at ¶ 113. 11 Id. at 21-22 ¶ 88. 12 Id. at 22 ¶ 88. 13 Id. at 30 ¶ 114. 5 prison "indefinite[ly]" because they cannot afford to pay any of the foregoing am ounts.14 Plaintiffs contend that although "arrestees are eventually brought to court," defendants "have no set policy or practice" regarding how long arrestees await a hearing. According to plaintiffs, indigent debtors "routinely" spend a week or m ore in prison.15 Plaintiffs allege that som e arrestees, with help from fam ily and friends, pay for their release without ever having a hearing and thus have "no opportunity to contest the debt or the jailing."16 When crim inal defendants are brought to court, the Crim inal District Court judges allegedly send them back to prison if they are unable to pay their debts or release them "on threat of future arrest and incarceration" if they do not prom ptly pay the Collections Departm ent.17 At these brief "failure-to-pay hearings," the judges do not consider the debtors' abilities to pay.18 Plaintiffs contend that these practices are unconstitutional under the Fourth Am endm ent and the Due Process and Equal Protection clauses of the Fourteenth Am endm ent. 14 Id. at ¶ 115. 15 Id. 16 Id. at ¶ 114. 17 Id. at ¶ 116. 18 Id. 6 B. Partie s The nam ed plaintiffs in the First Am ended Com plaint are six individuals who were defendants in the Orleans Parish Crim inal District Court-Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell.19 The facts pertaining to the nam ed plaintiffs, as alleged in their com plaint, are as follows. The Crim inal District Court appointed counsel from the Orleans Public Defenders to represent each of the nam ed plaintiffs, except Reynaud Variste, during their crim inal proceedings.20 Thus, the court m ust have determ ined Cain, Brown, Reynajia Variste, Long, and Maxwell to be legally indigent under Louisiana Revised Statutes §15:175.21 Reynaud Variste appears to have retained private counsel.22 19 Id. at 7 ¶ 7. 20 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/ 0 4/ 20 12) ("Court appointed Alex Liu, OPD."), 5 (Ashton Brown Docket Sheet, entry for 10 / 0 2/ 20 13) ("Court appointed Seth Wayne, OPD."), 9 (Reynajia Variste Docket Sheet, entry for 10 / 0 2/ 20 14) ("Court appointed Lindsey Sam uel, OPD."), 23 (Vanessa Maxwell Docket Sheet, entry for 12/ 14/ 20 11) ("Court appointed J errod Thom pson-Hicks, OIPD."); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 0 6/ 0 2/ 20 11) ("Court appointed Anna fecker, OIDP."). 21 See R. Doc. 7 at 5. 22 R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 0 9/ 2/ 20 12) ("Defendant m ust retain private counsel."). 7 With the assistance of counsel, all of the nam ed plaintiffs pleaded guilty to their respective crim inal charges, which include theft,23 battery,24 drug possession,25 "sim ple crim inal dam age,"26 and disturbing the peace.27 At plaintiffs' sentencings, the presiding judges im posed term s of im prisonm ent, which were often suspended, as well as term s of active or inactive probation. In addition, the judges assessed against plaintiffs various court costs-whether restitution, fines, and/ or discretionary fees and costs. At som e point, all of the nam ed plaintiffs were arrested for failing to pay outstanding court costs.28 Plaintiffs now sue the City of New Orleans for hiring the Crim inal District Court's Collection Departm ent workers, as well as the police officers who execute the allegedly invalid arrest warrants.29 Plaintiffs also sue Sheriff Marlin Gusm an, in his official capacity, for "unconstitutionally detain[ing] 23 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 24 Id. at 12 (Reynajia Variste Guilty Plea). 25 Id. at 22 (Reynaud Variste Guilty Plea). 26 Id. at 28 (Vaness Maxwell Guilty Plea). 27 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 28 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 0 5/ 30 / 20 13), 6 (Ashton Brown Docket Sheet, entry for 12/ 16/ 20 13), 9 (Reynajia Variste Docket Sheet, entry for 10 / 21/ 20 14), 18 (Reynaud Variste Docket Sheet, entry for 10 / 31/ 20 13), 23 (Vanessa Maxwell Docket Sheet, entry for 0 3/ 0 6/ 20 12); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 0 7/ 29/ 20 11). 29 R. Doc. 7 at 7 ¶ 8. 8 im poverished people indefinitely because of their inability to . . . pay[] for their release."30 In addition, plaintiffs sue the Orleans Parish Crim inal District Court 31 for its role in m anaging and funding the Collections Departm ent, and the court's J udicial Adm inistrator, Robert Kazik, in his individual and official capacities, because he is allegedly responsible for operating the Collections Departm ent.32 Finally, plaintiffs nam e as defendants every judge at the Crim inal District Court-thirteen in all-because they allegedly supervise the Collections Departm ent em ployees and have failed to provide the parish's criminal defendants with constitutionally-required process before imprisoning people for failure to pay court costs. Plaintiffs sue the judges only for declaratory relief.33 C. Plain tiffs ' Claim s fo r Re lie f Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Am endm ent rights, as well as violations of Louisiana tort law. Plaintiffs seek dam ages (including attorneys' 30 Id. at 8 ¶ 12. 31 This Court dism issed the Crim inal District Court as a defendant on May 11, 20 16. R. Doc. 123. 32 Id. at 7-8 ¶¶ 9-10 . The Court also dism issed all claim s against Kazik, except plaintiffs' claim against Kazik, in his individual capacity, for declaratory relief. R. Doc. 123. 33 Id. at 8 ¶ 13. 9 fees) and an injunction against all defendants, except the judges. Plaintiffs also seek a declaratory judgment regarding the constitutionality of defendants' practices.34 The Court sum m arizes plaintiffs' allegations, as articulated in the First Am ended Com plaint, as follows: (1) Defendants' policy of issuing and executing arrest warrants for nonpaym ent of court costs is unconstitutional under the Fourth Am endm ent and the Due Process Clause of the Fourteenth Am endm ent; (2) Defendants' policy of requiring a $ 20 ,0 0 0 "fixed secured m oney bond" for each Collections Departm ent warrant (issued for nonpaym ent of court costs) is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Am endm ent; (3) Defendants' policy of indefinitely jailing indigent debtors for nonpaym ent of court costs without a judicial hearing is 34 Only Cain, Brown, Reynajia Variste, and Maxwell's claim s for equitable relief rem ain. In an order addressing an earlier m otion to dism iss, the Court found that Reynaud Variste and Thaddeus Long lack standing to pursue prospective equitable relief and dism issed those claim s. R. Doc. 10 9 at 19-21. 10 unconstitutional under the Due Process Clause of the Fourteenth Am endm ent; (4) Defendants' "schem e of m oney bonds" to fund certain judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Am endm ent. To the extent defendants argue this schem e is in com pliance with Louisiana Revised Statutes §§ 13:1381.5 and 22:822, which govern the percentage of each surety bond that the judicial actors receive, those statutes are unconstitutional; (5) Defendants' policy of jailing indigent debtors for nonpaym ent of court costs without any inquiry into their ability to pay is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Am endm ent; (6) Defendants' policy of jailing and threatening to im prison crim inal defendants for nonpaym ent of court debts is unconstitutional under the Equal Protection Clause of the Fourteenth Am endm ent because it im poses unduly harsh and punitive restrictions on debtors whose creditor is the State, as com pared to debtors who owe m oney to private creditors; 11 (7) Defendants' conduct constitutes wrongful arrest under Louisiana law; and (8) Defendants' conduct constitutes wrongful im prisonm ent under Louisiana law. D. Sh e riff Gu s m an 's Mo tio n to D is m is s Sheriff Gusm an now m oves to dism iss plaintiffs' claim s against him under Federal Rule of Civil Procedure 12(b)(6).35 Sheriff Gusm an argues that plaintiffs' allegations against him are conclusory and insufficient to state a claim upon which relief can be granted.36 He further argues that the Sheriff's Office is legally required to execute Collection Departm ent arrest warrants, to detain arrestees who do not post bail, and to collect and distribute bail bond fees pursuant to Louisiana Revised Statutes §§ 13:1381.5 and 22:822. Thus, Sheriff Gusm an contends, these activities cannot give rise to a claim against the Sheriff's Office under 42 U.S.C. § 1983.37 35 R. Doc. 12. 36 Id. at 3-6. 37 Id. at 6-9, 11-15. Sheriff Gusm an also argues that a Fifth Circuit case, Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 20 0 3), forecloses plaintiffs' claim that defendants' "schem e of m oney bonds" to fund judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Am endm ent. Because the Court resolves Sheriff Gusm an's m otion on other grounds, the Court does not reach this argum ent and does not address plaintiffs' constitutional challenge to the funding system established in Louisiana Revised Statutes §§ 13:1381.5 and 22:822. 12 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead "enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 697 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that the defendant is liable for the m isconduct alleged." Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 239 (5th Cir. 20 0 9); Baker v. Putnal, 75 F.3d 190 , 196 (5th Cir. 1996). A legally sufficient com plaint m ust establish m ore than a "sheer possibility" that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff's claim . Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the com plaint that there is an 13 insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 555. III. D ISCU SSION With few exceptions, the First Amended Complaint directs its allegations not towards Sheriff Gusm an, or any other individual or public body, but towards "defendants" as a group. Rather than identifying specific acts of m isconduct by specific defendants, the First Am ended Com plaint rests largely on allegations of collective wrongdoing by all eighteen defendants. For instance, plaintiffs allege that "[d]efendants have developed a policy, pattern, and practice of advocating for and im plem enting high bonds, fines, costs and fees without any constitutional basis and any m eaningful inquiry into a person's ability to pay, even when they know the person is indigent."38 They further allege that "[d]efendants are aware of these open policies and practices and yet allow them to continue."39 Sim ilar allegations pervade the First Am ended Com plaint.40 38 R. Doc. 7 at 22 ¶ 89. 39 R. Doc. 7 at 29 ¶ 111. 40 See, e.g., id. at 6 ¶ 2 ("Defendants act in concert to im plem ent a regim e of debt collection . . . that deliberately ignores longstanding and constitutional protections."); id. at 30 ¶ 117 ("The Defendants' policy and practice is never to allow court debtors to enjoy any of the civil judgm ent protections offered to every judgm ent debtor under 14 This pleading structure--lum ping all defendants together and asserting identical allegations as to each, without distinction--largely prevents the Court from discerning which defendants are allegedly responsible for which allegedly unlawful actions. As the Seventh Circuit recently noted, "liability is personal." Bank of Am ., N .A. v. Knight, 725 F.3d 815, 818 (7th Cir. 20 13). Because the notice pleading requirem ent of the Federal Rules of Civil Procedure entitles "each defendant . . . to know what he or she did that is asserted to be wrongful," allegations based on a "theory of collective responsibility" cannot withstand a m otion to dism iss. Id. (affirm ing dism issal of com plaint alleging that collectively responsibility as to all defendants); see also Zola H. v. Sny der, No. 12-140 73, 20 13 WL 4718343, at *7 (E.D. Mich. Sept. 3, 20 13) (dism issing complaint that lum ped defendants together and failed "to impute concrete acts to specific litigants"); Petri v. Kestrel Oil & Gas Properties, L.P., No. CIV.A. H-0 9-3994, 20 11 WL 2181316, at *7 (S.D. Tex. J une 3, 20 11) ("[T]he rem aining claim s against all Defendants here are not adequately pleaded under . . . Tw om bly and Iqbal and their progeny. Defendants . . . are entitled to a m ore definite statem ent to provide them with adequate notice of the claim s against Louisiana law."); id. at 38 ¶ 144 ("The Defendants' policy and practice is to issue and execute arrest warrants for those debtors who have not paid old court debts solely based on nonpaym ent."). 15 them , as well as factual pleading distinguishing plausible claim s against each Defendant individually."). Accordingly, in evaluating Sheriff Gusman's motion to dismiss, the Court looks only to well-pleaded facts concerning the Sheriff's alleged m isconduct. The Court disregards bare assertions of collective responsibility, unsupported by concrete factual allegations. See Iqbal, 566 U.S. at 678 ("Nor does a com plaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancem ent.'" (quoting Tw om bly , 550 U.S. at 557)). The entirety of plaintiffs' factual allegations against Sheriff Gusm an, rather than all "defendants," are as follows: • Sheriff Gusm an enforces CollectionsDepartm ent warrants by detaining individuals who are arrested for nonpaym ent of court costs. Individuals who are unable to post the standard $ 20 ,0 0 0 secured m oney bond are detained indefinitely, often for a period of days or weeks. 41 • On one occasion, plaintiff Alana Cainasked jail staff em ployed by Sheriff Gusman whether she could pay the Collections Department using money in her possession. J ail staff responded that she could not and "that she had a $ 20 ,0 0 0 secured m oney bond pursuant to standard policy."42 When Cain asked when she would go to court, "jail staff told her that 41 R. Doc. 7 at 8 ¶ 12 ("Orleans Parish Sheriff Marlin Gusm an operates the local jail and unconstitutionally detains im poverished people indefinitely because of their inability to m ake a financial paym ent for their release."); see also id. at 21 ¶ 86 (alleging that "proceedings are eventually held days or weeks" after an indigent debtor's arrest). 42 Id. at 10 ¶ 22. 16 som eone from her fam ily had to call the court to get her placed on the docket or else she would not get a court date."43 • Pursuant to Louisiana Revised Statute § 22:822, She Gusman collects riff an "annual license fee" fee that surety com panies m ust pay with every appearance bond subm itted in Orleans Parish, including bonds for individuals who are arrested for failure to pay outstanding court costs.44 • Pursuant to Louisiana Revised Statut s §§ 22:822 and 13:1381.5, Sheriff e Gusm an keeps a percentage of each annual license fee for his office's operating fund, and he distributes the remainder to the Crim inal District Court, the Crim inal District Court's judicial expense fund, the district attorney's operating fund, and the indigent defender's program .45 With these allegations in m ind, the Court considers the sufficiency of plaintiffs' section 1983 and state-law claim s against Sheriff Gusm an. A. Se ctio n 19 8 3 Plaintiffs sue Sheriff Gusm an in his official capacity. As the Fifth Circuit has noted, "[o]fficial capacity suits generally represent another way of pleading an action against an entity of which an officer is an agent." Burge v. Par. of St. Tam m any , 187 F.3d 452, 466 (5th Cir. 1999). Thus, plaintiffs' official-capacity claim s against Sheriff Gusm an are actually claim s against the Orleans Parish Sheriff's Office itself. See Bean v. Pittm an, No. CIV.A. 14-2210 , 20 15 WL 43 Id. at 11 ¶ 23. 44 Id. at 6 ¶ 3. 45 R. Doc. 7 at 40 -41 ¶ 152; see also La. Rev. Stat. §§ 22:822 and 13:1381.5 (im posing annual licensing fee and providing for its distribution am ong the nam ed entities). 17 350 284, at *2 (E.D. La. J an. 26, 20 15); Picard v. Gusm an, Civ. Action No. 12– 1966, 20 12 WL 650 4772, at *4 (E.D. La. Nov. 26, 20 12). Because the Sheriff's Office is a m unicipal entity, plaintiffs' section 1983 claim s against Sheriff Gusm an m ust satisfy the requirem ents outlined in Monell v. Departm ent of Social Services, 436 U.S. 658 (1978). Although plaintiffs suggest that Monell governs only their claim s for m onetary relief,46 Monell's principles apply to all section 1983 claim s against m unicipal defendants, regardless of whether the plaintiff seeks m oney dam ages or prospective relief, such as an injunction or a declaratory judgm ent. See Los Angeles Cty . v. Hum phries, 562 U.S. 29, 36-37 (20 10 ) ("The language of § 1983 read in light of Monell . . . explains why claim s for prospective relief, like claim s for m oney dam ages, fall within the scope of the 'policy or custom ' requirem ent.").47 46 R. Doc. 35 at 2 (distinguishing between plaintiffs' dam ages claim s against Sheriff Gusm an and their claim s for declaratory and injunctive relief); id. at 5 (sam e). 47 Plaintiffs' reliance on Ex parte Young, 20 9 U.S. 123 (190 8) and Suprem e Court of Virginia v. Consum ers Union of U.S., Inc., 446 U.S. 719 (1980 ) is m isplaced. Those cases establish an exception to the sovereign im m unity that states enjoy under the Eleventh Am endm ent, which perm its plaintiffs to sue state officials for prospective relief. See Saltz v. Tenn. Dep't of Em p't Sec., 976 F. 2d 966, 968 (5th Cir. 1992) (noting that for Ex parte Young to apply, the "suit m ust be brought against individual persons in their official capacities as agents of the state and the relief sought m ust be declaratory or injunctive in nature and prospective in effect"). They have no bearing on Monell's standard for liability in a section 1983 claim against m unicipalities--which, unlike states and state officials sued in their official capacities, are not entitled to Eleventh Am endm ent im m unity. See Rounds v. Clem ents, 495 F. App'x 938, 941 (10 th Cir. 20 12) (distinguishing Ex parte Young from Monell). 18 Under Monell, to state a section 1983 claim against a m unicipality, a plaintiff m ust allege the existence of (1) an official policy or custom , of which (2) a policym aker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose "m oving force" is that policy or custom . Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 20 10 ). As the Fifth Circuit has noted, these elem ents are necessary "to distinguish individual violations perpetrated by local governm ent em ployees from those that can be fairly identified as actions of the governm ent itself." Piotrow ski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 20 0 1) (citations om itted). The "official policy or custom " m ay be "an actual policy, regulation or decision that is officially adopted and prom ulgated by lawm akers or others with policym aking authority." Valle, 613 F.3d at 542. It m ay also be "a persistent, widespread practice which, although not officially prom ulgated, is so com m on and well settled as to constitute a custom that fairly represents m unicipal policy." Esteves v. Brock, 10 6 F.3d 674, 677 (citing Monell, 436 U.S. at 694). Im portantly, however, "[a] plaintiff m ay not infer a policy m erely because harm resulted from som e interaction with a governm ental entity." Colle v. Brazos Cty ., Tex., 981 F.2d 237, 245 (5th Cir. 1993); see also W etzel v. Penzato, Civ. Action No. 0 9– 7211, 20 0 9 WL 5125465, at *3 (E.D. La. Dec. 23, 20 0 9). Rather, he m ust identify the policy or custom which allegedly 19 caused the deprivation of his constitutional rights. See, e.g., Murray v. Tow n of Mansura, 76 Fed. App'x 547, 549 (5th Cir. 20 0 3); Treece v. Louisiana, 74 Fed. App'x 315, 316 (5th Cir. 20 0 3). As to the second elem ent, "[a]ctual or constructive knowledge of [a] custom m ust be attributable to the governing body of the m unicipality or to an official to whom that body has delegated policym aking authority." Valle, 613 F.3d at 542. (quoting W ebster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc)). Finally, to satisfy the "m oving force" elem ent, "a plaintiff m ust show that the m unicipal action was taken with the requisite degree of culpability and m ust dem onstrate a direct causal link between the m unicipal action and the deprivation of federal rights." Id. (quoting Bd. of Cty . Com m 'rs v. Brow n, 520 U.S. 397, 40 4 (1997)). In other words, "the plaintiff m ust dem onstrate that a m unicipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Id. (quoting Brow n, 520 U.S. at 411). Here, plaintiffs have not identified any policy or custom attributable to the Orleans Parish Sheriff's Office that caused the alleged Fourth and Fourteenth Am endm ent violations. Most of plaintiffs' allegations center on the policies and alleged wrongdoing of entities other than Sheriff's Office. For instance, plaintiffs allege that "defendants" issue arrest warrants for 20 nonpaym ent of court costs without inquiring into the debtors' ability to pay and that they require a $ 20 ,0 0 0 "fixed secured m oney bond" for every Collections Departm ent warrant. Although plaintiffs level these allegations against "defendants" as a group, the alleged m isconduct involves judicial functions, such as the issuance of warrants and the setting of bail. See La. Code Crim . Proc. art. 20 2 (authorizing m agistrates to issue arrest warrants); La. Code Crim . Proc. art. 333 (authorizing judges and m agistrates to fix bail "throughout their several territorial jurisdictions"). Absent a plausible allegation that the Sheriff's Office exercises policym aking authority in these dom ains, these allegations fail to state an official-capacity section 1983 claim against Sheriff Gusm an. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) ("[T]he challenged action m ust have been taken pursuant to a policy adopted by the official or officials responsible under state law for m aking policy in that area of the city's business."); Pem baur v. City of Cincinnati, 475 U.S. 469, 483 (1986) ("[M]unicipal liability under § 1983 attaches where--and only where--a deliberate choice to follow a course of action is m ade from am ong various alternatives by the official or officials responsible for establishing final policy w ith respect to the subject m atter in question.") (em phasis added). 21 Plaintiffs' allegation that "[d]efendants' standard policy is to let arrestee debtors languish in prison indefinitely" is unavailing for the sam e reason.48 While the parish sheriff is undoubtedly "the keeper of the public jail of his parish," See La. Rev. Stat. §§ 13:5539(C), 15:70 4, plaintiffs do not contend that the Sheriff's Office detains indigent debtors on its own initiative. Instead, their claim is that the Sheriff's Office holds indigent debtors pursuant to Collections Department warrants bearing the signatures of Crim inal District Court judges. Plaintiffs allege no facts--and cite no law--indicating that the Sheriff's Office has authority to refuse custody of individuals arrested on Collections Departm ent warrants or that the Sheriff can release detainees who fail to post bond without a court order. Nor is there any plausible allegation that the Sheriff's Office is authorized to schedule court appearances or otherwise im pact the judicial process affecting detainees. Thus, plaintiffs fail to allege that a policy or practice attributable to the Sheriff's Office is the m oving force behind the alleged constitutional violations identified in the First Am ended Com plaint. Plaintiffs' allegations concerning defendants' "m oney bond schem e" do not change this result. In Count Four of the First Am ended Com plaint, 48 R. Doc. 7 at 29 ¶ 112. 22 plaintiffs level a due process challenge against Louisiana Revised Statutes §§ 22:822 and 13:1381.5. Section 22:822 provides that "there shall be a fee on prem ium s for all com m ercial surety underwriters who write crim inal bail bonds in the state of Louisiana." La. Rev. Stat. § 22:8 22(A). In Orleans Parish, the fee am ounts to "three dollars for each one hundred dollars worth of liability underwritten," which the surety m ust pay to the parish sheriff upon subm itting a bond for the release of a person on bail. Id. at § 22:822(A)(2). Paym ent is m andatory and non-negotiable: "[f]ailure to pay such fees shall prevent the sheriff from accepting the appearance bond and power of attorney." Id. Once the sheriff receives the surety's fee, he or she m ust distribute the proceeds according to a detailed statutory form ula. In Orleans Parish, the distributions are as follows: 33.33% to the Crim inal District Court, 26.67% to the Crim inal District Court's judicial expense fund, 13.33% to the sheriff's operating fund, 13.33% to the district attorney's operating fund, 13.33% to the indigent defender's program . La. Rev. Stat. §§ 22:822(B)(3), 13:1381.5. Plaintiffs argue that this system is unconstitutional because it gives judges an econom ic incentive to set high bail am ounts to increase their own revenues. They further argue that because the Sheriff's Office enforces the relevant statutes--by collecting and distributing sureties' fees--Sheriff Gusman is an appropriate party to defend plaintiffs' constitutional challenge. 23 Plaintiffs' argument rests on the premise that a municipal defendant may be held liable under section 1983 for enforcing a state statute, even though the statute m andates a particular course of action. The Fifth Circuit has rejected this premise as inconsistent with Monell's requirem ent that a m unicipal policy be the "m oving force" behind the constitutional violation. In Fam ilias Unidas v. Briscoe, the Fifth Circuit held that a county was not liable for a county judge's enforcem ent of a Texas education statute that com pelled an organization to disclose the nam es of m em bers who were boycotting public schools. 619 F.2d 391, 40 4 (5th Cir. 1980 ). The court reasoned that the judge's "duty in im plem enting [the statute], m uch like that of a county sheriff in enforcing a state law, m ay m ore fairly be characterized as the effectuation of the policy of the State of Texas . . . for which the citizens of a particular county should not bear singular responsibility." Id.; see also Crane v. State of Tex., 759 F.2d 412, 430 n. 19 (5th Cir.), am ended on denial of reh'g, 766 F.2d 193 (5th Cir. 1985) ("[L]ocal governm ents and their officials who act in conform ance with a state statutory schem e will not be held liable for § 1983 dam ages if the schem e is later held unconstitutional."). Other courts have reached the sam e conclusion. See Bockes v. Fields, 999 F.2d 788, 791 (4th Cir. 1993) (holding that county board did not act in a policy-m aking capacity when it fired plaintiff because term ination procedures and criteria were 24 prescribed by the state); Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir. 1991) (holding plaintiff's claim insufficient for Monell liability when plaintiff asserted that m unicipality had a policy of enforcing state statutes, stating that "[i]t is difficult to im agine a m unicipal policy m ore innocuous and constitutionally perm issible, and whose causal connection to the alleged violation is m ore attenuated, than the 'policy' of enforcing state law."). The sam e reasoning applies here. Louisiana Revised Statutes §§ 22:822 and 13:1381.5 require parish sheriffs to collect fees on bail bonds and distribute the proceeds according to a statutory form ula. By their plain language, these statutes leave no room for discretionary enforcem ent. The statutes therefore reflect Louisiana law, not the policy of the Orleans Parish Sheriff's Office. Thus, Sheriff Gusm an's enforcem ent of the relevant provisions cannot be the basis for a section 1983 claim the Sheriff's Office. In light of this ruling, the Court need not address plaintiffs' constitutional challenge to the statutes to resolve Sheriff Gusm an's m otion to dism iss. In sum , for all its allegations of collective wrongdoing by all eighteen defendants, plaintiffs do not allege that an official custom or policy attributable to the Sheriff's Office caused their constitutional injuries. Plaintiffs' section 1983 claim s against Sheriff Gusm an in his official capacity 25 m ust therefore be dism issed. See, e.g., Sim m ons v. Mesquite Indep. Sch. Dist., CIV. A. No. 3:0 3– CV– 2665, 20 0 4 WL 1171189, at *5 (N.D. Tex. May 26, 20 0 4) ("Because plaintiffs fail to allege that they were dam aged by the action of an official policym aker or defendant's policy, practice, or custom , plaintiffs have failed to state a claim under § 1983."); Richardson v. Sew erage & W ater Bd., CIV. A. No. 95– 30 33, 1996 WL 288275, at *3 (E.D. La. May 30 , 1996) (dism issing claim against a legislatively-created political subdivision of Louisiana, because plaintiff failed to identify an official policy or custom ). B. State -Law Claim s In addition to their section 1983 claim s, plaintiffs also allege that "defendants" are liable for wrongful arrest (count seven) and wrongful im prisonm ent (count eight) under Louisiana law. Sheriff Gusm an challenges plaintiffs' ability to state a claim for relief under the Louisiana jurisprudence.49 To start, "wrongful arrest" and "wrongful im prisonm ent" are not separate causes of action. See Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La. 20 0 6) (using "wrongful arrest" and "the tort of false im prisonm ent" interchangeably); Parker v. Tow n of W oodw orth, 86 So. 3d 49 R. Doc. 12-1 at 9-11. 26 141, 144 (La. App. 3 Cir. 20 12) ("[F]alse arrest is not distinguished as a separate tort from false im prisonm ent."). Plaintiffs fail to state a plausible claim for relief under Louisiana law due to plaintiffs' penchant for group pleading and theory of collective responsibility, as the Court discussed earlier. In addition, construing plaintiffs' com plaint m ost generously--which this Court need not do because plaintiffs are represented by counsel--the only potential theory of liability against Sheriff Gusman under Louisiana law is vicarious liability or respondeat superior for the conduct of his jail em ployees, Orleans Parish sheriff's deputies and jail staff. As Sheriff Gusm an argues in his m otion to dism iss, and as this Court earlier explained, nothing in plaintiffs' com plaint indicates that the Collections Departm ent arrest warrants were facially invalid. Rather, plaintiffs' com plaint and incorporated state-court hearing transcript indicate that the warrants appear to be issued under the authority of the Crim inal District Court and appear to bear the signatures of court judges. In Louisiana, an arresting officer cannot be liable for false arrest when he acts pursuant to a facially valid arrest warrant. W inn v. City of Alexandria, 68 5 So. 2d 28 1, 283 (La. App. 3 Cir. 1996); see also McMasters v. Dep't of Police, 172 So. 3d 10 5, 116 (La. App. 4 Cir. 20 15) ("[P]robable cause to arrest 'is an absolute defense to any claim against police officers for wrongful arrest, false 27 im prisonm ent, or m alicious prosecution.'" (quoting Brow n v. City of Monroe, 135 So. 3d 792, 796 (La. App. 2 Cir. 20 14)); Dy as v. Shreveport Police Dep’t, 136 So. 3d 897, 90 3 (La. App. 2 Cir. 20 14) ("False arrest and im prisonm ent occur when one arrests and restrains another against his will without a warrant or other statutory authority."). If Sheriff's Office personnel have not acted tortiously, Sheriff Gusm an, whose liability is only "secondary or derivative," cannot be liable under respondeat superior. Griffin v. Km art Corp., 776 So. 2d 1226, 1232 (La. App. 5 Cir. 20 0 0 ). Plaintiffs therefore fail to state a claim for false arrest against Sheriff Gusm an. 28 IV. CON CLU SION For the foregoing reasons, the Court GRANTS Sheriff Gusm an's m otion to dism iss. 13th New Orleans, Louisiana, this _ _ _ _ _ day of May, 20 16. _____________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 29
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