Alex et al v. St. John the Baptist Parish Sheriff's Office et al, No. 2:2016cv17019 - Document 159 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 152 MOTION for Judgment on the Pleadings. The Plaintiffs' claims against St. John the Baptist Parish Sheriff Mike Tregre, Detective Vernon Bailey, Detective Maurice Rodrigue, and Deputy James Bessinger in their official capacities are DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan. (bwn) Modified on 11/7/2017 to edit docket text (bwn).
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Alex et al v. St. John the Baptist Parish Sheriff&#039;s Office et al Doc. 159 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A SH AW AN D A N EVERS ALEX, ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 16 -170 19 ST. J OH N TH E BAPTIST PARISH SH ERIFF’S OFFICE, ET AL., D e fe n d an ts SECTION : “E” ORD ER AN D REAS ON S Before the Court is St. J ohn the Baptist Parish Sheriff Mike Tregre, Detective Vernon Bailey, Detective Maurice Rodrigue, and Deputy J am es Bessinger’s (collectively the “St. J ohn Defendants”) m otion for judgm ent on the pleadings pursuant to Rule 12(c). 1 The m otion is opposed. 2 For the reason s that follow, the Court grants the m otion. BACKGROU N D 3 Plaintiff Shawanda Nevers Alex (“Nevers”), ran a catering business, 3LJ ’s Café, LLC, in Laplace, Louisiana. 4 In addition to running 3LJ ’s Café, LLC, Nevers “helped individuals file their own tax returns.”5 Nevers, along with her husband Daryl Alex, an d their daughter Laquana Lewis (collectively “Plaintiffs”) allege various state and federal law enforcem ent officials conspired against them to com m it “m alic[ious] acts to destroy plaintiffs[’] business[es]”6 during the course of crim inal investigations into Nevers’ tax filing business. As a result of these investigations, Nevers ultim ately pleaded guilty to eight counts of issuing worthless checks in St. J ohn the Baptist Parish, for which she was 1 R. Doc. 152. R. Doc. 156. 3 Unless otherwise indicated, citations to the record herein are to Plaintiffs’ original and am ended com plaints. R Docs. 7-1; 29. 4 R. Doc. 7-1 at 2, 4– 5. 5 R. Doc. 7-1 at 4. 6 R. Doc. 7-1 at 7. 2 1 Dockets.Justia.com sentenced to ten years, and to four counts of tax fraud in the Eastern District of Louisiana, for which she has yet to be senten ced. 7 According to Plaintiffs, various state and federal law enforcem ent officials conspired to “destroy” Plaintiffs’ businesses following Nevers’ “confrontation with one of [the] St. J ohn [the Baptist’s] District Attorney[‘s office] em ployee[s],” Meg Spatz. 8 According to Plaintiffs, Spatz, who is not a party to this case, “m ade a statem ent” with which Nevers disagreed. 9 Plaintiffs allege this confrontation “was the beginning of the m alice and m alicious acts” against Plaintiffs and their businesses. Approxim ately two years after the incident with Spatz, on Septem ber 10 , 20 13, Nevers “m et with two agents of the [FBI] Civil Rights Division” to file a com plaint against the St. J ohn the Baptist’s District Attorneys’ Office, alleging several acts of harassm ent. “[A]s a result of filing [the com plaint,] plaintiff Nevers[] was placed on the [D]epartm ent of J ustice website and in the m edia stating that the J ustice Departm ent sues to stop Louisiana Tax Return Preparer.”10 In Decem ber 20 13, “[t]he harassm ent becam e extrem e because . . . Detective Maurice Rodrigue cam e in the plaintiffs restaurant and stood inside until all patrons were uncom fortable and left restaurant.”11 Because of Detective Rodrigue’s actions, “plaintiff Nevers filed a form al com plaint with Internal Affairs and 7 Plaintiff Daryl Alex also pleaded guilty in the Eastern District of Louisiana to on e count of conspiracy to com m it wire fraud. 8 R. Doc. 7-1 at 2. 9 R. Doc. 7-1 at 2. 10 R. Doc. 7-1 at 10 . Plaintiffs apparently refer to a Novem ber 12, 20 13 article posted on the Departm ent of J ustice website entitled “J ustice Departm ent Sues to Stop Louisiana Tax Return Preparer,” which explain s that “The Un ited States has asked a federal court in New Orleans to perm anently bar Shawanda Nevers . . . of La Place, La., from preparing federal incom e tax returns for others” because “Nevers prepared returns that claim ed losses by fabricating expenses for fictitious businesses or overstatin g expenses incurred by legitim ate enterprises.” See Justice Departm ent Sues to Stop Louisiana Tax Return Preparer, U.S. DEP ’T OF J USTICE (Nov. 13, 20 13), https:/ / www.justice.gov/ opa/ pr/ justice-departm ent-sues-stop-louisiana-taxreturn-preparer. 11 R. Doc. 7-1 at 10 . 2 Sheriff Mike Tregre. After there was no response[,] plaintifff [sic] Shawanda Nevers Alex and husband Daryl Alex went to see Sheriff Tregre about the com plaint, [and] Sheriff Tregre stated” the incident was not his doing. 12 On March 20 , 20 14, Detective Bailey conducted a warrantless search of Plaintiffs’ restaurant, 13 and again Nevers “filed a form al com plaint with Sheriff Mike Trege [sic], Internal Affairs, the United States Departm ent of J ustice[,] and FBI Civil Rights Division.”14 Plaintiffs allege the catering business lost num erous contracts as word of their legal troubles began to spread. 15 According to them , these “false accusations” placed them “in fear for their lives and the lives of their fam ily m em bers.”16 Because of this fear, on J une 6, 20 14, “Nevers placed a video on you tube seeking help with the corruption and illegal activities.”17 “After placing the video and filing the com plaint the coercion, harrassm ent [sic], prosecutorial[] m isconduct, m alice, and intim idation tatics [sic] em inen ced [sic].”18 Plaintiffs allege that on J une 18, 20 14, in retaliation for posting the video, 19 “the DA’s office conspired with the U.S. Attorney[’s] office and Federal Agent Kristie L. Gregoire to apply for a search warrant of plaintiffs[’] restaurant.”20 The next day, on J une 19, 20 14, “Federal Agents conspired with the St. J ohn the Baptist Parish Sheriff Office, Secret Service, United States Marshal[s], and Louisiana State Police” when they executed a search warrant at Plaintiffs’ restaurant “with the guns drawn.”21 12 R. Doc. 7-1 at 11. R. Doc. 7-1 at 11. 14 R. Doc. 7-1 at 11. 15 R. Doc. 7-1 at 4– 6. 16 R. Doc. 7-1 at 17. 17 R. Doc. 7-1 at 17. 18 R. Doc. 7-1 at 18 . 19 R. Doc. 7-1 at 33. 20 R. Doc. 7-1 at 12. 21 R. Doc. 7-1 at 13. 13 3 “After the DA and other law enforcem ent [agencies] destroyed plaintiff[’]s business[,] it was hard for the plaintiffs to pay their bills because they suffered great hardship.”22 Consequently, on J anuary 1, 20 15, Plaintiffs filed for bankruptcy. 23 On J anuary 7, 20 15, despite Plaintiffs’ bankruptcy proceedings, the St. J ohn Parish Sheriff’s office proceeded with a foreclosure sale of Plaintiffs’ property. 24 On Decem ber 29, 20 16, Plaintiffs, proceeding pro se, filed their original com plaint, asserting claim s for m onetary dam ages in the am ount of $ 10 ,0 0 0 ,0 0 0 against a num ber state and federal officials and agencies. 25 The Plaintiffs filed an am ended com plaint on J anuary 31, 20 17, which clarified their claim s against the St. J ohn Defendants are brought in their official capacities 26 under 42 U.S.C. § 1983 for “violat[ing] [Plaintiffs’] constitutional rights.”27 The St. J ohn Defendants now m ove to dism iss all of Plaintiffs’ allegations against them under Rule 12(c), arguing the claim s have prescribed. 28 STAN D ARD OF LAW Under Rule 12(c), “[a]fter the pleadings are closed—but early enough not to delay trial—a party m ay m ove for judgm ent on the pleadings.”29 “A m otion brought pursuant to [Rule] 12(c) is designed to dispose of cases where the m aterial facts are not in dispute an d a judgm ent on the m erits can be ren dered by looking to the substance of the pleadings and an y judicially noticed facts.”30 “[T]he central issue is whether, in the light m ost 22 R. Doc. 7-1 at 23. R. Doc. 7-1 at 21. 24 R. Doc. 7-1 at 21. 25 R. Doc. 7-1. 26 R. Doc. 29. 27 R. Doc. 7-1 at 2. 28 R. Doc. 152-1. 29 F ED . R. CIV. P RO . 12(c). 30 Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir.1990 ) (per curiam ). 23 4 favorable to the plaintiff, the com plaint states a valid claim for relief.”31 “The [district] court m ay dism iss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”32 “In analyzing the com plaint, [the court] will accept all well-pleaded facts as true, viewing them in the light m ost favorable to the plaintiff.”33 The Court will not, however, “accept as true conclusory allegations or unwarranted deductions of fact.”34 LAW AN D AN ALYSIS In their am ended com plaint, the Plaintiffs clarify that the claim s against the St. J ohn Defendants are brought against them only in their official capacities. 35 Official capacity claim s against the St. J ohn Defendants are governed by the m unicipal liability principles derived from Monell v. N ew York City Departm ent of Social Services and its progeny. 36 A suit against a public official in his official capacity “is not a suit against the official personally.”37 Rather, because an award of m onetary dam ages against an official in his official capacity can only be executed against the governm ent entity, 38 the suit is “to be treated as a suit against the entity.”39 Under Monell, a local governm ent agency, such as a parish sheriff’s office, m ay be liable under section 1983 if the entity causes a person to be subjected to a deprivation of 31 Hughes v. Tobacco Institute, Inc., 278 F.3d 417, 420 (5th Cir. 20 0 1) (quotin g St. Paul Mercury Ins. Co. v. W illiam son, 224 F.3d 425, 440 n .8 (5th Cir. 20 0 0 )). 32 Jones v. Greninger, 18 8 F.3d 322, 324 (5th Cir.1999) (per curiam ) (citing Fee v. H erndon, 90 0 F.2d 80 4, 80 7 (5th Cir. 1990 )). 33 Id. (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 140 1 (5th Cir. 1996)). 34 Collins v. Morgan Stanley Dean W itter, 224 F.3d 496, 498 (5th Cir. 20 0 0 ) (quoting Tuchm an v . DSC Com m . Corp., 14 F.3d 10 61, 10 67 (5th Cir. 1994)). 35 R. Doc. 29 at 2. 36 436 U.S. 358 (1978). 37 Id. 38 Id. 39 Kentucky v. Graham , 473 U.S. 159, 166 (1985) (em phasis in original). 5 his rights. 40 Such claim s are governed by the prescriptive period for personal injury actions of the state in which the conduct occurred. 41 In Louisiana, “[i]t is well established . . . that wrongs com m itted by Louisiana state officials in violation of federal law,”42 are governed by the one-year prescriptive period for delictual actions found in Louisiana Civil Code article 3492. 43 Under article 3492, a plaintiff’s claim is untim ely if it is filed m ore than one year after “the day injury or dam age is sustained.”44 On ce it is established that the prescriptive period has run, a plaintiff m ust prove that an exception to prescription applies. 45 In this case, Plaintiffs allege they sustained dam ages as a result of actions the St. J ohns Defendants took between Decem ber 20 13, when Plaintiffs allege Detective Rodrigue stood inside Plaintiffs’ restaurant “until all patrons were uncom fortable and left restaurant,”46 and J anuary 7, 20 15, when the St. J ohn Parish Sheriff’s Office sold Plaintiff’s property, n otwithstanding Plaintiffs’ being in bankruptcy proceedings. 47 Plaintiffs did not bring their claim s against the St. J ohn Defendants until Decem ber 9, 20 16, m ore than a year and ten m onths after the last event took place. 48 40 Connick v. Thom pson , 131 S. Ct. 1350 , 1359 (20 11). W ilson v. Garcia, 471 U.S. 261 (1985); accord Jones v . Orleans Parish Sch. Bd., 688 F.2d 342, 344 (5th Cir. 198 2). 42 Jones, 68 8 F.2d at 344. 43 Civil Code article 3292 states “Delictual actions are subject to a liberative prescription of one year. This prescription com m ences to run from the day injury or dam age is sustain ed.” La. C. C. art. 3292. “[T]he ‘date of discovery’ from which prescription/ perem ption begins to run is the ‘date on which a reasonable m an in the position of the plaintiff has, or should have, either actual or constructive knowledge of the dam age, the delict, and the relationship between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant.’” Lom ont v. Ben nett, 172 So. 3d 620 , 638 (La. 20 15). 44 Id. at 637. 45 Bourdais v. N ew Orleans City , 485 F.3d 294, 298 (5th Cir. 20 0 7) (citation om itted); Terrebone Parish Sch. Bd. v. Colum bia Gulf Transm ission Co., 290 F.3d 30 3, 320 (5th Cir. 20 0 2) (citations om itted). 46 R. Doc. 7-1 at 10 . 47 R. Doc. 7-1 at 21. 48 R. Doc. 1. 41 6 In their opposition to the St. J ohn Defendants’ m otion to dism iss, Plaintiffs argue the prescriptive period has been tolled because their claim s are subject to the continuing tort doctrine and the doctrine of contra non valentem . 49 The “continuing tort” doctrine has its roots in property dam age cases. 50 Louisian a jurisprudence draws a distinction between continuous and discontinuous causes of injury and resulting dam age: When the operating cause of the injury is continuous, giving rise to successive dam ages, prescription begins to run from the day the dam age was com pleted and the owner acquired, or should have acquired, knowledge of the dam age. When the operating cause of the injury is discontinuous, there is a m ultiplicity of causes of action and of corresponding prescriptive periods. Prescription is com pleted as to each injury, and the corresponding action is barred, upon the passage of one year from the day the owner acquired, or should have acquired, knowledge of the dam age. 51 “A continuing tort is occasioned by [continual] unlawful acts, not the continuation of the ill effects of an original, wrongful act.”52 “The continuous conduct contem plated in a continuing tort m ust be tortious and m ust be the operating cause of the injury.”53 To determ ine whether a tort is continuous, a court “m ust look to the operating cause of the injury sued upon and determ ine whether it is a continuous one giving rise to successive dam ages, or whether it is discontinuous and term in[us], even though the dam age persists and m ay progressively worsen.”54 When a tort is continuous, “prescription runs from the date of the last harm ful act.”55 In this case, Plaintiffs allege they sustained m ultiple injuries as a result of each of the St. J ohn Defendants’ overt acts: (1) when Detective Maurice Rodrigue cam e in 49 R. Doc. 156. See Crum p v. Sabine River Auth., 98-2326, (La.6/ 29/ 1999); 737 So. 2d 720 , 726. 51 Hogg v. Chevron U.S.A. In c., 20 0 9-2632, (La. 7/ 6/ 10 ); 45 So. 3d 99, 10 0 3. 52 Id. 53 Id. 54 Id. at 10 0 3– 0 4. 55 S. Cent. Bell Tele. Co. v. Texaco, Inc., 418 So.2d 531, 532 (La. 198 2). 50 7 Plaintiffs restaurant and stood inside, 56 (2) when Detective Bailey conducted a warrantless search of Plaintiffs’ restaurant, 57 (3) when St. J ohn Parish Sheriff’s office sold Plaintiffs’ property, 58 and (4) when “Federal Agents conspired with the St. J ohn the Baptist Parish Sheriff Office, Secret Service, United States Marshal[s], and Louisian a State Police” to execute a search warrant at Plaintiffs’ restaurant “with the guns drawn.”59 Theses alleged harm s were not “ongoing” or “continuous.”60 Rather, the alleged harm s in this case are discontinuous and term inus. 61 Further, even assum ing Plaintiffs have alleged a continuing tort, the last alleged overt act took place well over one year before Plaintiffs filed suit. Therefore, Plaintiffs have not alleged a continuing tort, and even if they did, these claim s have prescribed. The doctrin e of contra non valentem suspends the running of prescription when the “plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.”62 Louisiana jurisprudence has long recognized the doctrine of contra non valentem as a m eans of suspending the running of prescription . . . . [There are] four instances where contra non valentem can be applied to prevent the running of prescription: (1) where there was som e legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; (2) where there was som e condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor him self has done som e act effectually to prevent the creditor from availing him self of his cause of action; an d (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. 63 56 R. Doc. 7-1 at 10 . R. Doc. 7-1 at 11. 58 R. Doc. 7-1 at 21. 59 R. Doc. 7-1 at 13. 60 Id. at 10 0 4. 61 Id. at 10 0 4. 62 W im berly v. Gatch, 635 So. 2d 20 6, 211 (La. 1994). 63 W ells v. Zadeck, 89 So. 3d 1145, 1150 (La. 20 12). 57 8 Prescription recom m ences when the period of suspension expires. 64 Under the fourth category, “[a]ny cause of action against [a] defendants accrue[s] as soon as [the] plaintiff knew or should have known of the overt acts involved in the alleged conspiracy.”65 Plaintiffs apparently contend the cause of action was not known or reasonably knowable by to them before the prescriptive period ran, arguing they were not aware of the harm s they suffered because Nevers was not “form ally charged with the crim es” until “August 20 14 and [was not] Sentenced [sic] [until] Septem ber 20 16.” Under the fourth option, prescription begins to run when a reasonable m an in the plaintiff’s position “has, or should have, either actual or constructive knowledge of the dam age, the delict, and the relationship between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant.’”66 Louisiana law defines constructive knowledge as “whatever notice is enough to excite attention and put the injured party on guard or call for inquiry.”67 “Such notice is tantam ount to knowledge or notice of everything to which a reasonable in quiry m ight lead, and such inform ation or knowledge as ought to reasonably put the injured party on inquiry is sufficient to start the running of prescription.”68 Given the nature of the harm s alleged and the fact that Plaintiffs state in their com plaint that at least one of them was present for each of the St. J ohn Defendants’ overt acts, the Court finds Plaintiffs knew or should have known of the harm s on the date on which they took place. Even accepting Plaintiffs’ allegations as true, each of Plaintiffs’ claim s against the St. J ohn Defendants have prescribed and no exception to prescription applies to this case. 64 La. Civ. Code art. 3472. Helton v. Clem ents, 832 F.2d 332, 335 (5th Cir. 1987). 66 Lom ont, 172 So. 3d at 638 . 67 Cam po v. Correa, 0 1– 270 7, p. 12 (La. 6/ 21/ 0 2), 8 28 So. 2d 50 2, 510 – 511. 68 Hogg v. Chevron USA, Inc., 20 0 9-2632 (La. 7/ 6/ 10 ), 45 So.3d 991, 997. 65 9 Plaintiffs did not bring their claim s against the St. J ohn Defendants until Decem ber 9, 20 16, m ore than ten m onths after the prescriptive period ran on Plaintiffs’ claim s. 69 Accordingly; IT IS ORD ERED that the St. J ohn Defendants’ m otion to dism iss 70 is GRAN TED . The Plaintiffs’ claim s against St. J ohn the Baptist Parish Sheriff Mike Tregre, Detective Vernon Bailey, Detective Maurice Rodrigue, and Deputy J am es Bessinger in their official capacities are D IS MISSED W ITH PREJU D ICE. N e w Orle an s , Lo u is ian a, th is 7th d ay o f N o ve m be r, 2 0 17. _____________________ __________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 69 70 R. Doc. 1. R. Doc. 152. 10
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