Alex et al v. St. John the Baptist Parish Sheriff's Office et al, No. 2:2016cv17019 - Document 160 (E.D. La. 2017)

Court Description: ORDER AND REASONS granting 150 Motion to Dismiss for Failure to State a claim. The Plaintiffs' claims against St. Tammany Parish Sheriff Randy Smith, Deputy Yvette Sandavol, Deputy Sean Lamb, Deputy Maurice McCall, Deputy Justin Doles, and D eputy Don Powers in their official capacities are DISMISSED WITH PREJUDICE. FURTHER ORDERED that all of Plaintiffs' state law claims against all Defendants are hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge Susie Morgan on 11/16/2017. (clc)

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Alex et al v. St. John the Baptist Parish Sheriff&#039;s Office et al Doc. 160 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 a m otion to dism iss filed by St. Tam m any Parish Sheriff Randy Sm ith, Deputy Yvette Sandavol, Deputy Sean Lam b, Deputy Maurice McCall, Deputy J ustin Doles, and Deputy Don Powers (collectively the “St. Tam m any Defendants”) pursuant to Federal Rule of Civil Procedure 12(b)(6). 1 The m otion is opposed. 2 For the reasons that follow, the Court grants the m otion. BACKGROU N D Plaintiff Shawanda Nevers Alex (“Nevers”), ran a catering business, 3LJ ’s Café, LLC, in Laplace, Louisiana. 3 In addition to running 3LJ ’s Café, LLC, Nevers “helped individuals file their own tax returns.”4 Nevers, along with her husband Daryl Alex, and 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]”5 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. 150 . R. Doc. 151. 3 R. Doc. 7-1 at 2, 4– 5. 4 R. Doc. 7-1 at 4. 5 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. 6 On May 5, 20 16, Nevers was arraigned for her federal crim es and was thereafter “housed at the St. Tam m any Parish jailhouse.”7 By “J uly, Plaintiff Nevers had filed m any com plaints with [the] St. Tam m any Sheriff office because the m ale deputies watch you shower and take care of your personal needs.”8 On J uly 12, 20 16, “Plaintiff Nevers had an altercation with a state inm ate that was on psychotropic drugs. Plaintiff Nevers did everything to refrain from the encounter,”9 but nevertheless sustained “severe nerve dam age” to two of her fingers. 10 Following the incident, Nevers asked to press charges against the inm ate, but “was refused.”11 On Decem ber 29, 20 16, Plaintiffs, proceeding pro se, filed their original com plaint, 12 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. 13 Plaintiffs filed a second am ended com plaint on April 19, 20 17, which clarified their claim s against the St. Tam m any Defendants are brought only in their official capacities, 14 under 42 U.S.C. § 198 3, for “violat[ing] their constitutional rights, as a result to [sic] retaliatory [sic] 6 Plaintiff Daryl Alex also pleaded guilty in the Eastern District of Louisiana to one count of conspiracy to com m it wire fraud. 7 R. Doc. 7-1 at 27. Accordin g to Nevers, these charges included violations of: 1. 26 U.S.C. [§] 7206(2) aiding and assisting in preparation of a false tax return counts 1-37 2. 18 U.S.C. [§] 401(3) counts 38-45 (criminal contempt) saying plaintiff continued filing tax return[s] after being enjoined by [a] federal judge 3. 18 U.S.C. [§] 1344(3) count 46 bank fraud plaintiff Nevers filed a BP Claim and because plaintiff Nevers did not have a business at the time. [Nevers] file[d] a false claim 4. 18 U.S.C. [§] 50 5 Plaintiff forged a judge [sic] signature R. Doc 7-1 at 27. 8 R. Doc. 7-1 at 29– 30 . 9 R. Doc. 7-1 at 30 . 10 R. Doc. 7-1 at 30 . 11 R. Doc. 7-1 at 30 . 12 R. Doc. 7-1. 13 R. Doc. 7-1. 14 R. Doc. 75. 2 m easures.”15 The St. Tam m any Defen dants now m ove to dism iss all of Plaintiffs’ allegations against them under Rule 12(b)(6), arguing Plaintiffs have failed to state a claim upon which relief can be granted. 16 STAN D ARD OF LAW Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. 17 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”18 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defen dant is liable for the misconduct alleged.”19 However, the court does not accept as true legal conclusions or m ere conclusory statem ents, 20 and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.”21 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 22 “Factual allegations m ust be enough to raise a right to relief above the speculative level.”23 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the 15 R. Doc. 7-1. R. Doc. 150 -2. 17 Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 19 Id. 20 Id. 21 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 786 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 22 Iqbal, 556 U.S. at 663, 678 (citations om itted). 23 Tw om bly , 550 U.S. at 555. 16 3 m ere possibility of m isconduct, the com plaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.”24 LAW AN D AN ALYSIS A. The St. Tam m any Defendants In their am en ded com plaint, Nevers clarifies that her claim s against the St. Tam m any Defendants are brought against them only in their official capacities. 25 It is well settled that a suit against a m unicipal official in his or her official capacity is sim ply another way of alleging m unicipal liability. 26 Louisiana grants no capacity to be sued to any parish sheriff’s office. 27 The sheriff, in his official capacity, is the appropriate governm ental entity responsible for any constitutional violations com m itted by his office. 28 When, as in this case, the sheriff is a defendant in the litigation, claim s again st specific individuals in their official capacities are redundant, and it is appropriate to dism iss them . 29 Accordingly, Plaintiff’s § 1983 claim s against Deputy Sandavol, Deputy Lam b, Deputy McCall, Deputy Doles, and Deputy Powers are dism issed. Whether Plaintiff’s claim s against Sheriff Sm ith in his official capacity survive the m otion to dism iss stage depends on whether Plaintiff has m ade out a plausible claim for relief based on m unicipal liability. A m unicipality m ay be liable under § 198 3 if it “subjects a person to a deprivation of rights or causes a person to be subjected to such 24 Id. (quotin g Fed. R. Civ. P. 8(a)(2)). R. Doc. 75. The Court also assum es only Nevers brin gs these claim s, as Alex and Lewis lack standin g. “To establish standing, a plaintiff m ust show that: (1) he has suffered, or im m inently will suffer, a concrete and particularized in jury-in-fact; (2) the injury is fairly traceable to the defendant’s conduct; and (3) a favorable judgm ent is likely to redress the in jury.” Justice v. Hosem ann, 771 F.3d 285, 291 (5th Cir. 20 14). 25 Connick, 563 U.S. at 60 (in ternal quotation m arks om itted). 26 Monell v. N ew York City Dept. of Social Servs, 436 U.S. 658 (1978). 27 Cozzo v. Tangipahoa Par. Council-President Govt., 279 F.3d 273, 283 (5th Cir. 20 0 2). 28 Jenkins v. Jefferson Par. Sheriff’s Office, 40 2 So. 2d 669, 671 (La. 1981). 29 Castro Rom ero v. Becken, 256 F.3d 349, 355 (5th Cir. 20 0 1). Monell and later decisions reject m unicipal liability predicated on respondeat superior, because the text of § 1983 will not bear such a readin g. Bd. of Com m ’rs of Bry an Cty . v. Brow n, 520 U.S. 397 (1997). 25 4 deprivation.”30 To prevail on a § 1983 claim against a local governm ent or m unicipality, a plaintiff m ust establish: (1) an official policy or custom , of which (2) a policy m aker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose “m oving force” is that policy or custom . 31 An “official policy” for purposes of § 1983 includes: (1) “[a] policy statem ent, ordinan ce, regulation or decision that is officially adopted and prom ulgated by the m unicipality’s lawm aking officers or by an official to whom the lawm akers have delegated policy-m aking authority”; (2) a persistent and widespread practice of city officials or em ployees, “which, although not authorized by officially adopted and prom ulgated policy, is so com m on and well settled as to constitute a custom that fairly represents m unicipal policy”; 32 and (3) “a final decisionm aker’s adoption of a course of action ‘tailored to a particular situation and not intended to control decisions in later situations’ m ay, in som e circum stances, give rise to m unicipal liability under § 1983.”33 The culpability elem ent, which m ay overlap with proof of a policy, requires eviden ce that “the m unicipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences. A showing of sim ple or even heightened negligence will not suffice.”34 “‘Deliberate indifferen ce’ is a stringent standard, requiring proof that a m unicipal actor disregarded a known or obvious consequence of his action.”35 30 Connick, 563 U.S. at 60 (in ternal quotation m arks om itted). v. City of Hous., 613 F.3d 536, 541– 42 (5th Cir. 20 10 ). Consequently, the unconstitutional conduct m ust be directly attributable to the m unicipality through som e sort of official action or im prim atur; isolated unconstitutional actions by m unicipal em ployees will alm ost never trigger liability. Bennett v . City of Slidell, 728 F.2d 762, 768 n .3 (5th Cir. 1984); McKee v . City of Rockw all, 877 F.2d 40 9, 415 (5th Cir. 1989). 32 Brow n v. Bry an Cty ., 219 F.3d 450 , 457 (5th Cir. 20 0 0 ). “Actual or constructive knowledge of such [a] custom m ust be attributable to the govern ing body of the m unicipality or to an official to whom that body had delegated policy-m akin g authority.” W ebster v . City of Houston, 735 F.2d 838 , 841 (5th Cir. 1984). 33 Bry an Cty ., 520 U.S. at 40 6 (quotin g Pem baur v. Cincinnati, 475 U.S. 469, 481 (1986)). 34 Id. at 40 7 (citation om itted). 35 Id. at 410 . 31 Valle 5 Plaintiff’s m unicipal liability or Monell claim in this case is based on the St. Tam m any Parish Sheriff’s Office’s alleged custom s or policies of (1) allowing “m ale deputies [to] watch [fem ale inm ates] shower and take care of [their] personal needs” an d (2) refusing to allow inm ates to press charges again st other inm ates of their own volition. 36 Even assum ing these two allegations am ount to an official policy or custom of which Sheriff Sm ith had actual or constructive knowledge, Plaintiff has failed to connect these alleged m unicipal policies to a constitutional violation. 37 Although prisoners “have a m inim al right to bodily privacy,”38 even if a prison regulation “im pinges on inm ates’ constitutional rights, the regulation is valid if it is reasonably related to legitim ate penological interests.”39 To determ ine the reasonableness of a prison restriction, [the court m ust] consider the four factors outlined by the [U.S.] Suprem e Court in Turner [v. Safley , 40 ]: (1) whether there is a “valid, rational connection between the prison regulation and the legitim ate governm ent interest put forward to justify it,” (2) “whether there are alternative m eans of justifying that right that rem ain open to prison inm ates,” (3) “the im pact accom m odation of the asserted constitutional right will have on guards an d other inm ates, and on the allocation of prison resources generally,” and (4) “whether the absence of ready alternatives is evidence of the reasonablen ess of a prison regulation.”41 Under this fram ework, the Fifth Circuit has held that “constant surveillance, even cross-sex surveillance, of prisoners is constitutional because it is reasonably related to the penological interest of m aintaining security.”42 The Fifth Circuit reasoned, “com prehensive surveillance by all guards increases the overall security of the prison, 36 R. Doc. 7-1 at 29– 30 . See Valle, 613 F.3d at 541– 42. 38 Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 20 0 2). 39 Turn er v. Safley , 48 2 U.S. 78, 89 (1987). 40 482 U.S. 78, 89 (1987). 41 Garrett v . Thaler, 560 F. App’x 375, 38 0 (5th Cir. 20 14). 42 Oliver v. Scott, 276 F.3d 736, 745– 46 (5th Cir. 20 0 2). 37 6 m inim izing inm ate-on-inm ate violence and sexual assaults.”43 “[R]equiring only [fe]m ale guards to supervise [fem ale] inm ates or doing away with security cam eras in the bathroom and dressing areas could require the prison to increase staffing or reassign a large percentage of its staff”—”there is no readily identifiable alternative that would im pose only de m inim is expen ses in term s of inm ate security, staffing costs, or equal em ploym ent opportunities.”44 Thus, the St. Tam m any Parish Sheriff’s Office’s alleged policy of allowing “m ale deputies [to] watch [fem ale inm ates] shower and take care of [their] personal needs” does not violate the Constitution. Because Plaintiff cannot establish “[she was] deprived of a right secured by the Constitution,”45 this claim m ust be dism issed. Plaintiff also alleges she was deprived of a constitutionally protected right as a result of the St. Tam m any Parish Sheriff’s Office’s policy or practice of refusing to allow inm ates to choose when and how to press charges against other inm ates. 46 This cause of action is also untenable. Under Louisiana law, “[s]ubject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every crim in al prosecution instituted or pending in his district, and determ ines whom , when, and how he shall prosecute.”47 Thus, the St. Tam m any Parish District Attorney’s 43 Garrett, 560 F. App’x at 380 (citing Oliver, 276 F.3d at 746). These cases dealt with fem ale security personn el m on itoring m ale inm ates; however, the rationale applies equally to this case. See Scott, 276 F.3d at 745– 46; Tim m v . Gunter, 917 F.2d 10 93, 110 1– 0 2 (8th Cir. 1990 ) (explain ing that constant visual surveillance by guards of both sexes is a reasonable and necessary m easure to prom ote in m ate security). 44 Id. at 380 – 81. See also Mitchell v. Quarterm an, 515 F. App’x 244, 247 (5th Cir. 20 12); Johnson v. Phelan, 69 F.3d 144, 147 (7th Cir. 1995) (“If only m en can m onitor showers, then fem ale guards are less useful to the prison; if fem ale guards can’t perform this task, the prison m ust have m ore guards on hand to cover for them .”); Tim m , 917 F.2d at 110 1– 0 2; Michen felder v. Sum ner, 860 F.2d 328, 334 (9th Cir. 198 8) (holding that fem ale correctional officers’ presence around naked prison ers did not violate their privacy rights). 45 Am . M frs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1990 ). 46 R. Doc. 7-1 at 29– 30 . 47 La. Code Crim . P. art. 61. Courts have long found this delegation of discretion constitutional. See, e.g., State v. McGhee, 554 So. 2d 145, 147 (La. Ct. App. 2 Cir. 198 9). 7 Office, not the St. Tam m any Parish Sheriff’s Office, determ ines whether crim in al charges should be pressed in a given situation. Therefore, Plaintiff’s § 1983 claim against Sheriff Sm ith cannot be substantiated on this basis. B. Plaintiffs’ Rem aining Claim s On April 19, 20 17, the Court granted St. J ohn the Baptist Parish District Attorney Bridget Dinvaut, Assistant District Attorneys J ustin Lacour and J . Phillip Prescott, J r., and J en nifer Duhe’s (collectively the “DA Defendants”) m otion for sum m ary judgm ent, 48 but deferred ruling on Plaintiffs’ state law claim s against the DA Defendants. 49 In addition to the DA Defendants, Plaintiffs also bring a state law claim against Glenda Meyers, a court reporter, who Plaintiffs allege was paid “the sum of $ 150 0 .0 0 for [a] court transcript to file for a new trial [for Nevers]. Glenda Meyers cashed the m oney order on 0 3/ 0 4/ 20 16, and plaintiff[s] have not received the transcript as of this date.”50 District courts have discretion not to exercise supplem ental jurisdiction over a claim when all claim s over which the court had original jurisdiction have been dism issed. 51 In this case, the Court has dism issed all of Plaintiffs’ federal claim s. 52 Although the “‘general rule’ is to decline to exercise jurisdiction over pendent state-law claim s” under such circum stances, the “rule is neither m andatory nor absolute.”53 Rather, 48 R. Doc. 44. R. Doc. 76 at 2 n.8. 50 R. Doc. 7-1 at 25. 51 42 U.S.C. § 1367(c)(3). 42 U.S.C. § 1367(c) reads: The district courts m ay decline to exercise supplem ental jurisdiction over a claim under subsection (a) if: (1) the claim raises a novel or com plex issue of State law, (2) the claim substantially predom inates over the claim or claim s over which the district court has original jurisdiction, (3) the district court has dism issed all claim s over which it has original jurisdiction , or (4) in exceptional circum stances, there are other com pelling reasons for declinin g jurisdiction . 52 R. Docs. 39, 69, 76, 78, 97, 136, 159. 53 Batiste v. Island Records Inc., 179 F.3d 217, 227 (5th Cir. 1999) (quoting McClelland v. Gronw aldt, 155 F.3d 50 7, 519 (5th Cir. 1998 )). 49 8 a court m ust consider “both the statutory provisions of 28 U.S.C. § 1367(c) and the balan ce of the relevant factors of judicial econom y, convenience, fairness, and com ity.”54 Having considered the applicable law, the com plexity of Plaintiffs’ rem aining state law claim s, and the fact that this case is not yet set for trial, the Court declin es to exercise supplem ental jurisdiction over these claim s and dism isses Plaintiffs’ rem aining state law claim s without prejudice. 55 Accordingly; IT IS ORD ERED that the St. Tam m any Defendants’ m otion to dism iss 56 is GRAN TED . The Plaintiffs’ claim s against St. Tam m any Parish Sheriff Randy Sm ith, Deputy Yvette Sandavol, Deputy Sean Lam b, Deputy Maurice McCall, Deputy J ustin Doles, and Deputy Don Powers in their official capacities are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that all of Plaintiffs’ state law claim s against all Defendants are hereby D ISMISSED W ITH OU T PREJU D ICE. 57 N e w Orle an s , Lo u is ian a, th is 16 th 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 54 Id. (citations om itted). See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (198 8) (statin g that “in the usual case in which all federal-law claim s are elim inated before trial, the balance of factors to be considered under the pendent jurisdiction doctrin e . . . will point toward declining to exercise jurisdiction over the rem ain ing state-law claim s”); Batiste, 179 F.3d at 227 (reversing the district court for declin in g to retain supplem ental jurisdiction over the state law claim s that rem ain ed following the district court’s grant of sum m ary judgm ent on all of the plain tiff’s federal claim s because “the rem aining [state law] claim s d[id] not in volve any ‘novel or com plex’ issues of state law,” and “[t]he case had been pending in the district court for alm ost three years”). The Court dism isses without prejudice all of Defendants’ rem ainin g state law claim s against each Defendant in this case. 56 R. Doc. 150 . 57 On April 19, 20 17, the Court granted St. J ohn the Baptist Parish District Attorney Bridget Dinvaut, Assistant District Attorneys J ustin Lacour and J . Phillip Prescott, J r., and J enn ifer Duhe’s (collectively the “DA Defendants”) m otion for sum m ary judgm ent, R. Doc. 44, but deferred rulin g on Plaintiffs’ state law claim s against the DA Defendants, R. Doc. 76 at 2 n .8. 55 9

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