TOM STAGG, District Judge.
Before the court is a remand from the Fifth Circuit Court of Appeals, vacating the summary judgment denying the plaintiffs equal protection claims and reversing the denial of the retaliation claims. On remand this court is directed to address the remaining elements of the pending claims in accord with the terms of the Fifth Circuit's opinion. See Record Document 54. Following the remand, the parties have once again filed cross-motions for summary judgment. The plaintiff, Newman Marchive Partnership, Inc. ("Newman"), has filed a motion for partial summary judgment. See Record Document 62. Keith Hightower, the former Mayor of the City of Shreveport (hereafter referred to as "Mayor Hightower") and the City of Shreveport (sometimes collectively referred to as "the defendants") have filed a memorandum urging summary judgment and the dismissal of the plaintiffs entire case. See Record Document 57. After considering the record in its entirety, and in particular the Fifth Circuit's prior ruling in this case, the court finds that Newman's motion should be
Two money judgments were issued in favor of Newman against the City of
Based on the scenario described above, pursuant to the provisions of 42 U.S.C. § 1983, Newman filed a claim for a money judgment against former Mayor Hightower, in both his official and individual capacities, and the City of Shreveport.
This court issued a memorandum ruling and an accompanying judgment on cross-motions for summary judgment in this case in February of 2009 which dismissed all of Newman's claims with prejudice. See Record Documents 45 and 46. As noted above, the Fifth Circuit vacated this judgment in part and reversed in part and remanded for further proceedings in accordance with its opinion. See Record Document 54. On remand, the parties do not dispute that the first required element of this section 1983 claim has been satisfied, i.e., that the conduct complained of was committed by a person or persons acting under color of state law. See Record Documents 62 at 5 and 67 at 2. Thus, this court will first determine whether there was any deprivation of constitutional rights in this case. Thereafter, under the section addressing liability, the court will consider the final, third required element of this section 1983 claim, that is whether a municipal custom or policy played a role in the violation of federal law.
Summary judgment is proper "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 any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." See Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004). If the movant demonstrates the absence of a genuine issue of material fact, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir.2004).
All facts and inferences are viewed in the light most favorable to the non-moving party, and all reasonable doubts are resolved in that party's favor. See Puckett v. Rufenacht, Bromagen & Hertz, Inc., 903 F.2d 1014, 1016 (5th Cir.1990). If factual issues or conflicting inferences exist, the court is not to resolve them; rather, summary judgment must be denied. See id.
Newman may prevail on its equal protection claim under a "class of one" theory. See Record Document 54 at 3. This theory requires Newman to show (1) that it was intentionally treated differently from others similarly situated and (2) that there was no rational basis for the difference in treatment. See id. The Fifth Circuit did not disturb this court's prior finding that Newman has satisfied the first prong of this test. However, the court of appeal did direct this court to re-examine its finding under the second prong, to determine whether Newman has met its burden of showing that there is no conceivable rational basis for the different treatment Newman received. See id.
According to this court's prior ruling, Newman was treated differently than other similarly situated judgment creditors in two ways: (1) the judgments Newman secured in state court were not paid outright, but were instead referred by the mayor to the city's risk management committee and this committee conducted a special review of Newman's judgments to determine whether or not to pay the amount due based, in part, on the manner in which Newman acted during the course of the litigation,
According to the city, the risk management committee was created by ordinance, all claims against the City of Shreveport are subject to review by the committee, and the committee has the authority and discretion to determine what claims the City of Shreveport will pay. See Record Document 22, Ex. 3, Answer to Interrogatory 2. An examination of the transcript of the deposition of the former chief administrative officer of the City of Shreveport, Kenneth Antee, Jr. ("Antee") and a transcript of the testimony of the risk manager for the City of Shreveport, Tom Cody ("Cody"), reveals that the common practice of this committee was to discuss cases prejudgment, frequently before suits were even filed. See id., Ex. 1 at 48-53 and Ex. 4 at 30. Its primary purpose was to negotiate and settle claims against the city. See id. As noted above, what was unusual about Newman's cases is that these cases were only referred to and considered by the risk management committee after a judgment had been rendered in each matter by a state court. When the two final judgments were presented to the city for payment, they were not simply paid in-full by a check signed by the mayor. These judgments were referred to the risk management committee for a decision as to whether and/or how much the city would actually pay Newman. At least in regard to the stadium judgment, the committee's decision was based, in part, on a special review of Newman's prejudgment activities, (i.e., essentially how Newman conducted itself during its litigation against the city). See Record Document 22, Ex. 1 at 45-47, 52-53 and Ex. 4 at 29-30; Record Document 25 at 10; Record Document 30, Ex. 7 at 30. Over the course of eight to ten years in which nearly twenty-five judgments were rendered against the city, only Newman and one other judgment creditor were subject to this special post-judgment review by the risk management committee. See Record Document 22, Ex. 1 at 50-53 and Ex. 5.
Turning to the search for a rational basis for these actions, the court first notes that, in its prior ruling, the Fifth Circuit rejected several proposed rational bases for this differential treatment. See Record Document 54 at 4. Second, in its present motions, the defendants have attempted to justify this differential treatment by reasserting an argument which was addressed in this court's previous ruling. They argue that the referral of one other judgment creditor, Whitaker Construction Company ("Whitaker"), to the risk management committee after that creditor had secured a judgment demonstrates that Newman was not treated differently than other judgment creditors. See Record Document 67 at 2-5. As this court found in its previous ruling:
Record Document 45 at 10.
Both Antee and Mayor Hightower indicated that Newman's judgments were subjected to this special review because of a particular ruling made by a state district judge. See Record Document 22, Ex. 1 at 25 and 53; Record Document 30, Ex. 7 at 30-32. In the referenced ruling, a state district judge held that a provision within one of the contracts between Newman and the city constituted a valid waiver, on Newman's part, of all rights to judicial interest due on any judgments awarded on the basis of the contract. See Record Document 43, Ex. B. According to Antee, although the trial judge's ruling in regard to the waiver of interest was overruled by a state appellate court, the ruling of the lower court inspired city officials to consider whether they could adopt a policy "across the board" which would allow the city to legitimately refuse to pay interest on any state court judgment. See Record Document 22, Ex. 1 at 53; Newman Marchive P'ship, Inc. v. City of Shreveport, 923 So.2d 852, 861-62 (La.App. 2d Cir. 2006). The resulting research exposed city government officials to case law and example ordinances from other cities concerning the ability of a municipality to refuse to pay state court judgments, and eventually led to the passage of an ordinance by the Shreveport City Council on September 26, 2006, which announced a new policy that the city would not pay judicial interest on state court judgments. See, e.g., Record Document 22, Ex. 1 at 25, 29-39 and 53; id., Ex. 7 at 4.
The aforementioned reasoning does not constitute a valid, rational basis for treating Newman's judgments differently than every other judgment in the past eight to ten years, with the exception of the judgment procured by Whitaker. First, as previously mentioned, the referenced state trial court ruling was explicitly overruled in regard to the interest question. See Newman Marchive P'ship, Inc., 923 So.2d at 861-62. Its logic was soundly contradicted by a state appellate court and writ was summarily denied by the Louisiana Supreme Court. See id.; Newman Marchive P'ship, Inc. v. City of Shreveport, 930 So.2d 983 (La.2006). This court likewise has previously reviewed and rejected the defendants' argument regarding the contractual provisions at issue in the state cases. See Record Document 45 at 12. Second, the referenced ruling by the state trial court was signed on August 27, 2004. See Record Document 43, Ex. B. Yet, the record shows that in the time subsequent to this ruling, the city paid several judgment creditors both principal and judicial interest without any post-judgment referral to the risk management committee for a special post-judgment, pre-payment review. See Record Document 22, Ex. 5 and Ex. 1 at 50-53. If the discovery of a municipality's ability to resist the payment of a state court judgment, inspired by the referenced state trial court judgment, constituted a rational basis for further pre-payment, post-state-court-judgment review by the risk management committee, then all state court judgments awaiting payment by the city as of August 27, 2004, would have been treated in a manner similar to Newman's judgments, but they were not. See generally Record Document 54 at 4.
Even though the explanations offered by the defendants fail to pass rational-basis scrutiny, this court must go a step further and determine whether there is another reasonably-imaginable rationale that would survive the rational basis test. See Record Document 54 at 4. After reviewing the record and after exercising reasonable imagination, the court finds that there is
In regard to the stadium judgment, the city has proffered several reasons to justify its decision to forego payment of judicial interest. In previous court rulings, the vast majority of these reasons have been rejected as valid, rational bases. See Record Documents 45 and 54. Only to the extent that it was not addressed in prior judgments, the court notes that Newman's litigation tactics during the stadium judgment do not provide a rational basis for the defendants' decision to forego payment of judicial interest on this judgment. See Record Document 22, Ex. 3, Answer to Interrogatory 2 (wherein the defendants state that one of the primary motivations for denying Newman payment of judicial interest was Newman's litigation tactics); Record Document 10, Exs. B and D (affidavits confirming the same). As explained in the section of this ruling reviewing the retaliation claim, the stadium suit and the tactics employed therein were, on the showing made, protected by the First Amendment. Finally, in accordance with the Fifth Circuit's previous ruling in this case, this court has reconsidered the record as a whole and has exercised reasonable imagination to consider whether any other rational basis exists which justifies the defendants' decision to treat Newman differently than other judgment creditors by denying it payment of the judicial interest due on the stadium judgment. See Record Document 54 at 4. The court finds that there is no rational basis for this action.
In previous court rulings, several potential rational bases for the defendants' decision not to pay interest on the campus plan judgment have been rejected. See Record Documents 45 and 54. However, this court has not previously addressed the defendants' argument that a new city ordinance establishing a policy that the City of Shreveport will not pay interest on state court judgments provided a rational basis justifying the defendants' differential treatment of Newman's campus plan judgment.
In this court's original summary judgment ruling, interrogatory responses in Record Document 22, Ex. 5, were cited in support of the finding that the city had treated at least sixteen other judgment creditors differently than Newman. See Record Document 45 at 9-10. The information in these interrogatory responses indicates that all creditors who were paid judicial interest had received judgments which were not on appeal and were paid prior to the effective date of the ordinance in question, October 10, 2006. See Record Document 30, Ex. 4; Record Document 22, Ex. 5. Thus, it seems the ordinance noted above provides a rational basis for treating Newman differently from these other creditors as it concerns the campus plan judgment. Newman has submitted several arguments in an effort to nullify any effect the ordinance may have on its campus plan judgment. As explained below, these arguments are not persuasive.
Newman argues that the version of the ordinance relied upon by the defendants was not effective when the campus plan judgment became final and definitive on March 9, 2007, because the publication requirements of section 4.23 of the Shreveport City Charter were not satisfied at that time. See Record Document 62 at 12. Section 4.23 of the city charter provides:
Record Document 22, Ex. 10, § 4.23 (emphasis added). In support of this argument, Newman has submitted an affidavit from John S. Hodge ("Hodge"), who is counsel of record for Newman. See Record Document 33, Ex. 1. In this affidavit, Hodge represents that he repeatedly checked the website of the publisher of the city's municipal code. As recently as April 19, 2007, Hodge represents that the version of the pertinent ordinance which was published on this website was different
Newman's argument on this point is flawed. As stated, the affidavit upon which Newman bases its argument concerns text placed on an "official website." See Record Document 33, Ex. 1. However, the pertinent publication requirements of the Shreveport City Charter refer to publication in the "official journal." Record Document 22, Ex. 10, § 4.23 (emphasis added). The official journal for the City of Shreveport for the period commencing July 1, 2006, through June 30, 2007, was "The Times," a daily newspaper published in Shreveport. Shreveport, La., Res. No. 80 (2006); see also La. R.S. 43:140, et. seq. (describing official journals as "newspapers"). Newman has not introduced any evidence into the record which indicates that the version of the pertinent ordinance on which the defendants rely was not duly published in the official journal in a timely manner. Furthermore, the court notes that the record contains a copy of the ordinance at issue containing the language relied upon by the defendants in this case which is certified by the clerk of the council of the City of Shreveport. See Record Document 22, Ex. 7. The clerk of the council certified that the key language was effective on October 10, 2006. See id. The city charter of Shreveport indicates that the clerk's notation of an effective date refers to the date by which all the requirements of section 4.23 of the charter have been fulfilled, including the publication
Newman also argues that the city cannot rely on the referenced ordinance to justify its actions because this would impermissibly, retroactively alter Newman's substantive rights. See Record Document 62 at 13-14. Newman asserts that, prior to the enactment of the ordinance at issue, city policy mandated that judicial interest awarded on state court judgments be paid. According to Newman, the ordinance relied upon by the defendants changed this policy and thus effected a substantive change to the applicable law. Newman argues that "in the absence of legislative expression to the contrary, changes in the law during the course of a suit that are procedural and interpretive apply both prospectively and retroactively, but those that are substantive apply only prospectively." Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 269 (5th Cir.2001). Newman then asserts that it has the right to be governed by the municipal policy/law regarding the payment of judicial interest which was in effect at the time of the initiation of the campus plan suit in 2003,
The ordinance in question became effective October 10, 2006. See Record Document 22, Ex. 7. The campus plan judgment became final and definitive on March 9, 2007. See Record Document 45 at 3. Assuming that Newman is correct in asserting that this ordinance effected a substantive change in the law and thus should only apply prospectively, that requirement is met here. The city applied the ordinance to a judgment which became final and definitive after the ordinance became effective, not before. To the extent Newman implies it had a vested right in the campus plan judgment and the interest accruing under that judgment prior to the date appellate review was exhausted and the judgment became final and definitive, this assertion is in error. See Sun Oil Co. v. Burford, 130 F.2d 10, 19 (5th Cir.1942) ("No one may acquire a vested interest in a decision until the time has elapsed in which the court has jurisdiction to change it.") (rev'd on other grounds); Columbraria Ltd. v. Pimienta, 110 F.Supp.2d 542, 548 (S.D.Tex.2000) ("a cause of action that has not been reduced to a final judgment is not a `vested right'"); accord Jarrett v. Climatrol Corp., 185 So.2d 63, 65 (La.App. 4th Cir.1966) ("No individual has a vested right in a civil penalty ... where a judgment recognizing the same has never become final in the sense that it was unappealable"); Hill v. Jacques Miller, Inc., 609 So.2d 327, 328 (La.App. 3d Cir.1993) ("It is well settled that one never has a `vested right' in a judgment of a court until the courts have lost control of the judgment as a result of its having become final and unappealable.") (citing 16 C.J.S. Constitutional Law § 271, pp. 1266, 1267).
Newman argues the defendants' refusal to pay legal interest constituted an
The Fifth Circuit stated the following in regard to the present retaliation claim:
Record Document 54 at 6. As to the fourth prong of the retaliation analysis, causation, the Fifth Circuit stated:
Id. The court then concluded:
Id. (emphasis added). As this court interprets this language, further review of the third prong of the retaliation analysis is foreclosed. The Fifth Circuit has decided that the plaintiff has satisfied this portion of the retaliation analysis. As to the fourth prong, the Fifth Circuit has indicated that as long as this court verifies its prior assumption, and finds that Newman has indeed made a prima facie showing of retaliation in this case, ie., that Newman's protected conduct was a "`substantial factor' or `motivating factor'" in the city's adverse actions, then the fourth prong is satisfied. See Charles v. Grief, 522 F.3d 508, 516 n. 28 (5th Cir.2008). Therefore, in accordance with the Fifth Circuit's ruling, this court will now only examine the first and second prongs of the retaliation analysis, and will tender a finding as to whether Newman has made a prima facie showing of retaliation.
As to the first retaliation element, Newman asserts that it has a right under the First Amendment to pursue litigation against the City of Shreveport, including the right to:
Record Document 62 at 18. Newman's choice of language was inspired by comments made by representatives of the city throughout the record that the city was justified in treating Newman differently, particularly in regard to the stadium judgment, because Newman filed supplemental petitions in that case which increased the alleged damages by "nearly eight (8) times" the amount noted in the original petition. See Record Document 22, Ex. 3 at 4. The defendants have contended that this introduction of alleged merit less claims must "generally [be] considered to be an abuse of legal process," as Newman
There is no dispute between the parties that the original, underlying claim giving rise to the stadium suit was not objectively baseless. See e.g., Record Document 22, Ex. 1 at 65-66. Furthermore, the court notes that jurors awarded Newman several hundred thousand dollars on its contractual claims in both the campus plan and stadium lawsuits, and that state appellate courts affirmed these awards with minor adjustments. See Record Document 62 at 2 (and citations therein). The evidence included in the record also fails to indicate that the amendments to the original state court petition in the stadium judgment were so devoid of merit that no reasonable litigator could reasonably expect success on these claims. See Bryant v. Military Dep't of the State of Miss., 597 F.3d 678, 691-92 (5th Cir.2010). The stadium case was based on claims arising out of a contract between Newman and the City of Shreveport for the renovation of Independence Stadium in Shreveport. See Newman Marchive P'ship, Inc. v. City of Shreveport, 923 So.2d at 854. Although the work was to be accomplished in three phases over the course of several years, it was considered to be one project. See id. The contract between Newman and the city was terminated before the final phases of initiated projects were completed. See id. at 855-56. After originally filing a petition seeking approximately $250,000 based on services previously rendered and expenses incurred, Newman filed amended petitions to seek approximately $1.5 million dollars based primarily on the loss of anticipated profits which it estimated it would have enjoyed had the contractual relationship with the city continued. See Record Document 10, Exs. L, M and N. There is no indication that the city filed a motion for partial summary judgment in state court after these amended petitions were filed. See Record Document 22, Ex. 2 at 4-5. The stadium case, as amended, was tried and submitted to a jury. See id. The jury found Newman was due sums from the City of Shreveport "under either contract or value of services" in the amount of $251,304.34, but was not due any payment for loss of anticipated profits. See Record Document 10, Ex. O; see also Bryant, 597 F.3d at 691-92 (finding that the determination as to whether a claim is objectively baseless is not simply determined by whether the litigant won or lost the suit). Based on the evidence in the record, the court agrees with Newman and finds that the litigation activity at issue was protected by the First Amendment.
The court also agrees with Newman that the record evidence conclusively shows that a substantial motivating factor behind the defendants' decision to deny Newman payment of judicial interest on both of its judgments
When the findings above are combined with the findings in the Fifth Circuit's ruling in this case in regard to the third and fourth elements of the retaliation claim test, this court concludes that Newman has successfully shown that it suffered a deprivation of a constitutional right as it was the object of an unconstitutional retaliatory act by the City of Shreveport. See Record Document 54 at 5-6. There is no question of fact remaining as to this issue, and summary judgment will be granted on this point in Newman's favor.
Under section 1983, in order to demonstrate that the City of Shreveport and its mayor, in his official capacity, are liable for the deprivations of rights described above, Newman must show proof of three elements: a policymaker, an official policy, and a violation of constitutional rights whose "moving force" is the policy or custom. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001).
Newman correctly notes that a single decision by a municipal policy maker may constitute an official policy for purposes of liability under section 1983. See Record Document 62 at 26-27; see also Gelin v. Housing Auth. of New Orleans, 456 F.3d 525, 527 (5th Cir.2006). However, the law demands that the single decision must be made by an official or governmental body who speaks with final policymaking authority in regard to the specific decision alleged to have caused the particular constitutional or statutory violation at issue. See id.; see also Brady v. Fort Bend Cnty., 145 F.3d 691, 699 (5th Cir. 1998).
Id. at 698-99 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 1292, 1299-1300, 89 L.Ed.2d 452 (1986)).
Gelin, 456 F.3d at 527 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989)).
In the sections above, the court found that Newman's right to equal protection was violated in two ways. First, the city failed to pay the judicial interest on Newman's stadium judgment, and, second, Newman's judgments were not simply paid by a check signed by the mayor, but were instead referred to the risk management committee for a post-judgment determination of whether and/or how much the city would actually pay Newman, based, in part, on a special review of Newman's prejudgment activities.
As to the decision to refer Newman's judgments to the risk management committee for a post-judgment determination of whether and/or how much the city would actually pay Newman, this decision was the mayor's.
The charter of the City of Shreveport states that the director of finance shall make provision for the payment of all the lawful debts of the city, and that the mayor shall sign all instruments or documents requiring the assent of or execution by the city. See Record Document 22. Ex. 10, §§ 5.02 and 10.01. The record confirms that when judgments are paid by the city, the mayor signs the checks and he does so without approval by the city council. See Record Document 22, Ex. 4 at 22 (transcript of hearing recording the mayor's statement that he authorizes and signs checks to pay judgments rendered against the city out of the retained risk fund without the necessity of a vote of the city council). Furthermore, the charter states that the director of finance shall, with the approval of the chief administrative officer, audit before payment for legality and correctness, all accounts, claims and demands against the city. See Record Document 22, Ex. 10, § 10.02 (introduction and subpart (h)). The mayor appoints both the chief administrative officer and the head of the department of finance and supervises both of these officials pursuant to his possession of all executive and administrative powers under the city charter. See id., Ex. 10, § 5.02 and 8.02(a). The interplay between these roles had an effect in the present case. The record shows that the mayor decided to refer the stadium judgment to the risk management committee rather than pay Newman's final stadium judgment after conversing with his chief administrative officer. See id., Ex. 11 at 7-9. Finally, the article of the city charter addressing the executive branch, i.e., the mayor, includes the following provision:
See Record Document 22, Ex. 10, § 5.06. When this provision is considered with the those cited previously, it is clear the city charter grants the mayor
As stated, in addition to local positive law, custom and usage established that the mayor had the final policymaking authority in this regard.
In sum, the mayor's decision to refer the judgments to the risk management committee rather than pay the judgments was a moving force in the denial of the right of equal protection under the law. Since the mayor had final policymaking authority to render this decision, the court finds that the city is liable for the resulting deprivation of constitutional rights.
The city is also liable for the violation of Newman's First Amendment right to pursue judicial relief without unconstitutional retaliation. As explained above, the final policymaker(s) of the city has/have decided to deny Newman payment of the judicial interest owed on the stadium judgment. It is also clear that the same policymakers have decided not to pay Newman judicial interest on the campus plan judgment. As the Fifth Circuit has noted, the defendants in this case have admitted that these decisions were made, in substantial part, because of Newman's litigation tactics, which the defendants considered to be an "abuse of the judicial system." See Record Document 22, Ex. 3, Answer To Interrogatory No. 2; Record Document 54 at 6.
Newman has successfully alleged constitutional violations. Newman argues that Mayor Hightower's decision to refer Newman's judgments to the risk management committee and his decision to act in
To secure a finding that former Mayor Hightower is liable in his individual capacity, Newman bears the burden to demonstrate that Mayor Hightower is not entitled to qualified immunity.
Baker v. Putnal, 75 F.3d 190, 198 (5th Cir.1996); Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir.2001). Since Baker, the courts have provided additional instruction as to these two steps.
Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002) (internal quotations and citation omitted). Objective reasonableness is gauged by assessing whether at the time and under the circumstances of the challenged conduct "all reasonable officials" in the same circumstances would have come to the realization that the conduct complained of violated a constitutional provision. See Pierce v. Smith, 117 F.3d 866, 871 (5th Cir.1997) (emphasis added).
The Fifth Circuit has held that:
Pierce, 117 F.3d at 871 (citations omitted). The court enters into the required analysis acknowledging that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (citation and quotations omitted).
Newman has cited several cases which demonstrate that the right of equal protection and the prohibition against government retaliation in response to protected speech was generally established at the time of the alleged misconduct. See Record Document 62 at 33-34. However, these cases do not, in the court's estimation, show that at the time of the actions at issue in this case the mayor should have realized he was violating clearly established law. These cases do not define the contours of the pertinent law with the specificity required to establish the mayor's personal liability. See generally Anderson, 483 U.S. at 639, 107 S.Ct. at 3039-40. Furthermore, this court cannot say that the mayor's actions were not "objectively reasonable" as a matter of law, i.e., that all reasonable officials in the mayor's position would have realized that the conduct complained of violated a constitutional provision. See Pierce, 117 F.3d at 871. Thus, summary judgment will be denied as to the individual capacity claims against Mayor Hightower.
As set forth above, on remand, Newman's motion for partial summary judgment in this section 1983 claim is
The defendants' motion for summary judgment is
In accordance with the findings noted above, and there being no other outstanding issues in this case, the court finds that Newman is entitled to damages in regard to both the stadium judgment and the campus plan judgment. Newman has asserted that on January 15, 2010, the amount at issue was $226,925.98, and that $18.98 per day should be added to this amount for each day damages remain unpaid for the remainder of the calendar year 2010. See Record Document 62 at 36. Newman may provide supplemental briefing as to the amount of damages due on or before Friday, August 27, 2010. The defendants may also offer a response regarding the proper amount of damages due on or before Thursday, September 2, 2010. Finally, Newman may reply to any response by the defendants on or before Tuesday, September 7, 2010.
An order consistent with this Memorandum Ruling shall issue herewith.
In the sections following, under the retaliation analysis, the ordinance noted above does not prohibit a finding that the city's decision to deny Newman payment of judicial interest on the campus plan judgment was an unconstitutional retaliatory action. Under the Fifth Circuit's previous ruling in this case, this court is directed to re-examine only a few elements under the retaliation analysis. One of these elements requires proof of the defendants' intent to retaliate against the plaintiff for exercising a constitutionally protected right. In their interrogatory responses, the defendants clearly admit that in passing the ordinance in question, which is their justification for their denial of judicial interest payments to Newman on the campus plan judgment, they were substantially motivated by Newman's protected litigation activity. See Record Document 22, Ex. 3. This is sufficient to find an unconstitutional retaliatory action.
In contrast, above, the court finds that the ordinance serves as a rational basis justifying the defendants' decision to deny payment of judicial interest on the campus plan judgment. The "rational-basis" standard "is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause." A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 226 (5th Cir.2009) (citation and quotations omitted). If there is any reasonably-imaginable rationale justifying the city's actions, this will satisfy rational basis scrutiny. Even though the city has admitted that the passage of the ordinance was substantially motivated by unconstitutional retaliatory animus, the record indicates that retaliatory animus was not the only reason behind the enactment of the ordinance. See Record Document 22, Ex. 1 at 29-40; Record Document 67 at 16. These non-retaliatory motivations are sufficient to support the city's argument that the ordinance provides a rational basis for the defendants' differential treatment of the campus plan judgment under the equal protection analysis.
Newman Marchive P'ship, Inc. v. City of Shreveport, 962 So.2d 1075, 1079 (La.App. 2d Cir.2007) (Sexton, J., concurring).
483 U.S. 635, 639, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987).
