KAREN L. HAYES, Magistrate Judge.
Before the undersigned magistrate judge, on reference from the District Court, are five pending motions: 1) a motion to dismiss for lack of subject matter jurisdiction, or alternatively for failure to state a claim upon which relief can be granted [doc. # 11] filed by John Bel Edwards, in his capacity as Governor of the State of Louisiana; 2) a nearly identical motion to dismiss for lack of subject matter jurisdiction, or alternatively for failure to state a claim upon which relief can be granted [doc. # 12] filed by Marketa Garner Walters, Secretary of the Louisiana Department of Children and Family Services; 3) a related motion to dismiss for lack of subject matter jurisdiction, or alternatively for failure to state a claim upon which relief can be granted [doc. # 13] filed by Keesha Bordelon, individually, and in her official capacity as a staff attorney for the Department of Children and Family Services; 4) a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, or alternatively, a motion for more definite statement [doc. # 17] filed by Albert E. Loomis, III, and Mary Hamilton, and 5) which Anika LaShaye Carston, adopted [doc. # 19]. The motions are opposed. For reasons assigned below, it is recommended that the motions be GRANTED, and that plaintiff's complaint be dismissed, in its entirety.
On August 30, 2017, Harvey Lexing, acting individually, and as next friend of his minor child, E.M.L., filed the instant "Complaint for Declaratory Judgment as to the Unconstitutionality of State Statutes, Damages, Stay Order, and for Injunctive Relief and Trial by Jury." (Compl.). Lexing invoked the court's federal question jurisdiction, 28 U.S.C. § 1331,
Named defendants include: John Bel Edwards, in his capacity as governor and head of the executive branch for the State of Louisiana; Marketa Garner Walters, in her capacity as Secretary of the Louisiana Department of Children and Family Services ("DCFS"); Keesha Bordelon, individually, and in her official capacity as a staff attorney for DCFS; Jo Caston, individually, and in her official capacity as a deputy with the Ouachita Parish Sheriff's Office; Albert E. Loomis, III, individually, and in his official capacity as an attorney; Mary Hamilton, individually, as an employee of Albert E. Loomis, III; and Anika LaShaye Carston.
In August 2008, Anika LaShaye Carston gave birth to a baby girl, E.M.L. See Compl., ¶¶ 6, 15. Plaintiff, Harvey Lexing, was present for E.M.L.'s birth, and formally acknowledged her as his child after a DNA test confirmed that he was her biological father. Id. E.M.L. has lived at Lexing's residence continuously since early 2010. Id. In 2015, Lexing initiated a custody proceeding in the Fourth Judicial District Court for the Parish of Ouachita, State of Louisiana, in which he petitioned to be named domiciliary parent of E.M.L., and to be awarded temporary custody, pending a hearing on the matter. Id.; see Lexing v. Carston, No. 15-2513 (4
The Lexing v. Carston case was assigned to Judge Stephens Winters. (Compl., ¶ 7). Judge Winters, however, was unavailable to sign the temporary custody order. Id. Thus, per his instructions, his secretary presented the pleadings and proposed order to Judge Carl V. Sharp, who signed the order on August 21, 2015, granting Lexing temporary custody of the then seven year old, E.M.L. Id.
On August 24, 2015, Anika LaShaye Carston consulted with attorney Albert E. Loomis, III, and then proceeded to remove E.M.L. from her school. Id., ¶ 8. Lexing had to contact local law enforcement to help locate E.M.L. to secure her return. Id.
Anika Carston boasted to Lexing that she had hired the best and most powerful lawyer in North Louisiana, who had connections with powerful people, including the judges. Id., ¶ 9. She guaranteed Lexing that she would obtain custody of E.M.L., receive a large sum of child support, and destroy plaintiff's reputation in the process. Id.
On August 31, 2015, Judge Winters' secretary telephoned Lexing and advised him that attorney Loomis had spoken with "Judge Winters and told him that the order signed by Judge Sharp was invalid and that Judge Winters is voiding it." Id., ¶ 10. Lexing conveyed to Judge Winters' secretary his displeasure concerning the unethical and "illegal" ex parte contact by Loomis to Judge Winters. Id., ¶ 11. The secretary promptly consulted with Judge Winters who stated that he would schedule a telephone conference for September 3, 2015, with Loomis and Lexing. Id.
During the September 3, 2015, telephone conference, Judge Winters did not permit any discussion regarding his decision to void Judge Sharp's order. Id., ¶ 12. However, he agreed to issue an order not to interview E.M.L. or to discuss the case with her or in her presence. Id. Judge Winters directed attorney Loomis to draft the order, which did not have to be submitted to Lexing for approval. Id.
Mr. Loomis emailed a copy of the proposed order to Lexing, which prompted Lexing to send a letter to Judge Winters on September 4 objecting to the proposed order. Id., ¶ 12. Lexing requested a hearing to address the order stemming from the September 3 telephone conference. Id. Later that day, Judge Winters issued an order prohibiting ex parte communication with the court. Id.
On September 8, 2015, Judge Winters issued an order in open court stating that "neither the parties, their attorneys, nor anyone acting for them shall discuss the case in the presence of the minor child, nor shall they interview her." Id., ¶ 14. Judge Winters signed a written order to that effect on September 10, 2015. Id. That same date, however, Carston picked E.M.L. up from school and brought her to attorney Loomis's office, whereupon he instructed her to call him "Dr. Loomis." Id.
On September 21, 2015, a "Hearing Officer Conference" was held, which resulted in Lexing being named domiciliary parent of E.M.L. (Compl., ¶ 15). Carston was granted visitation six days per month (every other Wednesday and every other weekend). Id. Carston's demand for custody, child support, and insurance were denied. Id.
In October 2015, E.M.L. told Lexing that Carston had been taking her to attorney Loomis's office, and that she did not like going there. Id., ¶ 16. Carston would leave her alone at the office with either Loomis or his secretary, Mary Hamilton, who would try to talk to E.M.L. about the case, and tell her untrue things about Lexing. Id.
On November 5, 2015, Lexing filed a motion to recuse Judge Winters on account of his continued bias, prejudicial actions, and favoritism towards Loomis. Id., ¶ 18. On November 6, 2015, Judge Winters recused himself, and the case was reassigned to Judge Wilson Rambo. Id.
On November 12, 2015, Lexing transmitted a letter to attorney Loomis, in which he demanded that Loomis cease and desist his "illegal conduct" with E.M.L. Id., ¶ 19. On November 15, 2015, E.M.L. told Lexing that Loomis, Mary Hamilton, Carston, and Carston's parents were forcing her to tell lies. Id., ¶ 20.
On November 16, 2015, E.M.L. told Lexing that Loomis was touching her inappropriately. Id., ¶ 21.
On November 17, 2015, Lexing contacted Child Protective Services ("CPS") to obtain the names of professional persons that they use to interview and evaluate children. Id., ¶ 21. One of the individuals recommended by CPS was Dr. Lawanna Gunn-Williams. Id. Lexing scheduled an appointment for E.M.L. with Dr. Gunn-Williams for November 20 and 23, 2015. Id. At the conclusion of her evaluation, Williams issued a report recommending that E.M.L. remain domiciled with her father in her present home environment. (Behavioral Evaluation; Compl., Exh. 3).
Before Dr. Williams issued her report, however, Lexing contends that Carston and Loomis conspired to deprive Lexing and E.M.L. of their constitutional rights and to damage their reputation. Id., ¶ 23. On an unspecified date, Carston spoke with someone (possibly Lexing) on the telephone for approximately 90 minutes concerning what E.M.L. stated that Loomis and Carston's parents had done to her. Id., ¶ 25.
As soon as the call ended, Carston telephoned "Loomis or an intermediary," and spoke for almost fifteen minutes. Id., ¶ 25. After that call, Carston immediately called the CPS Hotline and filed a false complaint against Lexing, stating that E.M.L. had told her that Lexing had molested her. Id., ¶ 26. After she called CPS, Carston called the Ouachita Parish Sheriff's Office and filed another false complaint. Id., ¶ 27. Carston then called "Loomis or an intermediary of his." Id., ¶¶ 28-30.
Apparently later that same evening, three Ouachita Parish Sheriff's deputies and DCFS agent, Brittany Godfrey, arrived at Lexing's residence. Id., ¶ 31.
On December 8, 2015, E.M.L. was examined by Dr. Meade O'Boyle, apparently at the request of DCFS Agent Brittany Godfrey and Detective Jo Caston. (Report; Compl., Exh. 4). The physician noted that there was a "bad custody battle going on," and that E.M.L. stated that both her parents talked bad about each other. Id. Dr. O'Boyle found no signs whatsoever of sexual molestation, but opined that if the parents did not cease their custody battle, E.M.L. would suffer emotional damage. Id.
According to Lexing, the purpose of Carston's filing of the false complaint was to forever seal and prohibit the disclosure of anything in the DCFS report that E.M.L. had stated about Loomis and Carston's grandparents. Id., ¶ 33. Moreover, Lexing and E.M.L.'s names were placed on the state police registry indicating that Lexing had been accused of molesting his daughter a permanent stigma for both Lexing and E.M.L. Id.
Loomis also had Carston provide perjured testimony that E.M.L. told her that Lexing was coaching E.M.L. on what to tell others about Loomis. Id., ¶ 34.
Dr. Williams made a mandatory report to DCFS about what E.M.L. had told her about Loomis and Carston's parents. Id., ¶ 36. On November 25, 2015, DCFS notified Dr. Williams that an investigation was being conducted. (Nov. 25, 2015, Letter; Compl., Exh. 5).
On November 25, 2015, Ouachita Parish Sheriff deputies, Jerry Benson and Connie Miller went to Dr. Williams' residence to investigate the allegations against Loomis and Carston's parents. Id., ¶ 37. Thereafter, the deputies went to Lexing's residence to interview him about the allegations against Loomis and Carston's parents. Id. Before the interview started however, deputy Benson received a phone call, upon completion of which, he advised Lexing that Jo Caston would be handling the investigation. Id.
As it turns out, on November 25, 2015, Carston had filed another complaint against Lexing with the Monroe Police Department. Id., ¶ 38. On November 26, 2015, Carston filed yet another complaint against Lexing with the Ouachita Parish Sheriff's Office. Id. Two deputies were dispatched to Lexing's residence, but Lexing persuaded them that the complaint was harassment. Id. On the afternoon of November 26, 2015, Carston filed another complaint against Lexing with the Monroe Police Department. Id.
Carston posted additional allegations against Lexing on Facebook and GoFundme.com, which has impacted Lexing and E.M.L.'s constitutional rights to free association with friends, to attend parties, to have play dates, and sleepovers. Id., ¶ 39.
On December 3, 2015, E.M.L. was interviewed by Jennifer Graves, CPS Agent Brittany Godfrey, and possibly Jo Caston. (Compl., ¶ 46, Exh. 8). E.M.L. repeated her allegations against Loomis and Carston's parents. Id. However, the interviewers felt that E.M.L. may have been coached. (Compl., Exh. 8). The investigator did not speak with Loomis, because the alleged inappropriate contact occurred in the city of Monroe. Id. A copy of the report was to be forwarded to the Monroe Police Department for their follow-up with Loomis. Id. The case was marked as closed. Id. The Monroe Police Department has no record of receiving a request from the Ouachita Parish Sheriff's office to investigate Loomis concerning the allegations by E.M.L. (Compl., Exh. 9).
According to Lexing, Deputy Caston's report is full of knowing and intentionally false statements, distortions, and misrepresentations intended to hurt E.M.L. and Lexing, and to favor Loomis. Id., ¶ 50. Lexing took issue with Caston's statements and conclusions in her report, and faulted her handling of the investigation of Carston's parents, which he likened instead to a "social visit." Id., ¶¶ 51-55.
In early December 2015, Lexing contacted Detective Jo Caston to inquire about the status of the investigation of Loomis and Carston's parents. Id., ¶ 40. Caston informed Lexing that she was not investigating them, she was investigating Lexing. Id.
On December 19, 2015, Lexing filed a motion to disqualify Loomis and for contempt for violating Judge Winters' order, and for inappropriately touching E.M.L. Id., ¶ 42. Lexing amended his motion to disqualify Loomis on January 13, 2016. Id.
In January 2016, Lexing's attorney, Carol Powell-Lexing, issued DCFS a subpoena duces tecum requesting the investigative files and report filed by Lexing against Carston. Id., ¶ 43.
On February 8, 2016, Keesha Bordelon, acting in her capacity as a DCFS staff attorney and "in collusion with" Loomis, filed a motion to quash the subpoena duces tecum pursuant to Louisiana Children's Code Article 615(E). Id., ¶ 44. In her motion, Bordelon claimed that the information was confidential because the complaint concerning E.M.L. had been determined to be not justified/invalid. Id. According to Lexing, Bordelon knowingly and intentionally falsely represented to the court and to plaintiff that a not justified/invalid determination also had been made as to the allegations against Loomis. Id.
Lexing alleged that Bordelon and Loomis conspired to provide false information, knowing that without the DCFS investigation and report, it would prove difficult to refute their false claim. Id., ¶ 45. Judge Rambo granted DCFS's motion to quash the subpoena. Id.
A hearing on Lexing's motion to disqualify Mr. Loomis was re-scheduled (for the fourth time) for August 31, 2016. Id., ¶ 56. When confronted before the hearing, attorney Keesha Bordelon admitted that DCFS did not investigate Loomis, but then proceeded to "false[ly]" represent that the case had been referred out to law enforcement. Id. Bordelon also re-filed the same motion to quash that she had filed on February 8, 2016, in violation of the court's notice requirements. Id. Bordelon explained that she delayed in filing the motion because DCFS employee Godfrey only recently had been served. Id. Godfrey, however, was served on August 10, 2016, three weeks earlier, yet still did not appear for the hearing. Id.
On September 7, 2016, Lexing filed a suit for personal injuries against Loomis for damages suffered by Lexing and E.M.L, Lexing v. Loomis, No. 16-2753 (4th J.D.C.). (Compl., ¶ 67). The suit was assigned to Judge Rambo. Id.
On November 7, 2016, Lexing filed a motion to recuse Judge Rambo on the basis of the judge's alleged pattern of bias and prejudicial conduct. (Compl., ¶ 68). Lexing supplemented his motion to recuse on March 28, 2017. Id. The motion to recuse was assigned to Judge Alvin R. Sharp. Id. Lexing contends that Loomis improperly contacted Judge Sharp ex parte. See Compl., ¶¶ 71-74.
Lexing issued a subpoena to Judge Rambo requiring production of a log of his telephone and cell phone calls. Id., ¶ 81. On May 24, 2017, Judge Rambo filed a motion to quash the subpoena and a motion for protective order pursuant to Louisiana Code of Evidence Article 519. Id., ¶ 82. On June 14, 2017, Lexing filed a petition for declaratory judgment seeking to hold Louisiana Code of Evidence Article 519 unconstitutional. Id., ¶ 83. Judge Sharp, however, did not set the constitutional challenge for hearing prior to the July 19, 2017, hearing on Lexing's motion to recuse Judge Rambo. Id., ¶ 84.
Lexing contends that the following statutes and articles are unconstitutional on their face, and as applied: Louisiana Children's Code Articles 615(E), 615(E)(1), 616(F), 616.1(A), 616.2(3); Louisiana Revised Statutes 46:56(F)(1), 46:56(F)(8)(a)(b), 46:56(F)(9)(g), 46:56(F)(11), 46:56(F)(12)(a)(b), 46:56(H)(11)(2)(3); Louisiana Code of Evidence Article 519; and all statutes related to enforcement of the foregoing statutes. Id., ¶ 99.
Plaintiff contends that the state court proceedings should be stayed until this court resolves the constitutionality of the state laws at issue. Id., ¶ 130. He maintains that the state court has refused to set the challenges for hearing, thus forcing plaintiff to proceed without required evidence. Id.
Plaintiff enumerated eight causes of actions for violations of his rights to due process and equal protection, plus a conspiracy to effect same under federal law. He set forth a "nonexhaustive" list of 31 rights that defendants violated. In addition, he asserted violations of his rights to due process, equal protection, and to a fair trial under Articles 1-3 and 22 of the Louisiana Constitution. He also alleged a state law tort claim against defendants for making false statements and conspiring against him.
Plaintiff seeks a judgment declaring the unconstitutionality of the aforementioned state laws and finding that defendants violated his constitutional rights. He also seeks a judgment enjoining enforcement of the unconstitutional provisions. In addition, he seeks an order removing his name and all information about him from any registries upon which it was placed. Plaintiff prays for pecuniary and punitive damages, attorney's fees and costs.
On November 3, 2017, defendants, John Bel Edwards, Marketa Garner Walters, and Keesha Bordelon filed separate, yet overlapping, motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Between December 12 and 20, 2017, plaintiff filed responses to each of the motions. [doc. #s 29, 30, & 33]. Edwards, Walters, and Bordelon did not a file a reply brief, and the time to do so has lapsed. See Notice of Motion Setting [doc. # 15].
On November 15, 2017, defendants, Albert Loomis, III, and Mary Hamilton, filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, or alternatively, a motion for more definite statement. On November 21, 2017, defendant Anika LaShaye Carston adopted Loomis and Hamilton's motion, seeking the same relief requested by Loomis and Hamilton. On December 23, 2017, plaintiff filed her opposition memoranda. [doc. #s 34 & 35]. On January 3 and 10, 2018, movants filed their reply briefs. [doc. #s 38 & 41]. Thus, the matter is ripe.
Several of the motions raise identical arguments. To minimize repetition, the court first will address some of the common arguments, particularly the ones directed towards the court's exercise of jurisdiction. Thereafter, the court will proceed to consider merits-related arguments pertaining to plaintiff's federal law claims.
It is manifest that this court enjoys subject matter jurisdiction to entertain this matter via federal question, 28 U.S.C. § 1331. Under certain circumstances, however, the court must decline to exercise otherwise extant jurisdiction. For example, if the Rooker-Feldman doctrine applies, the court lacks subject-matter jurisdiction over the dispute. Jones v. Louisiana, No. 15-1816, 2016 WL 5720623, at *2, n.2 (W.D. La. Sept. 29, 2016) (citing inter alia, Liedtke v. State Bar of Texas, 18 F.3d 315, 317 (5th Cir. 1994)). Also, a party's invocation of Eleventh Amendment immunity is analyzed as a challenge to the federal court's exercise of federal subject matter jurisdiction. Mahogany v. Louisiana State Supreme Court, 262 Fed. Appx. 636 (5
"A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers local 6 Pension Fund, 81 F.3d 1182, 1187 (2nd Cir. 1996)). The party seeking to invoke jurisdiction bears the burden of demonstrating its existence. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). "[T]here is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court." Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (citation omitted).
"A court can find that subject matter jurisdiction is lacking based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Enable Mississippi River Transmission, L.L.C. v. Nadel & Gussman, L.L.C., 844 F.3d 495, 497 (5th Cir.2016) (citations and internal quotation marks omitted).
The Rooker Feldman doctrine "holds that inferior federal courts do not have the power to modify or reverse state court judgments." Union Planters Bank Nat. Ass'n v. Salih, 369 F.3d 457, 462 (5th Cir.2004) (citation omitted). The doctrine comprises four elements: "(1) a state-court loser; (2) alleging harm caused by a state-court judgment; (3) that was rendered before the district court proceedings began; and (4) the federal suit requests review and reversal of the state-court judgment." Burciaga v. Deutsche Bank Nat'l Tr. Co., 871 F.3d 380, 384 (5th Cir.2017) (citations omitted). The doctrine, however, applies only to "final judgment[s] rendered by a state's court of last resort." Id. (citation omitted).
Here, there are no facts to suggest that there was a final judgment in the underlying state court action(s) that plaintiff is seeking to overturn. Thus, by its terms, Rooker-Feldman is inapplicable.
Under the domestic-relations exception, federal courts lack jurisdiction to "issue divorce, alimony, and child custody decrees." Estate of Merkel v. Pollard, 354 Fed. Appx. 88, 92 (5th Cir.2009) (citation omitted). This exception to federal jurisdiction is founded on "the strong state interest in domestic relations matters, the competence of state courts in settling family disputes, the possibility of incompatible federal and state court decrees in cases of continuing judicial supervision by the state, and the problem of congested dockets in federal courts." Rogers v. Janzen, 891 F.2d 95, 97 98 (5th Cir.1989) (citation omitted).
In this suit, plaintiff does not does not seek the issuance or modification of a child custody decree per se. Thus, the domestic relations exception is inapplicable. Saloom v. Texas Dep't of Family & Child Protective Servs., 578 Fed. Appx. 426, 429 30 (5th Cir.2014). Furthermore, the exception "obtains from the diversity jurisdiction statute . . . and therefore it has no application where, as here, there exists an independent basis for federal jurisdiction." Estate of Merkel, supra (citation omitted); see also Thomas v. State, No. 17-0348, 2018 WL 1308275, at *12 (N.D. Tex. Feb. 13, 2018), R&R adopted, 2018 WL 1254926 (N.D. Tex. Mar. 12, 2018) ("The domestic relations exception does not apply to the court's consideration of federal question jurisdiction.").
Plaintiff sued Governor Edwards and Secretary Walters only in their official capacities. However, he sued Bordelon in both her individual and official capacities. This section is limited to plaintiff's official capacity claims against these defendants.
Movants contend that they are entitled to Eleventh Amendment immunity. It is well settled that
Darlak v. Bobear, 814 F.2d 1055, 1059 (5
Section 1983 does not abrogate a state's sovereign immunity. Hanna v. LeBlanc, 716 Fed. Appx. 265, 268 (5th Cir.2017); Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309 (1989). In addition, Louisiana has refused to waive its Eleventh Amendment immunity from suit in federal court. La. R.S. 13:5106; Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991). Indeed, the state defendants specifically invoked immunity via the instant motions. Finally, the DCFS is an arm of the state, and therefore eligible for Eleventh Amendment protection. Cummings v. Louisiana Dep't Children & Family Servs., No. 14-3362, 2015 WL 5015311, at *1 n.2 (W.D. La. Aug. 21, 2015) (and cases cited therein).
With respect to plaintiff's claims against Bordelon in her official capacity, it is manifest that official capacity suits, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985) (citing, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55 (1978)). Thus, "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Id. Consequently, the Eleventh Amendment bars suit against state officials and employees of state entities, acting in their official capacities. K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010) (citations omitted); Green v. State Bar of Texas, 27 F.3d 1083, 1087 (5th Cir.1994) (plaintiff cannot evade Eleventh Amendment by suing state employees in their official capacity).
In response to defendants' motions, plaintiff concedes that he is not seeking damages against the State, Governor Edwards, Secretary Walters, or Bordelon (in her official capacity). Rather, he is seeking a declaratory judgment as to the constitutionality of various state statutes and injunctive against their enforcement. Indeed, the Ex parte Young doctrine
Relatedly, movants contend that when, as here, they were sued in their official capacities, they are not "persons" subject to suit under 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). However, "a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'" Id. (citing Kentucky v. Graham, 473 U.S. 159, 167, n. 14, 105 S.Ct. 3099, 3106, n. 14; Ex parte Young, 209 U.S. 123, 159 160, 28 S.Ct. 441 (1908)).
In short, plaintiff's claims for prospective declaratory and injunctive relief against Governor Edwards and Secretary Walters the only claims that he is advancing against these defendants plus his official capacity claim against Bordelon, are not barred by the Eleventh Amendment, and therefore, are redressable
Under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), "federal courts must refrain from considering requests for injunctive or declaratory relief based upon constitutional challenges to ongoing state civil proceedings." Price v. Porter, 351 Fed. Appx. 925, 927 (5
Applying the foregoing considerations here, the court initially finds that the instant constitutional challenges to certain state statutes and articles regarding child abuse investigations and subpoenas issued to judges are matters in play in the underlying state court proceedings. The contested provisions implicate Lexing's ongoing efforts to recuse a state court judge(s), and to re-direct the allegations of child abuse from himself to attorney Loomis and Carston's parents, via access to the investigation records. The court also readily finds that Louisiana has an important interest in its own domestic or family relations laws, which is sufficiently broad to encompass child abuse investigation processes. See Estate of Merkel, (citing inter alia, Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371 (1979)). Moreover, the state has an important interest in administering its judicial system, which would encompass rules limiting their judges's exposure to misuse of the subpoena process. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12, 107 S.Ct. 1519, 1527 (1987) (citations omitted) (noting earlier decision abstaining from hearing challenge to state's contempt process).
In addition, there is no question but that the state court proceedings afford plaintiff an opportunity to raise his constitutional challenges. In fact, Lexing did contest the constitutionality of Louisiana Code of Evidence Article 519. Moreover, there is nothing preventing him from raising constitutional challenges to the remaining state laws insofar as he has not already done so. Moreover, although Younger abstention presupposes an adequate state court remedy, it only requires an opportunity to present the federal claim in state court. Ballard v. Wilson, 856 F.2d 1568, 1571 (5
As the Supreme Court has recognized,
Huffman v. Pursue, Ltd., 420 U.S. 592, 605 07, 95 S.Ct. 1200, 1209 (1975).
The same thing may be said for plaintiff's constitutionality claims here.
Further, "Younger abstention also allows federal courts to avoid interpreting state laws that would result in the unwarranted determination of federal constitutional questions." Health Net, Inc. v. Wooley, 534 F.3d 487, 495 (5th Cir.2008) (citations and internal quotation marks omitted). In fact, the state court might be able to resolve the issue on state law grounds, and therefore obviate the need to address the federal constitutional issue. Id. Those circumstances are present here. Judge Rambo may decide to recuse himself or even to provide testimony without the need for a subpoena. Furthermore, the state court could disqualify Mr. Loomis without the need for additional investigative records, and order the state to expunge any record of the investigation of Lexing.
Finally, plaintiff has not established any of the circumstances that would counsel against application of Younger here. While the state district court may have delayed a hearing on his constitutionality challenge, that does not mean that it will never rule on the issues, or that if it does not, Lexing will not be able to obtain redress upon appeal.
The court further notes that while the state defendants did not urge dismissal on the basis of Younger, there is no indication that they consciously waived abstention on that basis. Regardless, the courts may raise Younger abstention on their own. Lawrence v. McCarthy, 344 F.3d 467, 470 (5th Cir.2003); Spooner v. Gautreaux, No. 11-0089, 2011 WL 13183107, at *2 (M.D. La. June 20, 2011), R&R adopted, 2011 WL 13192921 (M.D. La. July 15, 2011), aff'd, 459 Fed. Appx. 436 (5th Cir.2012). In addition, plaintiff took the opportunity to address Younger's applicability in at least of one his briefs. (Pl. Response Memo., pg. 14 [doc. # 28]).
In sum, the court finds that Younger applies to plaintiff's claims for prospective and injunctive relief against Edwards, Walters, and Bordelon (in her official capacity), and thus, those claims, including the related challenges under analogous provisions of the state constitution are subject to dismissal. Price v. Porter, 351 Fed. Appx. 925, 927 (5th Cir.2009) (and cases cited therein).
The Federal Rules of Civil Procedure sanction dismissal where the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief, inter alia, when it contains a "short and plain statement . . . showing that the pleader is entitled to relief . . ." Fed.R.Civ.P. 8(a)(2). Circumstances constituting fraud or mistake, however, must be alleged with particularity. Fed.R.Civ.P. 9(b).
To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). A claim is facially plausible when it contains sufficient factual content for the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Plausibility does not equate to possibility or probability; it lies somewhere in between. See Iqbal, supra. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. See Twombly, 550 U.S. at 556, 127 S.Ct. at 1965. Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" does not satisfy Rule 8. Id. "[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim." City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148 (5
Assessing whether a complaint states a plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, supra. (citation omitted). A well-pleaded complaint may proceed even if it strikes the court that actual proof of the asserted facts is improbable, and that recovery is unlikely. Twombly, supra. Nevertheless, a court is compelled to dismiss an otherwise well-pleaded claim if it is premised upon an invalid legal theory. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989).
When considering a motion to dismiss, courts generally are limited to the complaint and its proper attachments. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5
Section 1983 provides that any person who, under color of state law, deprives another of "any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ." Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citing 42 U.S.C. § 1983). Section 1983, however, does not create any substantive rights; it simply provides a remedy for the rights designated therein. Id. "Thus, an underlying constitutional or statutory violation is a predicate to liability under § 1983." Id. (citation omitted).
"To state a claim under § 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Leffall v. Dallas Independent School District, 28 F.3d 521, 525 (5th Cir. 1994). The first inquiry is whether plaintiff has alleged a violation of a constitutional right at all. Id. Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995). Moreover, in order to plead a § 1983 cause of action, a plaintiff "must establish that the defendant was either personally involved in the deprivation or that his wrongful actions were causally connected to the deprivation." James v. Texas Collin County, 535 F.3d 365, 373 (5th Cir. 2008). Thus, a successful § 1983 claim "must enunciate a set of facts that illustrate the defendants' participation in the wrong alleged." Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986).
Qualified immunity is nominally characterized as an affirmative defense. However, once raised by defendants, it devolves upon plaintiff to negate the defense by showing that the officials' conduct violated clearly established law. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008) (citation omitted). Plaintiff's burden is two-pronged. Club Retro LLC v. Hilton, 568 F.3d 181, 194 (5
Plaintiff contends that Keesha Bordelon violated his right to due process by making false representations to the court. Specifically, he alleges that on February 8, 2016, Bordelon intentionally misrepresented that attorney Loomis had been investigated by DCFS and cleared of abusing E.M.L. On August 31, 2016, Bordelon admitted to the court that DCFS had not investigated Loomis, but then falsely represented that the matter had been referred out to law enforcement. Bordelon also purportedly filed an untimely motion to quash.
The Due Process Clause of the Fourteenth Amendment declares that no State shall "deprive any person of life, liberty, or property, without due process of law." UNITED STATES CONSTITUTION, AMENDMENT XIV. However, a claim for random deprivation of a protected liberty interest or personal property is not cognizable under § 1983.
In Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908 (1981), an inmate claimed that prison officials had negligently deprived him of his personal property without due process of law. The Supreme Court held that although the prisoner was "deprived" of his property within the meaning of the Due Process Clause of the Fourteenth Amendment, the State's post-deprivation tort remedy provided him with all the process that was due. Parratt, 451 U.S. at 536-37, 101 S.Ct. at 1913. In other words, the Due Process Clause does not embrace tort law concepts.
In fact, the Due Process Clause is not implicated even in instances where an intentional deprivation has occurred, provided an adequate state post-deprivation remedy is available, and so long as the deprivation was "random." Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194 (1984); Davis v. Bayless, 70 F.3d 367 (5th Cir. 1995); Murphy v. Collins, 26 F.3d 541 (5th Cir. 1994). This principle (known as the Parratt/Hudson Doctrine) rests on the premise that because the state is unable to predict random and unauthorized conduct, pre-deprivation remedies are unfeasible. Davis, 70 F.3d at 375, citing, Zinermon v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 985-86 (1990) (distinguishing between random unauthorized conduct and a deprivation which results from predictable conduct authorized by a State).
The Supreme Court confirmed that Parratt/Hudson applied to a deprivation of liberty interests. Zinermon, supra. Moreover, the Fifth Circuit applied the doctrine to claims of a judicial conspiracy, which it characterized as a matter of procedural, not substantive due process. Holloway v. Walker, 784 F.2d 1287, 1293 (5th Cir.1986).
Here, plaintiff's allegations demonstrate that a random and unauthorized deprivation occurred when Bordelon uttered her misrepresentations to the court. In fact, Lexing alleges that in so doing Bordelon violated state criminal laws. Moreover, under Louisiana law, an aggrieved plaintiff has the opportunity to seek redress for negligent acts or intentional torts committed by someone else. La. Civ. Code Art. 2315. This general tort provision of the Louisiana Civil Code accords plaintiff all the process that is required, thereby obviating the basis for his procedural due process claim. See Charbonnet v. Lee, 951 F.2d 638, 642 (5th Cir. 1992).
The Parratt/Hudson doctrine, however, does not bar violations of plaintiff's substantive due process rights. Cozzo v. Tangipahoa Parish Council—President Government, 279 F.3d 273, 290 (5
Plaintiff, however, only makes conclusory allegations that Bordelon "knowingly and intentionally" made false representations to the court. Moreover, review of the report purportedly rendered by Jo Caston undermines the plausibility of any ill intent on behalf of Bordelon. During the interview, E.M.L. described the alleged actions of Carston's parents and Mr. Loomis. (Report; Compl., Exh. 8). According to the report, the investigator and the "CAC" staff felt that E.M.L. may have been coached on what to say. Id. Although the investigator spoke to Carston's parents, she explained that she did not speak to Mr. Loomis because the conduct pertaining to him allegedly occurred in the City of Monroe. Id. The investigator indicated that the report would be forwarded to the Monroe Police Department for their follow-up with Loomis. Id.
In short, plaintiff does not allege facts to plausibly show that Bordelon intentionally misled the court. Rather, when the error was called to her attention, Bordelon corrected her misstatement. As such her conduct does not shock the conscience.
Plaintiff further alleges that Bordelon violated his and E.M.L.'s right to equal protection. The Equal Protection Clause of the Fourteenth Amendment essentially requires a state actor to treat all similarly situated persons alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). To state an equal protection claim, a § 1983 plaintiff must allege either that "(a) a state actor intentionally discriminated against [him] because of membership in a protected class [,] or (b) he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Gibson v. Texas Dep't of Ins. Div. of Workers' Comp., 700 F.3d 227, 238 (5th Cir. 2012) (citations and internal quotation marks omitted). To survive the pleading stage on a race-based discrimination claim under the Equal Protection Clause a plaintiff must allege facts to show that he "received treatment different from that received by similarly situated individuals and that the unequal treatment stemmed from a discriminatory intent." See Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 227 (5th Cir. 2012) (citations omitted).
Here, aside from alleging that plaintiff and his daughter are "persons of color," the complaint lacks any factual allegations to establish that any purported unequal treatment by Bordelon stemmed from discriminatory intent or animus. Accordingly, plaintiff's complaint fails to state a claim for race-based discrimination under the Equal Protection Clause. See Bowlby, supra (no factual allegations that defendants' actions were the result of intentional discrimination); Smith v. Kimbhal, 421 F. App'x 377, 379 (5th Cir. 2011) (conclusory assertions of improper motive or retaliatory animus do not suffice to overcome a Rule 12(b)(6) dismissal); Jabary v. City of Allen, 547 Fed. Appx. 600 (5
Plaintiff also contends that Bordelon conspired with Loomis, Carston, the state court judge(s), and others to deprive him of his due process and equal protection rights. To support a conspiracy claim under § 1983, plaintiff must allege facts that suggest: "1) an agreement between the private and public defendants to commit an illegal act, and 2) an actual deprivation of constitutional rights." Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.1994) (internal citations omitted). Here, aside from conclusory allegations, plaintiff has not adduced facts to support a finding that Bordelon had an "agreement" with anyone. "Bald allegations that a conspiracy existed are insufficient." Nall v. Stringer, 4 F.3d 989 (5th Cir.1993) (citations omitted).
Insofar as plaintiff suggests that defendants' ex parte contact with the state court judge(s) evidenced a conspiracy to fix the case, the Fifth Circuit has found such allegations wanting:
Krempp v. Dobbs, 775 F.2d 1319, 1322 (5th Cir.1985).
In sum, plaintiff has failed to allege facts which plausibly suggest that defendant, Bordelon, violated his or E.M.L.'s constitutional rights. Accordingly, defendant is entitled to qualified immunity, dismissing plaintiff's federal law claims against her.
The court notes that Jo Caston did not file a motion to dismiss no doubt, at minimum, because there is no record that she was ever served with the complaint and summons. See docket sheet. Nevertheless, Caston is entitled to dismissal on similar grounds to the moving defendants. Lewis v. Lynn, 236 F.3d 766, 768, 236 F.3d 766 (5th Cir. 2001) (where defending party establishes that plaintiff has no cause of action, the defense generally inures to the benefit of a non-appearing co-defendant).
Plaintiff essentially alleges that Caston violated his due process and equal protection rights by conspiring and failing to adequately investigate the abuse allegations against Loomis and Carston's parents, and by completing a false report thereafter. However, a faulty abuse investigation does not, without more, rise to the level of an unconstitutional investigation. Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 106 (2d Cir.1999). Moreover, there is no constitutional right to have someone else criminally prosecuted. Donahue v. Strain, No. 15-6036, 2017 WL 3311241, at *15 (E.D. La. Aug. 3, 2017) (citation omitted). Consequently, any alleged act or failure to act by Caston that interfered with plaintiff's pursuit of abuse allegations against Loomis and Carston's parents does not violate plaintiff's due process rights. Id. (citation omitted). Moreover, plaintiff does not allege facts to show that Caston acted out of a cognizable discriminatory intent. There also are no facts alleged to show that Caston had an agreement with anyone else to conspire against plaintiff.
In short, aside from conclusory allegations of intentionally false statements, collusion, and conspiracy, plaintiff fails to set forth facts to support a claim that Caston violated his rights under the U.S. Constitution. Accordingly, she too is entitled to qualified immunity as to these claims.
Insofar se plaintiff also sued Caston in her official capacity as a Ouachita Parish Sheriff's deputy, the court reiterates that official-capacity suits, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, supra. To impose § 1983 liability against a government entity for the misconduct of one of its employees or officers, plaintiff must demonstrate that the constitutional deprivation was caused by a policy or custom of the entity. Kohler v. Englade, 470 F.3d 1104, 1115 (5th Cir. 2006) (citing Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690-691, 98 S.Ct. 2018, 2036 (1978)). "In a Section 1983 case, the burden of proving the existence of an unconstitutional municipal policy or established custom rests upon the plaintiff." McConney v. City of Houston, 863 F.2d 1180, 1184 (5
In the case sub judice, plaintiff has not established an underlying constitutional violation by Caston in her individual capacity. A fortiori, he has not identified a precipitating unconstitutional custom or policy enacted by the government entity. See Bustos v. Martini Club Inc., 599 F.3d 458, 467 (5
Insofar as plaintiff seeks to hold the Sheriff liable in his supervisory capacity (albeit, without suing him by name), the court notes that supervisors can be held liable when the "enforcement of a policy or practice results in a deprivation of federally protected rights." Bustos, supra (citation omitted). Again, however, because plaintiff has failed to allege or establish a constitutional violation by the individual directly involved in the challenged activity, he cannot show that any supervisor implemented a policy or custom that violated his constitutional rights. Bustos, 599 F.3d at 468. Dismissal of plaintiff's official capacity claim necessarily follows.
Plaintiff's allegations against Al Loomis and Anika Carston are vast and extensive. See discussion, supra. His allegations against Mary Hamilton are more circumscribed. Along with the allegations of conspiracy and collusion, he contends that Hamilton signed a false affidavit and endeavored to turn E.M.L. against him.
Initially, defendants contend that plaintiff's federal law claims against them are timebarred. Statutes of limitations serve as absolute bars to suit. Nottingham v. Richardson, 499 Fed. Appx. 368, 375 (5th Cir.2012). However, there is no federal statute of limitations for actions brought pursuant to 42 U.S.C. § 1983. Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992). Therefore, the courts must borrow the forum state's limitations period for personal injuries, including the state's provisions on tolling so long as application of the rules does not undermine the goals of the federal statute at issue. Id. (citations omitted); Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 2000 (1989) (citation omitted).
In Louisiana, delictual actions are subject to a liberative prescription period of one year. La. Civ. Code Art. 3492. The Louisiana Civil Code provides that prescription runs against all persons, including absent persons and incompetents, unless exception is established by legislation. La. Civ. Code Art. 3467-3468. Louisiana recognizes three potential avenues to retard the running of prescription: suspension, interruption and renunciation. Bouterie v. Crane, 616 So.2d 657, 660 (La. 1993).
Although state law governs the limitations period and tolling exceptions, federal law determines when a cause of action arises. Jackson, supra (citation omitted). "A cause of action under § 1983 accrues when the aggrieved party knows, or has reason to know of, the injury or damages which form the basis of the action." Ramon v. Rodriguez-Mendoza, 372 Fed. Appx. 494 (5th Cir. April 1, 2010) (citing Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.1995)). Furthermore, the continuing-tort doctrine is one of accrual and thus a question of federal law. Nottingham, 499 Fed. Appx. at 375 (citation omitted). "When a tort involves continuing injury, the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases." Donaldson v. O'Connor, 493 F.2d 507, 529 (5th Cir.1974), vacated, 422 U.S. 563, 95 S.Ct. 2486, and vacated sub nom. Gumanis v. Donaldson, 422 U.S. 1052, 95 S.Ct. 2673 (1975); see also Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir.1980).
Here, plaintiff alleges that he continues to suffer continuing injury by defendants that extended to within one year of when he filed the instant suit. Thus, the court finds that plaintiff's claims are not time-barred.
However, "acting under color of state law requires that the defendant in a § 1983 action have exercised power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 49 (1988) (citing United States v. Classic, 313 U.S. 299, 326 (1941)). To constitute state action two requirements must be met: 1) "the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible," and 2) "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 n. 18 (1982).
Private entities, however, generally are not considered state actors. Meade v. Dillard Dept. Stores, 275 F.3d 43, 43 (5th Cir. 2001). Nonetheless, "a private individual may act under color of law in certain circumstances, such as when a private person is involved in a conspiracy or participates in joint activity with state actors." Ballard v. Wall, 413 F.3d 510, 518 (5th Cir.2005) (citations omitted). Indeed, private parties conspiring with a judge will be deemed to be acting under color of state law no matter if the judge is immune from damages liability. Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183 (1980). However, "merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge." Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 353 54 (5th Cir.2003) (citation omitted). Furthermore, submitting a false affidavit which influenced a state court decision does not imply that the attorney acted under color of state law. Id. Rather, plaintiff must allege facts to plausibly suggest that the state court was a knowing and willing participant in the wrongdoing. See Richard, supra.
Here, the undersigned is not persuaded that plaintiff has met the foregoing requirements. Instead, his allegations of collusion, conspiracy, and joint action by the state court judge(s) are conclusory, and do not suffice to support his claim. There are no facts to plausibly suggest that there was an agreement between a state actor and the private defendants.
The court observes that 42 U.S.C. § 1985(3) prohibits "two or more persons" from conspiring to deprive "any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws. . . ." 42 U.S.C. § 1985(3). To state a cause of action under 42 U.S.C. § 1985(3), plaintiff must allege that (1) defendants were involved in a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or persons of the equal protection of the laws; and (3) that defendants acted in furtherance of the object of the conspiracy, whereby (4) the plaintiff was either injured in his person or property or deprived of having and exercising any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). In addition, the conspiracy must have been motivated by racial animus. Word of Faith World Outreach Cent. Church v. Sawyer, 90 F.3d 118, 124 (5th Cir. 1996). Plaintiff also must "allege specific facts to show an agreement." Priester v. Lowndes County, 354 F.3d 414, 421 (5th Cir.2004). Conclusory allegations of conspiracy do not suffice. Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir.1986).
For the same reasons that plaintiff failed to state a claim for conspiracy under § 1983, he also failed to state a claim for relief under § 1985. In addition, he did not allege facts to show that defendants were motivated by racial animus. Accordingly, this claim is subject to dismissal.
When, as recommended here, all claims which conferred federal subject matter jurisdiction are dismissed,
The private defendants filed an alternative motion for more definite statement. In light of the undersigned's proposed disposition of the motions to dismiss, the alternative motion for more definite statement is moot. Nonetheless, in the event that a higher court disagrees with the recommendation, the undersigned will briefly address the alternative motion.
Federal Rule of Civil Procedure 12(e) provides, in relevant part, that
Fed.R.Civ.P. 12(e). Rule 12(e) is not intended to be used as a vehicle for discovery or to frustrate Rule 8(a)(2)'s minimal pleading requirements by compelling plaintiff to amend his complaint when it otherwise suffices to withstand a motion to dismiss. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959). Furthermore, "the class of pleadings that are appropriate subjects for a motion under Rule 12(e) is quite small the pleading . . . must be so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself." Texaco, Inc. v. Louisiana Land & Expl. Co., 113 B.R. 924, 940-41 (M.D. La.1990) (citation omitted).
Plaintiff's 64 page complaint is anything but vague or ambiguous. While the complaint certainly is repetitive, convoluted, and irrelevant at times, there is no reason, aside from the labor involved, why defendants cannot comprehend plaintiff's suit and admit or deny each allegation. Accordingly, the alternative motion is denied.
For the above-assigned reasons,
IT IS RECOMMENDED that the motions to dismiss for lack of subject matter jurisdiction, or alternatively for failure to state a claim upon which relief can be granted [doc. #s 11, 12, & 13] filed by defendants, John Bel Edwards, Marketa Garner Walters, and Keesha Bordelon, in their official capacities, be GRANTED, and that plaintiff's official capacity claims against said defendants for prospective declaratory and injunctive relief (including a stay) under federal law be DISMISSED WITHOUT PREJUDICE. Fed.R.Civ.P. 12(b)(1).
IT IS FURTHER RECOMMENDED that the motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted [doc. #s 13, 17, & 19] filed by defendants, Keesha Bordelon, in her individual capacity; Albert E. Loomis, III, Mary Hamilton, and Anika Lashaye Carston be GRANTED, and that plaintiff's federal law claims against said defendants, plus Jo Caston, in her individual and official capacities, be DISMISSED, with prejudice. Fed.R.Civ.P. 12(b)(6).
IT IS FURTHER RECOMMENDED that plaintiff's remaining state law claims be DISMISSED, without prejudice. 28 U.S.C. § 1367(c).
IT IS FURTHER RECOMMENDED that the alternative motion for more definite statement [doc. # s 17 & 19] filed by defendants, Albert E. Loomis, III, Mary Hamilton, and Anika Lashaye Carston, be DENIED.
Under the provisions of 28 U.S.C. §636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have
Id.
Wimberly v. Gatch, 635 So.2d 206, 211 (La. 1994).
In his opposition memoranda, plaintiff also detailed a series of encounters that date from 1995-1997 with attorneys, now judges, Sharp, Rambo, and Leehy. See e.g., Pl. Resp. [doc. # 34]. Again, while these allegations could be used to support recusal, there is no indication of an ongoing conspiracy since that time. Indeed, it appears that there was more than at least a one-year break between those events and the instant litigation. Therefore, they are time-barred, and not actionable. To the extent that plaintiff relies on these accounts to demonstrate that the judges may not have cared for him, the allegations clearly serve that purpose. Nonetheless, they do not suffice to show an agreement or active conspiracy between the judge(s) and the private defendants or other state actor defendants.
