United States District Court, E.D. Louisiana
ORDER AND REASONS
JANE TRICHE MILAZZO, District Judge.
Before the Court is Defendant's Motion to Dismiss for Failure to State a Claim (R. Doc. 4). For the following reasons, Defendant's Motion is DENIED.
This civil action for declaratory and injunctive relief is based on the enforcement of a child support order in civil contempt proceedings. Plaintiff Donald A. Sauviac, a licensed Louisiana attorney proceeding pro se, filed this civil action against Defendant Orleans Parish District Attorney Leon Cannizaro under 42 U.S.C. § 1983.
Plaintiff is under an order for child support for his fifteen-year-old daughter. Plaintiff claims that he is indigent, but the civil district court "imputed income" to him when it ordered monthly child support payments. When Plaintiff did not make timely payments, the custodial parent, Diane Sauviac, applied to the Louisiana Department of Children and Family Services ("DCFS") for services to enforce and collect the support obligation under Louisiana Revised Statute section 46:236.1.2.
DCFS provides enforcement services to payee-parents by contracting with district attorneys to initiate legal proceedings. An attorney that initiates child support enforcement proceedings for DCFS "represent[s] the State of Louisiana, Department of Children and Family Services exclusively. " In other words, the district attorney does not represent the payee-parent. Further, when the district attorney represents DCFS, the statute provides him immunity from civil liability for his participation in child support enforcement proceedings.
On two separate occasions, Defendant District Attorney Leon Cannizzaro instituted civil contempt proceedings against Plaintiff to collect unpaid child support. At the first hearing, Plaintiff was unable to pay and was incarcerated in Orleans Parish Prison for thirty days. At a second hearing, Plaintiff alleges that he voluntarily tendered funds, which Defendant misapplied. Plaintiff further alleges that he only avoided ninety days incarceration because someone paid the debt on his behalf. Plaintiff alleges that both civil contempt hearings were held without the required notice and that in each Defendant represented the payor-spouse on behalf of the State while Plaintiff was denied counsel.
Plaintiff's claim is a constitutional attack on his civil contempt hearings for lack of due process. Plaintiff alleges that the U.S. Constitution and the Supreme Court's holding in Turner v. Rodgers  require the appointment of counsel or other procedural safeguards that were absent at those hearings. Further, because of Plaintiff's continuing inability to pay, these constitutional violations are likely to recur at future hearings.
Plaintiff sued Defendant in his official capacity, alleging that Defendant violated his constitutional right to due process for three reasons. First, Plaintiff complains that he is indigent and was not provided counsel. Second, he alleges that he was not on notice that his ability to pay was an issue in setting child support. Finally, he argues that the State represented the payee-parent in the contempt hearings but did not provide him counsel.
Defendant filed the instant Motion pursuant to Federal Rules of Civil Procedure Rule 12(b)(6), alleging that Plaintiff's Complaint fails to state a claim upon which relief can be granted. Plaintiff has not opposed this Motion.
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts "to state a claim for relief that is plausible on its face." A claim is "plausible on its face" when the pleaded facts allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." A court must accept the complaint's factual allegations as true and must "draw all reasonable inferences in the plaintiff's favor." The court need not, however, accept as true legal conclusions couched as factual allegations. To be legally sufficient, a complaint must establish more than a "sheer possibility" that the plaintiff's claims are true. If it is apparent from the face of the complaint that an insurmountable bar to relief exists and the plaintiff is not entitled to relief, the court must dismiss the claim. The court's review "is limited to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint."
LAW AND ANALYSIS
Plaintiff has not opposed this Motion. This does not, however, mean that the Court may grant the Motion as unopposed. Rather, the Fifth Circuit approaches the automatic grant of dispositive motions with considerable aversion. ...