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Donahue v. Strain

United States District Court, E.D. Louisiana

August 3, 2017

SARAH BARNETT DONAHUE, Plaintiff
v.
SHERIFF RODNEY J. STRAIN, IN HIS CAPACITY AS SHERIFF OF THE PARISH OF ST. TAMMANY,, Defendants

         SECTION: “E” (3)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE.

         Before the Court are three motions: (1) a motion for summary judgment filed by Defendant Brandon Donahue;[1] (2) a motion to dismiss pursuant to Rule 12(b)(6) filed by Defendant Brandon Donahue;[2] and (3) a motion to dismiss pursuant to Rule 12(b)(6) filed by Defendants Rodney J. Strain, Jr. (or his successor, sometimes referred to as the “Sheriff”), [3] Sergeant Michael Ripoll, Jr., Sergeant Alex Dantagnan, Jr., and Sergeant Steven Gaudet (sometimes referred to as the “Deputies”).[4] The motions are opposed.[5] The Court rules on the motions as set forth below.

         BACKGROUND

         The Plaintiff, Sarah Donahue, brings federal and state-law claims against her ex-husband, Brandon Donahue, the Sheriff, and the Deputies arising out of a “continuing series of intentional actions all directed toward a sole end: to thwart the prosecution of Brandon Donahue, a fellow law enforcement office, for domestic violence.”[6]

         Brandon Donahue served as a reserve deputy with the St. Tammany Parish Sheriff's Office from 2012 until 2014.[7] According to the Plaintiff, Brandon Donahue “engaged in a pattern of violence against Sarah, which he justified and excused and was furthered by virtue of his position as a reserve deputy sheriff.”[8] The Plaintiff alleges that, during the course of their marriage, Brandon Donahue threatened to kill her, threatened to use his Sheriff's office-issued taser on her, threw coffee in her face, pressed his knee into her stomach, and pushed the back of her body into a shower door.[9]

         The Plaintiff alleges that on July 7, 2013, following a domestic disturbance between the Plaintiff and Brandon Donahue, “[s]everal of Brandon's colleagues from the St. Tammany Parish Sheriff's Office . . . responded to [a] 911 call at the Donahue residence.”[10]According to the Plaintiff, she described her injuries to the deputies and advised them of Brandon Donahue's history of domestic abuse, but the deputies refused to arrest Brandon Donahue.[11] This incident, the Plaintiff alleges, was the first act in a continuing conspiracy between Brandon Donahue and the Deputies “to protect Brandon from prosecution for assault and to discredit Sarah in order to benefit Brandon in his anticipated divorce and child custody case against Sarah.”[12]

         The Plaintiff alleges that, in furtherance of the conspiracy, Sgt. Steven Gaudet conducted a “slip-shod and outcome[-]determinative” investigation into the Plaintiff's allegations against Brandon Donahue. According to the Plaintiff, Sgt. Gaudet's police report “falsely suggested that Sarah had been the aggressor” and falsely stated that the Plaintiff did not want to pursue criminal charges against Brandon Donahue.[13] The Plaintiff further alleges that Sgt. Gaudet relied heavily on his “consultation” with Brandon Donahue instead of the alleged victim, the Plaintiff.[14]

         In furtherance of the conspiracy, the Plaintiff alleges Sgt. Michael Ripoll, when investigating an alleged assault against the Plaintiff by the Plaintiff's attorney, “ignor[ed] and wholly disregard[ed] evidence that supported [the Plaintiff's] version of events and [relied] on information provided by Brandon Donahue that discredited [the Plaintiff] by portraying her as unstable and unreliable.”[15]

         According to the Plaintiff, the conspiracy continued when Brandon Donahue submitted a written request to the St. Tammany Parish Coroner's Office for an Order for Protective Custody for the Plaintiff, “alleging falsely that she had stated several times . . . that she ha[d] thought about suicide.”[16] The Plaintiff alleges she was involuntarily admitted to the hospital, but was later released.[17]

         Following her release from the hospital, the Plaintiff attempted to pick up her son “as it was her time to have custody of her child.”[18] When the Plaintiff arrived at Brandon Donahue's parent's residence to retrieve her child, a St. Tammany Parish Sheriff's Office deputy informed her “he would not release the child to her, despite that it was [her] court-ordered night to have custody of her son.”[19] In response, the Plaintiff called the Sheriff's Office, which dispatched Sergeant Alex Dantagnan. Sgt. Dantagnan allegedly “blocked [the Plaintiff] from exiting the house, ” “screamed in [the Plaintiff's] face that she was psychotic, [and] that she was not leaving with the child, ” and threatened to arrest her if she did not leave the house.[20]

         This event prompted the Plaintiff to file a complaint with the Internal Affairs Division of the St. Tammany Parish Sheriff's Office on December 11, 2013. The Plaintiff's complaint alleged “unfair favoritism shown by the Sheriff's Office to Brandon Donahue” and a “continuous pattern of unfair and harassing treatment she received from the Sheriff's Office and the Defendant Deputies.”[21] The Plaintiff alleges that, in furtherance of the conspiracy to protect Brandon Donahue, “the Sheriff's Office never contacted [her] to obtain more information or advise her of the status or outcome of her complaint.”[22]According to the Plaintiff, the Sheriff's Office later advised her that Brandon Donahue had been cleared of any misconduct.

         Finally, the Plaintiff alleges that, on June 24, 2015, she met with Sgt. Gaudet to inform him she wished to press criminal charges against Brandon Donahue for the alleged acts of domestic abuse that occurred in July of 2013.[23] In furtherance of the conspiracy to protect Brandon Donahue from arrest and prosecution, Sgt. Gaudet allegedly attempted to intimidate and discourage the Plaintiff from pursuing charges against Brandon Donahue by informing the Plaintiff that any criminal charge against Brandon Donahue had “probably prescribed.”[24] According to the Plaintiff, Sgt. Gaudet promised to contact the district attorney's office, but never did so.

         Brandon Donahue was formally charged with domestic abuse aggravated assault by the St. Tammany Parish District Attorney's office. The charge was dismissed in July of 2016.[25]

         The Plaintiff filed this lawsuit on November 18, 2015.[26] The Court stayed the proceedings pending the resolution of the criminal matter pending against Brandon Donahue.[27] This matter was reopened on September 22, 2016.[28] Thereafter, Brandon Donahue filed a motion to dismiss, [29] which was denied without prejudice upon the filing of the Plaintiff's second amended complaint.[30]

         In her second amended complaint, the Plaintiff brings a claim under Section 1983 against Brandon Donahue and the Deputies in their official and individual capacities for conspiracy to violate her rights under the First and Fourteenth Amendments.[31] The Plaintiff also brings a Monell claim against the Sheriff in his official capacity for municipal liability for failure to supervise and train.[32] Further, the Plaintiff brings state-law tort claims against Brandon Donahue; a state-law claim for abuse of rights against Brandon Donahue, the Sheriff, and the Deputies; and claims against Brandon Donahue, the Sheriff, and the Deputies for violations of the Louisiana Constitution.[33]

         On February 1, 2017, Brandon Donahue filed a motion to dismiss the Plaintiff's second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).[34] On May 8, 2017, the Sheriff Defendants filed a motion to dismiss the Plaintiff's claims against them pursuant to Rule 12(b)(6).[35] The Plaintiff opposes both motions.[36]

         On July 11, 2017, Brandon Donahue filed a motion for summary judgment, arguing the doctrine of issue preclusion applies to the Plaintiff's state-law tort claims against him.[37]

         LEGAL STANDARD

         I. Motion to Dismiss

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief may be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief.[38] “To survive 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.'”[39]“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[40] However, the court does not accept as true legal conclusions or mere conclusory statements, [41] and “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”[42] “[T]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements” or “naked assertion[s] devoid of further factual enhancement” are not sufficient.[43]

         In summary, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[44] “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.”[45] “Dismissal is appropriate when the complaint ‘on its face show[s] a bar to relief.'”[46]

         II. Motion for Summary Judgment

         Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[47] “An issue is material if its resolution could affect the outcome of the action.”[48]When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.”[49] All reasonable inferences are drawn in favor of the nonmoving party.[50]There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.[51]

         If the dispositive issue is one on which the moving party will bear the burden of persuasion at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.'”[52] If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the nonmoving party to direct the Court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.[53]

         If the dispositive issue is one on which the nonmoving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the nonmovant's claim, or (2) affirmatively demonstrating there is no evidence in the record to establish an essential element of the nonmovant's claim.[54] When proceeding under the first option, if the nonmoving party cannot muster sufficient evidence to dispute the movant's contention that there are no disputed facts, a trial would be useless, and the moving party is entitled to summary judgment as a matter of law.[55] When, however, the movant is proceeding under the second option and is seeking summary judgment on the ground that the nonmovant has no evidence to establish an essential element of the claim, the nonmoving party may defeat a motion for summary judgment by “calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”[56] Under either scenario, the burden then shifts back to the movant to demonstrate the inadequacy of the evidence relied upon by the nonmovant.[57] If the movant meets this burden, “the burden of production shifts [back again] to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”[58] “Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial.”[59]

         “[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports the claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'”[60]

         LAW AND ANALYSIS

         I. Brandon Donahue's Motion for Summary Judgment-Issue Preclusion

         Brandon Donahue filed a motion for summary judgment, seeking dismissal of the Plaintiff's tort claims against him on the basis of issue preclusion.[61] Brandon Donahue argues a Louisiana district court's judgment in the divorce and custody case between him and the Plaintiff is final, the domestic violence tort claims were decided by the state court judge, and the doctrine of issue preclusion prevents relitigation of these claims.

         “When giving preclusive effect to a state court judgment, this court must apply the issue preclusion rules of that state.”[62] Because the underlying judgment in this case is from the Twenty-Second Judicial District for the Parish of St. Tammany, Louisiana, Louisiana issue preclusion rules apply. Louisiana Revised Statutes section 13:4231 provides in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

         “The requirements for issue preclusion under Louisiana state law are identical to those recognized by the Fifth Circuit: (1) the parties must be identical; (2) the issue to be precluded must be identical to that involved in the prior action; (3) the issue must have been actually litigated; and (4) the determination of the issue in the prior action must have been necessary to the resulting judgment.”[63] Because Louisiana's law is modeled on the federal doctrine, federal courts can consult federal jurisprudence for guidance when interpreting Section 13:4231.[64]

         In this case, it is undisputed that the parties are identical to those before the Louisiana district court. It is also true that the Louisiana district court heard testimony about many of the same allegations made by the Plaintiff in her second amended complaint.[65] The paramount question is whether the Plaintiff's state-law tort claims made in this Court were “actually litigated” in the Louisiana district court.

         “The requirement that an issue be ‘actually litigated' for collateral estoppel purposes simply requires that the issue is raised, contested by the parties, submitted for determination by the court, and determined.”[66] The Fifth Circuit in Keaty explained “the scope of collateral estoppel is circumscribed by the particularized findings of the state court.”[67] Thus, collateral estoppel applies only if the Louisiana district court made “specific, subordinate, factual findings on the identical . . . issue in question-that is, an issue which encompasses the same prima facie elements” as the issue before this Court.[68]“It is insufficient for the invocation of issue preclusion that some question of fact or law in a later suit was relevant to a prior adjudication between the parties; the contested issue must have been litigated and necessary to the judgment earlier rendered.”[69]

         Brandon Donahue argues these claims are barred by issue preclusion, because Judge Amacker in the divorce and custody proceeding between the Plaintiff and Brandon Donahue found there to be “no credible evidence . . . to suggest that any [of the Plaintiff's allegations of domestic violence are] true of Mr. Donahue.”[70] Judge Amacker further stated “there was no evidence in [the divorce and custody proceeding] record that [Brandon Donahue] is an abuser or a violent person.”[71]

         Judge Amacker made these findings in the context of considering the twelve factors used in determining a child's best interest for the purposes of determining custody pursuant to Louisiana Code of Civil Procedure article 134.[72] Specifically, Judge Amacker discussed the Plaintiff's domestic abuse allegations against Brandon when determining “the moral fitness of each party, insofar as it affects the welfare of the child” and “the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.”[73]

         The Plaintiff could not and did not bring state-law tort claims against Brandon Donahue in the divorce and custody proceeding.[74] Because these tort claims were not before her, Judge Amacker did not make factual findings with respect to the prima facie elements of the Plaintiff's state-law tort claims.[75]

         The Court finds the Plaintiff's state-law tort claims were not “actually litigated” in the divorce and custody case before the Louisiana court. As a result, this Court is not precluded from hearing the Plaintiff's state-law tort claims against Brandon Donahue or any claim under Section 1983 arising from the Plaintiff's domestic violence allegations.

         Accordingly, Brandon Donahue's motion for summary judgment is denied.[76]

         II. Brandon Donahue's Motion to Dismiss the Plaintiff's State-Law Tort Claims Against Him

         The Plaintiff brings state law tort claims against the Defendant Brandon Donahue, claiming her damages arose out of three crimes of violence-aggravated assault, aggravated battery, and domestic abuse aggravated assault.[77] Brandon Donahue seeks dismissal of these claims, arguing the claims have prescribed under Louisiana law because the prescriptive period for delictual actions is one year from the date the injury is sustained. In response, the Plaintiff contends the delictual actions for which she seeks relief arise due to damages sustained as a result of crimes of violence, for which the prescriptive period is two years pursuant to Louisiana Civil Code article 3493.10.

         Regardless of whether a one-year or two-year prescriptive period applies, the Court must determine when the prescriptive period began to accrue. Louisiana Civil Code article 3469 provides “Prescription is suspended as between: the spouses during marriage.”[78]The Plaintiff alleges her marriage to Brandon Donahue ended in September of 2014.[79]Thus, the prescriptive period for the Plaintiff's state-law tort claims began to accrue at that time. The Plaintiff filed the instant lawsuit on November 18, 2015.[80]

         The Court must next determine whether the prescriptive period applicable to the Plaintiff's claims is the one-year period for delictual actions under Civil Code article 3492 or the two-year period for delictual actions which arise due to damages caused by a crime of violence pursuant to Civil Code article 3493.10.

         Article 3493.10 provides for a two-year prescriptive period for “delictual actions which arise due to damages sustained as a result of an act defined as a crime of violence under [Louisiana Revised Statutes section 14:2].”[81] Louisiana Revised Statutes section 14:2 defines “crimes of violence.”[82] The Plaintiff alleges her delictual damages arise out of three “crimes of violence” committed against her by Brandon Donahue-aggravated assault, aggravated battery, and domestic abuse aggravated assault, and that as a result, the two-year prescriptive period applies.

         The three crimes of violence alleged require the use of a “dangerous weapon.”[83] A “dangerous weapon” is defined as “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”[84]Thus, the Court must consider each of the Plaintiff's factual allegations to determine whether she sufficiently alleges that her tort claims arise due to damages sustained as a result of an aggravated crime committed through the use of a dangerous weapon. If the Plaintiff alleges sufficient facts to establish that her delictual claims arose from “aggravated” crimes, the two-year prescriptive period provided for in article 3493.10 will apply. Otherwise, the one-year prescriptive period provided for in article 3492 will apply, and the Plaintiff's state-law tort claims will have prescribed.

         A. Aggravated Assault

         The Plaintiff alleges that two incidents gave rise to her delictual damages arising out of aggravated assaults: (1) Brandon Donahue “threatened to use his Sheriff-issued taser”[85] and (2) Brandon Donahue told the Plaintiff that “due [to] his training and connections as a reserve deputy sheriff, he could get away with assaulting her and even killing her.”[86]

         Assault is “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”[87] Aggravated assault is defined as intentionally placing another in reasonable apprehension of receiving a battery “with a dangerous weapon.”[88]

         With respect to the Plaintiff's allegation that Brandon Donahue's threat to use his taser on her was an aggravated assault, the Plaintiff argues that, because a taser is a dangerous weapon, she was in reasonable apprehension of receiving a battery with a dangerous weapon, and thus Brandon Donahue committed an aggravated assault.[89]Although a taser may constitute a dangerous weapon in some circumstances, [90] the Court finds the Plaintiff has failed to alleged sufficient facts to show the Plaintiff was in reasonable apprehension of receiving a battery with a dangerous weapon under these circumstances.[91] The Plaintiff did not allege that Brandon Donahue had the taser in his hand or even nearby when he made the threat. As a result, the Plaintiff was not in reasonable apprehension of a battery with a dangerous weapon. Accordingly, this claim is subject to the one-year prescriptive period under article 3492, and the claim for damages sustained as a result of an aggravated assault for threatening to use a taser must be dismissed.

         The Plaintiff also alleges that Brandon Donahue committed aggravated assault when he threatened to kill her, and told her that he could get away with killing her due to his status as a reserve sheriff's deputy.[92] This threat-even if made-would not constitute an aggravated assault, as no dangerous weapon was used in effectuating the assault.[93]Accordingly, the Plaintiff has not sufficiently alleged that these damages arose as a result of an aggravated assault. Thus, this claim is subject to the one-year prescriptive period under article 3492, and the claim for damages sustained as a result of an aggravated assault for Brandon Donahue's alleged threat to kill her must be dismissed.

         B. Aggravated Battery

         The Plaintiff alleges she suffered delictual damages that arose out of three incidents of aggravated battery: (1) Brandon Donahue “threw a cup of hot coffee in [the Plaintiff's] face with the intent to cause serious injury and disfigurement”; (2) Brandon Donahue “pinned [the Plaintiff] to the floor of their home and pressed his knee on her stomach with the intent to cause serious bodily injury”; and (3) Brandon Donahue “grabbed [the Plaintiff] by both of her arms and violently pushed the back of her body into the door of their bathroom shower.”[94]

         Battery is “the intentional use of force or violence upon the person of another, or the intentional administration of a poison or other noxious liquid or substance to another.”[95] Like aggravated assault, a necessary element of an aggravated battery is that the battery be committed with a dangerous weapon.[96]

         With respect to the Plaintiff's allegation that Brandon Donahue threw a cup of hot coffee on her, the Plaintiff's claim fails because she does not allege sufficient facts to establish the coffee used in this incident constitutes a “dangerous weapon.” There are, of course, instances in which a scalding hot liquid may constitute a dangerous weapon.[97] The Plaintiff, however, does not allege the coffee was scalding hot; instead she alleges it was hot. Hot coffee is not likely to produce great bodily harm. The coffee was not used in a manner “calculated or likely to produce . . . great bodily harm, ” thus rendering it a dangerous weapon. The Plaintiff fails to allege facts sufficient to show that Brandon Donahue's allegedly throwing hot coffee on her amounts to an aggravated battery. As a result, the Plaintiff's claim is subject to the one-year prescriptive period in article 3492, and has prescribed.

         The Plaintiff also alleges that Brandon Donahue committed an aggravated battery when he “pinned [the Plaintiff] to the floor of their home and pressed his knee on her stomach with the intent to cause serious bodily injury.”[98] The Plaintiff seems to concede that this incident does not rise to the level of aggravated battery. In her opposition to Brandon Donahue's motion to dismiss, the Plaintiff states “while Brandon may not have used a dangerous weapon against Sarah when he kneed her in the stomach and ripped her Cesarean stitches, ” he is liable for aggravated battery for other acts.[99] The Plaintiff is correct to concede this point. Pursuant to Louisiana law, although portions of the human body can be dangerous and may produce great bodily harm, there must be proof of the use of some inanimate instrumentality for a defendant to be guilty of aggravated assault or battery.[100] This claim also has prescribed and must be dismissed.

         Finally, the Plaintiff alleges Brandon Donahue committed an aggravated battery when he “grabbed Sarah Donahue by both of her arms and violently pushed the back of her body into the door of their bathroom shower.”[101] According to the Plaintiff, the shower door was used as a dangerous weapon, thus making the incident and act of aggravated battery.[102] To constitute a dangerous weapon for the purposes of determining whether the alleged battery was “aggravated, ” the weapon must have been used in a manner likely to cause great bodily harm.[103] The Plaintiff only alleges that Brandon Donahue pushed her into the shower door-the Plaintiff does not allege that Brandon Donahue used the shower door in a way to cause her great bodily harm.[104] As a result, the Plaintiff has failed to state a claim for delictual damages arising out of an aggravated battery with respect to Brandon Donahue allegedly pushing the Plaintiff into a shower door. This claim has prescribed and must be dismissed.

         C. Domestic Abuse Aggravated Assault

         The Plaintiff seeks delictual damages sustained as a result of Brandon Donahue's alleged actions constituting the crime of domestic abuse aggravated assault. Louisiana Revised Statutes section 14:37.7 defines domestic abuse aggravated assault as “an assault with a dangerous weapon committed by one household member or family member upon another household member or family member.”[105] The Plaintiff's factual allegations supporting her claim that domestic abuse aggravated assault occurred are the same as the facts alleged to support her claims that aggravated assaults and aggravated batteries occurred. Because the Court has found that each one of the Plaintiff's claims for damages arising out of aggravated assaults and aggravated batteries have prescribed, her claim for domestic abuse aggravated assault suffers the same fate.

         Accordingly, all the Plaintiff's state-law tort claims against Brandon Donahue have prescribed and must be dismissed.

         III. Motions to Dismiss the Plaintiff's Section 1983 Conspiracy Claim against Brandon Donahue and the Deputies on the Basis of Prescription

         The Plaintiff brings Section 1983 conspiracy claims against Brandon Donahue, Deputy Michael Ripoll, Jr., Deputy Alex Dantagnan, and Deputy Steven Gaudet, Sr. (the “Deputies”) in their official and individual capacities, alleging they conspired to protect Brandon Donahue from prosecution for domestic abuse he allegedly committed against the Plaintiff.[106]

         Both Brandon Donahue and the Deputies seek dismissal of the Plaintiff's Section 1983 conspiracy claims against them. Brandon Donahue argues the Plaintiff does not state an actionable Section 1983 claim against him because she does not allege that he was acting under the color of state law.[107] The Deputies argue the Plaintiff's Section 1983 conspiracy claim has prescribed.[108]

         A. Brandon Donahue, Even if Not Acting Under Color of State Law, May Have Liability Under Section 1983 for Conspiracy if He Acted Jointly with State Actors

         As an initial matter, Brandon Donahue is correct that for the Plaintiff to state a cause of action against him under Section 1983, she must allege that he, as a person who deprived her of a federal right, was acting under color of state law.[109] If Brandon Donahue was a private citizen not acting under the color of state law at the time he allegedly violated the Plaintiff's constitutional rights, he still may have liability under Section 1983 if he conspired with or acted in concert with state actors.[110] A non-state actor may be liable under Section 1983 if the private citizen was a “willful participant in joint activity with the State or its agents.”[111] Thus, Brandon Donahue may be individually liable under Section 1983 if he conspired with the Deputies to deprive the Plaintiff of her constitutional rights.

         The Plaintiff alleges Brandon Donahue and the Deputies reached an agreement to protect Brandon from criminal prosecution, and Brandon Donahue and the Deputies' acts violated the Plaintiff's constitutional rights.[112] Thus, the Plaintiff has sufficiently alleged that Brandon Donahue is a private actor who conspired with or acted in concert with state actors. As a result, the Plaintiff's Section 1983 claims against Brandon Donahue cannot be dismissed on this basis.

         B. Prescription of the Plaintiff's Conspiracy Claim Under Section 1983

         Before the Court considers whether the Plaintiff has stated a claim for a Section 1983 conspiracy against Brandon Donahue and the Deputies, the Court also must address the Deputies' argument that the Plaintiff's Section 1983 conspiracy claim has prescribed.

         Section 1983 conspiracy cases are governed by the prescriptive period for personal injury actions of the state in which the conduct occurred.[113] Wrongs committed by Louisiana state officials in violation of a plaintiff's constitutional rights are subject to the one-year prescriptive period for Louisiana tort actions.[114] However, to determine when a plaintiff's cause of action accrues, the Court must reference federal law.[115] “Federal law holds generally that an action accrues when a plaintiff has a complete and present cause of action, or, expressed differently, when the plaintiff can file suit and obtain relief.”[116]The prescriptive period begins to run “the moment the plaintiff becomes aware that [she] has suffered an injury or has sufficient information to know that [she] has been injured.”[117]

         The Plaintiff does not dispute that a one-year prescriptive period applies to her Section 1983 conspiracy claims.[118] The Plaintiff, however, argues her conspiracy claims have not prescribed because they are subject to the “continuous violation doctrine, ” and, because Brandon Donahue and the Deputies' wrongful acts were repeated over time, “the cause of action does not accrue for limitations purposes until the date of the last harmful act.”[119] The last harmful act alleged by the Plaintiff was her encounter with Sgt. Gaudet on June 24, 2015, when the Plaintiff alleges she sought Sgt. Gaudet's assistance with pressing criminal charges against Brandon Donahue, and he informed her the claims had prescribed.[120] According to the Plaintiff, the prescriptive period on her Section 1983 conspiracy claim did not begin to accrue until that date, and thus her complaint filed on November 18, 2015[121] was timely as to all the wrongful acts.[122]

         In the context of a conspiracy claim under Section 1983, “the actionable civil injury to a plaintiff results from the overt acts of the defendants, not from the mere continuation of a conspiracy.”[123] The Fifth Circuit has found that “[c]haracterizing Defendants' separate wrongful acts as having been committed in furtherance of a conspiracy . . . does not postpone the accrual of claims based on individual wrongful acts . . . . To permit [a plaintiff] to wait and toll the running of the statute simply by asserting that a series of separate wrongs were committed pursuant to a conspiracy would enable him to defeat the purpose of the time-bar, which is to preclude the resuscitation of stale claims.”[124] “[A]ny cause of action against the defendants accrued as soon as plaintiff knew or should have known of the overt acts involved in the alleged conspiracy.”[125]

         In her second amended complaint, the Plaintiff alleges the first overt act of Brandon Donahue and the Deputies in furtherance of the conspiracy arose out of an incident on July 7, 2013, when “Brandon Donahue grabbed Sarah Donahue by both of her arms and violently pushed the back of her body into the door of the bathroom shower.”[126]According to the Plaintiff, after Brandon Donahue called 911 and St. Tammany Parish Sheriff's Office deputies arrived at the scene, Brandon Donahue was not arrested despite the Plaintiff informing them of Brandon Donahue's history of domestic abuse.[127] The Plaintiff alleges the conspiracy between Brandon Donahue and the Deputies “grew out of Sarah Donahue's July 7, 2013 report of her husband's criminally violent behavior.”[128]

         The second overt act alleged by the Plaintiff relates to a July 23, 2013 meeting the Plaintiff had with an attorney in St. Tammany Parish who “made inappropriate and unsolicited remarks to Sarah Donahue concerning, among other things, oral sex, and placed his hand inside her clothing and groped her breast.”[129] Sgt. Ripoll was assigned to investigate the matter, and allegedly “ignor[ed] and wholly disregard[ed] evidence that supported Sarah Donahue's version of the events and rel[ied] on information provided by Brandon Donahue that discredited Sarah Donahue by portraying her as unstable and unreliable.”[130] The Plaintiff alleges Sgt. Ripoll's actions were in furtherance of the conspiracy between him, the Deputies, and Brandon Donahue to protect Donahue and to discredit the Plaintiff.

         The third overt act alleged by the Plaintiff as part of the conspiracy occurred on November 30, 2013, when Brandon Donahue allegedly submitted to the St. Tammany Parish Coroner's Office a written request for issuance of an Order of Protective Custody for Sarah Donahue, which the Plaintiff contends falsely stated she had “stated several times lately that she has thought about suicide.”[131] After the Plaintiff was released from the St. Tammany Parish Hospital, she allegedly sent a text message to Brandon Donahue that she wished to pick up their son.[132] Upon arriving at Brandon Donahue's residence, the Plaintiff alleges multiple St. Tammany Parish Sheriff's Office deputies were present, including Sergeant Dantagnan, who allegedly “blocked [the Plaintiff] from leaving the house and told her very aggressively that she was not going to take her son out of the house.”[133] The Plaintiff alleges Sgt. Dantagnan “told Sarah unless she left her son with Brandon voluntarily, he would arrest her and take her to jail.”[134]

         The fourth overt act alleged by the Plaintiff as part of the conspiracy occurred on December 11, 2013, when the Plaintiff lodged a complaint with the Internal Affairs Division (“IAD”) of the St. Tammany Parish Sheriff's Office about “unfair favoritism shown by the Sheriff's Office to Brandon Donahue . . . and the continuous pattern of unfair and harassing treatment she received from the Sheriff's Office and the Defendant Deputies.”[135] The Plaintiff alleges “the Sheriff's Office never contacted [her] to obtain more information or advise her of the status or outcome of her complaint.”[136]

         The final overt act alleged by the Plaintiff as part of the conspiracy occurred on June 24, 2015 when the Plaintiff met with Sgt. Gaudet, seeking to press charges against Brandon Donahue for the July 2013 battery.[137] According to the Plaintiff, “[i]n furtherance of the conspiracy to protect Brandon Donahue from arrest and prosecution, Sgt. Gaudet attempted to intimidate and discourage Sarah from pursuing charges against Brandon.”[138] The Plaintiff further alleges “Sgt. Gaudet falsely told Sarah that the matter had ‘probably prescribed' because she waited too long to seek charges.”[139] Sgt. Gaudet allegedly told the Plaintiff he would contact the district attorney's office, but never did so.[140]

         The Court is not persuaded that the “continuing violation” doctrine applies in this case. “Courts typically find torts to be continuous in nature where each individual act would not necessarily give rise to a cause of action but the cumulative effect of regularly occurring or continuous actions results in successive damages from day to day.”[141] The continuing violation doctrine applies when the “unlawfulness of [the] defendant's actions becomes apparent only after the cumulation of a series of related events, ” and “it does not apply to a series of related but discrete, discriminatory acts.”[142] As the Fifth Circuit has noted, “courts, including this one, are wary to use the continuing violation doctrine to save claims outside the area of Title VII discrimination cases.”[143]

         The Court finds that the actions alleged by the Plaintiff are discrete, overt acts, each of which could give rise to a cause of action for violations of the Plaintiff's constitutional rights. “[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filling charges alleging that act.”[144] The Plaintiff [may only recover for those overt acts that [she has] specifically alleged occurred within the prescripti[ve] period.”[145]

         “[A]ny cause of action against the Defendants accrued as soon as the Plaintiff knew or should have known of the overt acts involved in the alleged conspiracy.”[146] The Plaintiff knew at the time of each overt act of the alleged deprivations of her constitutional rights. As a result, each of the overt acts that occurred before November 18, 2014-one year before the Plaintiff filed her complaint-have prescribed.[147] Only the Plaintiff's Section 1983 conspiracy claim with respect to her June 24, 2015 interaction with Sgt. Gaudet occurred within the Section 1983 prescriptive period. The Plaintiff's causes of action under Section 1983 for alleged acts of the defendants occurring before November 18, 2014 have prescribed.[148]

         This is not to say that the Court cannot consider the Plaintiff's allegations with respect to the four earlier acts. “Any act occurring outside the applicable filing period ‘may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.'”[149] Although the Plaintiff cannot recover for damages arising from any acts the Defendants committed before November 18, 2014, the Section 1983 prescriptive period “does not preclude the jury from considering those events as evidence in support of its verdict that [the Defendants] committed overt acts in furtherance of the scheme after [November 18, 2014], thereby violating [the Plaintiff's constitutional] rights.”[150]

         IV. Brandon Donahue and the Sheriff Defendants' Motions to Dismiss the Plaintiff's Surviving Section 1983 Conspiracy Claim

         Now that the Court has concluded a single overt act alleged by the Plaintiff survives the Section 1983 time bar, the Court must now determine whether the Plaintiff states an actionable conspiracy claim against Brandon Donahue and the Deputies arising out of her June 24, 2015 interaction with Sgt. Gaudet.

         To state a claim for conspiracy under Section 1983, the Plaintiff must allege: (1) an agreement between the private and public defendants to commit an illegal act; and (2) a deprivation of constitutional rights.[151] Allegations that are merely conclusory, without reference to specific facts, will not suffice.[152]

         A. Agreement

         The Plaintiff alleges “Brandon Donahue and the Defendant Deputies reached an agreement to protect Brandon from prosecution for assault and to discredit [the Plaintiff] in order to benefit Brandon in his anticipated divorce and child custody case against [the Plaintiff].”[153] Further, the Plaintiff alleges the “Defendant Deputies communicated with Brandon Donahue-rather than Sarah Donahue . . . - during the course of the Sheriff's Office's . . . investigation of Sarah's assault.”[154] Specifically, the Plaintiff alleges Sgt.

         Gaudet contacted Brandon Donahue on July 16, 2013 as part of his investigation and created his investigation report “as a result of consultation with Brandon in order to discredit Sarah Donahue.”[155] Further, the Plaintiff alleges Sgt. Ripoll, when investigating the Plaintiff's complaint about her interaction with her attorney, ignored evidence that supported the Plaintiff's version of events, and instead relied only “on information provided by Brandon Donahue.”[156] Finally, the Plaintiff alleges Brandon Donahue “arranged for his colleagues and co-conspirators to be available to assist him” when the Plaintiff sought to retrieve her son from Brandon Donahue's residence.[157]

         Construing the Plaintiff's factual allegations in her favor and drawing all reasonable inferences from them, the Court finds the Plaintiff has sufficiently alleged an agreement between Brandon Donahue, a private actor, and public defendants, the Deputies, to commit an illegal act.

         B. Deprivation of Constitutional Rights

         The Court must next determine whether the Plaintiff has sufficiently alleged a deprivation of her constitutional rights. The Plaintiff alleges the acts of Brandon Donahue and the Deputies violated her “right to petition, free speech and association under the First Amendment to the United States Constitution, and her rights to privacy, liberty, due process, and equal protection under the Fourteenth Amendment.”[158] The Court will address each in turn.

         1. Equal Protection

         The Plaintiff alleges Brandon Donahue and the Deputies violated “her rights to privacy, due process, and equal protection under the Fourteenth Amendment.”[159] With respect to her interaction with Sgt. Gaudet on June 24, 2015, the Plaintiff alleges she was “deprived of due process by [Brandon Donahue and the Deputies'] deliberate interference with her pursuit of relief from the crimes committed against her” and was “denied equal protection of laws offered to other, similarly-situated [sic] crime victims.”[160]

         With respect to her equal protection claim, the plaintiff contends she is “alleging that she, as a ‘class of one, ' was ‘intentionally treated differently from others similarly situated' for no ‘rational' reason.”[161] In Village of Willowbrook v. Olech, the Supreme Court held that “the Equal Protection Clause can give rise to a cause of action on behalf of a ‘class of one' even when the plaintiff does not allege membership in a protected class or group.”[162] “To state a claim sufficient for relief, a single plaintiff must allege that an illegitimate animus or ill-will motivated her intentionally different treatment from others similarly situated and that no rational basis existed for such treatment.”[163] Specifically, the Plaintiff must allege “that the unequal police protection had no rational basis, ” which requires the Plaintiff to show “that the defendant deliberately sought to deprive [her] of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position.”[164]

         The Plaintiff has alleged “Sheriff Strain and the Defendant Deputies intentionally and maliciously failed to hold Brandon Donahue accountable for his misconduct, and singled out Sarah Donahue for unequal treatment when her husband, a St. Tammany Parish Deputy Sheriff, engaged in acts of domestic violence.”[165] The Plaintiff further alleges the Defendants “engaged in a continuing series of intentional actions all directed toward a sole end: to thwart the prosecution of Brandon Donahue, a fellow law enforcement officer, for domestic violence.”[166] Specific to her encounter with Sgt. Gaudet on June 24, 2015, the Plaintiff alleges Sgt. Gaudet discouraged the Plaintiff from pursuing charges against Brandon Donahue to “protect Brandon Donahue from arrest and prosecution.”[167]

         The Court finds the Plaintiff has sufficiently alleged that Brandon Donahue and the Deputies intentionally treated the Plaintiff differently from others similarly situated, that no rational basis for this treatment existed, and that the “illegitimate animus” of protecting their colleague from criminal prosecution was the motivating factor in the Brandon Donahue and the Deputies' treatment of the Plaintiff. According to the Plaintiff's allegations, the reasons for which the Deputies protected Brandon Donahue were of a “personal nature unrelated to the duties of the defendant's position.”[168] As a result, the Plaintiff's “class of one” Equal Protection claim survives Brandon Donahue's and the Deputies' motions to dismiss.

         2. Due Process

         With respect to the Plaintiff's claim that Brandon Donahue and the Deputies violated her due process rights guaranteed by the Fourteenth Amendment, the Plaintiff argues the Brandon Donahue and the Deputies “deprived [her] of due process by [Brandon Donahue and the Deputies'] deliberate interference with her pursuit of relief from the crimes committed against her.”[169]

         The Plaintiff met with Sgt. Gaudet on July 24, 2015 because she “wanted to press charges against Brandon for the July 2013 battery.”[170] The Plaintiff alleges Sgt. Gaudet “attempted to intimidate and discourage” her from pursuing charges against Brandon Donahue, telling her “that the matter had probably prescribed because she waited too long to seek charges.”[171] According to the Plaintiff, Sgt. Gaudet “promised to contact [the Plaintiff] after he spoke with the [district attorney's] office” but never actually contacted the district attorney's office because he “never intended to pursue [the Plaintiff's] report.”[172]

         In a Section 1983 cause of action asserting a due process violation, a plaintiff must first identify a life, liberty, or property interest protected by the Fourteenth Amendment.[173] The Plaintiff fails to identify a life, liberty, or property interest that was violated by Brandon Donahue and the Deputies during the Plaintiff's July 24, 2015 encounter with Sgt. Gaudet. There is no constitutional right to have an individual criminally prosecuted.[174] As a result, any alleged act by Sgt. Gaudet that interfered with the Plaintiff's pursuit of criminal charges against Brandon Donahue does not amount to a violation of the Plaintiff's due process rights.[175]

         C. The Plaintiff's Section 1983 Conspiracy Claim for Equal Protection Against Brandon Donahue and the Deputies in their Official Capacities

         The Plaintiff's remaining Section 1983 conspiracy claim for violation of her constitutional right to equal protection is brought against Brandon Donahue and the Deputies in their official and individual capacities.[176] The Plaintiff's second amended complaint also names as a defendant Sheriff Rodney “Jack” Strain, Jr. in his official capacity as the Sheriff of St. Tammany Parish.[177] It is well settled that a suit against a municipal official in his or her official capacity is simply another way of alleging municipal liability.[178] Louisiana grants no capacity to be sued to any parish sheriff's office.[179]Concomitantly, a suit may not be filed against a parish sheriff's office. The Sheriff in his official capacity is the appropriate governmental entity responsible for any constitutional violations committed by his office.[180]

         When, as in this case, the Sheriff is a defendant in the litigation, claims against specific individuals in their official capacities are redundant, and it is appropriate to dismiss them.[181] Accordingly, the Plaintiff's Section 1983 conspiracy claims against Michael Ripoll, Jr., Alex Dantagnan, and Steven Gaudet, Sr. in their official capacities are dismissed.[182]

         D. The Plaintiff's Section 1983 Conspiracy Claim for Equal Protection Against Brandon Donahue and the Deputies in their Individual Capacities- Qualified Immunity

         The qualified immunity defense serves to shield government officials, sued in their individual capacities and performing discretionary functions, “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[183] When considering a qualified immunity defense raised in the context of a Rule 12(b)(6) motion to dismiss, the Court must determine whether “the plaintiff's pleadings assert facts which, if true, would overcome the defense of qualified immunity.”[184] “Thus, a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity.”[185]

         As discussed above, the Plaintiff has sufficiently alleged facts to state a claim under Section 1983 for conspiracy to violate her right to equal protection under the Fourteenth Amendment. Government officials are entitled to qualified immunity only to the extent that “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[186] The Court finds the Plaintiff's right to equal protection, including “class-of-one” equal protection, was clearly established at the time of the alleged constitutional violation.[187] The Fifth Circuit in Shipp v. McMahon found that a class-of-one equal protection claim existed in the context of a domestic violence victim's allegation that she received unequal police protection because her husband's mother was a deputy at the sheriff's office.[188] Taking the well-pleaded allegations of the Plaintiff's second amended complaint as true, the Court finds that an objectively reasonable officer would have realized that discriminating against a person with respect to providing police protection was unlawful.

         Thus, the Court finds the Plaintiff's second amended complaint, on its face, shows an unreasonable violation of a clearly established constitutional right, and the defense of qualified immunity does not warrant granting a motion to dismiss under Rule 12(b)(6).[189] The Defendants may re-urge their entitlement to qualified immunity by motion for summary judgment.

         V. Motion to Dismiss the Plaintiff's Claim for Monell Supervisory Liability

         The Plaintiff claims Sheriff Strain is liable in his official capacity for failing to train and supervise his employees with respect to investigating domestic violence cases. The Sheriff seeks dismissal of this claim.

         A municipality may be liable under § 1983 if it “subjects a person to a deprivation of rights or causes a person to be subjected to such deprivation.”[190] To prevail on a § 1983 claim against a local government or municipality, a plaintiff must establish: (1) an official policy or custom, of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose “moving force” is that policy or custom.[191] The Sheriff does not dispute that he is the policymaker for the St. Tammany Parish Sheriff's Office.

         An “official policy” for purposes of § 1983 includes the following: (1) “[a] policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority”; and (2) a persistent and widespread practice of city officials or employees, “which, although not authorized by officially adopted and ...


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