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Carlisle v. Normand

United States District Court, E.D. Louisiana

October 31, 2017

TAYLOR CARLISLE, ET AL.
v.
NEWELL NORMAND, ET AL.

         SECTION: “H” (1)

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Before the Court are three Motions: a Motion to Dismiss filed by Defendants Joe McNair and McNair & McNair, LLC (Doc. 130); a Motion to Dismiss filed by Defendants Richard Thompson and Joseph Marino (Doc. 138); and a Motion to Dismiss filed by Defendants Kristen Becnel, Tracey Mussal, and Kevin Theriot (Doc. 128). For the following reasons, Defendants Joe McNair and McNair & McNair, LLC's Motion is GRANTED IN PART, Defendants Richard Thompson and Joseph Marino's Motion is GRANTED IN PART, and Defendants Kristen Becnel, Tracey Mussal, and Kevin Theriot's Motion is GRANTED.

         BACKGROUND

         In this suit, Plaintiffs challenge the manner in which the Jefferson Parish Drug Court (“Drug Court”) is conducted. In addition to their individual claims, they seek to represent a class of individuals who were similarly sentenced by the Drug Court.

         I. Allegations of Plaintiffs' Complaint and First Supplementing Complaint

         Plaintiffs' Complaint and First Supplementing Complaint made the following allegations.[1]

         Plaintiff Taylor Carlisle was arrested on November 9, 2012 and charged in the 24th Judicial District Court for the Parish of Jefferson with possession of oxycodone in case number 12-6158 and with possession of marijuana and drug paraphernalia in case number 12-6159. On January 30, 2015 he entered a guilty plea as to all charges. In case number 12-6159, he was sentenced to time served, while his plea in case number 12-6158 was entered pursuant to Louisiana Revised Statutes § 13:5304, also known as the “Louisiana Drug Court Statute.” He was sentenced to between zero and five years, with the sentence deferred contingent upon his completion of the Jefferson Parish Intensive Drug Court Program while on probation. As part of this program, Carlisle was required to maintain regular contact with the program probation officer and Drug Court, attend regular AA meetings, consent to regular drug testing, and present required documentation to the probation officer and Drug Court. He also agreed to waive due process rights in Drug Court proceedings.

         His primary claim involves allegations that he received excessive sentences from Drug Court for failure to comply with the terms of the program. On April 28, 2015, he was sanctioned to 90 days flat time.[2] On August 25, 2015, he was sanctioned with six months of flat time for contempt of court when he failed to appear for a hearing. Carlisle brings six claims relative to his experience in Drug Court, essentially averring that the closed courtroom, lack of court reporter, and lack of adversarial proceedings violate his due process rights. He also alleges that these sentences were in excess of those permitted under the state law authorizing Drug Court and that they are impermissible flat time sentences. He argues that this is a violation of the Eighth Amendment's protections against cruel and unusual punishment and the Equal Protection Clause of the Fourteenth Amendment. First, he seeks declaratory and injunctive relief prohibiting Drug Court from acting in this unconstitutional manner. Second, he brings a § 1983 claim against Sheriff Normand for deliberate indifference in keeping Carlisle in jail for the flat time sentences of 90 and 180 days, in violation of Louisiana law and his Equal Protection and Due Process rights. Third, he brings a § 1983 claim against Drug Court Administrator Kristen Becnel, Program Supervisor Tracy Mussal, Probation Coordinator Kevin Theriot (collectively, the “Drug Court Administrators”), and Director of Counseling Joe McNair for failure to properly train and supervise the implements of Drug Court policy.

         In addition to these constitutional claims, he brings “pendant state law claims” against several individuals. First, he brings a legal malpractice claim against the Drug Court's Indigent Public Defender Board and its staff attorney, Joe Marino. Mr. Marino was appointed to represent Carlisle in Drug Court, and Carlisle contends that he breached his duty by failing to appropriately defend Carlisle. Second, he brings a claim against Drug Court Clinical Director Joe McNair for breach of his duty as a therapist. He avers that McNair owed him a duty to act within the standard of care governing the treatment of patients with substance abuse problems and that he breached that duty by failing to make proper recommendations as to his treatment.

         Plaintiff Emile Heron has been a participant in the Drug Court program since April 17, 2012. He pleaded guilty to one count of possession of oxycodone. He alleges that he suffered periods of detention for technical violations of his probation without procedural due process. On July 30, 2013, he was sentenced to 24 hours flat time for failing to complete required community service. He next alleges that, on November 12, 2013, he was sentenced to 30 days flat time for “associating with a felon” despite having never committed that offense. On January 14, 2014, he was sanctioned with 60 days flat time for failing to appear at Drug Court on January 3, 2014. He further avers that he was held for an additional four and a half months at the end of this sentence while waiting for a long term care bed to become available. Eventually, he was sent to Assisi Bridge House in Shreveport for seven and half months of inpatient treatment.

         Upon release, he was again sanctioned for noncompliance and sentenced to 16 hours of community service due November 18, 2014. It seems that he failed to complete this community service and was therefore sentenced to 48 hours in the Jefferson Parish Correctional Center on December 2, 2014. On February 5, 2015 he was held in contempt for failure to pay $1, 624.50 in fines from the original plea agreement. He was later jailed on December 15, 2015 for failure to complete community service. He alleges that he was held until January 26, 2016, at which time he was sanctioned with six months' time. He alleges that all of these sanctions were imposed without hearing, a court reporter, or formal notice in violation of due process. He also alleges that, while he was incarcerated, his probation was extended by motion without his knowledge.

         Plaintiffs also seek certification of the following two classes:

Those individual natural persons who, while participating as probationers in the 24th Judicial District Court Drug Court program pursuant to Plea Agreement (hereinafter the “probationers”) have been sanctioned, for alleged probation infractions and sentenced with jail time in the Jefferson Parish Correctional Center or other location, in excess of ten days as proscribed by LA Code Crim. Proc. 891(c). and/or in violation of the Drug Court Act, R.S. 13:5304 et seq. These probationers include but are not limited to those sentenced to “flat time” in connection with said sanctions, as well as those who are alleged to have committed Contempt and sentenced to jail time without a hearing or opportunity to defend, or without a record from which to launch an appeal based on Due Process waivers executed at the time of the Plea Agreement.
[and]
[A]ll persons who are or were participants in Jefferson Parish Drug Court Program “held over” pending (1) revocation of their probation based on technical probation agreement violations imposed by the Drug Court staff or the Court, without evidentiary hearing and due process or statutory authority for issuance of jail sanction or (2) holding a probationer in jail and whose probations were subsequently revoked based on violations for which they were already sanctioned with jail terms or (3) for other reasons not prescribed in the governing statute including pending transfer to a rehabilitation facility.[3]

         Plaintiffs aver that all of these individuals were subject to a pattern and practice of conduct whereby they were deprived of liberty under color of state law. They aver that the subject class may consist of more than one thousand individuals and that their claims involve common questions of law and fact.

         II. Initial Round of Motions to Dismiss

         Three groups of Defendants moved separately to dismiss Plaintiffs' claims as stated in the Complaint and First Supplementing Complaint. The Court addressed the motions with a consolidated Order and Reasons on May 23, 2017.[4]

         The Court dismissed all personal-capacity claims against Defendant McNair. The Court dismissed the negligence claims without prejudice, finding that Plaintiffs failed to sufficiently allege a doctor-patient relationship.[5] The Court dismissed the failure to train and deliberate indifference claims without prejudice because the Complaints failed to allege a causal connection between McNair and the sanctions imposed by a judge. Further, the Court found that Defendant McNair had qualified immunity against a suit for damages under § 1983 in his personal capacity because Plaintiffs failed to establish that the due process waivers they signed were clearly illegal. The Court accordingly dismissed the personal-capacity § 1983 claims for damages with prejudice. The Court found that Plaintiff Heron failed to plead any facts supporting his claims against Defendant McNair and dismissed Plaintiff Heron's claims without prejudice. Finally, the Court struck the class allegations against Defendant McNair for the failure to plead common questions of law and fact relative to him.

         The Court dismissed without prejudice Plaintiffs' legal malpractice claims against Defendants Thompson and Marino. The Court found that although such claims fell within the Court's supplemental jurisdiction, Plaintiffs failed to allege that the actions of Defendant Marino caused the harm of which Plaintiffs complain. Plaintiffs further made no factual allegations supporting a malpractice claim against Defendant Thompson.

         The Court dismissed with prejudice Plaintiffs' § 1983 claims for damages against the Drug Court Administrators in their personal capacities. The Court found that the Drug Court program is an intensive probation program over which judges preside. Any role the Defendants played in bringing about the allegedly unconstitutional sanctions was judicial in nature, entitling the Drug Court Administrators to absolute judicial immunity. The Court also struck the class allegations against the Drug Court Administrators for failing to allege that those Defendants were involved in the deprivation of rights of all class members.

         The Court asked the parties to submit additional briefing on the Court's jurisdiction to hear claims against Defendants in their official capacities. The Court concluded that Drug Court exists under the auspices of the 24th Judicial District Court for the Parish of Jefferson and is therefore an arm of the state. The Court dismissed with prejudice Plaintiffs' official-capacity claims against Defendants McNair and the Drug Court Administrators as barred by the Eleventh Amendment.[6]

         III. Plaintiffs' Second Amending and Supplementing Complaint

         Having dismissed several of Plaintiffs' claims without prejudice, the Court granted Plaintiffs leave to amend, which they did with the submission of their Second Amending and Supplementing Complaint (“Second Amending Complaint”).[7] The Second Amending Complaint re-asserts the entirety of the original Complaint and First Supplementing Complaint. It also adds the following parties: Officer Patricia Klees of the Gretna Police Department, alleged to be a team member of Drug Court; McNair & McNair, LLC (“McNair's Business”); Defendant Joseph McNair in his official capacity as a member of the Drug Court team; Jefferson Parish; and two unidentified insurance companies.

         Plaintiffs' Second Amending Complaint alleges additional factual details as to how the Drug Court team, including Defendants McNair, Marino, and the Drug Court Administrators, allegedly conspired to have the Drug Court judge sanction Plaintiffs in violation of due process. Plaintiffs specifically allege that Defendant Klees lied to Defendant Theriot about how Klees discovered Plaintiff Carlisle's missing AA paperwork. Plaintiffs allege that Defendants knowingly ignored national treatment standards and drug court guidelines in implementing the program. Plaintiffs allege that the rights of all class members were violated by Defendants' policies and practices of ignoring treatment standards, recommending illegal sanctions, and participating in proceedings lacking due process.

         With respect to the state-law claims against Defendant McNair, Plaintiffs allege that McNair evaluated them for treatment and admission into the Drug Court program. Plaintiffs also allege that after the initial February 2013 evaluations, Defendant McNair never again evaluated Plaintiffs or recommended that they be evaluated by another specialist. Plaintiff Carlisle alleges that McNair ordered him to go to Oxford House without authority and in violation of the Drug Court authorizing statutes.

         IV. Second Round of Motions to Dismiss

         Three groups of Defendants again move separately to dismiss the remaining and amended claims against them.

         The Drug Court Administrators move the Court to dismiss all claims against them pursuant to Rules 12(b)(1) and 12(b)(6).[8] They argue that Plaintiffs, having been discharged from Drug Court, no longer have standing to bring their claims. The Drug Court Administrators also argue that they have absolute judicial immunity. Plaintiffs oppose the Motion, arguing that Plaintiffs do have standing because they continue to suffer harm, that judicial immunity should not apply, and that the official capacity claims should not have been dismissed in the first place.

         Defendants McNair and McNair's Business also move to dismiss for lack of jurisdiction and failure to state a claim, as well as to strike the class allegations.[9] They argue that Plaintiffs lack standing because they have been discharged from Drug Court, that any official-capacity claims against them have been dismissed already pursuant to Eleventh Amendment immunity, and that the Second Amending Complaint fails to allege either numerosity or common questions of law and fact as required by Rule 23. Plaintiffs oppose the motion, arguing that their continued harm gives them standing and that immunity does not apply.

         Defendants Marino and Thompson move to dismiss the state-law malpractice claims against them on the grounds that a) the claims do not fall under the Court's supplemental jurisdiction, b) that even if supplemental jurisdiction exists, the fact that the sentences of which Plaintiffs complain have not been overturned presents a compelling reason to decline to exercise supplemental jurisdiction, and c) that Plaintiffs fail to state a claim for legal malpractice because the underlying sentences have not been overturned, Plaintiffs fail to allege causation, and Plaintiffs' allegations against Defendant Thompson are merely conclusory.[10] Defendants Marino and Thompson move to dismiss the § 1983 claims against them on the grounds that a) as defense attorneys, they are private actors and not subject to suit under § 1983, and b) that Plaintiffs lack standing to bring claims for injunctive and declaratory relief. Finally, Defendants Marino and Thompson move to dismiss all claims against them because they are barred by the application of Heck v. Humphrey and because Louisiana state courts already adjudicated Plaintiffs' claims.[11]Plaintiffs oppose the Motion, arguing inter alia that Heck and res judicata do not apply, and that Defendants Marino and Thompson were not acting as private individuals because they were not traditional defense attorneys.

         LEGAL STANDARD

         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.”[12] A claim is “plausible on its face” when the pleaded facts allow the court to “[d]raw the reasonable inference that the defendant is liable for the misconduct alleged.”[13]A court must accept the complaint's factual allegations as true and must “draw all reasonable inferences in the plaintiff's favor.”[14] The Court need not, however, accept as true legal conclusions couched as factual allegations.[15]

         To be legally sufficient, a complaint must establish more than a “sheer possibility” that the plaintiff's claims are true.[16] “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'”[17] Rather, the complaint must contain enough factual allegations to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiffs' claim.[18]

         A Rule 12(b)(1) motion challenges the subject matter jurisdiction of a federal district court. “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”[19] In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court's resolution of disputed facts.[20] The proponents of federal court jurisdiction-in this case, Plaintiffs- bear the burden of establishing subject matter jurisdiction.[21]

         LAW AND ANALYSIS

         Plaintiffs' Second Amending Complaint is replete with factual detail, but at the expense of clarity as to the specific claims that Plaintiffs assert. In the broadest reading of all complaints together, Plaintiffs appear to assert claims under § 1983 for both damages and injunctive relief against Defendants McNair and McNair's Business, Marino and Thompson, and the Drug Court Administrators (collectively, “Moving Defendants”) in both their personal and official capacities.[22]

         As explained below, none of Plaintiffs' § 1983 claims against the Moving Defendants survive. Plaintiffs' official-capacity claims for damages are barred by the Eleventh Amendment. Plaintiffs lack standing to bring claims for injunctive or declaratory relief because the Moving Defendants do not have the power, in either their official or personal capacities, to redress the harms of which Plaintiffs complain. And Plaintiffs' personal-capacity claims for damages are barred by the doctrines of either qualified immunity or absolute judicial immunity.

         Furthermore, Plaintiffs fail to plead a viable state-law claim against Defendant Thompson, but Plaintiffs' legal malpractice claim against Defendant Marino and negligence claims against Defendants McNair and McNair's Business survive.

         I. Section 1983 Claims for Damages Against Moving Defendants in Their Official Capacities

         Previously, this Court dismissed Plaintiffs' claims against the Drug Court Administrators and McNair in their official capacities on the grounds that Drug Court is an arm of the state and therefore immune to suit under the Eleventh Amendment.[23] Plaintiffs' Second Amending Complaint newly asserts claims against Defendants Marino and Thompson in their official capacities, alleging that they worked in concert with the other Defendants as part of the Drug Court team to deprive Plaintiffs of their rights. For the same reasons as applied to Defendants McNair and the Drug Court Administrators, Plaintiffs' official-capacity claims against Defendants Marino and Thompson are also barred by the Eleventh Amendment. Furthermore, state officials named in their official capacity are not “persons” under § 1983 and therefore are not amenable to suit.[24] Accordingly, the official-capacity claims for damages against Defendants Marino and Thompson are dismissed with prejudice.

         In their Oppositions, Plaintiffs repeatedly urge the Court to reconsider the earlier Order and Reasons finding Drug Court to be an arm of the state. Although Plaintiffs have not made a formal motion to reconsider under Rule 59(e), the standard applicable to that rule is informative. “A motion to alter or amend judgment must ‘clearly establish either a manifest error of law or fact or must present newly discovered evidence. These motions cannot be used to raise arguments which could, and should, have been made before the judgment issued.'”[25] There has been no change in existing law and Plaintiffs offer no new evidence that was not available when the Court first requested briefing on the issue of Eleventh Amendment immunity.

         Regardless, the Court's conclusion that Drug Court is an arm of the state and therefore immune from suit because of the Eleventh Amendment is correct. To determine whether a body is a state agency, courts in the Fifth Circuit must consider,

(1) whether the state statutes and case law characterize the agency as an arm of the state; (2) the source of funds for the entity; (3) the degree of local autonomy the entity enjoys; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property.[26]

         Here, the factors weigh in favor of finding Drug Court to be an arm of the state. First, the statutes creating the program clearly view it as a function of the state courts, which are themselves state entities.[27] The statutes state that the legislature's intent was to “facilitate the creation of alcohol and drug treatment divisions in the various district courts of this state, ”[28] and authorize “each district court [to] establish a probation program to be administered by the presiding judge or judges thereof or by an employee designated by the court.”[29] Opinions from the Louisiana Attorney General also view drug courts as programs of the state courts.[30]

         Second, from the information included in Plaintiffs' Second Amending Complaint, Drug Court appears to be funded by federal grants given to the state and administered by the Louisiana Supreme Court.[31] Presumably, any judgment against the Drug Court would be paid out of those funds, which are part of the state treasury.

         Third, drug courts are controlled by judicial districts, rather than local parishes, and those judicial districts are not necessarily coterminous with a given parish.[32] Control by a state entity that is separate from local government weighs towards finding that drug courts are arms of the state.

         The fourth factor, whether the entity is concerned with mainly local problems, is mixed. Drug courts are administered by state entities, which suggests that they tackle issues of statewide import. On the other hand, the statute leaves each district court the discretion to establish a drug court, suggesting that the creation of any one drug court program is a response to local conditions.

         The fifth and sixth factors, whether the drug courts can sue, be sued, and own property in their own names, are less important.[33] The Court does not have specific information before it relating to those factors. Even if those factors were to lean in the opposite direction, they would not overcome the clear weight of the prior factors toward finding Drug Court to be an arm of the state.

         Accordingly, all claims for damages against the Moving Defendants in their official capacities are dismissed with prejudice.

         While the Eleventh Amendment bars claims against the state, there are two exceptions relevant to the § 1983 claims here. First, the Ex parte Young doctrine allows a plaintiff to sue a state officer in his official capacity for prospective injunctive or declaratory relief.[34] Second, a plaintiff may sue a state officer in his personal capacity for ...


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