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Gilbert v. Cates

United States District Court, E.D. Louisiana

July 13, 2018

DEAN E. GILBERT
v.
SIDNEY H. CATES, ET AL.

         SECTION: “H” (4)

          ORDER AND REASONS

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Plaintiff's Motion for Leave to File First Amendment of Consolidated Complaint (R. Doc. 33) and Motion to File a Supplemental or Second Amended Complaint (R. Doc. 65). The motions are opposed. R. Doc. 41, 45, 46, 67, 68. The motions were heard on the briefs.

         I. Background

         A. Original Complaint

         Plaintiff, Dean Gilbert (“Dean Jr.”), filed this lawsuit contending that his constitutional rights, [1] Title 42 U.S.C. § 1981[2], 1983[3], and 1985[4] were violated and alleges state law claims[5] in a state court succession proceeding involving the death of his mother Bernadette Gaines Gilbert. Dean Jr. contends that after his mother died intestate on December 9, 2011, his brother Dwight persuaded their father, Dean Gilbert Sr., who was experiencing cognitive decline, that Dean Jr. had killed his mother and conspired with other relatives to kill their father.

         While the father remained in Michigan with his brother, Dean Jr. alleges that Road Home demanded that he open his mother's estate to pay a contractor for construction work done on her home post Hurricane Katrina through its Small Rental Property Program. As a result, he opened his mother's succession through Duty Judge Robin Giarrusso, rather than the allotted judge, Judge Sidney Cates on February 29, 2012 and was appointed the succession's administrator on March 1, 2012. He contends that he notified all heirs of his appointment by voicemail and certified mail. R. Doc. 33-1, p. 9.

         The Court notes that upon learning that Dean Jr. had filed a motion seeking to have himself appointed as succession administrator, the family members filed a motion to revoke the appointment on April 26, 2012. Due to a procedural defect in the appointment pleadings, Dean Jr.'s appointment was deemed null and this saga began.

         Dean Jr. alleges that Judge Cates used his judicial office to retaliate against him.[6] He does not allege how the judge retaliated and nor does he allege why he would retaliate. Nevertheless he also alleged that the state court judge conspired with Sheriff Marlin Gusman and “others” to violate his civil rights.

         While the original complaint clearly attempts to assert a civil rights claim against Judge Cates and Sheriff Gusman, the lawsuit also identify as parties, Baldwin Haspel Burke & Mayer, LLC, a Louisiana law firm, Thomas J. Cortazzo, Joel Mendler, Karl Zimmerman and Brodie Glenn, attorneys with the Baldwin Haspel firm who were retained to represent his brother Dwight in the succession proceedings. Dean Jr. also named his brother Dwight Gilbert, Michelle Mouton, the law clerk to Judge Cates, and Laurie Hendrickson, the court reporter to Judge Cates as defendants. Finally in the original complaint, Dean Jr. also sued the Parish of Orleans. He does not, however, set forth any allegations against any of the defendants other than his brother, the judge, and a rather vague allegation against Sheriff Gusman.

         Thereafter, motions to dismiss were filed by the sheriff, court reporter, the law clerk, the judge, the attorneys, and their law firm. R. Docs. 3, 5, 6, 11, 22, 24 and 29. In response to the motions to dismiss, Dean Jr. filed a motion seeking permission to file an amended complaint on October 23, 2017, which was granted. R. Doc. 13. Dean Jr. was granted an extension until November 12, 2017 to file his amended complaint. R. Doc. 14. He then filed a motion seeking an extension of the deadline until November 27, 2017, which was granted by the undersigned. R. Doc. 16. Dean Jr. filed the subject motion on February 12, 2018, some three (3) months late seeking to amend the complaint. R. Doc. 33. This proposed complaint is eighty-two (82) pages in length.

         B. The Proposed Amended Complaint

         The proposed Amended Complaint seeks to add eighteen (18) new defendants and assert new causes of action, some having criminal connotations.[7] In the proposed amended complaint, Dean Jr. alleges that because he and his brother do not speak to one another, he was not aware of the fact that the Baldwin Haspel firm was hired using their father's money to have him removed as administrator. R. Doc. 33-1, p.9, ¶ 41. He contends that the Baldwin Haspel lawyers alleged that removing Dean Jr. as administrator was necessary to protect the successions assets, which according to Dean Jr. had already been converted by his brother and his lawyers. Id.

         1. Baldwin Haspel Burke & Mayer, LLC (“Baldwin Haspel”)

         Dean Jr. alleges that the Baldwin Haspel lawyers (Cortazzo, Rouchell, Mendler, Zimmerman, Glenn), [8] sued in their “individual and official capacities, ” failed to advise the judge that they had already transferred and converted estate funds. He alleges that he was enjoined without a hearing and denied due process. He alleges that the lawyer then took the pleading, met with Judge Cates or his law clerk, and the judge signed a temporary restraining order, which he called a “second ex-parte order, ” removing Dean Jr. as administrator pending a hearing. He alleges that the hearing date was open-ended with no scheduled hearing date on the Rule to Show Cause why he should be removed as administrator. R. Doc. 33-1, ¶ 42. Dean Jr. alleges that once he was temporarily removed, he did not get notice of the hearing to permanently remove him as administrator and he was also denied a copy of the transcript by the court reporter. Id. at p. 10, ¶44.

         Dean Jr. alleges that after the order was signed, his brother returned to the family rental home, evicted him from the property, and changed the locks. He alleges that the hearing for possession was scheduled in April of 2012, despite this fact he was neither served nor notified of the hearing because the law firm had him permanently removed as administrator and issued an order of usufruct to his father. Dean Jr. contends that the Baldwin Haspel lawyers have claimed post-judgment moneys that were not shared with him. As a result, he alleges that he needs to reopen the Succession to make his claim.

         2. Clark Hill, P.L.C.

         Dean Jr. also sued the Michigan law firm privately retained by his father to draft his will which resulted in Dean Jr. being disinherited. R. Doc. 33-2, pp. 9-15. He also sued the firm and its lawyer, Joseph Bonventure, because he also prepared a power of attorney for Dean Sr. which granted the power to handle his affairs to Dean Jr.'s brother Dwight and in the event of Dwight's death, Dwight's wife, Julia Gilbert. Id. at pp. 14-18.

         3. Michelle Mouton

         Dean Jr. alleges that Judge Tiffany Chase coordinated with Michelle Mouton, Judge Cates's law clerk, who served as a signatory and issued a Rule to Show Cause on a petition for possession. R. Doc. 33-1, p. 9. He also seeks to sue her because she refused to notify him of certain unidentified court orders. Id. at p. 12. Dean Jr. alleges that after he complained to the judge's law clerk about not sending him copies of significant orders, the judge issued an ex parte and sua sponte protective order against him presumably forbidding him from contacting her. He alleged that during the proceedings he had many oral and written questions that were sent to the judge's law clerk, but that his questions were ignored. Id. at. p. 15.

         4. Laurie Hedrickson

         After his father was placed in possession of the property, Dean Jr. requested a copy of the transcript from Judge Cates's court reporter, Laurie Hendrickson. He alleges that Hendrickson refused to provide him with a copy. He contends that this act denied him his civil rights and violated due process. He alleges that Hendrickson, like Mouton, refused to answer questions he submitted. Id.

         Dean Jr. alleges that Hendrickson edited transcripts and refused to produce other transcripts for him and the media. Id. at p. 16. He further alleges that Hendrickson discriminated against him by denying him a public trial and access to his court file. Id. at p. 19.

         He does not allege how Hendrickson “denied him a public trial, ” nor does he allege her role in the denial of “access to his court file, ” which is typically in the custody of the clerk of court. Id. He also alleges that Hendrickson, either alone or in concert, instigated his prosecution by falsely testifying against him and by providing misleading information. Id. at. p. 20.

         Additionally, Dean Jr. alleges that Hendrickson, along with the judge, sheriff, and law clerk, intentionally caused him to be falsely imprisoned and arrested for which he seeks punitive damages. He also includes Hendrickson in the group of defendants who conspired to defraud his father and violated Dean Jr.'s due process rights by liquidating and transferring his father's property. Id. at p. 32.

         5. Judge Sidney Cates

         a. Section 1983 claims

         Dean asserts rather incendiary allegations against Civil District Court Judge Cates both in his individual and official capacities. He alleges that the judge violated Title 42 U.S.C.A. Section 1983 because of alleged conflicts of interest because the judge presided over a case with “avid campaign contributors, ” held ex-parte communications with the campaign contributor, refused to reveal any business relationship with the law firm, allegedly instructed the court reporter to delete portions of the transcript, and avoided or refused to consider evidence of elder abuse, undue influence, theft, identity, money laundering and perjury by Baldwin Haspel and their client, Dwight Gilbert. Dean Jr. also alleges that the judge sealed and then unsealed the case record, closed and reopened the hearings, allowed attorney Cortazzo to waive his right to local rule 9.5, and quashed subpoenas for the medical records of his father. He alleges that the judge twice convicted him of constructive and direct “criminal” contempt of court for allegedly the same offense without due process. Id. at p. 11, ¶ 45(q).

         He alleges that the judge refused to hold the law firm accountable for taking money out of the safe deposit box, created opportunities for the judge's friends to sell the estate property, and charged excessive fees to the estate. Dean Jr. alleges that his discovery motion was denied, the judge refused to recuse himself after revealing the “relationship between the judge's personal friends and the succession, ” allegedly purged documents in the trial record, and disinherited Dean Jr. He alleges that the judge retaliated against him by denying him due process and violated his constitutional rights by assessing economic sanctions to chill his right to free speech.

         In addition, Dean Jr. alleges that the judge unjustly held him in contempt and sentenced him to jail for eleven (11) days which he contends is outside of the judge's jurisdiction. He also alleges that the judge trampled over Dean Jr.'s First Amendment rights, refused to respond to a bill of particulars, and insisted on convicting him on vague and over broad charges. Dean Jr. alleges that the judge committed fraud by accepting false and perjured testimony, false and misleading documents, affidavits, as well as committing other “gross procedural errors.” Dean Jr. alleges that the judge rubber stamped a final succession order that failed to indicate the final value of the estate and amount distributed to the heirs. Id. at p. 12.

         He also alleges that the judge violated his due process rights because he was removed as the administrator of his mother's estate without a hearing. Id. at p. 41, ¶151. He alleges that the treatment he received from Judge Cates is because he treats lighter skinned African Americans more favorably than darker skinned African Americans. Id.

         While the initial removal order was identified as temporary, when Dean Jr. showed up for the hearing the judge allegedly saw him, denied his request, and removed him as administrator of his mother's estate.

         b. Injunction Against Prospective Retaliation

         Dean Jr. seeks a temporary restraining order and permanent injunction prohibiting Judge Cates from retaliating against him. He alleges that every order issued by Judge Cates against him was retaliatory and contends that it is because he is a dark skinned African American. R. Doc. 33-1, ¶ 45-54. Specifically, Dean Jr. requests that this court issue a temporary restraining order preventing Judge Cates from exercising jurisdiction of his mother's succession, in connection with his need to reopen the succession, and he alleges that he cannot do so without the risk of being imprisoned by Judge Cates.

         c. Fraud

         Dean Jr. also alleges that the defendants committed a fraud upon the court because the succession proceeding was wrought with false and perjured testimony, false and misleading documents and affidavits, and other procedural errors. He alleges that he does not seek to reverse any of the rulings rendered in the succession case. Id. at p. 12, ¶46. Dean Jr. also alleges that Judge Cates, after learning about media queries due to his alleged treatment of and unequal administration of justice by dark versus light skinned African Americans, sealed the record, and barred the media from observing the final sanctions hearing. Id. at p. 13, ¶ 50. Dean Jr. seeks a temporary restraining order and a preliminary injunction to prevent Judge Cates from exercising jurisdiction over the now closed case involving the Succession of Bernadette Gaines Gilbert. Id. at p. 14, ¶ 55. He alleges that he is “barred” from fully disclosing to this court the reason he is seeking an injunction against Judge Cates but would do so in camera.

         d. First Amendment Rights

         Dean Jr. also alleges that Judge Cates violated his exercise of his First Amendment Rights when he ignored his questions on pending matters. As a result, Dean Jr. alleges that he would resubmit the questions for consideration because they were relevant to the issue before the court. He itemizes a sundry of questions which challenge the judge's rulings, his staff's action and refusal to authorize the production of documents, and information post his removal as the Administrator of the Succession.[9] He contends that because the judge was insulted and categorized his queries as insulting or discourteous, the judge violated Dean Jr.'s right to free speech when the judge held him in contempt, remanded him to jail, closed the proceeding from media scrutiny and ordered him to pay ten thousand dollars in a fine to the judge's “campaign contributor.” Id. at p. 17, ¶65.

         e. Conspiracy to Retaliate

         Dean generally alleges that Judge Cates conspired with Baldwin, Cortazzo, Mendler and Mouton to retaliate against his conduct which claims violates his right to protect speech. Id. ¶ 70, P. 18. The gravamen of Deans's complaint is that he challenges the court's authority to manage its cases which cannot conflict with his absolute right to free speech.

         f. Contempt Proceeding Violated Sixth Amendment

         Dean Jr. alleges that the judge, his law clerk, and the court reporter discriminated against him because he had a right to a public trial and access to the court record was denied. He complains that he also had a right to counsel, to be informed of the specific charges, and the right against self- incrimination before he was held in contempt. Dean Jr. also alleges that the contempt trial should have been heard by another judge to guard against the possibility of actual bias or the appearance of bias. Id. at p. 19, ¶ 76.

         Dean Jr., who describes himself as a dark-skinned African American male, contends that the judge (who is black), lawyers, law clerk (who is black), court reporter (who is black), and financial institutions discriminated against him due to his race and color (i.e. dark-skinned African American). Id. at p. 20, ¶ 77. He alleges that the defendants deprived him of his right to property under the Fifth and Fourteenth Amendments and seeks to have the defendants held liable jointly and severally for compensatory and punitive damages. Id., ¶ 77-78.

         g. Malicious Prosecution

         Dean Jr. next alleges that the judge, law clerk, his court reporter, and Cortazzo, conspired to prosecute him by forcing the law clerk and the court reporter to testify falsely against him in order to build a case. He alleges that the judge refused to answer a Bill of Particulars detailing why Dean Jr. was being prosecuted and ultimately sanctioned for over $60, 000. He alleges that the law firm engaged in elder abuse, that the judge routed the estate business to the judge's family and friends, and refused to distribute his father's estate share until after his death. Id. at p. 21, ¶ 81. As a result, Dean Jr. contends that he suffered mental and emotional pain and suffering. He also seeks punitive damages for the malicious prosecution claim.

         4. Sheriff Gusman

         a. False Imprisonment

         Dean Jr. next alleges that the judge, Sheriff Gusman, and other persons identified as Jane and John Does violated his Fourth, Fifth, and Fourteenth Amendment rights under the United States Constitution. He alleges that a “criminal hearing, ” rather than a contempt hearing, took place on May 5, 2016 before Judge Cates and which was closed to the public and the media. He alleges that he was not advised of the charges, found guilty, arrested, and incarcerated for eleven (11) days. He alleges that Sheriff Gusman kept him in jail beyond the eleven days ordered by the presiding civil court judge. Id., ¶ 87. However, there is no indication of how long or if he was actually detained after the order expired.

         b. Failure to Train, Supervise & Discipline

         Dean Jr. alleges that Sheriff Gusman is responsible for training, instructing, and supervising employees that work for the Sheriff's Office. He alleges generally that Sheriff Gusman violated his constitutional rights because of his race and because the Sheriff's Office should have been able to recognize and correct incarceration orders from Civil Court Judges that were written to retaliate against him. He alleges that the judge's order promoted false imprisonment and that “whites, light-skinned African Americans, and wealthy people are not subjected to false imprisonment.” He alleges that the judge, sheriff, law clerk, court reporter, and unidentified persons acted intentionally to cause him to be falsely arrested and imprisoned without regard for his rights. He seeks punitive damages against Gusman.

         5. Orleans Parish

         Dean Jr. generally alleges that he seeks to have the sheriff, judge, and the Parish of Orleans liable under Monell[10] and for their supervisory liability. He generally alleges that there was misconduct that was the result of policies, practices, and customs where their employees detained indigent minority and dark-skinned African Americans. Id., ¶ 112-16.

         6. Cates, Mouton, Hendrickson, Wight Gilbert, Cortazzo, Clark Hill, Darryl M. Gilbert, Joan Heisser, Melanie Duplechain, Ronald M. Carrere, Joseph A. Bonventure and Joel Mendler

         Dean Jr. next alleges that the judge, his law clerk, court reporter, the lawyers from New Orleans and Michigan, his brothers, and the president of the realty company violated his rights pursuant to Title $2 U.S.C. Sections 1985 and 1986 for their monetary gain by their elder abuse as well as racial and class animus. Id., ¶ 140-44. He alleges that all of the defendants profited from the liquidation and transfer of his father's property.

         7. Conversion

         Dean Jr. next allege that his brothers, Dwight and Darryl, Cortazzo, Mendler, Bonventure, Baldwin Haspel, and Clark Hill, PLC converted succession funds. Id., p. 45, ¶160. He also alleges that Melanie Duplechain, along with his brothers, coerced their father who was not functioning at full mental capacity to transfer his lakefront property for their and Judge Cates's benefit. Id. He alleges that Joan Heisser, President of Great Developments and Realtors, was granted the exclusive right to sell the property to her friend Melanie Duplechain, a private person. Id., ¶161. He also alleges that the judge authorized the sale of another piece of succession property under market value to a personal friend, Ronald Carerre, Manager of CTC Holdings, LLC. Id., ¶163. He alleges that his brother Darryl committed money laundering by taking their father to various banks and financial institutions and telling him how to transfer his assets, which he contends constitute conversion of succession assets. Id., at p. 44, ¶156-158.

         He next alleges that the judge, Joan Heisser (an alleged campaign contributor of the judge), and Capital One aided and abetted the conversion. He alleges that Capital One unlawfully released all of the money held in the succession. He alleges that his brothers impersonated him in his role as administrator of the estate. He alleges that his brothers committed mail fraud (Title 18 U.S.C. § 1341), wire fraud (Title 18 U.S.C § 1343), bank fraud (Title 18 U.S.C. § 1962), money laundering (Title 18 U.S.C. §§ 1956, 1957), interstate or foreign transportation of more than $5000 in stolen money (Title 18 U.S.C. § 2314) and receipt of stolen money that has crossed state or national borders (Title 18 U.S.C. § 2315).

         8. State Law Claims

         a. Cates, Gusman, and Does 1-10

         Dean Jr. contends that the judge, sheriff and the Does 1-10 should be held liable to him for negligently detaining him longer than the order indicated. Id., ¶103-108. He contends that the defendants failed to timely release him despite his repeated inquiries about the length of his detention. Id. He also seek to have these defendants, the law clerk, and court reporter held liable for failing to prevent the harm he suffered.

         b. Cates and Gusman--Respondeat Superior

         Dean next alleges that both Judge Cates and Sheriff Gusman should be held liable for the “torts” committed by their agents. He does not describe the alleged torts that the employees committed. He suggests that Judge Cates's liability extends to the illegal activity that he required his law clerk and court reporter to perform for him. Again, there is no description of what they allegedly performed for him. Id., ¶ 117-120. Dean Jr. contends that the Sheriff should be held liable for the payment of damages as a result of the conduct of his employees. Id., ¶ 121-24.

         c. Insurance Companies

         Dean Jr. seeks to sue the insurance companies of the defendants, which he identified as ABC Insurances Companies 1-10, who he contends would be contractually liable to pay for the illegal and unconstitutional acts of the “defendants.” Id., ¶125-129.

         d. Fraud

         Dean Jr. alleges that his brothers committed insurance fraud when they filed a police report on behalf of their father for their deceased mother's wedding ring. Id. at p. 47, ¶173-177. According to Dean Jr., his brother Dwight's wife Julie took the wedding ring from their mother's safe keeping and that his brothers exercised undue influence over their father in order to get him to file an insurance claim. Id. He alleges that the judge allowed the lawyers and his brothers to fraudulently charged $146, 016.58 against the estate as money owed to their dad for his contribution to the renovation of this mother's property. Id., at p. 48, ¶180(b).

         Dean Jr. alleges that the judge awarded his brothers $13, 000 from his inheritance for the sale of a 2006 Honda minivan that was in his possession. He contend that the court ignored his argument that the vehicle was overvalued and that the estate did not own the vehicle. Id. at p. 49, ¶180(c). He alleges that the judge awarded his brothers $4, 000.00 for his household contents which they allegedly disposed of. Id., ¶180(d). He also alleges that the judge awarded his brothers over $600 for parking tickets and for a phone bill which were allegedly both paid for by the Succession for Dean Jr.'s account. Id.

         Dean Jr. also alleged that the judge allowed his brothers to take another vehicle out of the estate after was purchased by their father, even though it was owned by their dad. Id., ¶180(g). He alleges that his brothers and the law firm used the money they controlled to purchase a vehicle that was already owned from themselves for themselves. He characterizes this action as money laundering. Id. Dean Jr. alleges that the judge awarded the law firm and his brothers $41, 188.90 in attorney's fees against him so it was able to charge all the fees to his account without double billing. Id. He thereafter itemized his complaints about the law firms impact on the administration of justice: (1) ex parte contacts; (2) requesting verification for funds withdrawn for transportation and housing expenses; (3) recusal of the lawyers because of their relationship with the judge; (4) his objection to the false legal description of the property (5) his objection to the denial of due process; (6) his objection to the court's sua sponte order to seal the record and hearing; and (7) the judges failure to take notice of any evidence of alleged elder abuse from his campaign contributors. Dean Jr. proceeds to cite to the Dred Scott opinion stating that blacks have no rights which the white man was bound to respect.[11] He proceeds to cite to reversed Supreme Court law as a suggestion that the judge “weaponized” La. C.C. P. 221 to criminalize his attempt to receive impartial justice and incarcerated him for his complaint of theft by wealthy white lawyers. He suggests that the heirs, white people, and light skinned African Americans are not subject to bias and animus by the judge.

         e. Unlawful Arrest and Imprisonment

         Dean Jr. next contends that the judge violated his rights under the Fourth, Fifth, and Fourteenth Amendments by having him incarcerated in front of the media. He alleges that the media and public were removed from the hearing and that investigative reporter David Hammer announced his presence and made attempts to obtain transcripts of the proceedings. He contends that the judge, his staff, and attorney Cortazzo under color of law knowingly deprived him of his constitutional rights because the sheriff escorted him to jail before the media.

         f. Right to Privacy

         Dean Jr. alleges that in 2012, his brothers, while he was out of town returned to the rental house (owned by Debra Dave's friend and rented to his parents), sorted through his personal effects, kept items they wanted, and discarded other items and information. Dean Jr. alleges that his losses included his glasses, money, computer, toothbrush, clothes, medicine, and shoes. He alleges that his brothers and their lawyers conspired to unlawfully evict him from the rental property and to remove him as administrator. He alleges that his brother's violated Section 1983, also but fails to provide an explanation.

         g. Defamation

         Dean Jr. alleges that the lawyers had an incentive to defame him so as to ensure that their client would be appointed administrator. He alleges Heisser, the President of Lake Forest Homeowners Association, used insider information to ensure that his father would be moved out of Louisiana to cover up an illegality concerning the house next door to his mother.[12]

         Dean Jr. alleges that the judge embraced the defendants defamation did the same thing in Michigan by using what happened in Louisiana. Id. at p. 70, ΒΆ260-265. He alleges that his brothers contended that he contributed to their mother's death. He alleges that his brother Dwight had an incentive to defame him in order to replace him as administrator and ...


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