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Cain v. City of New Orleans

United States District Court, E.D. Louisiana

August 2, 2018


         SECTION “R” (2)



         Before the Court are plaintiffs' motion for class certification[1] and defendants' motion for summary judgment on Count Six.[2] For the following reasons, the Court grants both motions.

         I. BACKGROUND

         Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights putative class action under 42 U.S.C. § 1983, challenging the manner in which the Orleans Parish Criminal District Court (OPCDC) collects post-judgment court debts from indigent criminal defendants. These named plaintiffs are former criminal defendants in OPCDC.[3] All named plaintiffs, except Reynaud Variste, were appointed counsel.[4] The Court has held that Reynaud Variste, Reynajia Variste, Long, and Maxwell no longer have live claims for equitable relief.[5]

         The remaining defendants are OPCDC Judges Laurie A. White, Tracey Flemings-Davillier, Benedict Willard, Keva Landrum-Johnson, Robin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry Cantrell (collectively, the Judges), and OPCDC Judicial Administrator Robert Kazik.

         A. Factual Background

         The named plaintiffs are among the thousands of individuals who are prosecuted and sentenced in OPCDC each year.[6] The Judges impose various costs-collectively known as fines and fees or court debts-on convicted criminal defendants at their sentencing. First, the Judges may impose a fine, the proceeds of which are divided evenly between OPCDC and the District Attorney (DA). La. R.S. § 15:571.11(D). Second, the Judges may order a criminal defendant to pay restitution to victims. La. Code Crim. Proc. Art. 883.2. Third, the Judges impose various fees and court costs that go to OPCDC and other entities, such as the Orleans Public Defender, the DA, and the Louisiana Supreme Court. See La. R.S. § 13:1377; id. § 13:1381.1; id. § 13:1381.4; La. Code Crim. Proc. art. 887(A). After sentencing, OPCDC may further assess criminal defendants for the costs of drug treatment and drug testing. La. R.S. § 13:5304.

         As a result of their criminal convictions, the named plaintiffs were assessed fines and fees ranging from $148 (imposed on Long) to $901.50 (imposed on Cain).[7] Cain was also ordered to pay $1, 800 in restitution.[8]

         All named plaintiffs were subject to OPCDC's debt collection practices. At least until September 18, 2015, the Judges delegated authority to collect court debts to the Collections Department, which the Judges and Administrator Kazik jointly instructed and supervised.[9] The Collections Department created payment plans for criminal defendants, accepted payments, and granted extensions.[10] Some Judges also delegated authority to the now-defunct Collections Department to issue alias capias warrants against criminal defendants who failed to pay court debts.[11] Each named plaintiff was arrested on such a warrant, and imprisoned for periods ranging from six days to two weeks.[12]

         Alana Cain was arrested pursuant to an alias capias warrant on March 11, 2015.[13] Apparently unable either to make a payment or to post the $20, 000 bond, she spent a week in jail before she obtained a court hearing on March 18.[14] At that hearing, the judge asked Cain when she would be able to continue making payments.[15] Cain explained that she had missed a payment after giving birth a few weeks earlier, but could continue making payments upon her release.[16] The judge ordered her release and directed her to return to court for a status update two weeks later.[17] OPCDC suspended Cain's court debts on April 7, 2016, [18] although Cain made further payments toward her court debts after that date.[19]

         Ashton Brown spent two weeks in jail before his family secured his release by making a $100 payment to OPCDC.[20] An alias capias warrant was issued on July 16, 2015, and Brown was arrested on July 23.[21] Brown appeared in court without counsel on August 6; the court agreed to release Brown upon payment of $100 to OPCDC.[22] Brown's family made this payment the next day, and Brown was released.[23] OPCDC suspended Brown's court debts on September 23, 2016, [24] although Brown, like Cain, made further payments after that date.[25]

         Reynajia Variste was arrested pursuant to an alias capias warrant on May 28, 2015.[26] On June 2, one of her family members paid $400 to OPCDC in order to secure her release.[27] Although Variste did not appear before a judge on that date, her attorney did.[28] OPCDC waived Variste's outstanding debt on August 31, 2016.[29]

         Vanessa Maxwell was arrested on May 10, 2015, on an alias capias warrant.[30] On May 12, she filed a grievance with the Orleans Parish Sheriff's Office seeking a new date to make a payment.[31] The office responded that she did not yet have a court date, and that to secure her release she just needed to “get someone to go to fines and fees to make arrangements.”[32]Maxwell filed another grievance two days later, asking the Sheriff's Office to place her on the court's docket; the office again directed Maxwell to “get a family [member] to go over and make arrangements with fines n fees [sic]. Explain you have been incarcerated[;] they will make some type of arrangements for payments.”[33] Maxwell finally appeared before a judge, with counsel, on May 22, 2015.[34] The judge ordered her release without payment.[35] Maxwell paid off her court debt on June 2, 2016.[36]

         After this suit was filed, the Judges revoked the Collections Department's authority to issue warrants.[37] The Judges also recalled all active fines and fees warrants issued by the Collections Department before September 18, 2015, unless restitution remained unpaid or the individual had failed to appear in court.[38] In doing so, the Judges wrote off $1, 000, 000 in court debts.[39] Each Judge now “handles collection-related matters on their respective dockets.”[40]

         Nevertheless, at least some active warrants for failure to pay restitution still exist.[41] And the Judges themselves now issue alias capias warrants for failure to pay fines and fees.[42] There is no evidence that the Judges generally consider ability to pay before imprisoning indigent criminal defendants for failure to pay fines and fees. Indeed, the Judges do not routinely solicit financial information from criminal defendants who fail to pay court debts, [43]though they state that they do consider ability to pay when the issue is brought to their attention.[44]

         In addition to their judicial duties, the Judges manage the budget of OPCDC.[45] From 2012 through 2015, the court's revenue ranged from $7, 567, 857 (in 2012) to $11, 232, 470 (in 2013).[46] Some of this revenue could be used only for specified purposes and went into a restricted fund; unrestricted revenue went into OPCDC's Judicial Expense Fund, which is the court's general operating fund.[47] The Judges exclusively control this fund and may use it “for any purpose connected with, incidental to, or related to the proper administration or function of the court or the office of the judges thereof.” La. R.S. § 13:1381.4(C). They may not use it to supplement their own salaries. Id. § 13:1381.4(D). Most money for salaries and benefits of OPCDC employees (apart from the Judges) comes from the Judicial Expense Fund.[48]

         From 2012 through 2015, the Judicial Expense Fund's annual revenue was approximately $4, 000, 000.[49] Roughly half of this revenue came from other governmental entities, especially the City of New Orleans.[50] About $1, 000, 000 came from bail bond fees, and another $1, 000, 000 from fines and other fees.[51] Since at least 2013, all fines and fees revenue has gone to the Judicial Expense Fund.[52]

         B. Procedural History

         Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, on behalf of themselves and all others similarly situated. There are two remaining claims in plaintiffs' operative second amended complaint. Count Five challenges the Judges' practice of failing to inquire into ability to pay before criminal defendants are imprisoned for nonpayment of court debts.[53] Count Five also challenges the Judges' failure to provide a neutral tribunal to adjudicate ability to pay.[54] Count Six, an equal protection claim, asserts that the Judges' policy of jailing and threatening to imprison criminal defendants for nonpayment of court debts imposes unduly harsh and punitive restrictions on debtors whose creditor is the State, as compared to debtors who owe money to private creditors.[55]

         On December 13, 2017, the Court granted plaintiffs' motion for summary judgment on Count Five.[56] The Court also denied both plaintiffs' and defendants' motion for summary judgment on Count Six.[57] Plaintiffs now move for class certification on Counts Five and Six.[58] Plaintiffs' proposed class includes “[a]ll persons who currently owe or who will incur court debts arising from cases adjudicated in the Orleans Parish Criminal District Court.”[59] Additionally, defendants again move for summary judgment on Count Six.[60] The Court heard oral argument on these motions on June 20, 2018.


         A. Legal Standard

         Summary judgment is warranted when “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.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. A dispute about a material fact is genuine “if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         If the dispositive issue is one on which the moving party will bear the burden of proof 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.” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal quotation marks and citation omitted). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'” (quoting Celotex, 477 U.S. at 322)).

         B. Discussion

         Count Six is an equal protection challenge against defendants' debt collection practices. Specifically, plaintiffs challenge defendants' use of arrest warrants to enforce collection of court debts. Plaintiffs argue that this enforcement mechanism constitutes invidious discrimination against criminal defendants as compared to civil judgment debtors.[61]

         The Fourteenth Amendment to the U.S. Constitution provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. This command “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Harris v. Hahn, 827 F.3d 359, 365 (5th Cir. 2016) (noting that the Equal Protection Clause “keeps governmental decision makers from treating differently persons who are in all relevant respects alike” (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992))). It is well-established that the Equal Protection Clause is implicated “only ‘if the challenged government action classifies or distinguishes between two or more relevant groups.'” Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996) (quoting Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993)); see also Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 139 (5th Cir. 2009). “State actors may create classifications facially, when such categorization appears in the language of legislation or regulation, or de facto, through the enforcement of a facially neutral law in a manner so as to disparately impact a discernible group.” Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997) (citation omitted). Courts apply different levels of scrutiny depending on the type of classification. City of Cleburne, 473 U.S. at 439-40.

         The Supreme Court addressed the type of classification asserted by plaintiffs-between criminal judgment debtors and civil judgment debtors- in James v. Strange, 407 U.S. 128 (1972). The Kansas recoupment statute at issue in that case allowed the state to “recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants.” Id. at 128. The statute excluded these indigent defendants from “the array of protective exemptions Kansas has erected for other civil judgment debtors, ” such as “the exemption of his wages from unrestricted garnishment.” Id. at 135. The Court recognized that recoupment statutes serve legitimate state interests, and “that enforcement procedures with respect to judgments need not be identical.” Id. at 138, 141. Nonetheless, the Court held, recoupment statutes “need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect.” Id. at 141-42. The Court struck down Kansas's statute as “embod[ying] elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.” Id. at 142; see also Robinson v. Purkey, No. 17-1263, 2018 WL 2862772, at *45 (M.D. Tenn. June 11, 2018) (suggesting that Tennessee statute was unconstitutional because it permitted the state to suspend the licenses of those who owed traffic debts, a form of coercion not applicable to other judgment debtors).

         Plaintiffs do not point to any state law that facially discriminates against criminal judgment debtors like the Kansas recoupment statute in James. Indeed, the Judges' practice of arrest warrants and imprisonment to collect court-imposed debts does not appear to be authorized by any state law. Plaintiffs instead focus their challenge on the Judges' policy of using arrest warrants to enforce collection of court debts.[62] Plaintiffs rely solely on distinctions between (1) state and federal law protections for civil judgment debtors and (2) OPCDC's policy with respect to criminal defendants who owe court debts.[63] On its face, the policy does not distinguish between civil judgment debtors and criminal judgment debtors because the policy operates only on the latter group. After all, OPCDC has no jurisdiction over civil judgment debtors. See La. R.S. § 13:1336 (“The criminal district court for the Parish of Orleans shall have exclusive jurisdiction of the trial and punishment of all crimes, misdemeanors, and offenses committed within the parish of Orleans if the jurisdiction is not vested by law in some other court.”). For the same reason, there is no evidence that the Judges' policy is applied in a discriminatory manner, or that it has a disparate impact on criminal judgment debtors compared to civil judgment debtors. Plaintiffs merely argue that there must be an equal protection violation because they are actually treated differently from how civil judgment debtors, who are not even subject to the Judges' policy, are supposed to be treated. Plaintiffs fail to cite a single case on point, i.e., a case in which the defendant has no authority over the favored class and does not act pursuant to state law, but nonetheless violates the Equal Protection Clause in its treatment of the disfavored class.

         Differential treatment based on jurisdiction alone does not violate the Equal Protection Clause. See Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 230 (1964) (“[S]howing that different persons are treated differently is not enough, without more, to show a denial of equal protection.”); Mills v. City of Roanoke, 518 F.Supp.2d 815, 823 (W.D. Va. 2007) (“As long as all individuals within the jurisdictional reach of a policy are equally affected by the policy, it does not matter that those in a different jurisdiction are not subjected to the same policy.”). In Woodard v. Andrus, 419 F.3d 348 (5th Cir. 2005), for example, the plaintiff sued a parish clerk of court who allegedly charged excessive or unauthorized fees. Id. at 350. The plaintiff asserted that “she and other Calcasieu Parish litigants [were] being treated differently from litigants in other Louisiana parishes.” Id. at 354. The Fifth Circuit held that these facts did not support an equal protection claim because there was no showing that the defendant, who had no jurisdiction over residents of other parishes, was “selectively enforcing the state statute based upon any impermissible ground, ” or that the defendant “distinguish[ed] between different groups.” Id.

         Here too, there is no showing that the Judges' policy distinguishes between criminal judgment debtors and civil judgment debtors. Like the defendant in Woodard, the Judges lack jurisdiction over the favored class. Thus, the state action challenged by plaintiffs-i.e., the Judges' policy-does not distinguish between different groups. See Woodard, 419 F.3d at 354. That civil judgment debtors outside OPCDC's jurisdiction and criminal judgment debtors in OPCDC are treated differently, without more, does not show an equal protection violation. See Griffin, 377 U.S. at 230.

         Nor is there any showing that the Judges are enforcing a policy in violation of state law with some discriminatory purpose. As noted earlier, a state actor may create a classification “through the enforcement of a facially neutral law in a manner so as to disparately impact a discernible group.” Johnson, 110 F.3d at 306. But “disparate impact alone cannot suffice to state an Equal Protection violation”; a plaintiff must also show that the challenged state action was motivated by discriminatory purpose. Id. “Discriminatory purpose in an equal protection context implies that the decisionmaker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group.” Id. at 307 (quoting Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995)). Plaintiffs point to no evidence of discriminatory purpose in this case. Thus, the disparate impact of the Judges' policy on criminal judgment debtors in OPCDC does not in itself show an equal protection violation.

         Moreover, “an alleged violation of a state statute does not give rise to a corresponding § 1983 violation, unless the right encompassed in the state statute is guaranteed under the United States Constitution.” Jones v. Lowndes County, 678 F.3d 344, 352 (5th Cir. 2012) (quoting Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1349 (7th Cir. 1985)). Louisiana Code of Criminal Procedure article 24 regulates contempt proceedings in the criminal courts. Before holding an individual in contempt, a court must issue a rule to show cause; this rule must be served on the criminal defendant at least 48 hours before trial on the rule; and if the court finds the defendant guilty, it must issue “an order reciting the facts constituting the contempt.” La. Code Crim. Proc. art. 24. Additionally, Louisiana law provides that failure to comply with an order to pay money “shall not be construed as a contempt” if the debtor is currently unable to pay, and was also unable to pay when the order was issued. La. R.S. § 13:4206.

         The Judges' policy and practice of essentially holding criminal defendants in contempt for nonpayment of court debts fails to adhere to these statutes. To some extent, the procedural rights encompassed by Louisiana Code of Criminal Procedure article 24 may be guaranteed by the U.S. Constitution. But those rights sound in due process, not equal protection, and the Court has addressed those rights in connection with Count Five. The substantive right encompassed by Louisiana Revised Statutes section 13:4206 does relate to equal protection of indigents. See Bearden v. Georgia, 461 U.S. 660 (1983). But again, Count Six does not assert an equal protection claim based on indigence.

         Count Six, as pleaded, asserts an equal protection claim based on differential treatment of criminal defendants in OPCDC versus civil judgment debtors in other courts. The Judges' policy of arresting and imprisoning criminal defendants for nonpayment of court debts is not discriminatory on its face because it operates only on criminal defendants in OPCDC. Additionally, there is no evidence that the Judges adopted the policy with any discriminatory purpose. Thus, plaintiffs fail to raise a genuine dispute of material fact in support of their equal protection claim, and defendants are entitled summary judgment on Count Six.


         A. Legal Standard

         Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. “The class certification determination rests within the sound discretion of the trial court.” Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th Cir. 2005). A court, however, should not grant class certification unless it is satisfied, after “rigorous analysis, ” that all Rule 23 prerequisites have been met. Id. (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)).

         To be certified, the class must first satisfy four threshold requirements. A court may certify a class only if:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). The party moving for certification bears the burden of establishing these requirements. Unger, 401 F.3d at 320 (citing Berger v. Compaq Computer ...

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