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Office of Public Health v. Bernard

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

LOUISIANA DEP'T. OF HEALTH AND HOSPITALS, OFFICE OF PUBLIC HEALTH
v.
SHEMAN BERNARD

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20175240 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

          Sheman Bernard PRO SE DEFENDANT/APPELLANT: Sheman Bernard

          Neal Risley Elliott, Jr. Bureau of Legal Services Department of Health and Hospitals COUNSEL FOR PLAINTIFF/APPELLEE: Louisiana Department of Health and Hospitals, Office of Public Health

          Alice O. Landry Attorney at Law COUNSEL FOR PLAINTIFF/APPELLEE: Louisiana Department of Health and Hospitals, Office of Public Health Dr. Juliette Stefanski, authority for Region IV Office of Public Health

          Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.

          JOHN E. CONERY JUDGE.

         In this case, the trial court granted a permanent injunction against defendant Sheman Bernard, enjoining her from any contact with the employees of the Louisiana Department of Health and Hospitals Office of Public Health, Sanitation Services in Baton Rouge, Louisiana (hereinafter "LDH-OPH"), or any employee of the Region IV Office of Public Health, Sanitation Services, located in the Clifton Chenier Complex in Lafayette, Louisiana (hereinafter "Region IV") except as provided in the judgment. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         The issues between Ms. Bernard and the LDH-OPH, the state entity with direct supervision over Region IV, have been ongoing since 2012. In 2012, Ms. Bernard and her husband, Timothy Bernard, entered Region IV offices with a video camera seeking a "file" for their address at 1224 Carmel Drive, Lafayette, La. 70501. The Bernards were told no such file existed.

         On September 11, 2017, a "PETITION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION," was filed against Ms. Bernard on behalf of the LDH-OPH and Region IV. The petition was verified by Dr. Juliette "Tina" Stefanski, M.D. in her capacity as the Appointing Authority on behalf of Region IV Office of Public Health in the LDH. The LDH-OPH submitted several exhibits in support of the petition which will be discussed below.

         First, an August 8, 2014 letter from Tiffany Sonnier, of Region IV, to Ms. Bernard indicated that on July 21, 2014, two representatives of Region IV attempted to inspect the Bernard property. The inspection was the result of a complaint received in the Lafayette Parish Health Unit. However, the two representatives were not allowed on the property by the owner.

         On November 6, 2014, T.J. Lane, Assistant Secretary of the LDH-OPH, wrote to Ms. Bernard addressing her "inquiry and concerns" regarding a "water main leak and the abandoning of the water main" near the Bernard property by Lafayette Utilities System (LUS). The letter explained that an inspection had been conducted to determine how to repair a leaking water main on Ovey Street, near the Bernards' property. According to the November 6, 2014 letter, LUS determined that since the water main was leaking, and no customers were being serviced by that water main, they had abandoned the line located between Carmel Drive and Fred Street. Therefore, the leak had no impact on the Bernard property.

         The November 6, 2014 letter further stated that LUS had contacted Region IV in Lafayette on October 10, 2014, to advise that a crew had been sent to the area to put dirt in the hole created by the leak and to clean up the area. In closing, the letter stated that Mr. Lane hoped the work done in the area was to the satisfaction of Ms. Bernard. The correspondence also contained contact information for Ms. Bernard to use if she had any questions about the LUS operations in the area.

         On May 6, 2015, Mr. Lane of the LDH-OPH once again wrote to Ms. Bernard based on her "inquiry and concerns regarding a septic system" on her property. The letter indicated that Mr. Chris Soileau, LDH-OPH District Engineer in Lafayette, La., had conducted a site visit on November 20, 2014 and could not identify any sewage discharge or water leaks in the area. Additionally, on March 27, 2015, Ms. Jennifer Kihlken, LDH-OPH District Engineer, contacted Mr. Mike Rhodes with LUS, who stated that he was unaware of a septic system existing on the property. LUS, through Mr. Rhodes, responded that "the property is serviced through a service line to the LUS municipal sewer system. LUS had previously investigated the sewer lines for leaks by conducting a dye test in the area and found no issues." Mr. Lane's letter also advised Ms. Bernard that the family should contact a "Septic Tank Service" to determine if anything was present on the property and to help "with detection and abandonment." Mr. Lane's letter clearly stated that everything that could be done had been done by LDH-OPH and LUS to remedy the problem, and that the Bernards should enlist a private "Septic Tank Service" should they feel further assistance was needed.

         On February 27, 2015 and March 16, 2015, Mr. and Ms. Bernard, Ms. Bionca Joseph, and Ms. Evelyn Bernard filed suit against several public entities, including the LDH-OPH and LUS, claiming, among other things, fraud and wrongful death. Both petitions were attached as exhibits to LDH-OPH's

         September 2017 petition for a permanent injunction against Ms. Bernard. A panel of this court heard the appeal of the consolidated suits in Bernard v. Lafayette City Police Dept., 16-361, 16-362 (La.App. 3 Cir. 11/16/16), (unpublished opinion), writ denied, 16-2253 (La. 2/3/17), 215 So.3d 691.

         Although the panel found the facts "exceedingly difficult to determine," the portion of the case dealing with LUS and LDH-OPH (referred to as "DHH" in the lawsuit) involved the attempt by the work crew dispatched by LUS to fill the hole created by the leak in October 2014. Apparently, the LUS crew was accompanied by the Lafayette City Police Department (LPD). Mr. Bernard and his daughter, Bionca Joseph, actively protested the presence of the LPD, LUS, and any equipment on their property, and were arrested for "battery on a police officer, criminal mischief, and resisting arrest." The panel ultimately affirmed the trial court's dismissal of the Bernards' claims against LUS and LDH-OPH on procedural grounds.[1]

         Procedural Posture Of The Plaintiff's Petition

         In response to the petition filed by LDH-OPH, the trial court initially signed a Temporary Restraining Order (TRO) on September 11, 2017, and the hearing on the petition was fixed for October 16, 2017. A continuance was granted on October 18, 2017, re-fixing the hearing on the petition to November 27, 2017.

         The hearing on the petition of LDH-OPH and Region IV for a permanent injunction against Ms. Bernard was ultimately held as scheduled on November 27, 2017 with counsel for LDH-OPH present, along with Ms. Bernard representing herself pro se. Ms. Bernard initially objected to the proceedings based on a case allegedly filed in federal court and stated that she did not intend to participate based on her Fifth Amendment rights. However, the trial court determined that the case in federal court had no relationship to LDH-OPH's request for a permanent injunction against Ms. Bernard, and the hearing proceeded as scheduled.

         LDH-OPH called as its first witness Mr. Albert J. Mancuso, Jr., who is the program administrator for LDH-OPH retail food program, the on-site wastewater program, and the buildings and permits program. Mr. Mancuso testified that he oversaw the administration of these programs for LDH-OPH and had two individuals that he reported to in the administration, Ms. Carolyn Bombet, his direct supervisor, and Mr. Mike Vidrine, her superior. Mr. Mancuso's duties included the direct supervision of six individuals within his office, who in turn ...


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