United States District Court, E.D. Louisiana
BRYAN MOORE, ET AL.
ORDER AND REASONS
BARBIER v/ UNITED STAjTES DISTRICT JUDGE.
the Court are Defendant, Sheriff Randy Smith's Motion
to Dismiss for Failure to State a Claim (Rec.
Doc. 8), an opposition thereto filed by Plaintiffs
(Rec. Doc. 16) and Sheriff Smith's reply. (Rec. Doc. 54).
Having considered the Motion and legal memoranda, the record,
and the applicable law, the Court finds that the Motion
should be DENIED in part and GRANTED
AND PROCEDURAL BACKGROUND
matter arises from the 2015 St. Tammany Parish Sheriff's
election in which Defendant, Randy Smith (‘Sheriff
Smith”), challenged the then-incumbent sheriff, Rodney
“Jack” Strain (“former Sheriff
Strain”). Plaintiffs served as deputy sheriffs under Sheriff
Strain and campaigned on his behalf during the election.
Specifically, Plaintiffs allege that they solicited votes
door-to-door, wore campaign apparel, distributed yard signs,
and attended public fundraisers and events in support of
Sheriff Strain. Despite their vigorous campaign efforts,
Defendant won the election on November 21, 2015. Pursuant to
Louisiana law, Plaintiffs' terms as deputies expired
automatically when former Sheriff Strain's tenure of
office ended on July 1, 2016, the date Sheriff Smith was
sworn into the office. Upon assuming office Sheriff Smith did
not reinstate Plaintiffs to their former positions as deputy
sheriffs, which Plaintiffs allege to be an act of retaliation
by Sheriff Smith because he resented their support of his
25, 2017, Plaintiffs filed suit against Sheriff Smith,
individually and in his official capacity, asserting 42
U.S.C. § 1983 claims for violation of their First
Amendment rights to free speech and political expression. The
Plaintiffs also assert state law violations pursuant to La.
Rev. Stat. § 23:961. Additionally, two of the
Plaintiffs-Bryan Moore and Cheryl Hanson-filed claims
under the Family and Medical Leave Act (“FMLA”),
averring that they were entitled to return to their positions
when their leave ended under Sheriff Smith's
administration because they were employed by the
sheriff's department under Sheriff Strain at the time
they took their leave. Plaintiffs assert the state law and
FMLA claims against Defendant only in his official capacity.
filed a Motion to Dismiss arguing that
Plaintiffs' complaint failed to state any claims upon
which relief could be granted. (Rec. Doc. 8.) Plaintiffs
filed an opposition to Defendant's motion, arguing that
the complaint provided more than adequate facts to survive a
motion to dismiss and requesting leave to amend the
pleadings, if necessary. (Rec. Doc. 16). Defendant filed a
reply. (Rec. Doc. 54). The Motion is now before the Court on
the briefs and without oral argument.
the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The complaint must “give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005) (internal citations
omitted). The allegations “must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1).
Rule 12(b)(6), a claim may be dismissed when a plaintiff
fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books
A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(citing McConathy v. Dr. Pepper/Seven Up Corp., 131
F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must plead enough facts to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is facially plausible when the
plaintiff pleads facts that allow the court to “draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A court must accept
all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
The court is not, however, bound to accept as true legal
conclusions couched as factual allegations. Iqbal,
556 U.S. at 678. “[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.”
Taylor, 296 F.3d at 378.
examining matters of state law, this Court will employ the
principles of interpretation used by the state's highest
court. Am. Int'l Specialty Lines Ins. Co. v. Rentech
Steel LLC, 620 F.3d 558, 564 (5th Cir. 2010). Mindful of
Louisiana's distinction between primary and secondary
sources of law, the Court will begin its analyses with
reliance on the Louisiana Constitution and statutes before
looking to “jurisprudence, doctrine, conventional
usages, and equity, [which] may guide the court in reaching a
decision in the absence of legislation and custom.”
Shaw Constructors v. ICF Kaiser Eng'rs, Inc.,
395 F.3d 533, 547 (5th Cir. 2004) (quoting La. Civ. Code.
art. 1 rev. cmt. b). If the Court must make an “Erie
guess” on an issue of Louisiana law, the Court will
decide the issue the way that it believes the Supreme Court
of Louisiana would decide it. Id. (citation
omitted). This Court is not strictly bound by the decisions
of the state intermediate courts and will disregard them if
the Court is “convinced that the Louisiana Supreme
Court would decide otherwise.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).
Plaintiffs allege three claims against Chief Smith, each
deriving from a different source of law: (1) § 1983
claims for violation of their First Amendment rights, (2)
state law claims, and (3) claims under the Family and Medical
Leave Act (“FMLA”). While Sheriff Smith attacks
the factual basis of some of Plaintiffs' claims as
insufficient and raises qualified immunity, a common argument
he raises in defense to all these claims is the special
relationship between sheriffs and deputies in Louisiana.
have recognized that according to Louisiana law, there is no
such thing as a “Parish Sheriff's
Department”; rather, every newly-elected sheriff
creates his own department, which he leads in his official
capacity as a political subdivision of Louisiana. See,
e.g., Liberty Mut. Ins. Co. v. Grant Par.
Sheriff's Dept., 350 So.2d 236, 238 (La.App. 3d Cir.
1977) (overruled on other grounds); see also La.
Rev. Stat. § 13:5102(B)(1). Given their status as
relatively independent subdivisions of the state, sheriffs
enjoy a great degree of control over their deputies.
“The sheriff, and not the state, hires and fires
deputies, exercises direct and indirect supervision and
control over them, fixes their time and place of work, and
generally allocates their responsibility and assigns their
duties.” Jenkins v. Jefferson Par. Sheriff's
Off., 402 So.2d 669, 671 (La. 1981); see also Boyer
v. St. Amant, 364 So.2d 1338, 1340 (La.App. 4th Cir.
1978) (“[A] deputy sheriff has no statutorily
prescribed term of office, but merely serves at the pleasure
of the sheriff.”). The term of a deputy expires with
the tenure of the sheriff who hired him. See Adams v.
McDougal, 695 F.2d 104, 106 (5th Cir. 1983).
when Plaintiffs' commissions expired at the end of former
Sheriff Strain's term, it was solely within Sheriff
Smith's discretion whether to rehire the Plaintiffs.
Plaintiffs counter that Sheriff Smith's right not to
reappoint them was constrained by the United States
Constitution, Louisiana statutory law, and congressional
enactment. The Court must therefore examine in each of these
three contexts what meaning, if any, should be given to the
fact that when Sheriff Smith took office, a new subdivision
of the state was effectively formed. The Court will examine
each of Plaintiffs' claims in turn.
First Amendment Claims Under § 1983
allege that they were improperly dismissed for their support
of Sheriff Smith's political rival. The U.S. Supreme
Court has held that the First Amendment does not allow
“a nonpolicymaking, nonconfidential government employee
[to] be discharged or threatened with discharge from a job
that he is satisfactorily performing upon the sole ground of
his political beliefs.” Elrod v. Burns, 427
U.S. 347, 375 (1976) (Stewart, J., concurring). There is no
doubt that then, that the U.S. Constitution does curtail what
appears to be the plenary authority of Louisiana sheriffs in
hiring and firing. Adams v. McDougal, 695 F.2d 104,
105-08 (5th Cir. 1983). Furthermore, the federal courts have
long rejected the argument that newly-elected sheriffs are
not subject to this First Amendment limitation simply because
they must rehire deputies at the beginning of their tenure.
“For [First Amendment purposes], there is no difference
between firing and declining to re-appoint.”
Brady, 145 F.3d at 703 (quoting Warnock v. Pecos
County, 116 F.3d 776, 779 n. 1 (5th Cir. 1997)).
Accordingly, courts have found that a deputy has a valid
claim under § 1983, if he was not re-commissioned
because he expressed support for an elected sheriff's
opponent. See e.g., Smith v. Par. of
Washington, 318 F.Supp.2d 366, 381 (E.D. La. 2004).
Facial Plausibility of Plaintiffs' Claims
Smith apparently concedes that it would violate the
Plaintiffs' constitutional rights to decline rehiring
them on the basis of their political support for former
Sheriff Strain; he instead argues that there is an
insufficient factual basis for their claims. Specifically,
Sheriff Smith argues that the § 1983 claims fail,
because each of the Plaintiffs have failed to put forth
sufficient facts demonstrating a political motive behind
their respective terminations. Defendant admits that each of the
Plaintiffs provided sufficient factual allegations that they
supported Sheriff Strain during his re-election efforts.
However, Sheriff Smith contends that he recommissioned
hundreds of deputies who served under Sheriff Strain,
“some of whom [he] likely would have recognized as
supporting former Sheriff Strain.” (Rec. Doc. 8-1 at
4). Thus, Sheriff Smith argues that the Plaintiffs'
allegations that they were not recommissioned due to that
political activity are “rank speculation.”
Smith's position appears to be that dismissal is
appropriate unless a plaintiff alleges that he flat out told
the deputy he was firing him or her out of political
animus. This is obviously does not capture the
level of scrutiny applied at the 12(b)(6) stage. Moreover,
direct evidence of discriminatory intent is not necessary to
prevail even at trial. C.f. Norton v. Sam's
Club, 145 F.3d 114, 119 (2d Cir. 1998) (considering
sufficiency of evidence for a § 1981 claim). “In
this, as in other, areas of the law a case may be built
entirely out of circumstantial evidence.” See
Id. Circumstantial evidence, such as the complaint's
allegation that Sheriff Smith threatened to fire Robert Juge
Jr., Sterling Hebert, and James Franklin on August 20, 2015
while they attended a pep rally at the Slidell City
Auditorium. Each of the three wore a shirt to the rally
expressing his support for former Sheriff Strain. Plaintiffs
allege that then-candidate Smith approached the three
deputies and “pointed his finger . . . and said[, ]
‘you're fired.'” (Rec. Doc. 1 at 12).
Upon being questioned about this bizarre remark, Defendant
allegedly laughed and walked away. Given what is alleged in
the pleadings and drawing all reasonable inferences for
Plaintiffs, the Court infers this encounter as an indication
that Sheriff Smith was planning vindication against his
political opponents before he took office.
Smith points out that not all the Plaintiffs offer such an
anecdote, but this suggestion that the Court should dissect
the complaint and examine every single allegation seriatim is
misguided. “The complaint should be read as a whole,
not parsed piece by piece to determine whether each
allegation, in isolation, is plausible.” Braden v.
Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.
2009), Vila v. Inter-Am. Inv., Corp., 570 F.3d 274,
285 (D.C. Cir. 2009) (allegations should be “[v]iewed
in their totality”). Just because some Plaintiffs lack
a “smoking gun” in the form of a quote by Sheriff
Smith demonstrating an ...