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Moore v. Smith

United States District Court, E.D. Louisiana

December 19, 2018

BRYAN MOORE, ET AL.
v.
RANDY SMITH

         SECTION: “J” (2)

          ORDER AND REASONS

          CARL J BARBIER v/ UNITED STAjTES DISTRICT JUDGE.

         Before 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 in part.

         FACTS AND PROCEDURAL BACKGROUND

         This 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[1] 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 political opponent.

         On May 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[2]-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.

         Defendant 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.

         LEGAL STANDARD

         Under 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).

         “Under 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.

         When 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).

         DISCUSSION

         Collectively, 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.

         Courts 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).

         Thus, 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.

         I. First Amendment Claims Under § 1983

         Plaintiffs 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).

         a. Facial Plausibility of Plaintiffs' Claims

         Sheriff 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.[3] 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.”

         Sheriff 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.[4] 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.[5]

         Sheriff 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 ...


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