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O'Neill v. Gautreaux

United States District Court, M.D. Louisiana

December 20, 2018

PATRICIA SUE O'NEILL, Individually, And as heir to the estate of MICHAEL SCOTT O'NEILL



         This matter is before the Court on the Motion for Summary Judgment[1] filed by Defendant Sid J. Gautreaux, III, Sheriff of East Baton Rouge Parish; Jody McJimsey, former Warden of the East Baton Rouge Parish Transitional Work Program; Patrick Cochran, Assistant Warden of the East Baton Rouge Parish Transitional Work Program; City/Parish Government of East Baton Rouge Parish; and the Louisiana Department of Corrections. Plaintiff Patricia Sue O'Neill (“Plaintiff”) has filed an Opposition[2] to this motion, to which Defendants filed a Reply.[3] For the reasons set forth below, the Defendants' motion shall be granted.


         Plaintiff is the mother and only surviving parent of Michael Scott O'Neill (“O'Neill”), an inmate assigned to the East Baton Rouge Parish Transitional Work Program in August 2016.[4] Plaintiff alleges that, while under the custody and care of the Defendants, her son received inadequate medical care on August 4, 2016, and he died in Our Lady of the Lake Hospital in Baton Rouge, Louisiana on August 20, 2016.[5]

         Plaintiff filed this lawsuit advancing constitutional claims under 42 U.S.C. § 1983 and claims under the Americans with Disabilities Act (“ADA”), [6] the Rehabilitation Act (“RA”), [7] and Louisiana state law.[8] Based on information revealed in Plaintiff's deposition, all Defendants have moved for summary judgment on the issue of Plaintiff's capacity to bring this lawsuit on her own behalf and on behalf of her deceased son.

         Plaintiff was deposed on July 10, 2018.[9] Plaintiff testified that, during the five or six year marriage of her son to Rhonda Kay O'Neill (“Rhonda”), which ended on April 20, 2000, Rhonda gave birth to a son, Jared Michael O'Neill (“Jared”), on March 4, 1997.[10]Although Jared is not the biological child of O'Neill, and he was later acknowledged by his biological father Kent Willis, [11] O'Neill never filed an action to disavow Jared, and Plaintiff testified that O'Neill did indeed treat Jared as his son during the marriage.[12] Thus, under Louisiana law, Defendants maintain that Plaintiff has no right of action to pursue the claims asserted herein.


         A. Summary Judgment Standard

         “The court shall grant summary judgment if 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.”[13] “When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence.”[14] A party moving for summary judgment “must ‘demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case.”[15] If the moving party satisfies its burden, “the non-moving party must show that summary judgment is inappropriate by setting ‘forth specific facts showing the existence of a genuine issue concerning every essential component of its case.'”[16] However, the non-moving party's burden “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”[17]

         Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'”[18] All reasonable factual inferences are drawn in favor of the nonmoving party.[19] However, “[t]he Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.”[20] “Conclusory allegations unsupported by specific facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his allegations … to get to a jury without any “significant probative evidence tending to support the complaint.”'”[21]

         B. Survival/Wrongful Death Actions

         “As a threshold matter, any party bringing suit must have standing to do so, and the [United States Court of Appeals for the] Fifth Circuit has instructed district courts to evaluate state law concepts of paternity to establish standing in wrongful death and survivorship actions.”[22] Further, “[s]tanding under the Civil Rights Statutes is guided by 42 U.S.C. § 1988, which provides that state common law is used to fill the gaps in administration of civil rights suits. Therefore, a party must have standing under the state wrongful death or survival statutes to bring a claim under 42 U.S.C. §§ 1981, 1983, and 1988.”[23]

         Under Louisiana Civil Code Articles 2315.1 and 2315.2, the right of a survival or wrongful death action is afforded to four exclusive categories of survivors. However, the statutes do not allow for all of the classes of survivors to bring actions. Rather, the existence of a person qualifying within a higher class precludes a person in a lower class from filing suit.[24] The primary category under both 2315.1 and 2315.2 includes the surviving spouse and/or children of the decedent. Thus, pursuant to Articles 2315.1 and 2315.2, a surviving mother or father may only recover in the event that the decedent was not survived by a spouse or child.[25] As made clear by the Louisiana Supreme Court, “[w]hen a tort victim is survived by a child, the parents of the tort victim have no right to recover for the damages sustained by the victim or for their own damages for the victim's wrongful death.”[26]

         Plaintiff opposes Defendants' motion on essentially two grounds. First, she contends Defendants have waived their right to challenge procedural capacity by failing to assert it timely pursuant to Louisiana Code of Civil Procedure articles 926A(6) and 928. Second, Plaintiff maintains that the presumption of Jared's paternity has been rebutted based on evidence showing that O'Neill was not the biological father of Jared and the fact that Jared has legally renounced the succession of O'Neill, leaving Plaintiff as O'Neill's sole heir. Accordingly, Plaintiff argues she is the proper party to bring this suit. The Court will address these arguments in turn.

         1. Waiver of Capacity Challenge

         As set forth above, Plaintiff must establish that she has standing to bring this suit. Standing is a jurisdictional requirement that cannot be waived. Nevertheless, Rule 9 of the Federal Rules of Civil Procedure[27] states that a party seeking to challenge capacity “must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge.”[28] If a defendant fails to plead that a plaintiff lacks capacity in a timely manner, the objection is waived and the defense is lost.[29] However, although capacity to sue may be waived if not pled in a timely manner, the United States Court of Appeals for the Fifth Circuit holds that a challenge to capacity is untimely when it is raised during or after trial.[30] Clearly, Defendants have not waived their right to challenge Plaintiff's legal capacity to file this lawsuit based on the procedural posture of this case.

         2. Disavowal/Renunciation

         Plaintiff's substantive arguments regarding her capacity to bring suit are likewise without merit. Tellingly, Plaintiff failed to distinguish or even address the law and jurisprudence cited by Defendants and also failed to offer any legal authority or jurisprudence in support of her position.

         Plaintiff cites the Louisiana Civil Code articles that set forth that “[t]he husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage;”[31] and “[t]he husband may disavow paternity of the child by clear and convincing evidence that he is not the father. The testimony of the husband shall be corroborated by other evidence.”[32] However, there is no evidence that O'Neill ever disavowed Jared. Plaintiff submits a custody and visitation stipulation[33] between O'Neill and Rhonda, and she ostensibly argues that, because O'Neill waived visitation with Jared and Rhonda waived child support from O'Neill, the presumption of Jared's paternity has been rebutted. Plaintiff also relies on the Acknowledgment of Paternity[34] by Jared's biological father Kent Willis and the renunciation[35] of O'Neill's estate by Jared. Yet, neither of these documents reflect O'Neill's disavowal of Jared under Louisiana law.

         The cases upon which Defendants rely directly contradict Plaintiff's arguments. In Demery v. Housing Authority of New Orleans, the Louisiana Fourth Circuit Court of Appeal held that, “[i]f a timely disavowal action is not brought, the presumption is irrebuttable by the husband.”[36] Further, “[t]o contest the presumption of legitimacy of children born during marriage, the husband must timely institute his personal action to disavow paternity. … No. one except the husband can file an action to disavow and no fact, rebutting the presumption of legitimacy of children born during marriage, can be considered unless an action to disavow has been timely filed.”[37] It is undisputed that no such action was ever filed by O'Neill.

         Jurisprudence also forecloses the argument that Kent Willis' acknowledgment of Jared as his biological child would operate as a disavowal by O'Neill. In Modisette v. Phillips, an ex-wife filed a petition to declare her boyfriend, rather than her ex-husband, the father of her child who was born three months after the couple's divorce.[38] The court rejected the ex-husband's untimely attempt to disavow the child, holding:

The legal tie of paternity will not be affected by subsequent proof of the child's actual biological tie. Smith v. Cole, 553 So.2d 847 (La.1989). As stated in Smith v. Smith, supra, while La. C.C. art. 186 might have provided the defendant with a presumption in the event he filed a timely action to disavow, it did not dispense with or exempt him from filing such an action, should he wish to avoid the responsibilities attending paternity. If the presumed father fails to bring a timely disavowal action, disavowal is barred by prescription, and the presumption of paternity is irrebuttable. State v. Walker, 97-0330 (La.10/21/97), 700 So.2d 496. In the case sub judice, Mr. Smith failed to file a timely disavowal action and he is, therefore, the legal father of the child. Furthermore, the fact that Mr. Phillips has been proven to be the child's biological father does not affect Mr. Smith's status.[39]

         There is no evidence in the record before the Court that O'Neill ever instituted an action, timely or otherwise, to disavow Jared. Accordingly, the presumption of Jared's paternity is irrebuttable as a matter of Louisiana law.

         Plaintiff's reliance on the renunciation is also unavailing. While it is true that Jared renounced any inheritance rights in and to the succession of O'Neill, [40] such an act does not elevate Plaintiff into a higher beneficiary class for purposes of Louisiana Civil Code articles 2315.1 or 2315.2. The Louisiana First Circuit Court of Appeal has repeatedly held:

[T]he wrongful death and survival actions are considered sui generis and thus are not subject to the law of marriage, of parent and child, of inheritance, nor required to conform to civil law concepts. Neither the survival action nor the wrongful death action provide[s] rights that are transmitted from the tort victim to the victim's heirs in an inheritance sense. These rights do not pass through the victim's succession. Rather, these rights are granted by special statute to specified survivors in order of ...

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