Richard v. Willy J. Martin, Jr. et al

Filing 19

ORDER re Pla Lloyd J. Richard's 16 "Motion for Permission to Appeal and Motion Objections to Ruling": for the reasons stated, IT IS HEREBY ORDERED that Mr. Richard's "Motion for Permission to Appeal and Motion Objections to Ruling" is DENIED and that Magistrate Judge Shushan's Order (Rec. doc. 15) is AFFIRMED. Signed by Judge Nannette Jolivette Brown on 7/9/2013. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LLOYD RICHARD

CIVIL ACTION

VERSUS

NO. 12-1513

WILLY J. MARTIN, JR., et al.

SECTION: “G”(1)

ORDER AND REASONS
Before the Court is Plaintiff Lloyd J. Richard’s ("Mr. Richard") "Motion for Permission to
Appeal and Motion Objections to Ruling,"1 wherein Mr. Richard seeks review of United States
Magistrate Judge Sally Shushan’s order2 granting the United States's Motion to Quash Subpoenas
and Dismiss for Lack of Subject Matter Jurisdiction3 and denying Mr. Richard's Motion for More
Definite Statement,4 Motion for Issuance of Writ of Habeas Corpus Ad Testificandum,5 and Motion
to Amend/Correct.6 Having considered the “Motion for Permission to Appeal and Motion
Objections to Ruling” (hereinafter, the “motion for review”), the opposition, the reply, Magistrate
Judge Shushan's order, the record, and the applicable law, for the following reasons, the Court will
deny the motion for review and will affirm Magistrate Judge Shushan’s ruling.

1

Rec. Doc. 16.

2

Order, Rec. Doc. 15.

3

Rec. Doc. 6.

4

Rec. Doc. 10.

5

Rec. Doc. 11.

6

Rec. Doc. 14.

1

I. Background
Mr. Richard, an inmate at the Louisiana State Penitentiary in Angola, Louisiana, filed suit
in the 23rd Judicial District Court for the Parish of St. James, State of Louisiana. According to the
United States, Mr. Richard’s state court action concerned a fight with another inmate, alleged
inadequate medical care, an alleged improper infraction, and placement in solitary confinement.7
On or about May 25, 2012, Mr. Richard filed motions in his state court action seeking an order
requiring Burl Cain, the warden at the penitentiary, to produce Mr. Richard at the St. James Parish
Courthouse, and an order for subpoenas to the following to appear at the St. James Parish
Courthouse: (a) then United States Attorney, James Letten; (b) Louisiana Attorney General, James
Caldwell; and (c) U.S. Department of Justice Civil Rights Trial Attorney, Bobbi Bernstein.8
On June 6, 2012, the United States, acting on behalf of James Letten and Bobbi Bernstein,
removed the subpoenas and the related subpoena-enforcement proceedings to federal court acting
pursuant to the federal-officer removal statute.9 Because the subpoenas to James Letten and Bobbi
Bernstein were considered “civil actions” under the statute, pursuant to 28 U.S.C. § 1442(c), the
removal of the state-court subpoenas did not remove to federal court the entire case in which the
subpoenas were issued, and the underlying case remains pending in 23rd Judicial District Court for
the Parish of St. James, State of Louisiana.10 Mr. Richard is not represented by counsel in state court
or in these federal proceedings.

7

Rec. Doc. 6-2 at p. 2.

8

Rec. Doc. 1 at pp. 2-5.

9

See 28 U.S.C. § 1442(a)(1).

10

Rec. Doc. 1 at p. 2.

2

On June 20, 2012, the United States filed a motion to quash the subpoenas, claiming that it
had not waived its sovereign immunity to subject itself and its officers to enforcement of the state
court subpoenas.11 Therefore, the United States argued that in these circumstances the only
appropriate response was to quash the state-court subpoenas on the ground that a court, state or
federal, lacks jurisdiction to enforce a subpoena against an unwilling sovereign.12 On July 12, 2012,
Mr. Richard filed a Motion for More Definite Statement13 and a Motion for Writ of Habeas Corpus
Ad Testificandum.14 On August 9, 2012, Mr. Richard filed a Motion to Amend/Correct.15 On
February 7, 2013, Magistrate Judge Shushan granted the United States' Motion to Quash Subpoenas
and Dismiss for Lack of Subject Matter Jurisdiction.16 The magistrate judge simultaneously denied
Mr. Richard's three pending motions, upon finding that there was no deficiency in the notice of
removal requiring additional documentation or amendment, and that, because the United States had
not waived its sovereign immunity, the court lacked jurisdiction to enforce a subpoena against an
unwilling sovereign.17
On February 19, 2013, Mr. Richard filed the instant motion for review.18 The United States

11

Rec. Doc. 6.

12

Rec. Doc. 6-2 at pp. 2-4 (citing State of Louisiana v. Sparks, 978 F.2d 226, 234-35 (5th Cir. 1992)).

13

Rec. Doc. 10.

14

Rec. Doc. 11.

15

Rec. Doc. 14.

16

Rec. Doc. 15.

17

Id.

18

Rec. Doc. 16.

3

filed an opposition to the instant motion on February 26, 2013,19 and Mr. Richard filed a reply with
leave of Court.20

II. Parties’ Arguments
Mr. Richard objects to Magistrate Judge Shushan’s order, and claims that he is attempting
to assert constitutional challenges under Federal Rule of Civil Procedure 5.1 to various federal
statutes, including: 28 U.S.C. § 2403, 28 U.S.C. § 1361, 28 U.S.C. § 533, 28 U.S.C. § 1343, and 28
U.S.C. § 1443.21 Additionally, Mr. Richard claims that he is the victim of violations of the First,
Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.22 Mr. Richard makes no
argument regarding the basis of this Court's jurisdiction to enforce state-court subpoenas against
officers of the United States.
The United States argues that Magistrate Judge Shushan's decision is neither clearly
erroneous nor contrary to law, and therefore, the Court should deny Mr. Richard’s motion for
review. First, the United States contends that the present federal proceedings “are limited to the
removal of Richard’s state-court subpoenas to former U.S. Attorney Letten and DOJ Trial Attorney
Bernstein.”23 According to the United States, Magistrate Judge Shushan's order does not address

19

Rec. Doc. 17.

20

Rec. Doc. 18.

21

Rec. Doc. 16 at p. 1 (citing statutes related to intervention by the United States, the original jurisdiction
of district courts in actions involving civil rights, actions in the nature of mandamus to compel an officer of the
United States to perform his duty, the power of the Attorney General to appoint officials, and removal jurisdiction of
civil actions).
22

Rec. Doc. 16 at p. 1.

23

Rec. Doc. 17 at p. 3.

4

Mr. Richard's alleged constitutional challenge based on various sections cited in Title 28 of the
United States Code, because Mr. Richard "has not filed any federal-court proceedings nor served
a named federal defendant for any facial, constitutional attacks on federal law."24 Further, the
United States argues that Mr. Richard's allegations regarding “various constitutional, civil-rights
violations” are an attempt to argue “the merits of Richard's underlying state-court suit" in this
proceeding in federal court.25 However, the United States contends that Mr. Richard’s arguments
that relate to his underlying state-court action are not addressed by Magistrate Judge Shushan’s order
and should not be considered in these proceedings in federal court, which only addresses the United
States' removal and jurisdictional challenge on the basis of sovereign immunity to enforcement of
the state-court subpoenas.26
In reply, Mr. Richard reiterates the constitutional violations alleged in his motion for review,
and those arguments need not be reiterated here. Mr. Richard also asserts violations of his rights
under the Louisiana Constitution.27 Finally, Mr. Richard states:
for the following reason[s] this decision is clearly bias[ed] and prejudice[d] [and]
clearly erroneous, and in violation of constitution[al] rights and civil right[s] that
violate state law as well as federal law: by abuse of discretion concealing the facts
by lending the prestige of judicial office to conceal the true facts: by [] fraud upon
the court through[] court: theft of the indigent legal mail.28
Mr. Richard does not address this Court’s jurisdiction to enforce the state-court subpoenas against
an unwilling sovereign.
24

Id.

25

Id.

26

Id.

27

See Rec. Doc.18.

28

Id. at p. 2.

5

III. Law and Analysis
A. Standard of Review
In the resolution of non-dispositive disputes, a magistrate judge is afforded broad
discretion.29 If a party objects to the magistrate judge’s ruling on a non-dispositive issue, the district
court is to consider the party’s objections and “shall modify or set aside any part of the order that
is clearly erroneous or is contrary to law.”30 The district court should not undertake a de novo
review of the magistrate judge’s decision,31 and should affirm the decision of the magistrate judge
unless the court “is left with a definite and firm conviction that a mistake has been committed.”32

B. Analysis
Magistrate Judge Shushan, relying on State of Louisiana v. Sparks,33 granted the United
States’ motion to quash the subpoenas. In Sparks, the United States Court of Appeals for the Fifth
Circuit remanded the subpoena proceedings to the district court with explicit instructions to quash
the state court subpoenas and dismiss the case on sovereign immunity grounds.34 The Fifth Circuit
stated:
Waiver of sovereign immunity is a jurisdictional prerequisite in the nature of ...

29

See Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A).

30

Fed. R. Civ. P. 72(a).

31

Merritt v. Int’l Brotherhood of Boilermakers, 649 F.2d 1013, 1017 (5th Cir. 1981).

32

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

33

978 F.2d 226 (5th Cir. 1992).

34

Id. at 236.

6

subject matter jurisdiction, in that unless sovereign immunity is waived, there may
be no consideration of the subject matter. Accordingly, myriad cases involving a §
1442(a) removal of a state subpoena proceeding against an unwilling federal officer
have held that the sovereign immunity doctrine bars enforcement of the subpoena.
These courts have quashed state court subpoenas or dismissed contempt proceedings
that were removed on the ground that a court, state or federal, lacks jurisdiction to
enforce a subpoena against an unwilling sovereign.35
Here, Mr. Richard has sought to enforce subpoenas issued by a Louisiana state court to the then
United States Attorney Jim Letten and the United States Department of Justice Civil Rights Trial
Attorney Bobbi Bernstein. Considering the Fifth Circuit’s articulation in Sparks that, “unless
expressly waived, sovereign immunity exists as the rule, not the exception,” and here “[t]here is no
indication that the United States Government has waived its sovereign immunity with respect to the
state court subpoenas,” this Court cannot conclude that the magistrate judge’s ruling quashing the
state-court subpoenas was clearly erroneous. Indeed, quashing the state court subpoenas and
dismissing the case on sovereign immunity is required by the Fifth Circuit’s holding in Sparks.
Magistrate Judge Shushan also denied the motion for a more definite statement and the
motion for issuance of writ of habeas corpus ad testificandum upon concluding that additional
documentation from the United States Attorney and oral argument on the motion to quash would not
aid the Court in resolving a question of law. This Court is not convinced that the magistrate judge
committed any error in determining that a more definite statement and additional documentation was
unnecessary in resolving a legal question regarding the sovereign immunity of the United States
asserted on behalf of its federal officers.
Mr. Richard also filed a motion to amend, which stated that Mr. Richard will move to recuse
all of the judges of the 23rd Judicial District Court and that these judges and other public officials

35

Id. at 235 (internal citations and quotations marks omitted).

7

entered into a conspiracy to deprive him of his rights, and therefore, Mr. Richard contends that he
needs information from the subpoenaed individuals to support the motion to recuse. The magistrate
judge concluded that "Richard's motion to amend does not respond to the argument by the U.S. that
it has not waived its sovereign immunity to subject its officers to the state court subpoenas."36 This
Court previously determined, as discussed above, that the magistrate judge did not commit any error
in determining that a federal court lacks jurisdiction to enforce state-court subpoenas against an
unwilling sovereign. By extension, this Court finds no error in the magistrate judge's decision to
deny the motion to amend on the basis that the United States did not waive its sovereign immunity
and Mr. Richard failed to respond to this jurisdictional issue raised by the United States.
Further, Mr. Richard's objections to the magistrate's ruling do not address the jurisdictional
issue presented here by the United States' motion to quash the state-court subpoenas based on its
sovereign immunity. The various constitutional violations asserted in support of Mr. Richard's
motion for review are not properly before the Court. Mr. Richard has not filed any federal-court
proceedings nor served any named federal defendant for purposes of asserting any constitutional
violations or other violations of federal law. Instead, the United States filed a notice of removal
which solely removed the state-court subpoenas issued to the then United States Attorney, James
Letten and U.S. Department of Justice Civil Rights Trial Attorney, Bobbi Bernstein and the
corresponding subpoena-enforcement proceedings. Therefore, this Court may only consider the
enforcement of the state-court subpoenas in this case.
Finally, Mr. Richard appears to suggest that Magistrate Judge Shushan’s ruling is biased.
However, Mr. Richard has alleged no facts to support his allegations. This Court finds that the
magistrate judge applied controlling Fifth Circuit precedent to resolve the legal issue presented to

36

Rec. Doc. 15.

8

the Court regarding the United States' waiver of sovereign immunity. Accordingly, Mr. Richard’s
arguments regarding bias and prejudice have no merit. Considering that the magistrate judge did
not err in concluding that the United States has not waived the sovereign immunity of its federal
officers and the arguments raised in the motion to review do not address the fact that this Court lacks
jurisdiction to enforce the state-court subpoenas, the Court will deny the motion for review.

IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that Mr. Richard’s “Motion for Permission to Appeal and
Motion Objections to Ruling”37 is DENIED and that Magistrate Judge Shushan’s Order38 is
AFFIRMED.
NEW ORLEANS, LOUISIANA, this ____ day of July, 2013.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

37

Rec. Doc. 16.

38

Rec. Doc. 15.

9