Smith v. Connick et al

Filing 34

ORDER AND REASONS denying 31 Motion to Stay; granting in part and denying in part 14 Motion to Dismiss for Failure to State a Claim. Signed by Judge Ivan L.R. Lemelle. (ijg, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUAN SMITH

CIVIL ACTION

VERSUS

NO. 13-52

HARRY CONNICK, ET AL.

SECTION "B"(3)
ORDER AND REASONS

Considering Plaintiff's Motion for Stay (Rec. Doc. No. 31) and
Defendants' Rule 12(b)(6) Motion to Dismiss (Rec. Doc. No. 14), for
the reasons articulated below,
IT IS ORDERED that Plaintiff's Motion for Stay (Rec. Doc. No.
31) is DENIED.
IT IS FURTHER ORDERED that Defendants' Rule 12(b)(6) Motion to
Dismiss (Rec. Doc. No. 14) is GRANTED IN PART, AND DENIED IN PART;
IT IS FURTHER ORDERED that Counts One, Two, Three, and Seven of
Plaintiff's Complaint are DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED that Counts Four, Five, and Six are
DISMISSED WITHOUT PREJUDICE, subject to the following order;
IT IS FURTHER ORDERED that Counts Eight, Nine, Ten, Eleven,
Twelve, and Thirteen are DISMISSED WITHOUT PREJUDICE; Failure to file
an amended complaint within twenty days of entry of this opinion that
sufficiently addresses issues infra will lead to dismissal of federal
claims with prejudice without need of further notice.
I. Procedural History
On January 10, 2012 the United States Supreme Court overturned
Plaintiff Juan Smith's conviction for five counts of first-degree
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murder. Smith v. Cain, 132 S. Ct. 627, 630 (2012). The Court found
that the Orleans Parish District Attorney's Office withheld evidence
that was potentially exculpatory, in violation of Smith's Due Process
rights and Brady v. Maryland, 373 U.S. 83 (1963). This civil suit
followed. Here, Smith alleges "pervasive misconduct of the Orleans
Parish District Attorneys’ Office" and seeks monetary relief pursuant
to "42 U.S.C. § 1983, 1985, and 1988, and state law." He named as
Defendants Harry F. Connick, the District Attorney for Orleans Parish
at the time of Smith's trial; Leon Cannizzaro the current District
Attorney for Orleans Parish; Roger Jordan, an Assistant

District

Attorney for Orleans Parish; the Orleans Parish District Attorney's
Office; and other unnamed Assistant District Attorneys for Orleans
Parish. (Rec. Doc. No. 1). All Defendants filed a Motion to Dismiss
under Rule 12(b)(6), based on various theories of immunity. (Rec.
Doc. No. 14).
Smith was initially represented by counsel in the instant civil
suit. However, shortly after the Motion to Dismiss was filed, counsel
withdrew. (Rec. Doc. No. 28). This caused the Court to continue
hearing on Defendants' Motion to Dismiss multiple times so that Smith
could obtain new counsel or file a response to Defendants' Motion pro
se. (Rec. Doc. Nos. 17, 21, and 28). Smith has yet to obtain new
counsel.1 He now seeks to stay the instant case. Defendants oppose,
and ask the Court to act on the pending Motion to Dismiss. (Rec. Doc.

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He remains incarcerated on a separated murder conviction. He claims he
intends to challenge that conviction as well, contending it resulted from
similar Brady violations. (Rec. Doc. No. 31).

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No 33).
The Court does not find compelling reason to again continue
hearing Defendants' Motion to Dismiss. The Court has already
postponed hearing the Motion for several months. At this time, it is
necessary to move to the merits.
II. Motion to Dismiss
When reviewing a motion to dismiss for failure to state a claim,
the court must accept all well-pleaded facts as true and view them in
the light most favorable to the non-moving party. Baker v. Putnal, 75
F.3d 190, 196 (5th Cir. 1996). However, "[f]actual allegations must
be enough to raise a right to relief above the speculative level."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "'To survive a
motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.'" Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir.
2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009))
(internal quotation marks omitted).
III. Prosecutorial Immunity
In civil suits alleging deprivation of constitutional rights by
state officials, government employee defendants are entitled to
various levels of immunity from suit when sued in their individual
capacity. The level of immunity they are entitled depends on the
facts and circumstances of the case. See, e.g., Pulliam v. Allen,
466 U.S. 522, 529 (1984).
The majority of officials are entitled to what is known as

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qualified immunity when "performing discretionary functions." Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). This shields them "from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known." Id.
Where the defendant is a government prosecutor, however, the
defendant is entitled to the heightened protection of absolute
immunity when engaged in prosecutorial functions. Imbler v.
Pachtman, 424 U.S. 409, 427 (1976). This level of immunity - where
it applies - is unconditional and completely guards against suit.
Id. at 427-28. The justification underlying this seemingly farreaching policy is to insure the "vigorous and fearless performance
of the prosecutor's duty that is essential to the proper functioning
of the criminal justice system." Id.
It is important to note however that the immunity does not
apply to all of the actions a prosecutor takes. Instead, defendants
only receive absolute immunity for actions taken within their
prosecutorial duties. In Mitchell v. Forsyth, 472 U.S. 511 (1985),
for example, the Supreme Court held that absolute immunity did not
extend to any national security responsibilities of Attorney General
John Mitchell. Mitchell was therefore only entitled to qualified
immunity for his role in illegally wiretapping phone lines. Id. at
521; see also Burns v. Reed, 500 U.S. 478, 496 (1991) (prosecutor
entitled to absolute immunity for statements in court, but entitled
to only qualified immunity for advice given to police). That being

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said, the immunity – when it applies – serves to completely bar
suit, no matter how egregious the actions. Imbler, 424 U.S. at 427
("To be sure, this immunity does leave the genuinely wronged
defendant without civil redress against a prosecutor whose malicious
or dishonest action deprives him of liberty.").
IV. Analysis
Plaintiff's claims – listed as thirteen separate counts in his
Complaint – can be fairly analyzed in three categories: (1) Claims
under 42 U.S.C. § 1983 for various forms of prosecutorial
misconduct; (2) Claims under 42 U.S.C. § 1983 against District
Attorneys for administering unconstitutional official policies; (3)
Claims arising out of state law. The Court will analyze each
category in turn.
A. Prosecutorial Misconduct Claims Under 42 U.S.C. § 1983 (Counts
One, Two, and Three)
Defendants in the instant case are entitled to absolute
immunity for the claims brought under federal law alleging their
misconduct as prosecutors in their individual capacity. As already
stated, when a prosecutor acts within his or her prosecutorial role
they are entitled to complete protection from suit. See supra Part
III. Here, there is no question that Defendants' failure to turn
over exculpatory evidence during the course of Plaintiff's criminal
litigation was done within Defendants' prosecutorial role. Cousin v.
Small, 325 F.3d 627, 635 (5th Cir. 2003). Thus, even though the
Supreme Court determined Defendants' actions violated the
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Constitution, we must dismiss Plaintiff's claims here.
The only possible claim Plaintiff alleges in this category that
could survive absolute immunity is Plaintiff's claim that
Defendants' "conducted a constitutionally deficient investigation."
(Rec. Doc. No. 1 at 23). Because a prosecutor does not act within
his prosecutorial role when conducting investigative tasks, such a
claim is not barred by the doctrine of absolute immunity. See Burns,
500 at 496.

However, even if there were constitutional deficiencies

in the investigation process here, Plaintiff does not allege any of
the Defendants were involved in the investigation. Instead, all of
the facts pled by Plaintiff regarding the investigation concern
police officers. Nowhere does Plaintiff allege with any specificity
that prosecutors advised police, or participated in the police
investigation. For this reasons, his claims are bared by the
doctrine of absolute immunity and must be dismissed.
B. Claims under 42 U.S.C. § 1983 Against District Attorneys for
Administering Unconstitutional Official Policies (Counts Four, Five,
Six, and Seven)
Plaintiff next alleges that Defendants were responsible for
instituting unconstitutional official policies, and failing to train
assistant district attorneys in compliance with Brady, 373 U.S. 83
(1963). Plaintiff alleges these claims first against Defendants in
their official capacity (Counts Four, Five, and Six) and
additionally in their individual capacity (Count Seven).
The individual capacity count, like the counts discussed above,

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is subject to the doctrine of absolute immunity. See Van de Kamp v.
Goldstein, 555 U.S. 335, 344 (2009) (holding prosecutors enjoy
absolute immunity in their supervision and training roles). Thus,
Count Seven must be dismissed.
The official capacity counts require a different analysis. A §
1983 suit against a government employee in their official capacity
is treated as a suit against the office, not the individual. Wallace
v. Texas Tech Univ., 80 F.3d 1042, 1047 n.3 (5th Cir. 1996); Hudson
v. City of New Orleans, 174 F.3d 677, 680 (5th Cir. 1999).
Accordingly, where the employee works for a municipality, the
relevant analysis is whether the municipality can be held liable for
the alleged violation. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.
1992). Further, the protections of any individual immunities that
defendants may be afforded are not applicable when they are sued in
their official capacity. Turner v. Houma Mun. Fire & Police Civil
Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000) ("[D]efenses such as
absolute quasi-judicial immunity, that only protect defendants in
their individual capacities, are unavailable in official-capacity
suits.").
The Supreme Court first articulated the standard for municipal
liability in Monell v. Dep't of Soc. Servs. of City of New York, 436
U.S. 658 (1978). There, the Court held that a municipality could be
liable under § 1983, but only for a "policy or custom" that
"inflicts the injury that the government as an entity is
responsible" and not "an injury inflicted solely by its employees or

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agents." Id. at 693.
In Connick v. Thompson, 131 S. Ct. 1350 (2011), a case
remarkably similar to the instant matter, the Supreme Court applied
the Monell framework to a district attorney's failure train
assistant district attorneys in the requirements of Brady. There,
the plaintiff was a former death row inmate who spent eighteen years
in prison after prosecutors in the Orleans Parish District
Attorney's Office (the same office as Defendants here) failed to
turn over exculpatory blood evidence in violation of Brady. Id. at
1356-57. Thompson sued, alleging that the Brady violation was caused
by unconstitutional policies at the office, and District Attorney
Connick's failure to train the prosecutors in his office to avoid
such constitutional violations. Id. at 1357. Thompson won a jury
verdict in his favor, but the Supreme Court reversed. Id. at 1366.
The Court held that Thompson failed "to show that Connick was on
notice that, absent additional specified training, it was 'highly
predictable' that the prosecutors in his office would" violate
Brady. Id. at 1365.
Defendants' Motion to Dismiss recognizes that Connick permits
suits against prosecutors for failure to train, or for
administration of unconstitutional policies. Likely for this reason,
Defendants have not asked the Court to dismiss Plaintiff's official
capacity counts, but instead only asks that the Court limit these
counts "to the narrow dictates of Connick v. Thompson." (Rec. Doc.
No. 14-1 at 5); see also id. at 8 (requesting that the Court dismiss

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"[a]ll of the Counts against Roger Jordan as well as the unnamed
Assistant District Attorneys" and "Counts One, Two, Three, Eight,
Nine, Ten and Eleven" but that "Counts Four, Five, Six and Seven
should be limited to the strict and narrow confines of [Connick]").2
The Court agrees that Connick contains the relevant analysis for
official capacity suits against municipal prosecutors for failure to
train. If Plaintiff wishes to pursue these claims, he must allege
facts "to show that [Defendants were] on notice that, absent
additional specified training, it was 'highly predictable' that the
prosecutors in [the] office would" violate Brady. Id. at 1365. He
has failed to do so at this time.
Based on the Complaint before the Court, there is reason to
believe that Plaintiff's allegations are more likely to satisfy the
requirements for official capacity suits under § 1983 than those
alleged in Connick. Chiefly, Connick dealt with the sharing of
exculpatory blood evidence. The Supreme Court remarked in its review
of the case that Thompson's claim that Connick was on notice of
Brady violations in the past was inadequate to put him on notice of
potential abuses in the future because "[n]one of those [prior]
cases involved failure to disclose blood evidence, a crime lab
report, or physical or scientific evidence of any kind." Connick, at
1360. Therefore, Connick could not have been said to be on notice

2

Somewhat confusingly, Defendants include Count Seven in their list of
counts that should be confined to Connick. But Count Seven is an individual
capacity suit, entitling Defendants to absolute immunity. Van de Kamp v.
Goldstein, 555 U.S. 335, 344 (2009). For that reason, Count Seven may be
dismissed in its entirety.

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that specific training was necessary to avoid the particular
Constitutional violation that occurred. Id. Here, the violation of
Brady concerned the sharing of exculpatory statements. It is
undisputed that Defendants were aware of prior Brady violations
regarding exculpatory statements in Defendants' office. Plaintiff
was arrested in 1995. Prior to that time, at least six appellate
decisions had issued overturing convictions based on the failure of
Defendants' office to turn over exculpatory or impeachment
statements. See Kyles v. Whitley, 514 U.S. 419 (1995); State v.
Knapper, 579 So.2d 956 (La. 1991); State v. Rosiere, 488 So. 2d 965
(La. 1986); State v. Perkins, 423 So. 2d 1103 (La. 1982); State v.
Curtis, 384 So. 2d 396 (La. 1980); State v. Carney, 334 So. 2d 415
(La. 1976). For this reason alone, Plaintiff presents a case
distinguishable from the Supreme Court's decision in Connick.
However, even that difference being apparent, Plaintiff still
must tailor his Complaint to the dictates of Supreme Court
precedent. Because the Complaint, as it exists, does not apply the
Connick framework, the Court dismisses it without prejudice to
reurge. Plaintiff will be given twenty-days from entry of this
opinion to amend his complaint in conformance with Connick.
Specifically, he must allege facts "to show that [Defendants were]
on notice that, absent additional specified training, it was 'highly
predictable' that the prosecutors in [the] office would" violate
Brady. Connick, at 1365.

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C. State Law Claims (Counts Eight, Nine, Ten, Eleven, Twelve, and
Thirteen)
The Court, having dismissed all of Plaintiff's federal claims,
must now determine whether it has jurisdiction to decide his state
law claims. Where a federal court has supplemental jurisdiction over
state law claims based solely on their relatedness to federal
claims, the court "may decline to exercise supplemental jurisdiction
over a claim [if] . . . the district court has dismissed all claims
over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3).
The Fifth Circuit has further instructed that "[o]rdinarily, when
the federal claims are dismissed before trial, the pendent state
claims should be dismissed as well." Wong v. Stripling, 881 F.2d
200, 204 (5th Cir. 1989). This is because judicial economy does not
warrant the exercise of pendant jurisdiction, and the parties are
not prejudiced by dismissal at such an early stage of litigation. La
Porte Const. Co., Inc. v. Bayshore Nat. Bank of La Porte, Texas, 805
F.2d 1254, 1257 (5th Cir. 1986). But, "the dismissal of the pendent
claims should expressly be without prejudice so that the plaintiff
may refile his claims in the appropriate state court." Bass v.
Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999).
The Court, determining no reason to deviate from the general
rule in the instant case and that neither party would be prejudiced
by denial of supplemental jurisdiction, finds it necessary to
dismiss Plaintiff's state law claims without prejudice following
dismissal of his federal claims. As stated above, the Court is
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granting Plaintiff twenty-days to amend his existing Complaint.
Thus, the Court will retain jurisdiction over Plaintiff's state law
claims for the time being and dismiss the state law claims only if
Plaintiff fails to submit an amended complaint, or the amended
complaint fails to state a claim for which relief can be granted.

New Orleans, Louisiana, this 14th day of February, 2014.

_______________________________
UNITED STATES DISTRICT JUDGE

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