Allen v. Howard et al

Filing 61

ORDER & REASONS: ORDERED that DCFS's Motion to Dismiss is GRANTED. Plaintiff's claims against the State of Louisiana through the Department of Children and Family Services are DISMISSED WITH PREJUDICE. FURTHER ORDERED that JPDA's Motio n to Dismiss is GRANTED IN PART. FURTHER ORDERED that Plaintiff's claims against JPDA and Valery Howard under the False Claims Act and under 42 U.S.C. 2000d et seq. are DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plaintiff's claims agai nst JPDA and Valery Howard under 42 U.S.C. 1983 that are predicated on violations of the Fourteenth Amendment's Equal Protection Clause and Substantive Due Process Clause, the Fourth Amendment, or the Thirteenth Amendment are DISMISSED WITH PREJ UDICE. FURTHER ORDERED that Plaintiff's claims against JPDA and Valery Howard under 42 U.S.C. 1983 that are predicated on violations of the Sixth and/or Fourteenth Amendment Right to Counsel are taken under advisement pending further briefing from the parties. (Rec. Doc. 57). Signed by Judge Carl Barbier on 5/21/14.(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BRIAN M. ALLEN

CIVIL ACTION

VERSUS

NO: 13-233

VALERY HOWARD, ET AL

SECTION: “J” (5)

ORDER & REASONS
Before the Court is the Jefferson Parish District Attorney
("JPDA")'s Motion to Dismiss pursuant to FRCP 12(b)(6) (Rec. Doc.
27) and Plaintiff Brian Allen's opposition thereto (Rec. Doc. 34).1
Also

before

the

Court

is

the

State

of

Louisiana

though

the

Department of Children and Family Services ("DCFS")'s Motion to
Dismiss (Rec. Doc. 32).

DCFS's motion is unopposed by Plaintiff.

The motions are set for May 21, 2014, with oral argument. Having
considered the motion and memoranda of counsel, the record, and the
applicable law, the Court finds that the motions should be GRANTED
IN PART AND DENIED IN PART for the reasons set forth more fully
below.
FACTS AND PROCEDURAL BACKGROUND
As the Court noted at the hearing held in this matter on May
14, 2014, Plaintiff's complaint is written in a narrative fashion

1

Defendant Valery Howard also joins in the motions of JPDA and DCFS.
(Rec. Doc. 52)

1

and presents a rambling, incoherent recitation of the events
leading up to the instant suit. It appears, however, that at least
the basic factual background can be patched together from the
complaint. Defendant Valery Howard is the mother of a minor child
who she alleged was fathered by Plaintiff Brian Allen. Plaintiff
submitted to a paternity test, and the blood sample was processed
by LabCorp. It was determined with 99.99% certainty that Plaintiff
was the minor child's biological father, and Plaintiff was ordered
to

pay

child

support.

It

appears

that

when

the

initial

determination regarding child support was made, Plaintiff resided
in California; however, when he re-located to Louisiana, Defendant
Howard registered the child support order in Louisiana. Plaintiff
apparently did not make support payments as required, and at some
point, and seemingly multiple times, Plaintiff was order to show
cause why he should not be held in contempt in the 24th Judicial
District for the State of Louisiana before Juvenile Court Judge Ann
Keller. Consequently, he was jailed over three times, allegedly
under La. R.S. §§ 14:74-75, for failure to make support payments.
Plaintiff alleges that the paternity test is incorrect and based on
faulty grounds and that the lab and the various defendants have
conspired to create false paternity claims and inflate payments
made to the government based on child support collections, all in
violation of his rights.
Plaintiff filed a pro se qui tam action in this Court on

2

February 7, 2013. The government notified the Court and the
Plaintiff that it declined to intervene in this matter on October
21, 2013, and, thereafter, the complaint was unsealed and the
defendants were served. Kenneth Plaisance enrolled as counsel of
record for the Plaintiff on February 26, 2014. Pursuant to a motion
to dismiss, the Court dismissed defendant Judge Ann Keller, and
shortly after that order, DCFS and JPDA filed motions to dismiss.
Plaintiff then filed a motion for summary judgment and two motions
to amend his complaint. Due to the numerous filings by all parties,
the Court held a hearing on May 14, 2014. Early on the day of the
hearing, Plaintiff's counsel informed the Court that he would not
be in attendance because he was in the emergency room due to
medical issues.

At the hearing, the Court issued an order to

Plaintiff's counsel to show cause regarding both his absence and
certain issues concerning candor to the Court.

The Court also

denied the motions for leave to file amended complaints, ordered
the Plaintiff to file a new, concise complaint within 21 days,
dismissed the pending motion for summary judgment, and set the
instant motions to dismiss for oral argument on May 21, 2014. (Rec.
Doc. 52)2

2

Note that the motions were scheduled for oral argument on May 21,
2014, but because counsel for Plaintiff did not appear due to a medical
problem, the Court only considered the motions on the written submissions of
counsel. At the hearing, the Court briefly announced its rulings in open
court, and these written reasons further explain the Court's rulings.

3

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). The allegations “must be simple, concise,
and direct.” FED. R. CIV. P. 8(d)(1).
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, 547 (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, 232-33 (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.

4

PARTIES' ARGUMENTS & DISCUSSION
I. JPDA's Motion to Dismiss
JPDA advances several arguments in support of their
Motion to Dismiss, all of which are discussed below. Plaintiff
submits several arguments in opposition to the motion; however,
before proceeding to summarize those arguments, the Court notes
that Plaintiff spends a large portion of his opposition challenging
the appropriateness of the plausibility pleading standard set forth
in Twombly and Iqbal and argues that his claim cannot be dismissed
if it is even remotely possible that it is true. As Twombly and
Iqbal are now well accepted law, the Court will abide by the
Supreme Court's rulings in those cases despite Plaintiff's apparent
dissatisfaction

with

the

plausibility

standard.

Therefore,

Plaintiff's argument that this Court should accept any allegations,
regardless of how far-fetched and/or nondescript those arguments
are, fails, and the Court will dismiss any claims that do not meet
the standard described in Twombly and Iqbal.
A. False Claims Act Claim under 31 U.S.C. § 3729
The False Claims Act creates liability for any person who:
(A) knowingly presents, or causes to be presented, a
false or fraudulent claim for payment or approval;
(B) knowingly makes, uses, or causes to be made or used,
a false record or statement material to a false or
fraudulent claim;
(C) conspires to commit a violation of subparagraph (A),
(B), (D), (E), (F), or (G);
5

(D) has possession, custody, or control of property or
money used, or to be used, by the Government and
knowingly delivers, or causes to be delivered, less than
all of that money or property;
(E) is authorized to make or deliver a document
certifying receipt of property used, or to be used, by
the Government and, intending to defraud the Government,
makes or delivers the receipt without completely knowing
that the information on the receipt is true;
(F) knowingly buys, or receives as a pledge of an
obligation or debt, public property from an officer or
employee of the Government, or a member of the Armed
Forces, who lawfully may not sell or pledge property; or
(G) knowingly makes, uses, or causes to be made or used,
a false record or statement material to an obligation to
pay or transmit money or property to the Government, or
knowingly conceals or knowingly and improperly avoids or
decreases an obligation to pay or transmit money or
property to the Government.
31 U.S.C.A. § 3729 (West).
JPDA argues that Plaintiff's False Claims Act claim fails
because he does not specify the nature of the claim, how it is
false, or how it caused the government to pay or forfeit money. JPDA
explains its understanding of Plaintiff's false claims act claim as
follows:
Plaintiff is alleging that the basis of the false claim
is a false genetic test performed in the State of
California, when the plaintiff was a resident of Alameda
County California. The complaint claims that the test was
fraudulent because the protocols underlying the test
began with a scientifically unwarranted presumption that
there is a fifty percent likelihood that the plaintiff is
the father of the child. This, according to the
plaintiff, is an erroneous presupposition of fatherhood.
He cites his professional knowledge as a "scientist" as
the basis of his claim of falsity. Based on this claim,
the plaintiff constructs a theory that the defendants
6

conspired to defraud the United States of moneys that it
pays to the State and to the District Attorney for
administering the programs that establish paternity and
child support collection. The plaintiff alleges that the
defendants conspired to falsely establish paternity of
this child and others in order to inflate its figures in
order for the defendants to collect moneys they would not
otherwise be entitled to.
(Rec. Doc. 27-1, pps. 16-17)
JPDA argues that this claim is not only implausible, but is
ludicrous.

Accordingly, because there is only a minuscule chance

that Plaintiff could ever provide admissible evidence to support his
claim, it should be dismissed.
Plaintiff does not dispute JPDA's characterization of his
claim. He asserts that by making this claim, he has taken a novel
approach to asserting his rights, and that if we accept the JPDA's
arguments,

we

are

depriving

him

of

his

right

to

make

novel

arguments. Further, he asserts that a motion for summary judgment
is the more proper method resolving this claim.
The Court agrees with JPDA that Plaintiff's allegations do not
state a plausible claim for relief under that False Claims Act. The
allegations to do not identify a "claim;" therefore, there is not
a cognizable cause of action. See U.S. ex rel. Foster v. BristolMyers Squibb Co., 587 F. Supp. 2d 805, 813 (E.D. Tex. 2008) (“the
FCA does not create a cause of action for all fraudulent conduct
affecting the government. Rather, the fundamental element of an
alleged FCA violation is a false or fraudulent claim that is
submitted

to

the

government.")(internal
7

citation

omitted).

Accordingly, this claim will be dismissed.
B. 42 U.S.C. § 1983 Claim
"To pursue a claim under § 1983, a plaintiff [ ] must (1)
allege a violation of rights secured by the Constitution or laws of
the United States and (2) demonstrate that the alleged deprivation
was committed by a person acting under color of state law." Sw. Bell
Tel.,

LP

v.

City

of

Houston,

529

2008)(internal citations omitted).

F.3d

257,

260

(5th

Cir.

JPDA argues that Plaintiff's

1983 claim fails because it is not predicated on a cognizable
constitutional right. Each constitutional right invoked by Plaintiff
is outlined below.
1. Fourth Amendment Violation
Plaintiff alleges that his Fourth Amendment right to privacy
was violated by the taking of his bodily fluids for paternity
testings. JPDA argues that this claim fails because, under the
Fourth Amendment, search and seizure is allowed when there is an
important state interest and the intrusion is reasonable in scope.
Federal courts have held that drug testing, for example, is allowed
when the government has a compelling reason for the intrusion and
the testing is reasonable. Beharry v. M.T.A. New York City Transit
Authority, 96-1203, 1999 WL 151671, aff'd sub nom

Beharry v. Metro

Transit Auth., New York City Transit, 242 F.3d 364 (2d. Cir 2000).
Further, in a paternity testing case, the Louisiana Supreme Court,
relying heavily on federal jurisprudence, held that "[a]lthough the
8

alleged

father

has

a

right

to

privacy

and

to

be

free

from

unreasonable searches and seizures, those rights are not absolute
and may be reasonably regulated when the State has a sufficiently
weighty interest. In this case, the State has a compelling interest
because of its pervasive concern for the welfare of its children."
In Interest of J.M., 590 So. 2d 565, 568 (La. 1991)(internal
citations omitted).
In his opposition, Plaintiff distinguishes the cases to which
JPDA cites, noting that they dealt with drug testing for safetysensitive jobs and with testing for intoxication while driving.
Plaintiff argues that the government interest in those situations
is much more compelling than in the instant matter. Further,
Plaintiff attempts to distinguish In the Interest of J.M. by noting
that J.M. involved blood testing and this matter involves DNA
testing, which the Court notes is a meaningless distinction, as the
DNA testing is a blood test.
JPDA's arguments have merit, and Plaintiff's attempts to
distinguish the cases cited fail. DNA testing for paternity is not
unreasonably invasive in light of the compelling state interest to
protect the welfare of children. Therefore, Plaintiff's § 1983
claims based on a Fourth Amendment violation must be dismissed.
2. Fourteenth Amendment
Process Violations

Equal

Protection/Substantive

Due

Plaintiff appears to allege that he has been denied substantive
due process and the equal protection of the law.
9

He bases these

claims on the allegations that women have a unilateral right to
choose to have the child or to not have the child, and that men must
go along with that decision without any right to participate in the
decision-making process.

As a result, men are often forced to pay

child support for eighteen years based on the woman's decision.
(Rec. Doc. 1, ¶¶ 41, 42) He further alleges that his due process
rights are violated based on the differing burdens of proof and
presumptions applied in determining maternity and paternity as set
forth in La. Civ. Code Arts. 178-198. Finally, in his opposition,
he contends that the period of time in which a man may prove
paternity is too short, making it unconstitutional.
JPDA contends that the substantive due process argument fails
based on the reasoning set forth in N.E. v. Hedges, 391 F.3d 832
(6th Cir. 2004) wherein the Sixth Circuit held that paternity and
child

support

laws

are

not

inconsistent

with

the

rights

to

procreative privacy because such rights do not exist after the child
is born. Hedges, 391 F.3d at 834-36.

Further, JPDA argues that

Plaintiff's challenges to the codal articles dealing with maternity
and paternity are meritless based on Rivera v. Minnich, 483 U.S. 574
(1987) wherein the Supreme Court found that different burdens are
not only permissible, but preferred.
As to Plaintiff's equal protection argument, JPDA argues that
child support statutes are gender neutral because they apply to both
men and women, and under rational basis review, any disparate

10

treatment serves the legitimate governmental purpose of providing
for the welfare of Louisiana's children. Dubay v. Wells, 506 F.3d
422,430 (6th Cir. 2007)
Plaintiff contends that Hedges and Dubay cannot be relied on
in this Circuit because the Sixth Circuit is a more liberal forum.
Plaintiff further cites to Mills v. Habluetzel, 456 U.S. 91 (1982),
wherein the Supreme Court found that Texas' one year statute of
limitations was unconstitutional, to support his contention that
Louisiana's prescriptive periods on the actions for filiation and
disavowal are too short and therefore are unconstitutional. See
also, Pickett v. Brown 462 U.S. 1 (1983) (Tennessee's two-year
statute of limitation was unconstitutional.)
Though

Hedges

and

Dubay

are

not

binding

on

this

Court,

Plaintiff does not point to any Fifth Circuit authority that is
contrary to either Hedges or Dubay. Further, the Court finds that
the opinions are both well-reasoned and persuasive, and opts to
follow the Sixth Circuit's reasoning. See Dubay, 506 F.3d at 430
(equal protection clause is not violated because the statutes are
gender

neutral

and

because

the

statutes

serve

a

legitimate

government interest); Hedges, 391 F.3d at 834-36 (fundamental right
to privacy in regards to procreation is not implicated after the
child is born, thus there is no substantive due process issue when

11

a

father

seeks

to

avoid

support

obligations).3

Accordingly,

Plaintiff's § 1983 claims based on substantive dues process and
equal protection violations must be dismissed.
3. Thirteenth
Constitution

Amendment/

Section

3

of

the

Louisiana

Plaintiff invokes the protection of the Thirteenth Amendment
and Section 3 of the Louisiana Constitution based on his contention
that the State and District Attorney's ability to incarcerate a
father, report a father to the IRS, and garnish his wages for
failing to pay child support essentially enslaves him until he
complies with an ill-begotten judgment. JPDA argues that such a
claim is completely meritless as the Thirteenth Amendment does not
encompass theoretical "slavery."

The Thirteenth Amendment only

pertains to labor or services that are involuntary. Brooks v. George
County, Miss., 84 F.3d 157, 162 (5th Cir. 1996).

"Involuntary" is

defined as “an action by the master causing the servant to have, or
to

believe

he

has,

no

way

to

avoid

continued

service

or

confinement.” Watson v. Graves, 909 F.2d 1549, 1552 (5th Cir.1990).
“When the employee has a choice, even though it is a painful one,
there is no involuntary servitude ... A showing of compulsion is

3

The Court further notes that the filiation and disavowal prescriptive
periods found in the Louisiana Civil Code are not relevant to the instant
matter because filiation was not achieved through those codal articles, nor
does it appear that a disavowal action was ever filed. Rather, the applicable
law in this matter is found in Louisiana's Revised Statutes concerning child
support payments. La. R.S. § 9:399. Those provisions provide a framework for
challenging the paternity test, and such challenges belong in state court. La.
R.S. § 9:399.1.

12

thus a prerequisite to proof of involuntary servitude." Id. at 162.
JPDA argues that Plaintiff's allegations do not meet this standard,
as Plaintiff had the choice to be released by paying the money he
owed and that Plaintiff's attempt to invoke this Amendment is an
offense to the memory of those who actually were enslaved.
Plaintiff

contends

that

the

Thirteenth

Amendment

applies

because it is improper to put someone in jail for not paying a debt
and because contempt remedies are intended to apply to force someone
to do something that they are able but unwilling to do.

Here, he

was simply unable to pay due to lack of funds.
The Court again finds that JPDA's contentions have merit;
accordingly,

Plaintiff's

§

1983

claims

based

on

a

Thirteenth

Amendment violation, as well as any allegations of violations of
Section Three of the Louisiana Constitution must be dismissed.
4. Title VI Claim
JPDA mentions, in passing, that Plaintiff attempts to state a
claim under 42 U.S.C. § 2000e et seq. ("Title VII").4

However, it

appears that the only similar claim that Plaintiff attempts to make
is one under 42 U.S.C. § 2000d, et seq. ("Title VI"). Title VI
prohibits

various

forms

of

discrimination,

including

gender

discrimination, in programs and activities that receive financial
assistance. 42 U.S.C. § 2000d. Plaintiff's allegations fall far

4

JPDA mentions a Title VII claim in passing in its motion, but does not
provide any substantive briefing, and Plaintiff did not address Title VII in
his opposition (Rec. Doc. 27, p. 1)

13

short of alleging gender discrimination because, as is noted above,
the support requirements in Louisiana apply to both men and women,
thus are gender neutral. Therefore, this claim must be dismissed.
5. Sixth Amendment/Fourteenth Amendment Right to Counsel
Plaintiff alleges that these rights were violated when he was
not provided counsel prior to being incarcerated for failure to pay
child support. JPDA argues that the Supreme Court held in 2011 that:
(1) the Sixth Amendment does not apply to civil cases, and (2) that
the Fourteenth Amendment does not automatically require appointment
of

counsel

"at

civil

contempt

proceedings

to

an

indigent

noncustodial parent who is subject to a child support order, even
if the individual faces incarceration." Turner v. Rogers, 131 S. Ct.
2507, 2520 (2011). Under the Fourteenth Amendment, it need only be
ensured that certain safeguards are provided, such as "adequate
notice of the importance of the ability to pay, fair opportunity to
present, and to dispute, relevant information and court findings,"
and these things were present in this case. Id.
Plaintiff alleges that Turner is inapposite because he was
convicted under a criminal statute, and, indeed, it has been
recognized in the past that La. R.S. §§ 14:74-75 are hybrid
civil/criminal statutes that sometimes carry the right to counsel.
State v. Broussard, 490 So.2d 273 (La. 1986). It is very unclear to
the Court, however, whether Plaintiff was sentenced under the
criminal statutes cited above, and whether those statutes carry a
14

right to counsel.

As this issue was not extensively briefed, and

because oral argument could not be held due to Plaintiff's counsel's
absence, the Court

issued an order allowing the parties to submit

additional briefing and evidence on this issue. (Rec. Doc. 57)
Therefore, the Court will defer ruling on this issue until such
briefing is received.
II. DCFS's Motion to Dismiss
DCFS argues that, as an arm of the State of Louisiana, it is
entitled to sovereign immunity and is not a person capable of being
sued under the False Claims Act or under § 1983. Vermont Agency of
Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 787-88 (state
agency not subject to False Claims Act); Menard v. Bd. of Trustees
of Loyola Univ. of New Orleans, No. 03-2199, 2004 WL 856641 (E.D.
La. Apr. 19, 2004)(state agency is not a person within the meaning
of § 1983)

Plaintiff did not oppose this motion, and it appears

that it has merit; therefore, the motion to dismiss should be
granted.
Accordingly,
IT IS ORDERED that DCFS's Motion to Dismiss is GRANTED.
Plaintiff's claims against the State of Louisiana through the
Department of Children and Family Services are DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that JPDA's Motion to Dismiss is GRANTED
IN PART.
15

IT IS FURTHER ORDERED that Plaintiff's claims against JPDA and
Valery Howard under the False Claims Act and under 42 U.S.C. § 2000d
et seq. are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's claims against JPDA and
Valery Howard

under 42 U.S.C. § 1983 that are predicated on

violations of the Fourteenth Amendment's Equal Protection Clause and
Substantive

Due

Process

Clause,

the

Fourth

Amendment,

or

the

Thirteenth Amendment are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's claims against JPDA and
Valery Howard under 42 U.S.C. § 1983 that are predicated on
violations of the Sixth and/or Fourteenth Amendment Right to Counsel
are

taken

under

advisement

pending

further

briefing

from

the

parties. (Rec. Doc. 57)
New Orleans, Louisiana this 21st day of May, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

16 16