Allen v. Howard et al

Filing 68

ORDER & REASONS re 27 Motion to Dismiss for Failure to State a Claim. It is ORDERED that Plaintiff's remaining claims against JPDA and Valery Howard that are based on a violation of his Sixth and Fourteenth Amendment rights to counsel are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier. (gec)

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
This matter arises from numerous claims by Mr. Allen, all of
which are based on a state court child support order and its
subsequent enforcement. At various times in litigation,

the Court

has dismissed several parties and claims from this matter, leaving
only the Jefferson Parish District Attorney ("JPDA") and Valery
Howard ("Ms. Howard") as defendants, and leaving only the issue of
whether Mr. Allen was deprived of his right to counsel during the
state court proceedings. (Rec. Docs. 58, 61) Following an in-court
hearing on May 21, 2014,1 the Court allowed the parties fourteen
days to submit supplemental briefing on two issues: (1) whether Mr.
Allen had a Sixth and/or Fourteenth Amendment right to counsel
before being incarcerated in connection with his obligation to make
child support payments to Ms. Howard; and (2) if there was a right

1

The Court intend to hold oral argument on that day, but counsel for Mr.
Allen was unable to attend for medical reasons. Therefore, the Court did not
hold oral argument, but rather orally read its findings as to certain other
claims and deferred ruling on the right to counsel issue.

1

to counsel, what are the implications of that right, including, but
not limited to, what Mr. Allen's remedies would be and who the
proper defendant to such a claim would be. (Rec. Doc. 57) The Court
further requested that the parties submit any evidence that would
aid the Court in understanding the factual context of Mr. Allen's
case in state court. (Rec. Doc. 57)
Before the Court now are Mr. Allen's supplemental brief (Rec.
Doc. 67) and a joint brief by JPDA and Ms. Howard (Rec. Doc. 65)
that are responsive to the Court's order. Having considered the
original motion and the supplemental memoranda of counsel, the
record, and the applicable law, the Court finds that Mr. Allen's
remaining claims should be dismissed for the reasons set forth more
fully below.
A. Right to Counsel
The Court will first address whether Mr. Allen had a right to
counsel during the state court proceedings at issue. This question
requires us to first determine whether Mr. Allen was incarcerated
under civil or criminal statutes. Turner v. Rogers, 131 S.Ct. 2507,
2516 (2011)(Sixth Amendment applies in criminal proceedings, but
the Fourteenth Amendment applies in civil proceedings).
1. Criminal or Civil Proceeding
Due to both the rambling nature of Plaintiff's complaint and
the admittedly confusing state level procedure, it was initially
difficult

for

the

Court

to

determine
2

whether

Mr.

Allen

was

incarcerated pursuant to a criminal statute, La. R.S. 14:75, or for
civil contempt under civil child support statutes. Upon further
explanation

by

JPDA

and

a

review

of

the

exhibits

filed

in

connection with the instant briefing, it has become clear that Mr.
Allen was incarcerated for civil contempt. In support of his
allegation that he was charged under criminal statutes, Mr. Allen
relies heavily on "Disposition of Inmate Request" forms from the
Jefferson Parish Correctional Center ("Correctional Center") that
indicate his "charge" as being either "CCRP 21," which is the
criminal procedure rule for direct contempt, or "Contempt 14:74,"
which is that statute covering criminal neglect of the family.
(Rec. Doc. 67-1, pps. 2, 5) Further review of these documents,
however, indicates that the criminal provisions were cited to by
the Correctional Center through error or ignorance to the current
state of the law.2 In fact, there are several errors on the sheets,
ranging from grammatical errors to substantive errors. (Rec. Doc.
67-1, pps. 2, 5) While the Court does not condone such reckless
procedures, the internal deficiencies of the Correctional Center
are not grounds for finding that Mr. Allen was incarcerated under
criminal statutes when it is clear that he was not. Criminal
statutes

were

never

referenced

2

in

the

trial

court

documents

JPDA explains that the criminal statutes were used in Jefferson Parish
until the mid-1980s, but have not been used since. The Correctional Center,
however, appears to continue to use relics of the former system when coding
charges on internal documents. (Rec. Doc. 64, pps. 1-2)

3

submitted to the court, and, in fact, the civil statutes applicable
to this case were referenced at the first hearing with the hearing
officer. (Rec. Doc. 64-7, p. 1) Further, as the case proceeded, it
was made abundantly clear that Mr. Allen could avoid incarceration
by making "purge payments," which is a hallmark of civil, rather
than criminal, contempt. (Rec. Docs. 64-7 -- 64-24); see also
Turner, 131 S.Ct. at

2516. Therefore, the Fourteenth Amendment

will apply.
2. Right to counsel in civil proceedings to enforce child
support obligations?
In Turner v. Rogers, the United States Supreme Court squarely
addressed whether indigent, non-custodial parents have a right to
counsel in civil child support enforcement proceedings that may
lead to incarceration where the party seeking payment is an
unrepresented custodial parent. Id. at 2520. Therefore, Turner will
apply to this case.
Turner does not require appointment of counsel in all cases.
The Court held that Due Process "does not require the provision of
counsel where the opposing parent or other custodian (to whom
support funds are owed) is not represented by counsel and the State
provides alternative procedural safeguards." Id. Such "safeguards"
include,
notice to the defendant that his “ability to pay” is a
critical issue in the contempt proceeding; (2) the use of
a form (or the equivalent) to elicit relevant financial
information; (3) an opportunity at the hearing for the
defendant to respond to statements and questions about
4

his financial status, (e.g., those triggered by his
responses on the form); and (4) an express finding by the
court that the defendant has the ability to pay.
Id. at 2519. It is clear that this list is illustrative, as the
court later refers to these safeguards or their "equivalent." Id.
at 2520.
In

the

instant

matter,

Mr.

Allen

appears

to

have

been

sentenced to several periods of incarceration ranging from sixty to
ninety days per sentence in January 2009, April 2009, September
2011, October 2012, and May 2013.3 In January 2009, the Court
expressly found that he was voluntarily unemployed and imposed a
60-day sentence. (Rec. Doc. 64-10) In April 2009, the Court imposed
another 60-day sentence, but made no specific findings as to
ability to pay. (Rec. Doc. 64-12) In September 2012, the Court
again imposed a 90-day sentence while making no specific finding as
to the ability to pay. (Rec. Doc. 64-18) In October 2012, the Court
made

more

extensive

findings.

It

found

that

Mr.

Allen

was

underemployed and adopted the hearing officer's findings which
stated that Mr. Allen has no disability preventing him from working
and that he had the ability to comply with the support orders.
(Rec. Docs. 64-19, 64-21) In May 2013, the Court imposed another
90-day

sentence,

again

expressly

finding

that

Mr.

Allen

was

unemployed. (Rec. Doc. 64-23) Prior to the May hearing, the hearing

3

It is somewhat unclear whether all of the sentences were actually
served, and which sentences were served in full, though it is certain that he
did spend some time in jail.

5

officer made the same findings as it had made prior, notably that
Mr. Allen had the ability to comply with the support order. (Rec.
Doc. 64-22) Finally, in January 2014, in the face of yet another
sentence, Mr. Allen made a payment and notified the Court that he
had found employment, at which time the Court ordered that his
wages be garnished. (Rec. Doc. 64-24)
Based on these facts, the Court is satisfied that, even before
Turner applied,4 its requirements were likely satisfied. Mr. Allen
was never arbitrarily put in jail.

He was always afforded a

hearing with the hearing officer. The hearing officer would make
his recommendation, and the Mr. Allen, and Ms. Howard as well, had
the opportunity to consent to the recommendation or to oppose it.
When it was opposed, as it often was, a hearing would be set in
front of the juvenile court judge. Further, when it was recommended
that Mr. Allen be incarcerated, he always had the chance to come in
and pay the amount, and sometimes he did. It was only after
multiple chances to pay that he would go before the juvenile court
judge to have a sentence imposed. Further, after

Turner

was

decided, the court's records have become much more thorough, which
indicates to this Court that Jefferson Parish has made all attempts
to

keep

abreast

of

proper

constitutional

procedures

and

is

currently operating in a constitutional manner. In each court
appearance after 2011, the hearing officer, the court, or both,

4

Turner was decided in June 2011.

6

indicated to Mr. Allen that they expressly found that he was able
to pay. This decision was based on income and expense forms filled
out by Mr. Allen and his testimony before the hearing officer and
the court. (Rec. Doc. 64-24). Mr. Allen had multiple opportunities
to be heard in each instance. Therefore, the Court

finds that the

state court procedures were constitutional.
3. Mootness of Mr. Allen's Claim
Even if there ever was a constitutional violation, in light of
the clearly constitutional procedures in place following Turner,
the Court does not find that it is it not reasonably likely to
recur, thereby rendering this action moot. DeFunis v. Odegaard, 416
U.S. 312, 318, 94 S. Ct. 1704, 1707, 40 L. Ed. 2d 164 (1974)("a
voluntary cessation of the [conduct] complained of could make this
case moot only if it could be said with assurance ‘that ‘there is
no reasonable expectation that the wrong will be repeated.") In
Turner, the Court held that the action was not moot because, given
the fact that the plaintiff consistently missed child support
payments and would almost certainly be back in court again, there
was a “reasonable” likelihood that Turner will again be “subjected
to the same action.” Turner, 131 S. Ct. at

2515. This instant

matter is distinguishable from Turner because, though it may be
likely given Mr. Allen's history that he will have to return to
court again, Jefferson Parish has supplied proof that it is
continually

updating

its

procedures
7

to

comply

with

Turner.

Therefore, even if Mr. Allen does have to return to Court, he will
not be "subjected to the same action." Therefore, this action is
moot.
B. Proper Party and Remedy
The Court also ordered briefing addressing who should be named
as a party to this action and to what remedies the Plaintiff is
entitled. Though neither of the briefs submitted provided much
assistance,5

the Court finds that, even if Mr. Allen had a right

to counsel, and even if his action were not moot, Plaintiff has not
provided any authority. showing that JPDA and Ms. Howard–the only
remaining defendants– may be held liable for violating any right to
counsel that he may have had. Without further persuasion, the Court
simply

cannot

find

that

JPDA–an

entity

that

had

no

role

in

appointing counsel–has any liability for violating a plaintiff's
right to counsel.6 Moreover, even if liability did exist, Plaintiff
has not indicated what his remedy would be.7
5

Defendants reliance on Heck v. Humphrey, 512 U.S. 477 (1994) is
without merit. Heck applies to matters where a petitioner seeks to challenge
his conviction. Mr. Allen is not challenging his conviction in this claim;
rather, he is asserting that he had a right to counsel. In fact, based on
JPDA's contention that Mr. Allen was not prosecuted under a criminal statute,
he does not even have a "conviction" to overturn.
6

For obvious reasons, Mr. Allen clearly has no claim against Defendant
Howard, the mother to whom support is paid in this matter.
7

Pursuant to a motion to dismiss, the Court dismissed Mr. Allen's §1983
suit against Judge Keller finding that she is immune to suit in her official
capacity based on sovereign immunity. The Court specifically found that the Ex
Parte Young doctrine did not apply because Plaintiff sought money damages and
did not seek "to enjoin state officials to conform their future conduct to the
requirements of federal law." (Rec. Doc. 26, p. 9) Upon further review of the
complaint, the Court finds that it overlooked Plaintiff's claim for
prospective injunctive relief, likely because the complaint was rambling and

8

Accordingly,
IT IS ORDERED that Plaintiff's remaining claims against JPDA
and Valery Howard that are based on a violation of his Sixth and
Fourteenth

Amendment

rights

to

counsel

are

DISMISSED

WITH

PREJUDICE.
New Orleans, Louisiana this 5th day of June, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

incoherent. However, even though injunctive relief against Judge Keller was a
possibility that should have been considered, the Court finds that such a
claim would nonetheless be dismissed as moot for the reasons stated above.

9