Wilson v. Tregre

Filing 83

ORDER & REASONS: denying 73 plaintiff's Motion for New Trial. Signed by Judge Carl Barbier on 10/2/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TREGG WILSON

CIVIL ACTION

VERSUS

NO: 13-5612

SHERIFF MIKE TREGRE

SECTION: J(5)

ORDER AND REASONS
Before the Court is a Motion for a New Trial Pursuant to FRCP
59 (Rec. Doc. 73) filed by Plaintiff, Tregg Wilson ("Plaintiff"),
as well as an Opposition (Rec. Doc.

78) by Defendant, Sheriff Mike

Tregre ("Defendant"), and Plaintiff's Reply (Rec. Doc. 80). Having
considered the motion, the parties’ submissions, the record, and
the applicable law, the Court finds, for the reasons expressed
below, that the motion should be DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
This matter arises out of a complaint filed by Plaintiff, a
former Chief Deputy in the Sheriff's Office of St. John the Baptist
Parish,

Louisiana,

against

Sheriff

Mike

Tregre

in

both

his

individual and official capacity as the Sheriff of St. John the
Baptist Parish.1 During his employment as Chief Deputy, in May,
2013, Plaintiff alleges that he was informed that interrogation

1

For a complete statement of the facts see this Court's Order and Reasons
denying Plaintiff's Motion for Summary Judgment (Rec. Doc. 71), filed September
11, 2014.

1

rooms located in the Criminal Investigative Division (CID) of the
Sheriff's Office were under 24-hour video and audio surveillance.
The CID contains three interrogation rooms, used primarily for
detectives to interview suspects, but also available for suspects
to meet with their attorneys. Each room contains visible camera
equipment that records video and audio and operates on a motionactivated sensor. While the cameras in each room send audio/video
feed back to the computer network at CID, Plaintiff also determined
that the video feed was recorded by a device called a Milestone
Server which saved recordings up to thirty (30) days, ostensibly
for purposes of retaining "backup copies" of interrogations.
Plaintiff, who is also an attorney in the State of Louisiana,
suspected

that

this

problems,

such

as

recording

equipment
violations

potential

posed
of

several

legal

attorney-client

privilege, the Fourth Amendment, Louisiana's wiretapping laws, and
rules governing the disclosure of evidence. Plaintiff alleges that
he discussed these concerns with Sheriff Tregre, who then ordered
an

internal

investigation.

Plaintiff

then

forwarded

emails

detailing his correspondence with Sheriff Tregre to the District
Attorney, who requested that the State Police investigate the
matter. As a result of this investigation, the State Police took
statements from several parties, including Plaintiff.
On

June

10,

2013,

Sheriff

Tregre

terminated

Plaintiff's

employment, and Plaintiff subsequently filed a lawsuit with this

2

Court including claims under the Louisiana Whistleblower Statutes,
as well as under 42 USCA § 1983 and Article I, Section 7 of the
Louisiana Constitution for alleged retaliation against Plaintiff
for his exercise of protected speech. Subsequently, both Plaintiff
and Defendant filed motions for summary judgment. On September 11,
2014, this Court issued an order granting summary judgment in favor
of Defendant and dismissing all Plaintiff's claims in this matter.
(Rec. Doc. 71). The Court determined that because Plaintiff engaged
in speech in his capacity as a public employee, rather than as a
private citizen, he was not entitled to recover under either his
Section 1983 claim or his claim under the Louisiana Constitution.
Regarding Plaintiff's whistleblower claims, the Court concluded
that Plaintiff was not entitled to recover under Louisiana Revised
Statute 23:967 because he had failed to prove that Sheriff Tregre
had violated a "state law." The Court also dismissed Plaintiff's
whistleblower claim under Louisiana Revised Statute 42:1169 upon a
finding that Plaintiff had failed to pursue his complaint with the
State Ethics Board, as mandated by the statute.
Plaintiff then filed the instant motion seeking a new trial on
June 17, 2014.
PARTIES' ARGUMENTS
Plaintiff seeks a new trial on two separate grounds.2

2

First,

Because no trial was ever held on the merits of this matter, the Court
construes Plaintiff's motion as seeking an amendment of the judgment regarding
two of the court's conclusions.

3

Plaintiff argues that the Court erred in dismissing his claim
brought under the Louisiana Whistleblower Statute, pursuant to La.
R.S. § 23:967. Plaintiff contends that the Court should have
determined that Sheriff Tregre's failure to comply with Article 716
of the Louisiana Code of Criminal Procedure, a discovery rule
requiring the court to order the District Attorney to disclose
certain evidence upon written motion by the defendant, constituted
a violation of a substantive "state law." As such, Plaintiff
contends that his disclosure of the Sheriff's "violation of state
law" and the alleged subsequent adverse treatment he received as a
result of this disclosure makes him eligible for relief under the
Louisiana Whistleblower Statute. (Rec. Doc. 73-1, p. 4). Plaintiff
also seeks to introduce new evidence in the form of an affidavit of
a prior deputy at the Sheriff's Office in support of his claim that
Defendant violated Article 716.
Second, Plaintiff asserts that his second whistleblower claim
brought pursuant to La. R.S. § 42:1169 was premature at the time it
was decided by the Court because Plaintiff had failed to previously
file this complaint with the State Ethics Board, as required by the
statute. As such, Plaintiff contends that the Court should amend
its judgment to dismiss this particular claim without prejudice,
granting Plaintiff an opportunity to re-file his complaint with the

4

Ethics Board.3 (Rec. Doc. 73-1, p. 6).
Defendant contends that the instant motion is simply an
attempt

by

Plaintiff

to

"re-litigate

the

matter,"

and

that

Plaintiff has failed to provide any authority to support his
arguments that the Court has disregarded controlling law. (Rec.
Doc. 78, p. 3). More specifically, Defendant asserts that the Court
correctly classified Article 716 as a purely procedural law, yet
regardless of the type of law this Article may be, Plaintiff's
allegations that Defendant violated this law are unsubstantiated.
(Rec. Doc. 78, p. 4). Defendant further argues that Plaintiff's
failure to report his whistleblower claim to the Ethics Board
pursuant to La. R.S. § 42:1169 does not warrant a decision to now
voluntarily dismiss the claim without prejudice to be re-filed with
the Ethics Board. Instead, Defendant asserts that Plaintiff's
attempt to "revive this claim is brought without sufficient grounds
and serves only to cause annoyance and expense to Sheriff Tregre."
(Rec. Doc. 78, p. 6).
DISCUSSION
When a matter has not been litigated through a trial on the
merits, a motion for new trial is not a proper procedural mechanism
for a party to seek reconsideration.

3

Aucoin v. C.N.I . Girdler,

In conjunction with the instant motion, Plaintiff has also filed an Ex
Parte Motion to Dismiss La. R.S. 42:1169 Claim Without Prejudice, which it urges
the Court to grant upon a finding that an amendment to judgment is necessary.
(Rec. Doc. 76).

5

Inc., No. 93-2565, 1995 WL 366485, at *1 (E.D. La. June 20, 1995)
(Clement, J.). Instead,"when a party seeks reconsideration of an
order granting the opposing party's motion for summary judgment,
the proper vehicle for doing so is a Rule 59(e) motion to alter or
amend the judgment." U.S. v. McMahan, No. 08-07, 2008 WL 5377980,
at *1 (S.D. Tex. Dec. 22, 2008) (citing St. Paul Mercury Ins. Co.
v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997)). As such,
because no trial was ever conducted in this matter, and because
Plaintiff's claims were dismissed by an order on both parties'
motions for summary judgment, the Court will construe the instant
motion as a Rule 59(e) motion, rather than a motion for a new
trial.
Altering or amending a judgment under Rule 59(e) is an
“extraordinary remedy” used “sparingly” by the courts. Templet v.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A motion to
alter or amend calls into question the correctness of a judgment
and is permitted only in narrow situations, “primarily to correct
manifest errors of law or fact or to present newly discovered
evidence.” Id.; see also Schiller v. Physicians Res. Grp. Inc., 342
F.3d 563, 567 (5th Cir. 2003).

Manifest error is defined as error

that is “‘[e]vident to the senses, especially to the sight, obvious
to the understanding, evident to the mind, not obscure or hidden,
and

is

synonymous

with

open,

clear,

visible,

unmistakable,

indubitable, indisputable, evidence, and self-evidence.’” In Re

6

Energy Partners, Ltd., 2009 WL 2970393, at *6 (Bankr. S.D. Tex.
Sept. 15, 2009) (citations omitted); see also Pechon v. La. Dep't
of Health & Hosp., 2009 WL 2046766, at *4 (E.D. La. July 14, 2009)
(manifest error is one that “‘is plain and indisputable, and that
amounts

to

a

complete

disregard

of

the

controlling

law’”)

(citations omitted). To prevail on a motion under Rule 59(e), the
movant must clearly establish at least one of three factors: (1) an
intervening change in the controlling law, (2) the availability of
new evidence not previously available, or (3) a manifest error in
law or fact.

Schiller, 342 F.3d at 567; Ross v. Marshall, 426 F.3d

745, 763 (5th Cir. 2005) (to win a Rule 59(e) motion, the movant
“must clearly establish either a manifest error of law or fact or
must present newly discovered evidence”).
Despite Plaintiff's contentions that the Court erred regarding
its dismissal of his two whistleblower claims, the Court finds that
Plaintiff has failed to prove that its prior ruling on these claims
was "manifestly erroneous,"or that the presentation of new evidence
is sufficient to amend the Court's prior judgment.
A. La. Rev. Stat. § 23:967 Claim
Plaintiff first contends that the Court manifestly erred by
dismissing his claim under La. R.S. § 23:967. La. R.S. § 23:967,
commonly known as the Louisiana Whistleblower Statute, prohibits
retaliatory action by an employer after an employee in good faith
"discloses or threatens to disclose a workplace act or practice
7

that

is

in

violation

of

state

law."

La.

Rev.

Stat.

Ann.

§

23:967(A)(1) (emphasis added). Plaintiff originally argued that
relief under the Louisiana Whistleblower Statute was appropriate
because the alleged motion-activated video recording conducted by
the Sheriff's Office violated (1) attorney-client privilege, (2)
the Fourth Amendment, (3) Louisiana wiretapping laws, and (4) laws
regarding the disclosure of evidence, including Article 716 of the
Louisiana Code of Criminal Procedure and the United States Supreme
Court's decision in Brady v. Maryland. The Court first determined
that

attorney-client

privilege

was

not

a

substantive

law

as

envisaged by La. R.S. § 23:967, and that Plaintiff failed to show
a violation of either the Fourth Amendment or Louisiana wiretapping
laws. (Rec. Doc. 71, p. 14-19). The Court further held that Article
716 of the Code of Criminal Procedure, as well as the United States
Supreme Court's ruling in Brady, are primarily procedural discovery
rules to which La. R.S. § 23:967 does not apply, and, moreover,
that Plaintiff failed to submit sufficient evidence that the
Sheriff's Office violated these discovery rules. (Rec. Doc. 71, p.
20).
Plaintiff now argues that the Court improperly classified
Article 716 as a purely procedural rule, and instead, that Article
716 constitutes a "state law," the violation of which would warrant
application of the Louisiana Whistleblower Statute. The Court
disagrees. First, the Court continues to recognize that Article

8

716, as well as the Supreme Court's ruling in Brady, constitute
purely procedural rules governing discovery in criminal cases,
rather than substantive state laws that may implicate the Louisiana
Whistleblower Statute. However, a detailed explanation of this
conclusion is unnecessary in light of the Court's previous holding
that "Plaintiff has failed to submit sufficient evidence to show
that the Sheriff's Office actually failed to turn over any evidence
that was favorable to any particular accused and actually caused
prejudice." (Rec. Doc. 71, p. 21). In his Reply, Plaintiff now
seeks to introduce new evidence in the form of a signed affidavit
by Mr. Ed Howell, a former Deputy with the Sheriff's Office, which
was

not

introduced

prior

to

the

Court's

Order

dismissing

Plaintiff's claims. With this affidavit, Plaintiff purports that
Sheriff Tregre and Troy Hidalgo, the technology director for the
Sheriff's Office, had previously watched a video of a witness's
interrogation, despite the men's testimony that they had never
watched any videos recorded on the Milestone Server.(Rec. Doc. 803, p. 2-3).

Plaintiff further contends that this new evidence

shows that the Sheriff's Office violated both Article 716 and
Brady. (Rec. Doc. 80-3, p. 3). The Court finds that this evidence
is not sufficient so as to warrant an amendment of the judgment.
The Fifth Circuit has previously recognized that district
courts

have

"considerable

discretion"

when

considering

the

introduction of new evidence pursuant to a Rule 59(e) motion.

9

Templet, 367 F.3d at 483. In determining whether to "upset a
summary judgment on the basis of evidence [that a party] failed to
introduce on time," courts are instructed to consider a number of
factors including "whether the evidence was available to the movant
before the non-movant filed the summary judgment motion," and "the
importance of the omitted evidence to the moving party's case." Id.
While the Court finds merit in Plaintiff's contention that he was
unable to secure the evidence prior to the Court's order denying
his motion for summary judgment due to Mr. Howell's travel and work
schedule, this alone is not sufficient to justify an amendment of
the prior judgment. Plaintiff has failed to present the Court with
the importance of the new evidence it seeks to introduce. Even
assuming

that

Mr.

Howell's

testimony

is

truthful,

the

mere

allegation that Sheriff Tregre and Mr. Hidalgo watched a video of
an interrogation does not, in and of itself, amount to a violation
of Article 716 or Brady. Plaintiff has failed to present to the
Court how this evidence could impact his claim under La. R.S. §
23:967.
Because Plaintiff has failed to show that he is entitled to a
remedy under La. R.S. § 23:967, an amendment of the Court's
judgment on this basis is not warranted.
B. La. Rev. Stat. § 42:1169 Claim
Plaintiff also seeks amendment of the Court's judgment in
regard to the dismissal with prejudice of his claim under La. R.S.

10

§ 42:1169.4 This statute, located within the Code of Governmental
Ethics portion of the Revised Statutes, provides, in pertinent
part, that:
Any public employee who reports to a person or entity of
competent authority or jurisdiction information which he
reasonably believes indicates a violation of any law or
of any order, rule, or regulation issued in accordance
with law or any other alleged acts of impropriety related
to the scope or duties of public employment or public
office within any branch of state government or any
political subdivision shall be free from discipline,
reprisal, or threats of discipline or reprisal by the
public employer for reporting such acts of alleged
impropriety.
La. Rev. Stat. Ann. § 42:1169(A) (2008). The statute further
requires that "if any public employee is suspended, demoted,
dismissed,

or

threatened

with

such

suspension,

demotion,

or

dismissal as an act of reprisal for reporting an alleged act of
impropriety in violation of this Section, the public employee shall
report such action to the [Louisiana State Ethics] board." La. Rev.
Stat. Ann. § 42:1169(B)(1) (2008).
In its order granting summary judgment in favor of Sheriff
Tregre

and

dismissing

all

Plaintiff's

claims,

this

Court

specifically found that Plaintiff had failed "to make a proper
report as required by this statute." (Rec. Doc. 71, p. 13).

4

Despite the Court's dismissal of Plaintiff's whistleblower claim under
La. R.S. § 23:967, Louisiana courts have found that claims under La. R.S. 23:967
and La. R.S. § 42:1169 are "not mutually exclusive." Nolan v. Jefferson Parish
Hosp. Service. Dist. No. 2, 01-175 (La. App. 5 Cir. 6/27/01); 790 So.2d 725, 73132 (citing Puig v. Greater New Orleans Expressway Comm'n, 00-924 (La. App. 5 Cir.
10/31/00); 772 So.2d 842, 843. As such, the Court finds it necessary to address
Plaintiff's arguments under each of these claims separately.

11

Additionally, because Plaintiff did not oppose Sheriff Tregre's
motion for summary judgment regarding this claim, the Court found
that Plaintiff's La. R.S. § 42:1169 claim should be dismissed with
prejudice. (Rec. Doc. 71, p. 13). Plaintiff now argues that because
he failed to file a complaint with the State Ethics Board, this
claim was premature at the time it was filed, and the Court did not
have the jurisdiction to hear the claim. (Rec. Doc. 73-1, p. 5-6).
As such, Plaintiff contends that the Court's judgment should be
amended to dismiss this claim without prejudice, to be re-filed
with the State Ethics Board prior to the running of the two year
prescriptive period. (Rec. Doc. 73-1, p. 6).
Plaintiff has failed to show that the Court's dismissal of
this claim amounts to a manifest error with complete disregard to
controlling precedent. Instead, Plaintiff admits he was in error by
filing this claim with this Court. Louisiana courts have repeatedly
held that La. R.S. § 42:1169 does not provide a plaintiff with a
private cause of action in state or federal court, and, instead,
that a plaintiff's sole remedy under this statute lies with the
Board of Ethics. Goldsby v. State, Dept. of Corrections, 03-0343
(La. App. 1 Cir. 11/7/03); 861 So.2d

236, 238 ("Here, plaintiff

did not report the matter to the Ethics Commission. Thus, he cannot
sue under this statute."); Collins v. State ex rel. Dept. of
Natural Resources, 12-1031 (La. App. 1 Cir. 5/30/13); 118 So.3d 43,
48

(finding

that

La.

R.S.

§

42:1169

12

"does

not

provide

an

independent right of action."). As such, because Plaintiff did not
have a valid cause of action under this statute, the Court complied
with Louisiana precedent by dismissing Plaintiff's claim under La.
R.S. § 42:1169.
Plaintiff further contends that the claim should have been
dismissed without prejudice, in order to provide him with an
opportunity to pursue the claim with the State Ethics Board.
However, Plaintiff has failed to provide any legal support for his
reasoning that a dismissal of the claim without prejudice would
have been the appropriate ruling. Additionally, this Court has
previously held that when a plaintiff improperly brings a claim
under La. R.S. § 42:1169 in federal district court, the proper
remedy

is

to

dismiss

this

claim

with

prejudice.

Thomas

v.

Louisiana, Dept. of Social Services, No. 08-4977, 2010 WL 2217003,
at * 5 (E.D. La. May 26, 2010) (Wilkinson, J.), aff'd by 406 Fed.
Appx. 890 (5th Cir. 2010).
Because Plaintiff has failed to show that the Court manifestly
erred by dismissing his claim under La. R.S. § 42:1169 with
prejudice, an amendment of the Court's judgment on this basis is
not warranted.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion for New Trial
Pursuant to FRCP 59 (Rec. Doc. 73) is DENIED.
13

New Orleans, Louisiana this 2nd day of October, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

14