James v. Woods et al

Filing 140

ORDER AND REASONS: IT IS ORDERED that 82 SEALED Motion for Summary Judgment filed by defendants Sam Woods and Stephanie Welborn is GRANTED. Plaintiff's complaint is DISMISSED with prejudice as to these defendants. Signed by Judge Jay C. Zainey on 6/28/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARK C. JAMES

CIVIL ACTION

VERSUS

NO: 14-216

SAM WOODS, STEPHANIE
WELBORN, ET AL.

SECTION: "A" (2)

ORDER AND REASONS
The following motion is before the Court: Motion for Summary Judgment (Rec.
Doc. 82 *SEALED*) filed by defendants Sam Woods and Stephanie Welborn. Plaintiff
Mark C. James opposes the motion. The motion, submitted for consideration on April 5,
2017, is before the Court on the briefs without oral argument. For the reasons that
follow, the motion is GRANTED.1
I.

BACKGROUND2
Plaintiff Mark C. James alleges that defendants Sam Woods and Stephanie

Welborn instigated his eventual prosecution for aggravated incest solely for the purpose
of gaining leverage in an ongoing custody dispute. (Rec. Doc. 9, FAC && 1 & 2). James
is suing defendants Woods and Welborn for malicious prosecution and intentional
infliction of emotional distress under Louisiana law. James is a citizen of Louisiana.

1

The Court allowed the parties to file their submissions under seal in order to allay their
concerns pertaining to the protective order entered in this case. But this case is not a sealed
matter and the Court has determined that this Order and Reasons need not be filed under seal.
The factual background is taken solely from Plaintiff’s pleadings. No party should construe the
factual background as an indication that the Court considers the recited allegations proven (or
not proven) by the evidence of record. The sufficiency of the record evidence in light of the
allegations is discussed elsewhere in the opinion.
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2

Woods and Welborn are citizens of Mississippi.
Sam Woods and Ms. Tracy James divorced in 2005, and the two are the parents
of AGW. Woods and Tracy shared custody but AGW lived with Tracy. (FAC & 38). Mark
James met and began to date Tracy in 2006 when she was going through a custody
dispute with Woods. (Id. & 36). James and Tracy married in May 2007. Woods later
married Stephanie Welborn.
According to Mark James, when Woods learned that Tracy would move the
children from Hattiesburg to Slidell, he immediately and unsuccessfully moved the court
for modification of the extant custody agreement. (FAC &&

39, 41, 44 ). After the

custody hearing, Sam was overheard saying "I am going to get that son of a [expletive]
Mark James if it's the last thing I do." (Id. 42).
In May or June 2008 Woods started taking AGW to the Office of Child Protective
Services in St. Tammany Parish. (FAC & 45). According to the allegations, James either
looked under or put his fingers under AGW's diapers, which the eight-year old wore
because of a bedwetting problem. (Id. & 47). Woods and Welborn allegedly contacted
numerous other agencies and experts when they could not get the cooperation that they
sought. James contends that Woods and Welborn never mentioned anything about
abuse during the summer of 2008 and never objected when AGW stayed at James's
home. (FAC && 54-59). According to James, AGW's allegations were at various times
changed or recanted completely. (Id. & 69).
Woods nonetheless met with a detective of the St. Tammany Parish Sheriff's
Office on October 14, 2008, to initiate a criminal complaint against James for his
touching AGW. (FAC & 86). James contends that Woods and Welborn repeatedly
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contacted the Sheriff’s Office in order to point them to the various counselors to which
they had been sending AGW. (Id. & 87). James alleges that Woods and Welborn
"painted a picture of the onset of bedwetting and 'yeast infections' for the Sheriff's Office
as coinciding with AGW's move to Slidell and time with [him]." (FAC & 88). James
contends that in doing so Woods and Welborn "purposefully withheld clear medical
documentation which showed AGW's history of bedwetting and urinary tract infections, a
history which far predated Mark's ever even meeting Tracy or her children." (Id. & 89)
(emphasis in original).
On November 18, 2008, the New Orleans Police Department Fugitive Division
arrested James at his place of employment. (FAC & 96). Nearly five years later James
was tried for two days in St. Tammany Parish on a single count of aggravated incest.
He was found not guilty in February 2013, after the jury had deliberated for one hour.
(Id. && 99, 110, 111). Between the time of his arrest in 2008 and his trial in 2013,
James lost his job of 27 years and he alleges that he was virtually unemployable
notwithstanding his previously spotless criminal record. (FAC & 102). Woods ultimately
prevailed in his custody battle. (Id. & 113). Tracy divorced James in September 2013.
(Id. & 117).
James filed the instant action against Woods, Welborn, and other defendants on
January 28, 2014. Vis à vis Woods and Welborn, James asserts claims for malicious
prosecution and intentional infliction of emotional distress under Louisiana law. James
seeks to recover punitive damages and attorney's fees under Mississippi law.3

The Court previously dismissed James’s claim for alienation of affection under
Mississippi law. (Rec. Doc. 40). The Court also dismissed James’s negligence claim against the
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3

Woods and Welborn, the only defendants remaining before this Court, now move
for summary judgment on all claims. A jury trial in this matter is scheduled for August
21, 2017.
II.

DISCUSSION
Summary judgment is appropriate only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any," when viewed
in the light most favorable to the non-movant, "show that there is no genuine issue as to
any material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a
material fact is "genuine" if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must
draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477
U.S. at 255). Once the moving party has initially shown "that there is an absence of
evidence to support the non-moving party's cause," Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986), the non-movant must come forward with "specific facts" showing a
genuine factual issue for trial. Id. (citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
When faced with a well-supported motion for summary judgment, Rule 56 places

non-resident therapist (and her employer) who suggested that the matter be reported to law
enforcement, and who later testified at James’s criminal trial. (Rec. Doc. 46).
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the burden on the non-movant to designate the specific facts in the record that create
genuine issues precluding summary judgment. Jones .v Sheehan, Young, & Culp, P.C.,
82 F.3d 1334, 1338 (5th Cir. 1996). The district court has no duty to survey the entire
record in search of evidence to support a non-movant’s position. Id. (citing Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300,
1307 (5th Cir. 1988)).
Malicious Prosecution
Defendants move for summary judgment arguing that James cannot prove
certain essential elements of his claim for malicious prosecution. Further, Defendants
contend that Louisiana Children’s Code article 611 immunizes them from suit for all of
the claims in this lawsuit, including malicious prosecution.
Malicious prosecution is an intentional tort.4 Lemoine v. Wolfe, 168 So. 3d 362,
367 (2015). A claim for malicious prosecution comprises the following elements: 1) the
commencement or continuance of an original criminal or civil judicial proceeding; 2) its
legal causation by the present defendant in the original proceeding; 3) its bona fide
termination in favor of the present plaintiff; 4) the absence of probable cause for such
proceeding; 5) the presence of malice therein; and 6) damage conforming to legal
standards resulting to the plaintiff. Jones v. Soileau, 448 So. 2d 1268, 1271 (La. 1984)
(citing Eusant v. Unity Indus. Life Ins., 196 So. 554, 556 (La. 1940); Hibernia Nat'l Bank

4

In their motion for summary judgment, Defendants take a collective approach to their conduct
and do not suggest that one of them may be less culpable than the other and therefore entitled
to summary judgment even if the other is not. But given that malicious prosecution is an
intentional tort, and given that James has alleged solidary liability under Louisiana law, see La.
Civ. Code art. 2324(A) (conspiring with another person to commit an intentional or willful act),
the Court discerns no deficiency in the way that Defendants have structured their arguments.
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v. Bolleter, 390 So. 2d 842, 843 (La. 1980)). The limitations on the tort reflect a careful
balance between two important societal interests: the right of all persons to be protected
when acting in good faith on reasonable grounds in commencing a criminal proceeding,
and the right of an individual to seek redress for the malicious and unwarranted
employment of the judicial process against him. Lemoine, 168 So. 3d at 367 (citing
Miller v. East Baton Rouge Parish Sheriff’s Dep’t, 511 So. 2d 446, 452 (La. 1987);
Robinson v. Goudchaux’s, 307 So. 2d 287, 291 (La. 1975)). Never favored in our law, a
malicious prosecution action must clearly establish that the forms of justice have been
perverted to the gratification of private malice and the willful oppression of the innocent.
LeBlanc v. Pynes, 69 So. 3d 1273,1279 (La. App. 2nd Cir. 2011) (citing Johnson v.
Pearce, 313 So. 2d 812 (La. 1975)).
Defendants contend that James will not be able to meet his burden of proof at
trial as to elements (2) (legal causation), (4) (probable cause), and (5) (malice) of the
malicious prosecution claim.
The Court begins its analysis of the malicious prosecution claim with the fourth
element of the cause of action—probable cause. The probable cause element is the
appropriate starting point because the criminal case against James grew out of
Defendants’ initial decision to contact the police regarding AGW’s allegations as to
James’s conduct. The probable cause element tests whether Defendants were justified
in going to the police in light of AGW’s allegations.
The element of probable cause focuses on the present defendant’s mindset in
instituting the original action against the plaintiff. LeBlanc, 69 So. 3d at 1282. Probable
cause does not depend merely upon the actual facts in the case, but upon the
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defendant’s honest belief of the facts when making charges against the plaintiff. Plessy
v. Hayes Motor Co., 742 So. 2d 934, 939 (La. App. 2nd Cir. 1999) (citing Craig v. Carter,
718 So. 2d 1068 (La. App. 2nd Cir. 1998)); Carter v. Catfish Cabin, 316 So. 2d 517 (La.
App. 2nd Cir. 1975)). The crucial determination is whether the defendant had an honest
and reasonable belief in the guilt of the plaintiff at the time the charges were pressed.
Id.; Jones, 448 So. 2d at 1272. This probable cause analysis must be distinguished from
the probable cause analysis applicable to the law enforcement officials who actually
effect the plaintiff’s arrest based on the complainant/tortfeasor’s report.5 LeBlanc, 69
So. 3d at 1282.
According to Welborn and Woods, AGW first approached Welborn about James’s
conduct. Welborn testified that AGW first reported “poking” and tickling that made her
uncomfortable. AGW later claimed that James had looked down her pull-ups. Ultimately,
AGW claimed that James had touched her vagina inside of her clothing. Welborn told
Woods about AGW’s assertions, and Woods instructed AGW to tell her mother, Tracy
James. AGW spoke to her mother without Woods or Welborn being present. Tracy slept
with AGW that night and then contacted Woods to tell him that she was sending AGW to
his house while she made arrangements to move back to Mississippi. Tracy left Mark

5

The Court notes that Louisiana law recognizes a presumption of lack of probable cause and
malice when the criminal charges are dismissed in their infancy prior to trial. See Craig, 718 So.
2d at 1071 n.1 (citing Carter v. Catfish Cabin, 316 So. 2d 517, 523 (La. Ct. App. 1975);
Robinson v. Rhodes, 300 So. 2d 249, 251 (La. Ct. App. 1974)). That presumption does not
apply in this case because James’s case was taken to trial by the district attorney. Moreover,
James does not benefit from any favorable presumptions based on his acquittal at trial. Even
subsequent proof of complete innocence is not evidence of want of probable cause. Graham v.
Inter. Elec. Co., 127 So. 879, 880 (La. 1930); Washington v. Lane Cotton Mills Co., 98 So. 416,
416 (1923); Sundmaker v. Gaudet, 37 So. 865 (La. 1905).
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James without telling him why she was leaving and she testified that she did so in order
to protect AGW. (Defendants’ Exhibit 6, trial transcript at 57). Tracy avoided speaking to
James for about three weeks when she finally told him what AGW had said.
The Court is persuaded that James cannot create an issue of fact as to probable
cause. At the outset, the Court notes that no one disputes that AGW approached
Welborn in the summer of 2008 to report the conduct that ultimately led to James’s
prosecution for aggravated incest. In fact, although not probative of the probable cause
determination when Defendants went to law enforcement in 2008, AGW has never
recanted those accusations. AGW executed an affidavit in December 2015 (at the age
of 15) reaffirming the allegations that she originally made against James in 2008.
(Defendants’ Exhibit 1, AGW affidavit). The record is devoid of anything to suggest that
Defendants coached AGW to make up false allegations against James. Even if AGW
has been lying all of these years, nothing suggests that Defendants played a role in
inventing the accusations against James or that they had any objective reasons to
suspect that she was lying. That Woods and Tracy were involved in an acrimonious
custody dispute is insufficient in and of itself to create an issue of fact as to probable
cause.
Moreover, the record does not support the inference that Woods and Welborn
were reckless or overly eager in approaching law enforcement. When AGW first
complained about the “poking” Defendants did nothing because they just assumed that
it was innocuous conduct. (Defendants’ Exhibit 3, Woods deposition at 47). According to
Woods, it was after the allegation of looking in AGW’s diaper that Defendants first
contacted the Shafer Center and Mississippi DHS, not the police, for guidance. (Id. at
Page 8 of 14

47). According to Shan’Terrica Barnes, who was employed at Shafer Center at the time
and ultimately conducted sixteen counseling session with the family, she told Woods
that the Center could not help him until after he had contacted law enforcement about
the allegations. (Defendants’ Exhibit 6, trial transcript at 121). Defendants then
contacted the St. Tammany Parish Sheriff’s Office because the conduct had occurred in
Louisiana.
The Court finds nothing unreasonable or questionable under the circumstances
in Defendants’ ultimate decision to contact law enforcement in light of AGW’s
accusations. Woods was faced with an eight-year-old daughter who was making claims
of being molested by a step-parent. As lay persons Defendants may not have known
whether or not the conduct was sufficient to rise to the level of a criminal act but they
are not prosecutors or judges nor are they criminal investigators. Defendants were not
required to conduct their own criminal investigation before going to the police.
In fact, given AGW’s claims and what appeared to be the escalating nature of the
offending conduct, Defendants were not required to sit back and do nothing for fear of
being sued civilly by James. When child abuse is suspected, Louisiana Children’s Code
article 611 confers immunity in such a way as to err on the side of protecting children to
the detriment of a potentially innocent individual. Louisiana Children’s Code article 611
states in relevant part that “[n]o cause of action shall exist against any . . . [p]erson who
in good faith makes a report, cooperates in any investigation arising as a result of such
report, or participates in judicial proceedings under the provisions of this Chapter.” La.
Ch. Code art. 611 (A)(1)(a). “This immunity shall not be extended to . . . [a]ny person
who makes a report known to be false or with reckless disregard for the truth of the
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report.” Id. § 611(B)(2). Good faith is presumed and the plaintiff has the burden of
establishing the facts necessary to defeat statutory immunity. Vincent v. Milligan, 916
So. 2d 238, 242 (La. App. 1st Cir. 2005) (citing Lambert v. Riverboat Gaming Enf. Div.,
706 So. 2d 172, 175 (La. App. 1st Cir. 1997); Kyle v. Civ. Serv. Comm’n, 588 so. 2d
1154, 1158-60 (La. App. 1st Cir. 1991); Corley v. Village of Florien, 889 So. 2d 364 (La.
App 3rd Cir. 2004)). When intent is disputed in a civil action, proof of intent or state of
mind is rarely established as a fact by direct evidence, but may be inferred from the
facts regarding the individual’s actions or other circumstances. S.G. v. City of Monroe,
843 So. 2d 657, 662 (La. App. 2nd Cir. 2003) (citing Schmidt v. Blue Cross & Blue Shield
of La., Inc., 769 So. 2d 179 (La. App. 2nd Cir. 2000); Ledet v. Burgess, 632 So. 2d 1185
(La. App. 5th Cir. 1994); State v. Cousan, 684 So. 2d 382 (La. 1996); La. R.S. § 14:10).
Direct evidence of intent comes from the actor himself, who can admit or deny the
alleged state of mind. Id.
The Court is persuaded that this case falls squarely within the immunity provided
by Louisiana Children’s Code article 611.
James’s position in opposing summary judgment is that there is a genuine
dispute about whether Defendants actually believed that AGW was touched at all when
they contacted the police. This argument strikes at both the probable cause element of
the malicious prosecution claim and the good faith component of article 611. In support
of his contention that Defendants didn’t really believe AGW, James points out that
Defendants did not contact law enforcement right away and they allowed AGW to return
to James’s household even after she reported inappropriate conduct. James suggests
that summary judgment cannot be granted as to probable cause (or malice) or good
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faith because it involves a state of mind determination that only a jury can make.
James’s focus on whether Defendants subjectively believed what AGW was
saying to them misses the mark. Assuming arguendo that Defendants did question in
their own minds whether AGW was being truthful about James’s conduct, AGW was
describing conduct to them that was potentially criminal in nature, and Defendants
contacted the police to report what AGW had told them. The police department then
took over the investigation to determine whether probable cause existed to believe that
a crime was committed. This is the purview of law enforcement, not that of private
citizens. This case does not present a scenario where the surrounding circumstances
made it objectively unreasonable or reckless for Defendants to believe what AGW was
saying. And even though Tracy was supportive of James when she testified at his
criminal trial, she admitted that when AGW told her about what James had done to her,
she slept in AGW’s bed that night and moved out the next day without even talking to
James. Objectively speaking, it would seem that Tracy, who was the person closest to
James, credited AGW’s statements at the time. Defendants, who hardly knew James,
were entitled to do no less.
Simply, Defendants do not bear the burden of proof as to their good faith and
they do not have to prove that they had probable cause to contact the police. Rather,
James bears the burden of proof to establish lack of probable cause for his malicious
prosecution claim and to rebut the presumption of good faith implicit in article 611.
James cannot meet his burden.
Even though James’s malicious prosecution claim fails on the probable cause
element, and the applicability of Louisiana Children’s Code article 611 deprives James
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of any civil recourse against Defendants, the Court is also persuaded that James has
failed to create an issue of fact as to legal causation for his prosecution by the district
attorney. After Woods contacted the police, AGW was interviewed without James and
Welborn being present and she persisted in her accusations. According to Woods and
Welborn, after the initial meeting with the St. Tammany detectives, Defendants initiated
no further contact with law enforcement or the district attorney’s office but rather only
responded to inquiries when contacted by law enforcement. Nothing in the record
refutes those claims. Apparently the police detectives and counselors (and perhaps the
district attorney) who interviewed AGW without influence from Defendants discerned
veracity in her statements. The district attorney made the decision to bring the case
before the grand jury and the grand jury indicted James. The district attorney, in the
exercise of his prosecutorial discretion, brought the case to trial.
Contrary to James’s suggestion, the record does not allow for the inference that
the criminal investigation and prosecution were tainted by either fabricated evidence or
the misrepresentation of facts to the police. James’s entire argument in this vein is built
on hearsay within hearsay—a narrative (hearsay) in a police report (hearsay) that
suggests that Welborn had indicated early on that AGW’s bedwetting problems began
after she started staying at James’s house. But Welborn denies having told the police
that the bedwetting problems started with visits to James’s house and no witness,
including the author of the police narrative, has contradicted her on this point—either at
the criminal trial or in this litigation. James cannot create an issue of fact by relying on

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inadmissible evidence.6
In sum, the district attorney obviously believed that the victim’s testimony was
sufficient evidence of criminal conduct to move forward with the case against James.
The record does not allow for the inference that any tortious conduct by Defendants
caused the district attorney to charge James and to prosecute him. Because James
cannot create an issue of fact as to probable cause and legal causation, Defendants are
entitled to summary judgment on the malicious prosecution claim.
Intentional Infliction of Emotional Distress (IIED)
The essential elements of the claim are: 1) intent to cause, 2) severe emotional
distress by, 3) extreme and outrageous conduct. Groff v. Southwest Beverage Co., 997
So .2d 782, 786 (La. App. 3rd Cir. 2008) (citing White v. Monsanto Co., 585 So. 2d 1205
(La. 1991)). It is not enough that the defendant has acted with intent which is tortuous,
or that he maliciously intended to inflict emotional distress. Nicholas v. Allstate Ins. Co.,
765 So. 2d 1017, 1022 (La. 2000). Rather, liability requires conduct that is so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a civilized
community. Id.
Defendants are entitled to judgment as a matter of law on James’s IIED claim.
James has failed to demonstrate extreme and outrageous conduct by Defendants.
Further, Louisiana Children's Code article 611 bars the claim for the same reasons that

6

James does not suggest that any witness would be present to testify to cure the hearsay
problem and to contradict Welborn. See Lee v. Offshore Logistical & Trans., LLC, No 16-31049,
2017 WL 2507740 (June 9, 2017). The deposition of St. Tammany detective Julie Downer
reveals that she has no independent recollection whatsoever about AGW’s case. (Defendants’
Exhibit 2, Church deposition).
Page 13 of 14

it bars the malicious prosecution claim. Defendants are entitled to summary judgment
on the intentional infliction of emotional distress claim.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 82
*SEALED*) filed by defendants Sam Woods and Stephanie Welborn is GRANTED.
Plaintiff’s complaint is DISMISSED with prejudice as to these defendants.
June 28, 2017

_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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