Boyle et al v. 22nd Judicial District Attorneys Office et al
ORDER AND REASONS granting in part and denying in part 4 Motion to Dismiss for Failure to State a Claim. The 22nd Judicial District Attorney's Office and James E. Boyle CPA, L.L.C. are hereby DISMISSED as parties. Plaintiff is given thirty (30) days from the date of this Order to amend his complaint to properly allege a violation of his Fourth Amendment rights. Signed by Judge Helen G. Berrigan on 8/13/2014. (kac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES BOYLE, INDIVIDUALLY,
AND JAMES E. BOYLE, CPA, L.L.C.
22ND JUDICIAL DISTRICT ATTORNEY’S
OFFICE, AND WALTER REED, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS DISTRICT
ATTORNEY FOR THE 22ND JUDICIAL DISTRICT
ORDER AND REASONS
Before this Court is defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or
alternatively 12(c). Rec. Doc. 4. The plaintiffs, James Boyle individually and James E. Boyle, CPA,
L.L.C. (Boyle, L.L.C.), oppose. Rec. Doc. 5. Having considered the record, the memoranda of
counsel and the law, the Court hereby GRANTS IN PART and DENIES IN PART defendant’s
motion, granting Plaintiff Boyle leave to amend as set forth below.
Plaintiff Boyle owns and operates Boyle L.L.C. as an accounting practice. Rec. Doc. 1. He
hired a third party, Daniel Harper, as a subcontractor to market plaintiffs’ services in medical billing
and consulting to prospective clients. Id. ¶ 3, at 2. Plaintiffs allege that, on or about April 10, 2009,
they issued two separate checks to Harper from their Iberia Bank account(s), for a total payment of
$2,500.00, in exchange for his promotional services. Id. ¶6, at 3. At the time the checks were issued,
there were sufficient funds in the issuing account(s) to cover the collective amount. Id. ¶ 7, at 3.
Without citing any particular provision of law, plaintiffs allege that the drafts issued to
Harper became non-negotiable or “stale” six months after issuance under state or federal banking
regulations. Id. Plaintiffs allege that they closed their Iberia Bank account(s) at some point more
than six months after issuing Harper’s payments, id. ¶ 8, at 3, but before Harper made any effort to
negotiate the payment, id. ¶ 11, at 4. Plaintiffs allege that Harper waited upwards of a year to attempt
to cash or deposit the check. Id.
In a letter dated December 5, 2012, Harper informed plaintiffs that the checks had been
returned by Iberia Bank because the account was closed. Id. ¶ 9, at 4. On December 17, 2012, the
plaintiffs offered to reissue the payment within thirty days of Harper executing a proposed release
agreement, despite Harper’s failure to promptly deposit the previous checks. Id. ¶ 11, at 4.
However, Harper never responded to this offer. Id. ¶ 12, at 5. Instead, according to plaintiffs, Harper
filed a complaint with the District Attorney or a third party who involved the District Attorney. Id.
¶ 13, at 5. Plaintiffs allege the District Attorney filed a criminal charge against Boyle for an alleged
violation of Louisiana Revised Statute 14:67 (Theft), relying solely on Harper’s statement and
without any further investigation. Id. ¶¶ 14-15, at 5. As a direct consequence, the Justice of the Peace
in St. Tammany Parish issued a warrant for Boyle’s arrest and Boyle was arrested on or about April
16, 2013 at his Mandeville, LA, business office and in front of his staff. Id. ¶ 16, at 5. The District
Attorney subsequently refused or dismissed the charges against Boyle based on additional
information that he provided. Id. ¶ 18, at 6.
On April 11, 2014, plaintiffs filed this complaint claiming for deprivation of the
constitutional rights under 42 U.S.C. §1983 and state law causes of action for defamation, libel,
slander, false arrest, false imprisonment, and malicious prosecution. Id. ¶ 20, at 7. By the current
motion, defendants argue that all claims against them should be dismissed pursuant to Fed. R. Civ.
P. 12(b)(6) or 12(c). Rec. Doc. 4. Specifically, they argue: (1) that the District Attorney’s Office is
not a proper party; (2) that plaintiffs have failed to plead the existence of an unconstitutional policy
on the part of the District Attorney in his official capacity; and (3) that the District Attorney is
entitled to absolute or qualified immunity from suit in his individual capacity. Id.
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) may be granted when a complaint fails to allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).The well-pleaded factual allegations of the
complaint, taken as true, must raise the plaintiff’s right to recover above the speculative level.
Twombly, 550 U.S. at 555-56. Facts from which the court could infer the mere possibility of liability
will not suffice. Ashcroft, 556 U.S. at 678 (quoting Fed. R. Civ. P. 8(a)(2)). A fortiori, a complaint
may be dismissed when it appears beyond doubt that plaintiff can prove no set of facts that would
entitle him to prevail. Twombly, 550 U.S. at 560-61.
On a motion to dismiss, the court must take all well-pleaded factual allegations of the
complaint as true and draw all reasonable inferences in favor of the plaintiff. In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). Nevertheless, “conclusory allegations and
unwarranted deductions of fact are not admitted as true, especially when such conclusions are
contradicted by facts disclosed by document appended to complaint.” Associated Builders, Inc. v.
Alabama Power Company, 505 F.2d 97, 100 (5th Cir. 1974).
III. LAW AND ANALYSIS
A. The District Attorney’s Office is not a Proper Party
Defendants first argue that the District Attorney’s Office is not amenable to suit under either
Louisiana law or § 1983. Rec. Doc. 4-1 at 3. This argument has merit. The federal courts adhere to
state law in determining whether a party has capacity for suit under Rule 17(b). Hudson v. City of
New Orleans, 174 F.3d 677, 680 (5th Cir. 1999).“Louisiana law does not permit a district attorney’s
office to be sued in its own name. Rather, it requires that the claim be brought in his official
capacity.” Id. (citations omitted). Plaintiffs have already named the District Attorney in his official
capacity. Rec. Doc. 1. Accordingly, the District Attorney’s Office will be dismissed.
B. Boyle, L.L.C. Fails to State a Claim under § 1983
Defendants next argue that Boyle, L.L.C. is not a proper party and/or lacks standing to
proceed against them under§ 1983 because it was not, nor could it have been wrongfully detained.
Rec. Doc. 4-1 at 3. Boyle, L.L.C. counters that it is claiming directly on its own behalf for injury to
its business reputation sustained when Boyle was arrested on company premises. Rec. Doc. 5 at 910. It argues that this injury constitutes a deprivation of its Fourteenth Amendment rights. Id. While
this might theoretically cure the standing problem, it does not help the L.L.C. survive this motion
because the L.L.C.’s business reputation is not constitutionally protected.
In Paul v. Davis, the Supreme Court held that reputation alone does not implicate any liberty
or property interests protected by Due Process. 424 U.S. 693, 711-12 (1976). As such, something
more than simple defamation by a state official must be involved to establish a claim under §1983.
Id. In this case, plaintiffs claim nothing more than simple defamation caused by Boyle’s arrest. Rec.
Doc. 1 at 7. Accordingly, this Court cannot find that any of Boyle L.L.C.’s civil rights have been
violated. This claim will be dismissed.
C. Boyle Must Amend his §1983 Claim Against Reed in his Official Capacity
Municipalities and local government agencies can be held liable for constitutional torts under
42 U.S.C. § 1983 “when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury.” Monell v. Dept. of Social Serv., 436 U.S. 658, 694 (1978). To succeed on a Monell claim
against a local government entity, the plaintiff must establish (1) an official policy or custom, of
which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a
constitutional violation whose “moving force” is that policy or custom. Valle v. City of Houston, 613
F.3d 536, 541-42 (5th Cir. 2010).
1. “Moving Force” Behind a Constitutional Violation
Defendants argue, assuming that they did have an official policy of failing to investigate
accusations, that such policy could not serve as the basis for an official capacity claim because it was
not the “moving force” behind any violation of Boyle’s constitutional rights. Rec. Doc. 4-1 at 7.
They argue that prosecutorial failure to investigate, without more, does not violate the Constitution.
Id. “The accused is not ‘entitled to judicial oversight or review of the decision to prosecute.’ ”
Albright v. Oliver, 510 U.S. 266, 274 (1994) (plurality opinion). The Fifth Circuit has abrogated its
prior rulings recognizing an implied constitutional right to be free from criminal proceedings without
probable cause in light of disapproving Supreme Court precedent. Castellano v. Fragozo, 352 F.3d
939, 945 (5th Cir. 2003) (en banc). The absence of probable cause must implicate a right rooted in
the text of a particular amendment. Id. at 953-54; accord Albright, 510 U.S. at 273.
Boyle claims that his arrest creates a basis for finding that his rights were violated. Rec. Doc.
5 at 10. The Supreme Court and Fifth Circuit have recognized that where an arrest is made pursuant
to a warrant, the failure to investigate the underlying accusation beforehand can only violate the
constitution if it results in the warrant’s invalidity under the Fourth Amendment. See Albright, 510
U.S. at 271; Baker v. McCollan, 443 U.S. 137, 143 (1979). Arrest warrants, like search warrants,
must be issued by passive, neutral magistrates on the basis of sworn affidavit showing the existence
of probable cause. U.S. Const. amend. IV; Giordonello v. United States, 357 U.S. 480, 485 (1958).
The Fourth Amendment requires that “the judicial officer issuing such a warrant be supplied with
sufficient information to support an independent judgment that probable cause exists for the
warrant.” Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 564 (1971). However, the
failure to include certain information in a warrant affidavit will not invalidate the warrant unless it
appears that the issuing magistrate was misled by an omission that the affiant either knew was
misleading or would have known was misleading absent reckless disregard for the truth. United
States v. Leon, 468 U.S. 897, 923 (1984) (citing Franks v. Delaware, 438 U.S. 154 (1978); United
States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005)).
Here, plaintiff has alleged that it was “inconceivable that such conduct as that alleged against
Boyle could render a check-issuer guilty or possibly guilty of the crime of theft . . . .” Rec. Doc. 1,
¶ 25 at 8. While this allegation supports that the justice of the peace was misled by information that
was either knowingly or recklessly false, it is too conclusory to be taken as true for the purposes of
a motion to dismiss. Boyle must plead specific facts plausibly showing that his arrest violated his
Fourth Amendment rights. He must explain both why the circumstances of his case negated any
possible liability for theft and also why any reasonable prosecutor in the defendant’s position would
have been on the lookout for those circumstances in this case, absent reckless disregard for the truth.
Plaintiff has not met this demanding burden.
Because neither party correctly identified this issue in the briefing up to this point, the Court
will give plaintiff the opportunity to amend his complaint in light of this Order and Reasons before
attempting to dismissing this claim. Defendant Reed may re-urge this ground for dismissal after
Boyle has had the opportunity to amend. Failure to amend will result in dismissal with prejudice.
2. Official Policy
Next, defendant argues that Boyle’s allegation of an official policy is conclusory and only
based on a single instance of alleged misconduct. Rec. Doc. 4-1 at 10. “The existence of a policy
can be shown through evidence of an actual policy, regulation, or decision that is officially adopted
and promulgated by lawmakers or others with policymaking authority.” Valle, 613 F.3d at 542
(citing Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003)). Where no rule has been
formally announced, the policy requirement can be satisfied by a final policy maker’s isolated
decision to violate an individual’s rights. Id. (citing Brown v. Bryan County, 219 F.3d 450, 462 (5th
Cir. 2000); Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008)). Finally, where the policy
maker fails to act, an official policy of inaction may be decreed, so long as the need for action is “so
obvious and the [failure to intervene] so likely to result in the violation of constitutional rights that
the policymaker can reasonably be said to have been deliberately indifferent.” City of Canton v.
Harris, 489 U.S. 378, 390 (1989).
Boyle argues that he has successfully pleaded an official policy by alleging that defendant
“had policy making authority and had established certain customs and policies that governed the
process of obtaining, reviewing and evaluating evidence and investigating whether a crime had (or
had not) occurred” and further that these policies, etc. did not “mandate sufficient investigation of
allegations, evidence, and applicable law prior to the issuance of an arrest warrant . . . .” Rec. Doc.
5 at 12; Rec. Doc. 1, ¶¶ 22-26, at 7-9.
It has been stated that after Twombly and Iqbal, a plaintiff cannot survive dismissal on a
Monell claim simply by pointing to a violation of his rights and alleging a policy around it. See, e.g.,
Whitley v. Hanna, 726 F.3d 631, 649 (5th Cir. 2013) (“The proposed amended complaint makes no
specific factual allegations of the county’s policies and simply adds the words ‘policies, practices,
and/or customs’ to Whitley’s perceived wrongs. Such allegations are insufficient to survive
dismissal.”). To a degree, the wisdom of this general philosophy depends on the kind of misconduct
alleged. See Thomas v. City of Galveston, Texas, 800 F. Supp. 2d 826, 843-44 (S.D. Tex. 2011).
When a plaintiff is injured by conduct that is highly discretionary in nature (e.g., the use of force),
or conduct so clearly offensive that no rational, knowledgeable policymaker would seek to
encourage (e.g., sexual harassment), or conduct that may be difficult for a policymaker to detect,
skepticism regarding the existence of a policy is arguably warranted. Cf., e.g., id.
The conduct at issue in this case may or may not fall into one these categories. For the time
being it makes little sense to speculate. The Court will revisit this issue, if, and only if, plaintiff
successfully pleads conduct that violated his Fourth Amendment rights.
D. Boyle Must Amend his §1983 Claim Against Reed in his Individual Capacity
1. Absolute Immunity
The defendants claim that Reed is absolutely immune from civil liability for any action taken
in connection with Boyle’s case. Rec. Doc. 4-1 at 9. “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the function in question.” Buckley v.
Fitzsimmons, 509 U.S. 259, 269, (1993) (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)) (internal
quotation marks omitted). In the alternative, qualified immunity applies. Id. “[A]cts undertaken by
a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the State, are entitled to the protections of absolute
immunity.” Id. at 273. However, “[a] prosecutor’s administrative duties and those investigatory
functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for
judicial proceedings are not entitled to absolute immunity.” Id.
The Supreme Court has recognized that “[t]he act of procuring an arrest warrant ‘is further
removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an
indictment.’ ” Burns, 500 U.S. at 505 (1991) (Scalia, J., concurring in part, dissenting in part)
(quoting Malley v. Briggs, 575 U.S. 335, 342-43 (1986)). It is far enough removed, in fact, that the
Court has declined to extend absolute immunity to prosecutors when they give legal advice on
whether probable cause exists to arrest a suspect. Id. at 492-93. It follows that absolute immunity
does not extend to circumstances when prosecutors take on the role of the police officer by directly
procuring the arrest warrant. Cf. Buckley, 509 U.S. at 275 (“[I]t would be anomalous, to say the
least, to grant prosecutors only qualified immunity when offering legal advice to police about an
unarrested suspect, but then to endow them with absolute immunity when conducting investigative
work themselves . . . .”); Burns, 500 U.S. at 478 (“[I]ndeed, it is incongruous to allow prosecutors
to be absolutely immune from liability for giving advice to the police, but to allow police officers
only qualified immunity for following the advice.”). Therefore, Reed is not subject to absolute
immunity with respect to his role in this incident.
2. Qualified Immunity
Reed claims the defense of qualified immunity. Rec. Doc. 4-1 at 10. The defense of qualified
immunity protects a public official from both litigation and liability, absent a showing that the
official violated a constitutional right that was clearly established at the time of the incident. Woods
v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). The bifurcated test for qualified immunity is: (1)
whether the plaintiff has alleged a violation of a clearly established constitutional right; and, (2) if
so, whether the defendant’s conduct was objectively unreasonable in the light of the clearly
established law at the time of the incident. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir.
In this case, plaintiff will surmount the Reed’s assertion of qualified immunity, if he can
properly plead that Reed’s policies were “causally connected” to the deprivation of his Fourth
Amendment rights. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443-44 (5th Cir. 1999).
This is functionally no different than pleading that Reed’s policies were a “moving force” behind
a violation of plaintiff’s constitutional rights. As such, the Court will take up this issue again after
plaintiff amends his complaint to attempt to plead a Fourth Amendment violation.
E. Boyle’s State Law Claims May Move Forward
Defendants argue that Boyle’s state law claims should be dismissed against Reed on account
of Reed’s absolute immunity. Rec. Doc. 4-1 at 11. As Reed argues, Louisiana has embraced the
reasoning of the U.S. Supreme Court in extending absolute immunity for prosecutorial decisionmaking. Knapper v. Connick, 96-0434 (La. 10/15/96), 681 So.2d 944, 947-48. As already stated, the
U.S. Supreme Court’s absolute immunity jurisprudence is not helpful to defendants. Therefore,
Boyle’s state law claims will not be dismissed for this particular reason.
IT IS ORDERED that the Motion to Dismiss filed by 22nd District Attorney's Office, and
Walter Reed, individually and in his official capacity as District Attorney for the 22nd Judicial
District is PARTIALLY GRANTED and PARTIALLY DENIED. Rec. Doc. 4. The 22nd Judicial
District Attorney’s Office and James E. Boyle CPA, L.L.C. are hereby DISMISSED as parties.
Plaintiff is given thirty (30) days from the date of this Order to amend his complaint to properly
allege a violation of his Fourth Amendment rights.
New Orleans, Louisiana this 13th day of August, 2014.
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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