Sauviac v. DSouza et al

Filing 8

ORDER AND REASONS denying 4 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DONALD SAUVIAC

CIVIL ACTION

VERSUS

NO: 14–1027

LEON CANNIZZARO

SECTION: "H" (2)

ORDER AND REASONS
Before the Court is Defendant's Motion to Dismiss for Failure to State a
Claim (R. Doc. 4). For the following reasons, Defendant’s Motion is DENIED.
BACKGROUND
This civil action for declaratory and injunctive relief is based on the
enforcement of a child support order in civil contempt proceedings. Plaintiff
Donald A. Sauviac, a licensed Louisiana attorney proceeding pro se, filed this
civil action against Defendant Orleans Parish District Attorney Leon Cannizaro
under 42 U.S.C. § 1983.
1

Plaintiff is under an order for child support for his fifteen-year-old
daughter.

Plaintiff claims that he is indigent, but the civil district court

"imputed income" to him when it ordered monthly child support payments.
When Plaintiff did not make timely payments, the custodial parent, Diane
Sauviac, applied to the Louisiana Department of Children and Family Services
("DCFS") for services to enforce and collect the support obligation under
Louisiana Revised Statute section 46:236.1.2.
DCFS provides enforcement services to payee-parents by contracting with
district attorneys to initiate legal proceedings.1 An attorney that initiates child
support enforcement proceedings for DCFS "represent[s] the State of Louisiana,
Department of Children and Family Services exclusively."2 In other words, the
district attorney does not represent the payee-parent. Further, when the district
attorney represents DCFS, the statute provides him immunity from civil liability
for his participation in child support enforcement proceedings.3
On two separate occasions, Defendant District Attorney Leon Cannizzaro
instituted civil contempt proceedings against Plaintiff to collect unpaid child
support. At the first hearing, Plaintiff was unable to pay and was incarcerated
in Orleans Parish Prison for thirty days. At a second hearing, Plaintiff alleges
that he voluntarily tendered funds, which Defendant misapplied. Plaintiff
further alleges that he only avoided ninety days incarceration because someone
paid the debt on his behalf. Plaintiff alleges that both civil contempt hearings
1

La. Rev. Stat. § 46:236.1.7 (2014).

2

Id. § 46:236.1.7(B) (emphasis added).

3

Id. § 46:236.1.7(A).

2

were held without the required notice and that in each Defendant represented
the payor-spouse on behalf of the State while Plaintiff was denied counsel.
Plaintiff's claim is a constitutional attack on his civil contempt hearings
for lack of due process. Plaintiff alleges that the U.S. Constitution and the
Supreme Court's holding in Turner v. Rodgers4 require the appointment of
counsel or other procedural safeguards that were absent at those hearings.
Further, because of Plaintiff's continuing inability to pay, these constitutional
violations are likely to recur at future hearings.
Plaintiff sued Defendant in his official capacity, alleging that Defendant
violated his constitutional right to due process for three reasons. First, Plaintiff
complains that he is indigent and was not provided counsel. Second, he alleges
that he was not on notice that his ability to pay was an issue in setting child
support. Finally, he argues that the State represented the payee-parent in the
contempt hearings but did not provide him counsel.
Defendant filed the instant Motion pursuant to Federal Rules of Civil
Procedure Rule 12(b)(6), alleging that Plaintiff's Complaint fails to state a claim
upon which relief can be granted. Plaintiff has not opposed this Motion.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough
facts "to state a claim for relief that is plausible on its face."5 A claim is
4

131 S. Ct. 2507 (2011).

5

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).

3

"plausible on its face" when the pleaded facts allow the court to "draw the
reasonable inference that the defendant is liable for the misconduct alleged."6
A court must accept the complaint's factual allegations as true and must "draw
all reasonable inferences in the plaintiff's favor."7 The court need not, however,
accept as true legal conclusions couched as factual allegations.8 To be legally
sufficient, a complaint must establish more than a "sheer possibility" that the
plaintiff's claims are true.9 If it is apparent from the face of the complaint that
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the court must dismiss the claim.10

The court's review "is limited to the

complaint, and any documents attached to the motion to dismiss that are central
to the claim and referenced by the complaint."11
LAW AND ANALYSIS
Plaintiff has not opposed this Motion. This does not, however, mean that
the Court may grant the Motion as unopposed. Rather, the Fifth Circuit
approaches the automatic grant of dispositive motions with considerable
aversion.12 Accordingly, the Court has carefully considered this Motion.
6

Id.

7

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

8

Iqbal, 556 U.S. at 678.

9

Id.

10

Lormand, 565 F.3d at 255–57.

11

Jones v. Bock, 549 U.S. 199, 215 (2007).

12

See, e.g., Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702
F.3d 794, 806 (5th Cir. 2012) ("[The] failure to oppose a 12(b)(6) motion is not in itself grounds
for granting the motion. Rather, a court assesses the legal sufficiency of the complaint.");

4

Defendant argues that Plaintiff's Complaint fails to state a claim for three
reasons. First, Defendant argues that he is statutorily immune from this suit.
Second, he argues that the Complaint fails to state a claim because it contains
only incorrect legal conclusions couched as facts. Finally, Defendant argues that
the Orleans Parish District Attorney is not the proper defendant. Having
considered this Motion and the law, the Court finds that Defendant’s Motion is
without merit. The Court will address each of Defendant’s arguments in turn.
A. Statutory Immunity
First, Defendant argues that he is entitled to immunity from this suit
pursuant to Louisiana Revised Statute section 46:236.1.7(A), which provides
that the district attorney shall be immune from civil liability when acting in the
capacity at issue in this case.13 Although a prosecutor enjoys absolute immunity
from damages liability, he is not immune from section 1983 suits seeking
injunctive relief.14 Here, Plaintiff seeks only injunctive relief from Defendant in
Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per curiam); John v. La. (Bd. of
Trustees), 757 F.2d 698, 709 (5th Cir. 1985).
13

La. Rev. Stat. § 46:236.1.7(A) provides:
The district attorney, department, and their respective staff acting pursuant to
this Subpart and R.S. 9:396(B) shall be immune from civil liability that
otherwise might be incurred or imposed. Such immunity shall extend to
participation in any judicial proceeding resulting from any actions under this
Subpart, but shall not limit or otherwise affect the liability of any person for
damages resulting from such person’s gross negligence or from his reckless,
wanton, aor intentional misconduct.
14

See Supreme Court of Virginia v. Consumers Union of U. S., Inc., 446 U.S. 719, 736
(1980) ("Prosecutors enjoy absolute immunity from damages liability, Imbler v. Pachtman, 424
U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), but they are natural targets for § 1983 injunctive
suits since they are the state officers who are threatening to enforce and who are enforcing the
law.").

5

his official capacity. Therefore, Defendant is not immune from this suit.
B. Failure to State a Claim
Second, Defendant argues that the Complaint fails to state a claim because
it contains only incorrect legal conclusions couched as facts.

Specifically,

Defendant argues that (1) the district attorney does not represent the payeeparent, (2) the district attorney has no authority to appoint counsel for Plaintiff,
and (3) the district attorney cannot hold persons in contempt or order them
incarcerated. All of Defendant’s arguments are correct. However, none of these
statements prevent Plaintiff from properly pleading a claim for the violation of
his due process rights. In order to prove a due process violation, Plaintiff must
show that he "has asserted a recognized liberty or property interest within
purview of Fourteenth Amendment and that [he] was intentionally or recklessly
deprived of that interest, even temporarily, under color of state law."15
Defendant does not present this Court with any reason why Plaintiff's
Complaint fails to allege such.
Indeed, Defendant's arguments that Plaintiff fails to state a claim speak
only to whether Defendant is the proper party for this suit. As discussed in
detail below, in order for Plaintiff's claim to pass muster, he need only show that
Defendant has some connection with the alleged unconstitutional act’s
enforcement. Plaintiff's Complaint alleges that Defendant actually initiated the
civil contempt proceedings against him for unpaid child support under section
46:236 in violation of his constitutional right to due process. As discussed in
15

Woodard v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005).

6

more detail below, that is all that is necessary to state a claim against
Defendant.
C. Proper Party
Finally, Defendant argues that he is not the proper party in this suit
because "[t]he proper defendant in this case is the executive branch state officer
charged with enforcing the statute."16 To the extent Defendant argues that there
is only one proper defendant in this case, he ignores Ex Parte Young and its
progeny. In a section 1983 suit, any of several state actor defendants may be
proper parties so long as they have "some connection" with the enforcement of
the alleged unconstitutional act.17
The Eleventh Amendment bars suits by private citizens against a state in
federal court, whether it seeks monetary damages or injunctive relief.18 Further,
filing suit against an individual state officer rather than the State in its own
name does not skirt the Eleventh Amendment bar.19 The Ex Parte Young
exception, however, permits suits by private citizens against individual state
officials solely for the purpose of enjoining the enforcement of an
unconstitutional state statute where the particular state officer defendant has
"some connection" with the act's enforcement.20
Ex Parte Young rests on the premise that because a state cannot commit
16

R. Doc. 4–2, at p. 6.

17

See Ex Parte Young, 209 U.S. 123, 157 (1908).

18

See Hutto v. Finney, 437 U.S. 678, 700 (1978).

19

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

20

Young, 209 U.S. at 157.

7

an unconstitutional act, a state official acting unconstitutionally is stripped of
Eleventh Amendment immunity.21 Although the Ex Parte Young exception
provides a way around the Eleventh Amendment, its application hinges on the
state officer's connection to the enforcement of the statute. Otherwise, the suit
is barred as merely against the State generally.22 Ex Parte Young describes the
required connection:
The fact that the state officer, by virtue of his office, has
some connection with the enforcement of the act, is the
important and material fact, and whether it arises out
of the general law, or is specially created by the act
itself, is not material so long as it exists.23
Ex Parte Young was a suit to enjoin Minnesota's Attorney General from
enforcing a state statute regulating railroad rates and threatening violators with
heavy sanctions.24 There, the state's railroad commission had no absolute duty
to enforce the act, so that the attorney general was only bound to enforce it when
the commission discretionarily ordered that an action be brought.25

In

addressing the attorney general's duty to enforce the statute, the Court noted,
"By his official conduct it seems that he regarded it as a duty connected with his
office to compel the company to obey the commodity act, for he commenced

21

Id. at 160; see also Va. Office for Prot. & Advocacy v. Stewart, 131 S.Ct. 1632, 1638

22

Young, 290 U.S. at 157.

23

Id.

24

Id.

25

Id. at 161.

(2011).

8

proceedings to enforce such obedience . . . ."26 Thus, "[the attorney general's]
power, by virtue of his office, sufficiently connected him with the duty of
enforcement to make him a proper party."27
Ex Parte Young's "some connection" requirement is unsettled in the Fifth
Circuit. In the en banc case Okpalobi v. Foster, an Eleventh Amendment
analysis requiring a heightened "special relationship" for Ex Parte Young's
application did not garner majority support and is therefore not binding
precedent.28 In a subsequent panel decision, K.P. v. LeBlanc, the Fifth Circuit
declined to resolve whether a "special relationship" or only "some connection" is
necessary between the state official and the challenged statute.29 Rather, the
Fifth Circuit returned to the plain wording of Ex Parte Young, which requires
"some connection" with the act's "enforcement."
In LeBlanc, the panel's majority interpreted "enforcement" as involving
"compulsion or constraint."30 There, a Louisiana statute created a private civil
cause of action under which "[a]ny person who performs an abortion is liable to
the mother of the unborn child for any damage occasioned or precipitated by the
abortion."31 A former patient sued her doctors and Hope Medical for negligence,
but the Louisiana Patient's Compensation Fund, which provides uniform
26

Id.

27

Id.

28

K.P. v. LeBlanc, 627 F.3d 115, 124 (discussing Okpalobi v. Foster, 244 F.3d 405,
410–24 (5th Cir. 2001)).
29

Id. at 124.

30

Id. (citing Webster’s Third New International Dictionary 751 (1993)).

31

La. Rev. Stat. § 9:2800.12(A) (2014).

9

compensation for patient's malpractice claims for enrolled doctors, denied her
claim.32 Subsequently, the doctors and clinic filed suit against the members of
the Louisiana Patient's Compensation Fund's Oversight Board individually in
their official capacities, alleging that the statute was unconstitutionally vague
and that it violated the doctor's and patient's Fourteenth Amendment rights.33
The Board members sought dismissal on Eleventh Amendment immunity
grounds.34
The court held that the individuals sued in their official capacity as
members of Louisiana's Patient's Compensation Fund Oversight Board were not
entitled to immunity from suit.35 Applying Ex Parte Young, the court interpreted
"enforcement" as involving "compulsion or constraint."36 The court reasoned that
because the Board members considered claims and whether to pay them, they
took an active role in enforcing the statute at issue.37
In this case, Defendant commenced support enforcement proceedings
pursuant to the contested act. As such, Defendant has taken an active role in
the enforcement of the statute. This case is not unlike Ex Parte Young, where
the railroad commission tasked the attorney general with enforcing the rate
regulating statute.38 Like the attorney general in Ex Parte Young, Defendant is
32

LeBlanc, 627 F.3d at 119–20.

33

Id.

34

Id.

35

Id. at 124–25.

36

Id. at 124.

37

Id.

38

Young, 290 U.S. at 126.

10

sufficiently connected with the duty of enforcement to make him a proper party.
Defendant has the requisite connection with the enforcement of child support
obligations because he filed contempt proceedings to compel Plaintiff to pay
them.

By his official conduct, it seems Defendant regarded it as a duty

connected with his office to compel Plaintiff to pay his child support obligation.39
As such, Defendant is a proper party to this suit.40
CONCLUSION

For the foregoing reasons, this Motion is DENIED.

New Orleans, Louisiana, this 9th day of March, 2015.

_________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

39

Id. at 161.

40

See, e.g, King v. Louisiana ex rel. Jindal, No. 13-4913, 2013 WL 5673584, at *2–3
(E.D. La. Oct. 16, 2013) (holding Attorney General’s power and willingness to enforce a state
statute by specifically appointing the St. Charles Parish District Attorney’s Office to prosecute
plaintiffs under state statute was enough to establish “some connection” with the enforcement
of the disputed act).

11