Devall v. Hammond Municipal Fire and Police Civil Service Board et al

Filing 46

ORDER & REASONS granting in part 18 & 26 Motions to Dismiss; FURTHER ORDERED that Defendants' Motions to Dismiss for Lack of Jurisdiction (Rec. Docs. 18, 26) are GRANTED with respect to Plaintiff's claims for injunctive & declaratory relief. Plaintiff's claims for injunctive & declaratory relief are hereby DISMISSED without prejudice. FURTHER ORDERED that Defendants City of Hammond & Mayor Foster's Motion to Dismiss for Failure to State a Claim (Rec. Doc. 26) is GRANTE D. All of Plaintiff's claims against Defendants City of Hammond and Mayor Foster are hereby DISMISSED with prejudice. FURTHER ORDERED that Defendants Board and Danel's Motion to Dismiss for Failure to State a Claim (Rec. Doc. 18) is GRANTED IN PART. The motion is GRANTED with respect to Plaintiff's claims for monetary damages based upon Substantive or Procedural Due Process. These claims are DISMISSED with prejudice. The motion is DENIED with respect to Plaintiff's claims for violations of Louisiana's Open Meetings Law, First Amendment Retaliation, & First Amendment violations. FURTHER ORDERED that Plaintiff's Section 1983 claims against Danel in his individual capacity are DISMISSED with prejudice. FURTHER ORD ERED that Defendants Board & Danel's Motion to Stay (Rec. Doc. 18) is GRANTED with respect to Plaintiff's claims related to the Louisiana's Open Meetings Law, First Amendment Retaliation, & other First Amendment violations. Signed by Judge Carl Barbier on 12/2/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DEVALL

CIVIL ACTION

VERSUS

NO: 14-1381

HAMMOND MUNICIPAL FIRE AND
POLICE CIVIL SERVICE BOARD
ET AL.

SECTION: "J”(1)

ORDER AND REASONS
Before the Court are Defendants the Hammond Municipal Fire
and Police Civil Service Board (CSB or the Board) and David Danel
(Danel)'s Motion to Dismiss Complaint and Request for Injunctive
and/or Declaratory Relief or, in the Alternative, to Stay (Rec.
Doc. 18), Plaintiff Roddy Devall's opposition thereto (Rec. Doc.
31), and the CSB and Danel's reply (Rec. Doc. 45), as well as
Defendants the City of Hammond and Mayor Mason Foster (Mayor
Foster)'s Motion to Dismiss, or in the Alternative, to Stay the
Case (Rec. Doc. 26), Plaintiff's opposition thereto (Rec. Doc.
32), Defendants' Reply (Rec. Doc. 36), and Plaintiff's Sur-reply
(Rec. Doc. 40). Having considered the motion and memoranda of
counsel, the record, and the applicable law, the Court finds that
the motion should be GRANTED IN PART for the reasons set forth
more fully below.

PROCEDURAL HISTORY AND BACKGROUND FACTS
This dispute derives from the Hammond Municipal Fire and
Police Civil Service Board's investigation of complaints filed
against Plaintiff. On April 25, 2014, an officer with the Hammond
Police Department (HPD) was arrested on various drug charges.
(Rec. Doc. 1, p. 2) Shortly thereafter, the HPD issued a press
release containing booking information in connection with the
officer's arrest. Id. at 3. The HPD routinely releases arrestees'
booking information to the press in compliance with Louisiana
Code of Criminal Procedure Article 228,1 and as Chief of the HPD,
Plaintiff is responsible for such compliance. Id. However, a
provision

of

the

Louisiana

Police

Officers'

Bill

of

Rights

prohibits any person, agency, or department from "releas[ing] to
1

Louisiana Code of Criminal Procedure Article 228 states in relevant part:

A. It is the duty of every peace officer making an arrest, or having
an arrested person in his custody, promptly to conduct the person
arrested to the nearest jail or police station and cause him to be
booked.
B. A person is booked by an entry, in a book kept for that purpose,
showing his name and address, a list of any property taken from him,
the date and time of booking, and the submission of a booking
information summary as provided for in Paragraph C of this Article
to the person making the entry in the police or jail book. Every
jail and police station shall keep a book for the listing of the
above information as to each prisoner received. The book and booking
information summaries shall always be open for public inspection.
The person booked shall be imprisoned unless he is released on bail.
Id. (emphasis added). Plaintiff alleges that to comply with this requirement that
booking information be available for public inspection, "the HBD issues and/or
provides local media/newspapers with the booking information regarding arrestees
and/or, press releases containing information required [under the Article]."
(Rec. Doc. 1, p.3)

the news media . . . a law enforcement officer's home address,
photograph,

or

any

information

that

may

be

deemed

otherwise

confidential, without the express written consent of the law
enforcement

officer."

LA.

REV.

STAT.

ANN.

§

40:2532.

Dispute

therefore arises as to whether it was appropriate to release the
officer's

booking

information.

(Rec.

Doc.

18-1,

p.

2)

Consequently, the officer arrestee and her ex-husband, who is
also a police officer, filed complaints alleging that the HPD
violated Louisiana Revised Statute Section 40:2532. (Rec. Doc.
18-3, pp. 1-2, 18-22) The ex-husband's complaint specifically
mentions Plaintiff and Hammond City Police Public Information
Officer Lieutenant Vince Giannobile (Giannobile). Id. at 21-22.
On May 15, 2014, the Board held a meeting at which it
discussed the complaints and decided to initiate an investigation
of the allegations.2 (Rec. Docs. 1, 18-1) The Board voted to
issue

several

orders

(1)

placing

Plaintiff

on

administrative

leave with pay, (2) mandating the surrender of Plaintiff's City2

The Board is required to investigate such complaints. In relevant part,
Louisiana Revised Statute Section 33:2477 provides that the Board shall:
Conduct investigations and pass upon complaints by or against any
officer or employee in the classified service for the purpose of
demotion, reduction in position or abolition thereof, suspension or
dismissal of the officer or employee, in accordance with the
provisions of this Part. Investigations conducted pursuant to the
provisions of this Paragraph shall be completed within sixty days.
Id.

3

issued vehicle for the duration of the administrative leave, (3)
prohibiting Plaintiff from having contact with any employees of
the City of Hammond, and (4) requiring Plaintiff to collect and
remove his personal effects from his office at HPD. (Rec. Docs.
1,

18-1)

Additionally,

the

Board

retained

a

private

firm,

Personnel Management, Inc., to assist in the investigation of the
allegations contained in the complaints. (Rec. Doc. 18-1, p. 3)
Finally, the Board issued written notice of the investigation to
Plaintiff and Giannobile, attaching copies of the complaints. Id.
Upon receiving notice, Plaintiff on May 16, 2014, requested that
the Board suspend his questioning for thirty days to permit him
to secure counsel pursuant to Louisiana Revised Statute Section
40:2531(B)(4)(b).3 Id.
The Board conducted its interrogation of Giannobile on May
22, 2014. Id. Giannobile told the Board that he had released the
officer's information to the press in accordance with Plaintiff's
orders.
Plaintiff

Id.

Consequently,

instructed

Giannobile's

Giannobile

to

counsel

commit

an

act

argued
that

that
would

result in discipline to Giannobile, all in violation of Louisiana

3

This section of the Louisiana Revised Statutes sets forth the minimum
standards for any investigation of a police employee or law enforcement officer.
Specifically, Louisiana Revised Statute Section 40:2531(B)(4)(b) states, "The
police employee or law enforcement officer shall be granted up to thirty days to
secure [counsel], during which time all questioning shall be suspended."

4

Revised

Statute

Section

33:2505(4).4

Id.

Giannobile's

counsel

requested at the meeting that the Board investigate Plaintiff's
alleged

violation

of

the

provision

and

submitted

a

written

complaint featuring the same request and allegations one week
later. Id. Counsel for the officer whose information was released
similarly submitted a written complaint to the Board seeking
disciplinary

action

of

Plaintiff

for

this

additional

alleged

violation. Id. at 4.
After securing counsel but before submitting to the Board's
interrogation,

Plaintiff

filed

his

Complaint

and

Request

for

Injunctive and Declaratory Relief in the U.S. District Court for
the Eastern District of Louisiana against the Board; David Danel,
individually and in his capacity as Chairman of the Board; the
City

of

Hammond;

and

Mayson

Foster,

individually

and

in

his

official capacity as Mayor of the City of Hammond. Plaintiff
alleged

therein

that

Defendants

violated

his

"due

process

[rights] under the 14th Amendment, his rights of free speech and
association under the 1st Amendment, his rights under the Law
Enforcement Officers' Bill of Rights . . ., and that the actions
were in retaliation for [P]laintiff's oppositions to unlawful
actions taken by [Defendants]." (Rec. Doc. 31, pp. 1-2) Plaintiff
4

Louisiana Revised Statute Section 33:2505(4) prohibits any person from
"[r]equir[ing] any employee in the classified service to perform an act, or
neglect an act, which would be a reason for dismissal or disciplinary action of
the employee."

5

subsequently

sought

a

temporary

restraining

order

to

enjoin

Defendants' allegedly unlawful behavior. (Rec. Doc. 6) After a
telephone hearing, this Court granted the motion, vacating the
decisions

by

the

Board

that

placed

Plaintiff

on

paid

administrative leave and prohibited him from having any contact
with

any

employees

Additionally,

the

of

Court

the

City

enjoined

of

Hammond.

Defendants

(Rec.

from

Doc.

taking

8)
any

adverse employment action against Plaintiff without conducting a
hearing and affording Plaintiff a right to be heard. Id. However,
the Court did not prohibit Defendants from conducting a lawful
investigation of the complaints lodged against Plaintiff. Id.
Finally, the Order required Plaintiff to appear for questioning
in connection with the ongoing investigation of the complaint
against him on June 20, 2014. Id.
Plaintiff,

accompanied

by

his

attorney,

appeared

for

questioning on June 20, 2014.5 (Rec. Doc. 11-7, p. 3; Rec. Doc.
17, p. 6) There, Plaintiff had the opportunity to explain his
side of the story. (Rec. Doc. 18-1, p. 6) In total, the Board and

5

Plaintiff had been scheduled to appear and give testimony on Monday, June
16, 2014, but Plaintiff failed to appear. (Rec. Doc. 18-1, p. 5) On Friday, June
13, 2014, Plaintiff's counsel requested to reschedule the interview. Id. However,
the Board advised Plaintiff that a continuance would not be possible because of
the sixty-day time limit for investigations of written complaints mandated by
Louisiana Revised Statute 40:2531(B)(7). Id. Nevertheless, Plaintiff refused to
appear, electing to file a Motion for Temporary Restraining Order with this Court
instead. Id.

6

Personnel

Management,

Inc.

obtained

sworn

statements

from

eighteen witnesses as well as a number of documents. Id. The
Board accepted Personnel Management, Inc.'s evidence at a June
23, 2014, meeting. Id.
On June 30, 2014, the Board conducted a hearing at which
Plaintiff's

attorney

appeared

and

commented

on

the

investigation.6 (Rec. Doc. 11-7, p. 4; Rec. Doc. 17, pp. 8-10)
During the hearing, the Board concluded that there was enough
evidence

to

warrant

commencing

the

pre-disciplinary

process.

(Rec. Doc. 17, pp. 9-10) Consequently, the Board instructed the
Appointing Authority to conduct a pre-disciplinary hearing at
which Plaintiff would have the opportunity to be heard and that
would serve the purpose of creating a record for any appeal.
(Rec. Doc. 17, p. 10) The Appointing Authority therefore issued a
pre-disciplinary notice to Plaintiff on the evening of June 30,
2014, and served the notice on Plaintiff on July 1, 2014.7 Id.
On July 7, 2014, Plaintiff filed a Motion for Contempt of
the Temporary Restraining Order. (Rec. Doc. 11) As a result of
this

motion,

disciplinary

the

Appointing

hearing,

which

Authority

had

6

been

postponed

scheduled

for

the
July

pre14,

The Board had notified Plaintiff's and Giannobile's attorneys of the
meeting. (Rec. Doc. 18-1, p. 6)
7
Defendant the City of Hammond attempted to serve Plaintiff with the predisciplinary notice on June 30, 2014, but was not able to do so. (Rec. Doc. 20,
p. 2)

7

2014.8 (Rec. Doc. 20, pp. 2-3) In the motion, Plaintiff argued
that the Board and Danel violated the Temporary Restraining Order
by (1) engaging in an adverse employment action without providing
Plaintiff
conducting

with
an

notice

and

an

opportunity

investigation

despite

a

to
lack

be

heard;

of

(2)

statutory

authority; (3) denying Plaintiff a forum for appeal; (4) failing
to provide adequate notice of the June 30, 2014, hearing; (5)
failing to comply with the 60-day limit for investigations; (6)
participating in the investigation in violation of Due Process;
(7) violating Louisiana's Open Meetings Law; and (8) employing
evidence

gathered

before

the

Court

issued

the

Temporary

Restraining Order. Id. Plaintiff did not argue that Defendants
Mayor

Foster

or

the

City

of

Hammond

violated

the

Temporary

Restraining Order. The Court denied the motion, finding that
Defendants had not engaged in an adverse employment action or
otherwise violated the terms of the Order. (Rec. Doc. 30)
Defendants

Board

and

Danel

filed

a

Motion

to

Dismiss

Complaint and Request for Injunctive and/or Declaratory Relief

8

Defendants the City of Hammond and Mayor Foster sought Plaintiff's
consent to the postponement, but Plaintiff objected. (Rec. Doc. 20, p. 3)
Nevertheless, the Appointing Authority postponed the hearing and confirmed the
postponement with Plaintiff's counsel. Id. "[T]he Appointing Authority believed
that a postponement of the pre-disciplinary hearing would protect [Plaintiff's]
rights, considering [Plaintiff's] verbal and written protest and objections as
to the manner and methods of the civil service proceedings." Id. The hearing had
not been rescheduled as of September 2, 2014. See (Rec. Doc. 32, p. 14)

8

or, in the Alternative, to Stay on August 1, 2014. (Rec. Doc. 18)
Defendants the City of Hammond and Mayson Foster similarly filed
a Motion to Dismiss, or in the Alternative, to Stay the Case.
(Rec. Doc. 26) Plaintiff opposed both motions. (Rec. Docs. 31,
32) Defendants filed replies (Rec. Doc. 36, 45), and Plaintiff
filed a sur-reply to Defendant City of Hammond and Danel’s reply.
(Rec. Doc. 40)
LEGAL STANDARD
I. 12(b)(1) Motion to Dismiss for Lack of Jurisdiction
A motion to dismiss filed pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure “allow[s] a party to challenge
the subject matter jurisdiction of the district court to hear a
case.”

Ramming

v.

United

States,

281

F.3d

158,

161

(5th

Cir.2001). Where “a Rule 12(b)(1) motion is filed in conjunction
with other Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdictional attack before addressing any attack on
the merits.” Id. (citing Hitt v. City of Pasadena, 561 F.2d 606,
608 (5th Cir.1977)). Lack of subject matter jurisdiction may be
found through an examination of: (1) the complaint alone; (2) the
complaint

supplemented

by

undisputed

facts

evidenced

in

the

record; or (3) the complaint supplemented by undisputed facts
plus the Court's resolution of disputed facts. Ramming, 281 F.3d

9

at 161. During this inquiry, “the district court is ‘free to
weigh the evidence and resolve factual disputes in order to
satisfy itself that it has the power to hear the case.’”

Krim v.

pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005).

Because

the burden of proof on a motion to dismiss for lack of subject
matter

jurisdiction

is

on

the

party

asserting

jurisdiction,

plaintiff “constantly bears the burden of proof that jurisdiction
does in fact exist.” See Ramming, 281 F.3d at 161. The standard
of review for a motion to dismiss under Rule 12(b)(1) is the same
as

that

United

for

a

States

motion
v.

City

to

dismiss

of

New

pursuant

Orleans,

No.

to

Rule

02-3618,

12(b)(6).
2003

WL

22208578, at *1 (E.D. La. Sept. 19, 2003).
II. 12(b)(6) Motion to Dismiss for Failure to State a Claim
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo,

544

U.S.

336,

346

(2005).

The

allegations

“must

be

simple, concise, and direct.” FED. R. CIV. P. 8(d)(1).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is

10

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A court
must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
DISCUSSION
I. Subject Matter Jurisdiction
A. Younger Doctrine
Defendants
satisfies

each

Board
of

the

and

Danel

argue

prerequisites

that

for

Plaintiff's

application

of

suit
the

Younger abstention doctrine. (Rec. Doc. 18-1, pp. 10-11) First,
they argue that the state-court proceedings are ongoing. Id. at
11. Second, they stress that "the State of Louisiana has an
important interest in having its state court judgments and orders
enforced."

Id.

Third,

the

state

forum

presents

an

adequate

opportunity for Plaintiff to raise his constitutional challenges.

11

Id. Defendants the City of Hammond and Mayor Foster generally
offer the same arguments, but they specify that it is Plaintiff's
claims for injunctive or declaratory relief that are precluded by
Younger. (Rec. Doc. 26-1, pp. 7-8)
Plaintiff insists that application of the Younger abstention
doctrine would be inappropriate in this case. (Rec. Docs. 31, 32)
Plaintiff stresses that Younger does not apply to claims for
monetary relief. (Rec. Doc. 31, p. 8) Further, Plaintiff argues
that Younger should not apply to his claims for injunctive or
declaratory relief because there is no state court proceeding
currently pending, and Plaintiff's constitutional claims are not
cognizable in the ongoing administrative proceeding. Id. at 7-8.
Thus,

does

Younger

not

bar

this

Court

from

considering

Plaintiff's complaint.
The Younger

abstention doctrine generally constrains the

ability of federal courts to interfere with parallel, pending
state proceedings. It is based upon "a proper respect for state
functions . . . and a continuance of the belief that the National
Government will fare best if the States and their institutions
are

left

free

separate

ways."

Federal

to

courts

interfering

with

perform

Younger

v.

initially
state

their

separate

Harris,

401

invoked

the

criminal
12

functions
U.S.

37,

doctrine

proceedings,

but

in

44

their

(1971).

to

avoid

have

since

extended

the

doctrine

Additionally,

"Younger

to

apply

abstention

to
can

civil
be

proceedings.

applied

to

state

administrative proceedings in which important state interests are
vindicated, so long as in the course of those proceedings, the
federal plaintiff would have a full and fair opportunity to
litigate his constitutional claim." La. Debating & Literary Ass'n
v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995). As
the

United

States

Supreme

Court

has

stressed,

however,

"Circumstances fitting within the Younger doctrine . . . are
'exceptional'; they include . . . 'state criminal prosecutions,'
'civil enforcement proceedings,' and 'civil proceedings involving
certain orders that are uniquely in furtherance of the state
courts' ability to perform their judicial functions.'" Sprint
Commc’ns,

Inc.

v.

Jacobs,

134

S.

Ct.

584,

588

(2013).

To

determine whether to apply the doctrine, courts examine "(1)
whether
judicial

the

state

proceedings

proceeding;

(2)

constitute

whether

the

an

ongoing

proceedings

state

implicate

important state interests; and (3) whether there is an adequate
opportunity

in

the

state

proceedings

to

raise

constitutional

challenges." La. Debating & Literary Ass’n, 42 F.3d at 1490
(internal

quotation

marks

and

citations

omitted).

Where

such

exceptional circumstances are lacking, the general rule that "the
pendency of an action in state court is no bar to proceedings
13

concerning

the

jurisdiction"

same

matter

applies.

in

the

Federal

court

having

Colo.

River

Water

(quoting

Id.

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).
Finally, the Younger doctrine does not apply to suits seeking
monetary rather than equitable relief. Alexander v. Ieyoub, 62
F.3d 709, 713 (5th Cir. 1995).
As an initial matter, the Court finds that the underlying
state proceedings here fall within the exceptional circumstances
capable of triggering Younger abstention. See Sprint Commc’ns,
Inc., 134 S. Ct. at 592. In response to a complaint, the state
actor and federal defendant initiated an investigation of the
federal plaintiff to determine whether disciplinary action might
be necessary. See id. The Court therefore concludes that the
Board’s investigation is a civil enforcement proceeding of the
kind to which Younger has been extended. Id.
Next,

the

Court

applies

a

three-part

test

to

determine

whether Younger applies. The first factor–whether there is an
ongoing

state

judicial

proceeding–derives

from

the

fact

that

"[w]hen no state proceedings are pending, a federal action does
not interfere with or insult state processes and the policies on
which the Younger doctrine is premised have little force . . . ."
La.

Debating

quotation

&

marks

Literary
omitted).

Ass'n,

42

F.3d

Additionally,
14

at
the

1490

(internal

ongoing

state

proceeding must be judicial in nature. New Orleans Pub. Serv.,
Inc., 491 U.S. at 367-70 (stating that even if "the litigation,
from agency through courts, is to be viewed as a unitary process
[in which federal courts should abstain from intervening] the
[agency] proceeding [must] be the sort of proceeding entitled to
Younger

treatment"(emphasis

omitted)).

"A

judicial

inquiry

investigates, declares and enforces liabilities as they stand on
present or past facts and under laws supposed already to exist."
Id. at 370 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S.
210, 226 (1908)). Here, the Court finds—as the Supreme Court has
twice

presumed

without

deciding—that

“an

administrative

adjudication and the subsequent state court’s review of it count
as a ‘unitary process’ for Younger purposes.” Sprint Commc’ns,
Inc., 134 S. Ct. at 592 (citing New Orleans Pub. Serv., Inc. v.
Council of New Orleans, 491 U.S. 350, 367-70 (1989)). Thus, the
current administrative proceedings, which are appealable to state
court, constitute an ongoing state proceeding. The Court further
finds that the state proceedings at issue here are judicial in
nature

because

the

Board

and

the

Appointing

Authority

are

investigating and potentially imposing discipline based on past
facts under laws already in existence. See

New Orleans Pub.

Serv., Inc., 491 U.S. at 367-70. The Court therefore concludes
that the ongoing proceedings before the Board and the Appointing
15

Authority constitute an “ongoing state judicial proceeding” in
satisfaction of the first factor.
Second, the Court must examine whether the state action
implicates important state interests. When courts examine whether
the implicated state interest is sufficient to warrant Younger
abstention, they "do not look narrowly to its interest in the
outcome of the particular case." New Orleans Pub. Serv., Inc.,
491 U.S. at 365. Rather, they examine "the importance of the
generic proceedings to the [s]tate." Id. This consideration has
led courts to expand Younger abstention from cases implicating
the states' interest in enforcing their criminal laws to those
regarding,

for

example,

obscenity

regulation,

contempt

proceedings, welfare fraud actions, child abuse regulations, and
antidiscrimination laws. Pennzoil Co. v. Texaco, Inc., 481 U.S.
1, 30 n.2 (1987)(Stevens, J., concurring). “Further, when the
proceedings implicate a 'function[] traditionally associated with
the

police

powers

of

the

States,'

the

state's

interest

is

generally sufficient for purposes of Younger.” Merlin Transport,
Inc. v. Denton, No. 3:11-cv-365-M, 2011 WL 3510737, at *7 (N.D.
Tex. Aug. 9, 2011)(quoting New Orleans Pub. Serv., Inc., 491 U.S.
at 365). Here, the Court is asked to enjoin a state proceeding
examining police conduct. The primary provision that Plaintiff is
accused of violating was created for the safety of the state's
16

law enforcement officers, which the Court concludes implicates
Louisiana's

police

power

over

health

and

safety.

The

Court

therefore finds that the second prong is satisfied.
Third, the Court determines whether the state proceedings
provide the federal plaintiff with an adequate opportunity to
raise constitutional challenges. Viewing the administrative and
state court proceedings as a unitary process, it is clear that
the state proceedings provide Plaintiff with an opportunity to
raise his constitutional challenges to Defendants’ actions. See,
e.g., Landry v. Baton Rouge Police Dept., 2008-2289, p. 8 (La.
App.

1

Cir.

constitutional

5/8/09);

17

So.

implications

of

3d

991,

996-97

retroactive

(examining

application

of

statutory amendments in appeal from municipal fire and police
civil

service

board’s

decision);

Middleton

v.

City

of

Natchitoches, 2006-1531, pp. 10-12 (La. App. 3 Cir. 4/4/07); 954
So. 2d 356, 363-64. The Court therefore concludes that the three
criteria for the application of Younger abstention are present
here. Having concluded that Plaintiff’s claims for injunctive and
declaratory relief must be dismissed, the Court will now examine
the remainder of Defendants’ motions to dismiss for lack of
jurisdiction and for failure to state a claim in relation to
Plaintiff’s claims for monetary relief.

17

B. Rooker-Feldman Doctrine
Defendants Board and Danel argue that Plaintiff's suit is
"an impermissible collateral attack on a state entity's ruling"
that

is

barred

by

the

Rooker-Feldman

doctrine

and

must

be

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).
(Rec. Doc. 18-1, p. 8) Defendants reason that this Court's lack
of

jurisdiction

final

judgments

under
in

Rooker-Feldman

judicial

to

review

proceedings

state

extends

to

courts'
prohibit

review of judicial acts by state agencies, such as the Board.
(Rec. Doc. 18-1, p. 9)(citing Scott v. Flowers, 910 F.2d 201, 206
(5th Cir. 1990)). Thus, Plaintiff's complaint, which effectively
asks this Court to nullify the actions of the Board, is barred by
the Rooker-Feldman doctrine, and this Court lacks jurisdiction to
consider it.
Defendants the City of Hammond and Mayor Foster similarly
argue that the Rooker-Feldman doctrine applies, and therefore,
this Court lacks subject matter jurisdiction to hear Plaintiff's
complaint. (Rec. Doc. 26-1, p. 6) They add that the United States
Fifth

Circuit

Court

of

Appeals

extended

the

Rooker-Feldman

doctrine "to deprive the federal district courts of jurisdiction
over the claims of individuals who are aggrieved by the judicial
acts

of

state

agencies

controlled

by

state

courts

and

who

deliberately bypass available channels of state court review."
18

Id.

(quoting

Thomas

v.

Kadish,

748

F.2d

276

(5th

Cir.

1984))(emphasis added). They assert that the Board "carries out
judicial

acts,

such

as

holding

hearings,

issuing

written

findings, reconsidering its rulings, awarding attorneys' fees,
administering

oaths,

subpoenaing

witnesses,

and

compelling

production of documents." Id. (citing La. Rev. Stat. §§ 33:2477,
33:2501, 33:2501.1, 33:2502). Additionally, a party aggrieved by
a decision of the Board may appeal such decision to state courts.
Id. (citing La. Rev. Stat. § 33:2501(E)). Therefore, here, where
Plaintiff

has

declined

to

appeal

the

Board's

decision

and,

instead, elected to pursue the instant lawsuit, this Court lacks
jurisdiction.
Plaintiff counters that the Rooker-Feldman

doctrine only

applies to "state-court losers" who seek review of the adverse
state-court judgment in federal district court. (Rec. Docs. 31,
32) Plaintiff stresses that he seeks review not of a judgment but
of the procedures employed in reaching it. Id. at 3-4. Plaintiff
further argues that the Rooker-Feldman doctrine does not apply to
"suits lodged in district court to seek review of a state agency
action," relying on a footnote in Verizon Maryland Inc. v. Public
Service Commission of Maryland, 535 U.S. 644 (2002). Plaintiff
asserts that the cases Defendants rely upon to show that the
doctrine extends to actions by state agencies are merely special
19

exceptions for review of bar admission decisions, over which
state courts exercise particularly close control. (Rec. Doc. 40,
pp. 3-5)
present

Finally, Plaintiff maintains that this case does not
any

of

the

"four

major

characteristics

common

to

applications of this doctrine" because Plaintiff is not a "statecourt loser," Plaintiff's injuries do not arise from a statecourt judgment, no state-court judgment issued before initiation
of the instant federal action, and Plaintiff does not seek review
of a state judgment. As such, Plaintiff insists that the RookerFeldman doctrine does not apply.
The

Rooker-Feldman

doctrine

prohibits

federal

district

courts from considering complaints seeking review of state-court
judgments. See United States v. Shepherd, 23 F.3d 923, 924 (5th
Cir.

1994)(citing

District

of

Columbia

Court

of

Appeals

v.

Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413, 415 (1923)). The doctrine evinces the rule that
"federal

district

courts

lack

jurisdiction

to

entertain

collateral attacks on state judgments." Id. Courts have extended
the rule to prevent federal district courts from reviewing "the
judicial acts of state agencies controlled by state courts,"
particularly where the federal complainant "bypass[ed] available
channels of state court review." Scott v. Flowers, 910 F.2d 201,
206

(5th

Cir.

1990).

Additionally,
20

"[a]

federal

complainant

cannot circumvent this jurisdictional limitation by asserting
claims not raised in the state court proceedings or claims framed
as original claims for relief." Shepherd, 23 F.3d at 924. Even
where the federal complainant does not seek review of a state
judgment, but rather "issues that are 'inextricably intertwined'"
with it, a federal district court lacks original jurisdiction.
Id.
This Court concludes that the Rooker-Feldman doctrine does
not

apply

to

determining

Plaintiff's

whether

claims
apply

to

for

monetary

Rooker-Feldman

relief.
to

In
this

administrative determination, the Court examines "whether [the
Board's decision] was a judicial act, whether [the Board] is the
agent

of

the

state

courts,

and

finally,

whether

[Plaintiff]

intentionally refrained from seeking state court review of the
[Board's] decision." Scott, 910 F.2d at 206. First, here, it is
clear that the Board's investigation is judicial in nature. "[A]
proceeding is judicial when it 'investigate[s], declare[s], and
enforce[s] liabilities . . . on present or past facts and under
laws

supposed

already

to

exist.'"

Id.

at

208.

The

Board's

investigation of complaints against Plaintiff certainly meets
this standard. See id. Second, the Board is not an agent of
Louisiana state courts and cannot be said to be "controlled" by
state courts. The Board is a statutorily-created municipal entity
21

operating under statutorily-created procedures whose members are
appointed by the Appointing Authority, the "governing body of the
municipality." LA. REV. STAT. § 33:2476; see also Scott, 910 F.2d
at

208

(finding

that

a

constitutionally

established

state

commission whose members were not substantially selected by the
judiciary was not an agent of the courts). Finally, the Court
notes that Plaintiff has not appealed the Board's orders despite
having the ability to do so. See LA. REV. STAT. § 33:2501(E).
However, the Court does not believe the Board's actions to be
sufficiently controlled by the state judiciary to implicate the
Rooker-Feldman doctrine. See Sims v. Barbour, No. 3:09CV84 DPJJCS, 2009 WL 3841709, at * (S.D. Miss. Nov. 16, 2009)(finding
Rooker-Feldman to be inapplicable where the state proceedings
were insufficiently controlled by the state courts).
C. Colorado River Doctrine
Defendants CSB and Danel further argue,9 "to the extent that
the other abstention doctrines apply, this Court should exercise
its

discretion

by

applying

the

Colorado

River

abstention

doctrine." (Rec. Doc. 18-1, p. 12) Because the pending state
proceedings and the instant federal suit are between the same

9

Defendants City of Hammond and Mayor Foster do not argue in their motion
that Colorado River abstention applies.

22

parties and involve the same issues, Defendants assert that the
Colorado River doctrine applies here. Id.
Plaintiff

insists

that

the

Colorado

River

doctrine

is

appropriate only under extraordinary circumstances not present
here.

Plaintiff

states

that

courts

review

six

factors

to

determine whether Colorado River abstention is appropriate. The
factors weigh against abstention in this case. First, the instant
case does not involve any res or property over which the state or
federal court has taken control. Second, because the state and
federal fora are closely situated, the factor which considers the
convenience of the geographic fora does not weigh in favor of
abstention.

Third,

maintaining

the

federal

action

would

not

result in piecemeal litigation leading to inconsistent rulings
with respect to a piece of property. Fourth, looking to the
relative progression of the state and federal actions rather than
the date of filing, it is clear that abstention is not warranted
because the state action is at a standstill. Fifth, Plaintiff's
claim

is

based

on

federal

law,

which

renders

abstention

inappropriate. Sixth, although Plaintiff disputes that there is a
parallel state proceeding, even if there were, Plaintiff could
not assert his constitutional claims before the CSB. Application

23

of Colorado River abstention in the instant case therefore would
constitute an abuse of discretion.
Under the Colorado River doctrine, a federal court may only
abstain

under

“exceptional

circumstances.”

Colo.

River

Water

Conservation Dist. v. United States, 424 U.S. 800, 813 (1976);
Brown

v.

Pacific

Life

Ins.

Co.,

462

F.3d

384,

394

(5th

Cir.2006)(quoting Kelly Inv. Inc. v. Cont'l Common Corp., 315
F.3d 494, 497 (5th Cir.2002)). There are six factors the court
must

balance

on

a

case-by-case

basis

to

determine

whether

exceptional circumstances warrant abstention: (1) assumption by
either

state

or

federal

court

over

a

res,

(2)

relative

inconvenience of the fora, (3) avoidance of piecemeal litigation,
(4)

the

order

in

which

jurisdiction

was

obtained

by

the

concurrent fora, (5) the extent federal law provides the rules of
decision

on

proceedings

the
in

merits,
protecting

and

(6)

the

the

rights

adequacy
of

the

of
party

the

state

invoking

federal jurisdiction. Brown, 462 F.3d at 395 (citations omitted).
“[T]he decision whether to dismiss a federal action because of
parallel state-court litigation does not rest on a mechanical
checklist, but on a careful balancing of the important factors as
they apply in a given case, with the balance heavily weighted in
favor of the exercise of jurisdiction.” Moses H. Cone Mem. Hosp.

24

v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983)(emphasis added).
So heavily, in fact, that any "neutral" factor must be considered
as weighing against abstention and in favor of exercising federal
jurisdiction. Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 738-39
(5th

Cir.

1999)

(allowing

neutral

factors

to

weigh

against

abstention).
Here, the factors weigh against abstention. First, neither
this

Court

nor

the

state

administrative

proceedings

have

exercised jurisdiction over any res. The absence of this factor
weighs against abstention. Id. at 738. Second, the state and
federal fora are in relatively close proximity; Hammond and New
Orleans

are

approximately

inconvenience
abstention

of

is

the

one

federal

warranted."

hour

forum

Kelly

apart.

is

Inv.

[not]

Inc.,

Thus,

so

315

"the

great
F.3d

at

that
498

(internal quotation marks omitted); Trujillo v. Shivers, No. 121532,

2012

Court's

WL

4892929,

inquiry

with

at

*2

respect

(E.D.
to

this

La.

Oct.

factor

15,
is

2012)("The

whether

the

inconvenience of the federal forum is so great that abstention is
warranted, not whether the state forum is more convenient. When
the

federal

and

state

courts

are

in

approximately

the

same

geographic location within the state, this factor weighs against
abstention."(internal citations and quotation marks omitted)).

25

Third, because the third factor is concerned not with duplicative
litigation, but with "the avoidance of piecemeal litigation, and
the concomitant danger of inconsistent rulings with respect to a
piece of property," it does not weigh in favor of abstention.
Trujillo, 2012 WL 4892929, at *2. As mentioned above, neither
proceeding has exercised jurisdiction over a res. Fourth, because
neither the state nor the federal proceedings have made much
progress on the merits of the case and the suits are proceeding
at

approximately

the

same

pace,

this

factor

weighs

against

abstention. Id. at 3. Fifth, Plaintiff raises several issues of
federal law in his federal suit. That the case also presents
issues of state law does not make abstention appropriate; "the
presence of state law issues weighs in favor of surrender only in
rare circumstances." Id. (quoting Black Sea Inv., Inc. v. United
Heritage Corp., 204 F.3d 647, 651 (5th Cir. 2000)). This factor
therefore does not weigh in favor of abstention. Lastly, although
the state proceedings as a whole allow Plaintiff to assert his
constitutional claims, this factor is neutral. See Trujillo, 2012
WL 4892929, at *3-4. Because not a single factor weighs in favor
of abstention, the Court finds that Colorado River abstention is
unwarranted in this case.

26

D. Ripeness
Defendants

City

of

Hammond

and

Mayor

Foster

argue

that

Plaintiff's claims against them are not ripe. (Rec. Doc. 26-1,
pp.

3-6)

City

Plaintiff's

of

claims

Hammond
are

not

and

Mayor

ripe

Foster

because

the

contend

that

administrative

proceedings have not concluded. Id. at 4-5. Moreover, neither the
City of Hammond nor Mayor Foster "has held a hearing or issued
any orders pertaining to Plaintiff's employment status." Id. at
5.

City

of

Hammond

and

Mayor

Foster

stress

that

Plaintiff

actually alleges both that Mayor Foster has taken no action in
relation to Plaintiff and that the City of Hammond has offered no
position on the Board's allegations. Id. at 5-6. Thus, Plaintiff
has not alleged any actions on the part of the City of Hammond
and Mayor Foster, so any claims against them are not ripe for
adjudication. Id. at 6. This conclusion is bolstered by the fact
that Plaintiff's Motion for Contempt of the Temporary Restraining
Order (Rec. Doc. 10) was not filed against either the City of
Hammond or Mayor Foster. Id.
Plaintiff maintains that his claims are ripe for review.
(Rec. Doc. 32, p. 3) Plaintiff asserts that his claims are ripe
because Mayor Foster, Plaintiff's appointing authority, placed
Plaintiff on administrative leave at the direction of the Board.

27

Id. Additionally, Plaintiff contends that Mayor Foster enforced
the

Board's

order

by

"directing

Plaintiff

to

comply

with

subpoenas issued in connection with the 'investigation.'" Id.
Specifically,

Mayor

Foster

ordered

Plaintiff

to

provide

the

information that the Board sought with a request for public
information in connection with the complaints against Plaintiff.
(Rec. Doc. 32-1, p. 13)
The Fifth Circuit states the standard for examining whether
a case is ripe for adjudication in New Orleans Public Service,
Inc. v. Council of New Orleans, 833 F.2d 583 (5th Cir. 1987):
A court should dismiss a case for lack "ripeness" when
the case is abstract or hypothetical. The key
considerations are "the fitness of the issues for
judicial decision and the hardship to the parties of
withholding court consideration." A case is generally
ripe if any remaining questions are purely legal ones;
conversely, a case is not ripe if further factual
development is required.
Id. at 586-87 (internal citations omitted).
As an initial matter, the Court disagrees with the City of
Hammond and Mayor Foster's general assertion that Plaintiff's
claims are not ripe because the administrative proceedings are
ongoing. The cases that Defendants cite in support of such a
conclusion are clearly distinguishable. In Kastner v. Tex. Bd. of
Law Exam’rs, 278 Fed. App'x 346, 348-49 (5th Cir. 2008), the

28

court found that the plaintiff's federal suit was not ripe when
the plaintiff challenged the rejection of his bar application
before his application was actually rejected. Id. Similarly, in
McFadden v. Stephens, 253 F.3d 702 (5th Cir. 2001), the court
held that the plaintiff's suit was not ripe for adjudication when
the plaintiff complained of an injury he would suffer if the
state's medical board undertook disciplinary proceedings against
him. Here, Plaintiff does not merely complain of an adverse state
finding before its rendering. Rather, Plaintiff, for example,
alleges

a

First

Amendment

retaliation

claim

based

upon

Defendants' decision to investigate the complaint against him.
(Rec. Doc. 1, p. 10) Such a complaint is not contingent upon the
outcome of the state proceedings and, thus, is not unripe because
the state proceedings are incomplete. Lastly, in Monk v. Huston,
340 F.3d 279, 282-83 (5th Cir. 2003), the court found that the
plaintiffs' procedural due process claims based upon the state
environmental agency's hypothetical granting of a permit were not
ripe because further factual development was required before the
court could adjudicate the issue. Specifically, the court could
not

address

the

due

process

claim

unless

there

had

been

a

deprivation, which the plaintiffs had not yet suffered and would
not suffer unless the state agency issued the permit in question.

29

Here, however, Plaintiff's due process claims stemming from the
CSB's decision to place Plaintiff on administrative leave or
order the surrender of Plaintiff's government-issued vehicle need
no

further

factual

administrative

development.

proceedings

are

The

mere

ongoing

fact

does

that

not

the

prevent

Plaintiff's federal action from being ripe for adjudication in
this case.
The issue of whether Plaintiff's claims against Defendants
City of Hammond and Mayor Foster are ripe when Plaintiff clearly
alleged in his complaint that they have done nothing presents a
closer question. Although Plaintiff in his opposition alleges
that Mayor Foster placed him on administrative leave, Plaintiff's
complaint

challenges

administrative

leave

the

Board's

specifically

order

because

placing

only

the

him

on

Appointing

Authority, Mayor Foster, had the authority to do so. (Rec. Doc.
1, p. 7) Even if the Court were to consider the email chain that
Plaintiff submits in an attempt to show that Mayor Foster acted
with the Board, it does not seem that Mayor Foster's limited
participation in the investigation–his email ordering Plaintiff
to

provide

the

Board

with

the

documents

they

requested

to

complete their investigation–makes Mayor Foster responsible for

30

the alleged wrongs committed by Defendants Board and Danel.10 See
(Rec. Doc. 32-1, pp. 13-16). Further, Plaintiff's opposition does
not even assert that the City of Hammond has taken any action.
Ultimately, however, the Court finds that the questions that
Plaintiff's complaint presents are "purely legal ones" that need
no "further factual development." See New Orleans Pub. Serv.,
Inc., 833 F.2d at 587. It may be that Plaintiff has failed to
state a claim against the City of Hammond and Mayor Foster, but
Plaintiff's

claims

for

monetary,

injunctive,

and

declaratory

relief are not unripe.
II. Failure to State a Claim
A.Defendants City of Hammond and Mayor Foster
Defendants
Plaintiff

has

City
failed

of
to

Hammond
state

and
a

Mayor

claim

Foster

against

argue

them

that

because

Plaintiff does not allege that they have taken any action in his
complaint. Plaintiff disagrees, arguing in his opposition that
Defendants City of Hammond and Mayor Foster "ordered Plaintiff to
10

The Court generally agrees with Defendants, however, that it may not
consider the email chain and other documents Plaintiff submitted with his
oppositions (Rec. Docs. 31, 32) without converting the instant motions to motions
for summary judgment. See Maloney Gaming Mgmt, L.L.C. v. St. Tammany Parish, 456
Fed. Appx. 336, 340-41 (5th Cir. 2011). These documents are neither referenced
in the complaint nor attached to Defendants’ motions to dismiss. Although
Plaintiff seems to suggest they are central to his claims when he argues that
they show Mayor Foster participated in the Board’s actions that violated his
rights, the Court is not convinced that the documents support such an inference.
Mayor Foster merely ordered Plaintiff to produce documents so that the Board
could conduct its investigation. Thus, the Court will not consider the documents,
but also believes that the documents would not alter its conclusions.

31

produce

information

to

Defendants,

Board

and

Danel,

[and]

countenanced the administrative leave and gag order." (Rec. Doc.
32, p. 6) The Court agrees with Defendants City of Hammond and
Mayor Foster, however, that Plaintiff has failed to allege any
facts in support of the claims he makes against them. In fact,
Plaintiff went so far as to state in his complaint that these
parties have “taken no action” or that they did not “join in,
refute,

or

take

any

affirmative

position”

in

relation

to

Defendant Board’s investigation. (Rec. Doc. 1, p. 7) Plaintiff
has failed to state a claim against Defendants City of Hammond
and Mayor Foster, and the Court grants their motion to dismiss
for failure to state a claim on all claims against them.
B.Defendants Board and Danel
1. Louisiana Open Meetings Law Violation11
Defendants Board and Danel argue that Plaintiff failed to
state a claim for violation of the Louisiana Open Meetings Law
(LOML), Louisiana Revised Statute 42:11, et seq. (Rec. Doc. 18-1,
11

“Any person who has been denied any right conferred by the provisions
of [the LOML] or who has reason to believe that the provisions of [the LOML] have
been violated may institute enforcement proceedings.” LA. REV. STAT. § 42:25. Upon
finding a violation of the LOML in such an enforcement proceeding, a Court may
award “any or all of the following forms of relief”: a writ of mandamus,
injunctive relief, declaratory judgment, judgment rendering the action void as
provided in Louisiana Revised Statute Section 42:24, judgment awarding civil
penalties as provided in Louisiana Revised Statute Section 42:28. LA. REV. STAT.
§ 42:26. Thus, because Plaintiff may institute an action against Defendants for
violations of the LOML and seek a form of monetary relief, the Court considers
this claim here despite its dismissal of all claims for injunctive or declaratory
relief.

32

p. 13) "Plaintiff alleges that Defendants violated the [LOML] by
failing to note on the agenda that Plaintiff was the subject of
either

the

May

15,

2014,

meeting

or

the

executive

session

conducted on that date and by secretly meeting before the May 15,
2014, meeting to pre-decide and vote on what actions Defendants
were

going

Plaintiff's

to

take

claims

against
are

Plaintiff."

erroneous

for

Id.

They

several

argue

that

reasons.

Id.

Louisiana Revised Statute 42:14(A) notes that all meetings of
public bodies must be open to the public "unless closed pursuant
to

R.S.

permits

42:16,
public

17,

or

bodies

18."
to

Louisiana

hold

Revised

executive

Statute

sessions,

42:16

which

are

closed to the public, upon the vote of two-thirds of the board at
an open meeting for which notice has been given pursuant to
Louisiana

Revised

Statute

42:19.

Notice

sufficient

under

Louisiana Revised Statute 42:19 must include "the agenda, date,
time, and place of the meeting," and notice must list each agenda
item separately and with reasonable specificity. The board may
hold executive sessions under Louisiana Revised Statute 42:16 to
address the topics listed in Louisiana Revised Statute 42:17,
including "[i]nvestigative proceedings regarding allegations of
misconduct." LA. REV. STAT. § 42:17(A)(4). Here, the Board listed
on the agenda for the May 15, 2014, meeting that the "Board

33

[would] consider a request for investigation submitted on behalf
of [the officer by her attorney]" and separately listed an item
for the request that the officer’s ex-husband submitted. Id. at
14. Additionally, the agenda stated that the Board would "enter
into

Executive

Session

to

investigate

certain

allegations

of

alleged misconduct and related matters." Id. at 15. Although the
Board and Danel did not identify Plaintiff as the subject of the
complaints and executive session, Louisiana Revised Statute 42:19
only requires the agenda to disclose the identity of the parties
when the CSB will discuss pending or prospective litigation "for
which formal written demand has been made."

La. Rev. Stat. §

42:19(A)(1)(b)(iii)(aa),

Board

(bb).

Finally,

the

and

Danel

assert that they did not predecide the action to be taken at the
meeting. The Board and Danel therefore conclude that the Board
was

authorized

to

hold

an

executive

session

concerning

the

allegations against Plaintiff, and that the executive session
complied with all requirements.
Plaintiff

counter

argues

that

the

Board

and

Danel's

arguments "are not proper fodder for adjudication of a 12(b)(6)
motion." Plaintiff stresses that he has stated a claim for relief
arising from Defendants' violations of the LOML. (Rec. Doc. 31,
p. 12)

34

The Court agrees with Plaintiff that Defendants Board and
Danel's arguments are not properly addressed in a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). Taking
all of Plaintiff's well-pleaded facts as true, as this Court is
bound to do, Plaintiff sufficiently pleaded his claim. The Court
therefore denies Defendants Board and Danel's motion to dismiss
for failure to state a claim with respect to this claim.
2. Section 1983 Claims
To state a claim under 42 U.S.C. § 1983, Plaintiff must "(1)
allege a violation of rights secured by the Constitution or laws
of

the

United

States

and

(2)

demonstrate

that

the

alleged

deprivation was committed by a person acting under color of state
law." Mills v. City of Shreveport, No. 13-2670, 2014 WL 4924909,
at * (W.D. La. Sept. 30, 2014)(Hicks, J.). Plaintiff alleges
violations

of

various

federal

rights,

which

the

Court

will

address in turn.12
12

The Court notes that in order for municipal liability to attach under
Section 1983, a plaintiff must prove “a policymaker; an official policy; and a
violation of constitutional rights whose ‘moving force’ is the policy or custom.”
Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001). Because municipal
liability under Section 1983 cannot be predicated on respondeat superior, “the
unconstitutional conduct must be directly attributable to the municipality
through some sort of official action or imprimatur; isolated unconstitutional
actions by municipal employees will almost never trigger liability.” Id.
(internal footnote omitted). Defendants’ motion seeks to defeat Plaintiff’s
Section 1983 claims by arguing immunity and that Plaintiff has not stated a claim
for a constitutional violation. Thus, the Court will not discuss the elements for
municipal liability any further.

35

a. Procedural and Substantive Due Process Violations
i. Surrender of the City-Issued Vehicle
Defendants CSB and Danel assert that Plaintiff fails to
state a claim for violation of his substantive and procedural due
process

rights

for

the

forced

surrender

of

his

city-issued

vehicle because Plaintiff does not have a property interest in
his employer-issued vehicle. (Rec. Doc. 18-1, p. 16) Plaintiff's
city-issued vehicle "[was] to be used only for the purposes of
providing public services and carrying out job responsibilities."
Id.

at

16.

Defendants

therefore

argue

that

the

city,

not

Plaintiff, has a property interest in Plaintiff's city-issued
vehicle. Absent a property interest in the city-issued vehicle,
Plaintiff cannot state a claim for violation of his substantive
or procedural due process rights. Defendants City of Hammond and
Mayor Foster do not address Plaintiff's claims relating to the
city-issued vehicle. Plaintiff responds by arguing that even if
he has no right to the government benefit, Defendant public
officials may not deny him the benefit "on a basis that infringes
his constitutionally protected interests–especially, his interest
in freedom of speech." (Rec. Doc. 31, p. 13)
Plaintiff's

due

process

rights–whether

procedural

or

substantive–are implicated only if (1) a state actor (2) deprived

36

him (3) of a protected property interest. See Tex. Faculty Ass'n
v. Univ. of Tex., 946 F.2d 379, 383 (5th Cir.1991). If these
requirements are met, then such deprivation may not occur without
due process. Id. Defendants CSB and Danel do not dispute that
they are state actors who deprived Plaintiff of the city-issued
vehicle. They argue, however, that Plaintiff lacks a protected
property interest in the vehicle.
"State law controls the analysis of whether plaintiff has a
property interest sufficient to entitle [him] to due process
protection."

Swift

v.

Siesel,

No.

CIV.A.

01-2691,

2002

WL

1585617, at *4 (E.D. La. July 15, 2002)(citing McDonald v. City
of Corinth, 102 F.3d 152, 155 (5th Cir.1996)).
[T]o establish either a substantive or a procedural due
process violation by claiming denial of a property
right, [plaintiff] must first establish a denial of a
constitutionally protected property right.... Such a
showing ... must be made by reference to state law.
“The Constitution does not create property interests;
‘they are created and their dimensions are defined by
existing rules or understandings that stem from an
independent source such as state law.” ’
Bryan v. City of Madison, 213 F.3d 267, 274–75 (5th Cir. 2000)
(quoting Schaper v. City of Huntsville, 813 F.2d 709, 713 (5th
Cir. 1987) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972))).

"Property

rights

may

37

also

be

created

by

'mutually

explicit understandings or tacit agreements,' such as contracts,
that

'support

a

legitimate

claim

of

entitlement

under

an

independent source such as state law.'" Swift, 2002 WL 1585617,
at *4 (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214,
223 n. 9 (1985)).
Plaintiff does not have a property interest in the cityissued vehicle.13 His work vehicle was and is city-owned, and he
was authorized to use the vehicle only for work purposes. (Rec.
Doc. 18-1, pp. 16-17) Further, as explained by Defendants CSB and
Danel,

Plaintiff

was

required

to

return

the

vehicle

to

a

department facility during the pendency of his administrative
leave. (Rec. Doc. 45, p. 5) The Court therefore concludes that
Plaintiff has failed to state a claim under Section 1983 arising
from

a

result

procedural
of

the

or

substantive

forced

surrender

due
of

process

the

violation

city-issued

as

a

vehicle.

Alternatively, as to Defendants City of Hammond and Mayor Foster,
the

Court

sufficient

finds
to

that

state

Plaintiff
a

has

failed

Section

1983

claim

to

allege

against

facts

them

for

deprivation of the city-issued vehicle.
13

Plaintiff relies upon Perry v. Sindermann, 408 U.S. 593 (1972) in
stating that even if he lacks a protected property interest, Defendants could not
deprive him of the vehicle for a reason that violates his constitutional rights.
Specifically, Defendants could not deprive him of the vehicle because Plaintiff
exercised his First Amendment rights. This may be so, but it does not cure his
failure to state a claim for a due process violation.

38

ii. Placement on Paid Administrative Leave
All Defendants argue that Plaintiff has failed to show that
Defendants violated his due process rights by placing him on paid
administrative leave because it is well established in the Fifth
Circuit that "[p]lacement on paid administrative leave does not
constitute deprivation of a property interest." (quoting Davis v.
Dallas Indep. Sch. Dist., 448 F. App'x 485, 495 (5th Cir. 2011)).
Defendants City of Hammond and Mayor Foster further argue that
Plaintiff has failed to show that they were involved with his
placement on administrative leave, and therefore, that Plaintiff
has failed to state a claim against them. (Rec. Doc. 26-1, pp.
12-13) Plaintiff again counter argues that Defendants may not
deprive

him

of

the

benefit

on

a

basis

that

violates

his

constitutional rights. (Rec. Doc. 31, p. 13)
The Court finds that Defendants did not deprive Plaintiff of
a

protected

property

interest

when

they

placed

him

on

paid

administrative leave. As Defendants explained, "Placement on paid
administrative

leave

does

not

constitute

deprivation

of

a

property interest." Davis, 448 F. App'x at 495. Plaintiff has
therefore failed to state a Section 1983 claim for the violation
of

his

due

process

rights

in

relation

to

being

placed

on

administrative leave. Alternatively, as above, Plaintiff failed

39

to allege facts sufficient to state a Section 1983 claim against
Defendants

City

of

Hammond

and

Danel

for

placement

on

administrative leave.
Having concluded that Defendants did not deprive Plaintiff
of a protected property interest, the Court need not address
Plaintiff’s complaints relating to the allegedly insufficient
procedures. That is, the Court will not discuss the alleged lack
of notice of the May 15, 2014, meeting and forum for appeal.
b. First Amendment Retaliation
Defendants

argue

that

Plaintiff's

First

Amendment

retaliation claims fail because he cannot make a prima facie case
for retaliation under either federal or Louisiana law. (Rec. Doc.
18-1, pp. 19-20) To do so, Plaintiff must show that he suffered
an adverse employment action. Id. at 20. Defendants argue that
"the act of investigating possible employee misconduct is not an
adverse employment action." Id. (citing Kuhn v. Washtenaw Cnty.,
709 F.3d 612, 625 (6th Cir. 2013)). They further argue that
Plaintiff

has

not

shown

that

the

complained-of

action

was

undertaken by the final decisionmaker. (Rec. Doc. 45, p. 7)
Moreover, Defendants were required by state law to conduct the
investigation upon receiving the complaints. (Rec. Doc. 18-1, p.

40

20) Plaintiff therefore cannot show that Defendants' actions were
taken in retaliation. Id.
Plaintiff argues that he has stated a claim for retaliation.
(Rec.

Doc.

31,

pp.

18-20)

Plaintiff

explains

that

for

the

purposes of a Section 1983 claim, adverse employment actions are
not limited to formal procedures. Id.
actions

such

emoluments

as

of

those

office

taken

and

by

placing

at 19. Thus, informal

Defendants–denying
him

on

paid

Plaintiff

administrative

leave–qualify. Id. He further asserts that his speech, which was
related to official misconduct, is of great public concern. Id.
Plaintiff sufficiently pleaded his retaliation claim by alleging
that "because of his access to the judicial system within his
First Amendment rights, Defendants engaged in acts of retaliation
culminating in the 'investigatory' proceeding before Defendant
Board." Id. at 19-20.
The Court finds that Plaintiff has stated a claim for First
Amendment

retaliation

against

Defendants

CSB

and

Danel.

"To

establish a retaliation claim [in the First Amendment context, a
plaintiff] must prove the following elements: (1) the plaintiff
suffered

an

adverse

employment

decision;

(2)

the

plaintiff's

speech involved a matter of public concern, (3) the plaintiff's
interest

in

speaking

outweighed

41

the

governmental

defendant's

interest in promoting efficiency, and (4) a causal link existed
between

the

protected

activity

and

the

adverse

employment

action." Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir. 2011).
Although Defendants Board and Danel argue that Plaintiff cannot
meet this burden because an investigation does not constitute an
adverse employment decision, Defendants did more than investigate
Plaintiff.
Plaintiff’s

Because

Defendants

allegations

do

even

to

related

not

his

address
First

all

of

Amendment

Retaliation claim, the Court denies their motion with respect to
this claim.
c. Other First Amendment Claims
Defendants contend that Plaintiff has failed to state a
claim

for

violation

of

his

First

Amendment

rights

because

Plaintiff has not shown that Defendants restricted his ability to
speak on matters of public concern. (Rec. Doc. 18-1, pp. 20-22)
Defendants

"issued

a

narrowly

tailored

order,

which

only

prohibited Plaintiff from contacting City employees until the
[close of its] investigation." Id. at 22. Further, Plaintiff
"failed to allege that his interest in speaking outweighs the
CSB's interest in restricting his speech." Id. Defendants City of
Hammond and Mayor Foster also argue that Plaintiff failed to
state a claim against them for violation of his First Amendment

42

rights because Plaintiff failed to allege that they took any
action related to the Board's order. (Rec. Doc. 26-1, p. 15)
Plaintiff argues that the "gag order" placed on Plaintiff
during

the

Board's

investigation,

which

prohibited

him

from

contacting or speaking with City of Hammond employees, violated
his

First

Amendment

rights.

(Rec.

Doc.

31,

pp.

17-18)

The

restriction was not specific to any topic of speech, but rather
banned

Plaintiff

from

having

any

communication

with

City

employees. Id. Thus, Plaintiff argues that the ban constituted an
impermissibly broad prior restraint on Plaintiffs speech. Id.
The

Court

cannot

condone

Defendants'

suggestion

that

a

prohibition on speech is lawful when it bans all speech with
certain individuals and therefore prevents the affected party
from

proving

that

it

specifically

targets

public

speech.

Defendants CSB and Danel's motion is denied as to this claim.
d. Qualified Immunity
Defendant Danel asserts that he is entitled to qualified
immunity from Plaintiff's Section 1983 claims.14 (Rec. Doc. 18-1,
pp. 22-23) First, Danel argues that Plaintiff has failed to show
that he violated his clearly established constitutional rights.
14

The Court does not address whether Mayor Foster is entitled to qualified
immunity because the Court previously granted in full Mayor Foster’s motion to
dismiss for failure to state a claim.

43

(Rec. Doc. 18-1, p. 23) Defendant Danel also contends that even
if

he

had

violated

Plaintiff's

constitutional

rights,

his

behavior was objectively reasonable.15 (Rec. Doc. 18-1, p. 23)
Plaintiff counter argues that he has alleged violations of
his clearly established First Amendment and Due Process rights.
As such, Plaintiff maintains that Defendant Danel is not entitled
to qualified immunity in relation to his Section 1983 claims.
The defense of qualified immunity is available to state
actors sued under Section 1983. Hunter v. Town of Edwards, 871 F.
Supp.

2d

558,

562

(S.D.

Miss.

May

16,

2012).

This

defense,

however, "only applies to claims alleged against officials in
their individual, but not their official capacities." Id. Courts
engage in a two-step inquiry to determine whether the defense is
available to officials sued in their individual capacity. Id.
First, the Court must determine whether the plaintiff
has alleged a violation of constitutional or statutory
rights. If such violation is alleged, the Court next
15

Defendants CSB and Danel further argue that Danel is entitled to the
same defenses as the CSB in relation to Plaintiff's claims against Danel in his
official capacity. (Rec. Doc. 18-1, p. 24) They argue that because a claim
against an officer in his or her official capacity is essentially the same as one
against that officer's governmental agency, the claims against Danel and the
claims against CSB essentially merge. Id. Thus, because the claims against CSB
have no merit, the claims against Danel must fail as well. Id.
The Court is not persuaded. Although a claim against an officer in his
official capacity is essentially a claim against his governmental agency, a
plaintiff may still assert claims against the official and the agency for actions
undertaken by one or both of them. Those claims will then succeed or fail
individually on their own merit.

44

considers
'whether
the
allegedly
violated
constitutional rights were clearly established at the
time of the incident; and, if so, whether the conduct
of the defendants was objectively reasonable in the
light of that then clearly established law.'
Id. (citations omitted). When raised in a motion to dismiss, "it
is the defendant's conduct as alleged in the complaint that is
scrutinized for 'objective legal reasonableness.'" Behrens v.
Pelletier, 516 U.S. 299, 309 (1996)(emphasis omitted).
Plaintiff alleges violations of his First Amendment and Due
Process rights. The Court has already determined that Plaintiff
failed to state a Due Process claim, however, so the Court will
focus on the First Amendment issues here. As discussed above, the
Court concludes that Plaintiff sufficiently pleaded claims for
First Amendment Retaliation and other First Amendment violations.
Although

Plaintiff

states

that

“a

prohibition

against

First

Amendment retaliation [and] gag orders” has been established for
decades (Rec. Doc. 31, p. 20), Plaintiff has not shown that it
was clearly established that Defendants’ actions in the state
proceeding would violate those rights when Defendants engaged in
those

acts.

The

Court

similarly

has

not

uncovered

any

such

precedent. Defendant Danel therefore is entitled to qualified
immunity in relation to Plaintiff's Section 1983 claims against
his in his individual capacity.

45

e. Absolute Quasi-Judicial Immunity
In Defendant Board and Danel’s reply, they argue that Danel
is entitled to absolute immunity. (Rec. Doc. 43-1, p. 8) However,
the defense of absolute quasi-judicial immunity is available to
Danel in his individual capacity only. Turner v. Houma Mun. Fire
& Police Civil Serv. Bd., 229 F.3d 478, 485-86 (5th Cir. 2000);
Mills, 2014 WL 4924909, at *7-8. Having previously concluded that
Danel

is

immune

from

Plaintiff’s

claims

against

him

in

his

individual capacity, the Court will discuss the issue of absolute
quasi-judicial immunity no further.
C. Availability of a Stay
Defendants argue that the Court should stay the instant
litigation

pending

resolution

of

the

state

proceedings.

They

argue that such a stay "would prevent needless waste of time and
resources

for

the

parties,

and

possibly

prevent

inconsistent

results at the state and federal court level." (Rec. Doc. 18-1,
p. 25) Additionally, Plaintiff will not suffer prejudice as a
result

of

a

stay

because

Plaintiff

can

appeal

any

adverse

decision to state court, which is a factor that courts should
consider in determining whether to stay a case. Id.

46

Plaintiff maintains that it would be improper for the Court
to stay the instant litigation. (Rec. Doc. 32, pp. 12-14) First,
Plaintiff
litigation,

explains
and

a

that

there

federal

court

is

no

"may

pending
not

state

abandon

court

cognizable

jurisdiction to stay a case pending a state court proceeding that
has not yet been initiated." Id. at 12. The availability of the
state court neither mandates nor permits a stay here. Id. at 13.
Further, the nature of the state court proceedings does not
permit Plaintiff to assert his constitutional claims at this
time; thus, Plaintiff would have to file a separate state court
lawsuit to address those claims. Id. Finally, the avoidance of
duplicative litigation is an insufficient reason to grant a stay;
such

duplicative

litigation

is

the

necessary

result

of

maintaining the overlapping jurisdiction of state and federal
courts. Id.
The Fifth Circuit has held that “Younger is not applicable
to claims for damages.” Boyd v. Farrin, 575 Fed. Appx. 517, 51920 (5th Cir. 2014). When Younger applies, however, a district
court may “stay the claims for damages pending the outcome of the
state

proceedings,

such

that

they

can

move

forward

without

interference.” Id. (citing Deakins v. Monaghan, 484 U.S. 193, 202

47

(1988)). This Court therefore stays the action with respect to
Plaintiff’s remaining claims for damages.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss
(Rec. Docs. 18, 26) are GRANTED IN PART.
IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss
for Lack of Jurisdiction (Rec. Docs. 18, 26) are GRANTED with
respect

to

Plaintiff’s

claims

for

injunctive

and

declaratory

relief. Plaintiff’s claims for injunctive and declaratory relief
are hereby DISMISSED without prejudice.
IT IS FURTHER ORDERED that Defendants City of Hammond and
Mayor Foster’s Motion to Dismiss for Failure to State a Claim
(Rec. Doc. 26) is GRANTED. All of Plaintiff’s claims against
Defendants City of Hammond and Mayor Foster are hereby DISMISSED
with prejudice.
IT IS FURTHER ORDERED that Defendants Board and Danel’s
Motion to Dismiss for Failure to State a Claim (Rec. Doc. 18) is
GRANTED

IN

PART.

The

motion

is

GRANTED

with

respect

to

Plaintiff’s claims for monetary damages based upon Substantive or
Procedural
prejudice.

Due
The

Process.
motion

is

These

claims

DENIED

with

48

are

respect

DISMISSED
to

with

Plaintiff’s

claims for violations of Louisiana’s Open Meetings Law, First
Amendment Retaliation, and First Amendment violations.
IT IS FURTHER ORDERED that Plaintiff's Section 1983 claims
against

Danel

in

his

individual

capacity

are

DISMISSED

with

prejudice.
IT IS FURTHER ORDERED that Defendants Board and Danel’s
Motion

to

Stay

(Rec.

Doc.

18)

is

GRANTED

with

respect

to

Plaintiff’s claims related to the Louisiana’s Open Meetings Law,
First

Amendment

Retaliation,

and

other

First

Amendment

violations.
New Orleans, Louisiana, this 2nd day of December, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

49