Loughlin v. Tweed et al

Filing 24

ORDER & REASONS denying 14 Motion to Dismiss for Lack of Jurisdiction & for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 6/10/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KEARNEY LOUGHLIN

CIVIL ACTION

v.

NO. 15-649

GREGORY TWEED, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is defendant Gregory Tweed's motion to
dismiss the plaintiff's complaint for monetary damages.

For the

reasons that follow, the motion is DENIED.
Background
Kearney Loughlin, a Louisiana attorney, brings suit against
the Louisiana Attorney Disciplinary Board, Gregory Tweed (a deputy
disciplinary

counsel

of

the

Board's

Office

of

Disciplinary

Counsel), Steven Tew in his official capacity as the Chair of the
Board, and Charles Plattsmier in his official capacity as Chief
Disciplinary Counsel, challenging their prosecution of him based on
the content of his professional Web site.
is

immune

from

suit.

This

lawsuit

Tweed responds that he

and

the

allegations

of

Loughlin's grievances cast the legal profession in a poor light, at
best.
It is important to this case that in August 2009, this Court
considered the constitutionality of certain provisions of the

1

Louisiana Rules of Professional Conduct as they relate to attorney
advertising and the First Amendment.

Public Citizen, Inc., et al.

v. Louisiana Attorney Disciplinary Bd., et al., 642 F.Supp.2d 539
(E.D. La. 2009).

The Fifth Circuit subsequently affirmed in part

and reversed in part.

632 F.3d 212 (5th Cir. 2011).

This Court

analyzed several Louisiana Rules of Professional Conduct; the
plaintiff in this case focuses on Rule 7.6(d):
Advertisements.
All computer-access communications
concerning a lawyer's or law firm's services, other than
those subject to subdivisions (b)1 and (c)2 of this Rule,
are subject to the requirements of Rule 7.2 when a
significant motive for the lawyer's doing so is the
lawyer's pecuniary gain.
This Court distinguished Internet information from the more popular
fads of tv, radio, and print solicitations of law cases, and found
that

the

defendants,

which

included

the

Louisiana

Attorney

Disciplinary Board:
ha[d] not shown that the State studied online advertising
techniques or methods and then attempted to formulate a
Rule that directly advanced the State's interests and was
narrowly tailored with respect to Internet advertising.
Instead, the State, through its high court, simply

1

Subdivision (b) is entitled "Internet Presence" and governs
"[a]ll World Wide Web sites and home pages accessed via the
Internet that are controlled, sponsored,, or authorized by a lawyer
or law firm and that contain information concerning the lawyer's or
law firm's services."
Subdivision (b)(3) states that such Web
sites "are considered to be information provided upon request and,
therefore, are otherwise governed by the requirements of Rule 7.9."
Rule 7.9, in turn, states that such information shall comply with
the requirements of Rule 7.2 unless otherwise provided in Rule 7.9.
2

Subdivision (c) applies to unsolicited electronic mail
communications.
2

applied the same Rules as those developed for television,
radio, and print ads to Internet advertising. This Court
is
persuaded
that
Internet
advertising
differs
significantly from advertising in traditional media.
Public Citizen, 642 F.Supp.2d at 559.

This Court held Rule 7.6(d)

unconstitutional, finding that the defendants had not met their
burden of showing that the Rule directly and materially advanced
the State's interests or was narrowly tailored.

Id.

Loughlin contends that he maintained a Web site from 2007 to
2009, which stated that he held a Certificate of Specialization in
Maritime Law from Tulane University Law School.3

It also described

the firm as "a plaintiff-oriented pure litigation firm specializing
in maritime personal injury and death claims."4

On February 2,

2012, the Office of Disciplinary Counsel (ODC) initiated formal
charges against Loughlin, alleging that on or about October 13,
2011, Deputy Disciplinary Counsel Tweed had personally seen the socalled offending Web site, and that the page "states that you
'specialize'

in

'maritime

personal

injury

and

death

cases.'

However, no such specialty is recognized by the Louisiana Board of
Legal Specialization.

Further, the ad does not contain the full

name of any other organization granting such certification."

The

3

Tulane offers what it calls Certificates of Specialization
in Civil Law, Environmental Law, European Legal Studies,
International & Comparative Law, Maritime Law, and Sports Law.
Approximately one-third of graduates receive a certificate.
4

Perhaps a more appropriate, or exact description would be to
say the firm practice emphasizes maritime personal injury and death
claims. More likely, however, a distinction without a difference.
3

ODC alleged that the Web site violated Rule 7.2(c)(1)(B) and Rule
7.2(c)(5), adding later that it also violated former Rule 7.4.5
Louisiana

Rule

of

Professional

Conduct

7.2(c)(1)(B)

redundantly states:
(1) A lawyer shall not make or permit to be made a false,
misleading or deceptive communication about the lawyer,
the lawyer's services or the law firm's services.
A
communication violates this Rule if it . . . (B) is
false, misleading or deceptive.
Rule 7.2(c)(5) states:
(5) Communication of Fields of Practice. A lawyer may
communicate the fact that the lawyer does or does not
practice in particular fields of law. A lawyer shall not
state or imply that the lawyer is "certified," "board
certified," an "expert" or a "specialist" except as
follows:
(A) Lawyers Certified by the Louisiana Board
of Legal Specialization. A lawyer who complies
with the Plan of Legal Specialization, as
determined by the Louisiana Board of Legal
Specialization, may inform the public and
other lawyers of the lawyer’s certified
area(s) of legal practice. Such communications
should identify the Louisiana Board of Legal
Specialization as the certifying organization
and may state that the lawyer is "certified,"
"board certified," an "expert in (area of
certification)" or a "specialist in (area of
certification)."
(B) Lawyers Certified by Organizations Other
Than
the
Louisiana
Board
of
Legal
Specialization or Another State Bar. A lawyer
certified by an organization other than the
Louisiana Board of Legal Specialization or

5

At this early stage of the proceedings, the Court does not
have evidence before it. Thus, the procedural background is taken
largely from the complaint. In their answer, the defendants deny
many of the allegations, without explanation.
4

another state bar may inform the public and
other lawyers of the lawyer’s certified
area(s) of legal practice by stating that the
lawyer is "certified," "board certified," an
"expert in (area of certification)" or a
"specialist in (area of certification)" if:
(i) the lawyer complies with Section
6.2
of
the
Plan
of
Legal
Specialization for the Louisiana
Board of Legal Specialization; and,
(ii) the lawyer includes the full
name of the organization in all
communications pertaining to such
certification. A lawyer who has been
certified by an organization that is
accredited by the American Bar
Association is not subject to
Section 6.2 of the Plan of Legal
Specialization.
Former

Rule

7.4,

which

was

repealed

and

replaced

with

Rule

7.2(c)(5), provided:
A lawyer shall not state or imply that the lawyer is
certified, or is a specialist or expert, in a particular
area of law, unless such certification, specialization or
expertise has been recognized or approved in accordance
with the rules and procedures established by the
Louisiana Board of Legal Specialization.
Loughlin contends that the above rules do not apply to
attorneys' Web sites, which are not considered advertisements, but,
rather, information provided to a client upon the client's request.
Loughlin submits that he finds support for this argument in: the
text of Rule 7.9;6 the defendants' representations at oral argument

6

Rule 7.9 Information about a Lawyer’s Services Provided Upon
Request
(a) Generally. Information provided about a lawyer’s or
5

to the Fifth Circuit in Public Citizen, Inc. v. Louisiana Attorney
law firm’s services upon request shall comply with the
requirements of Rule 7.2 unless otherwise provided in
this Rule 7.9.
(b) Request for Information by Potential Client. Whenever
a potential client shall request information regarding a
lawyer or law firm for the purpose of making a decision
regarding employment of the lawyer or law firm:
(1) The lawyer or law firm may furnish such
factual information regarding the lawyer or
law firm deemed valuable to assist the client.
(2) The lawyer or law firm may furnish an
engagement letter to the potential client;
however, if the information furnished to the
potential client includes a contingency fee
contract, the top of each page of the contract
shall be marked "SAMPLE" in print size at
least as large as the largest print used in
the contract and the words "DO NOT SIGN" shall
appear on the client signature line.
(3)
Notwithstanding
the
provisions
of
subdivision (c)(1)(D) of Rule 7.2, information
provided to a potential client in response to
a potential client’s request may contain
factually verifiable statements concerning
past results obtained by the lawyer or law
firm, if, either alone or in the context in
which they appear, such statements are not
otherwise false, misleading or deceptive.
(c) Disclosure of Intent to Refer Matter to Another
Lawyer or Law Firm. A statement and any information
furnished to a prospective client, as authorized by
subdivision (b) of this Rule, that a lawyer or law firm
will represent a client in a particular type of matter,
without appropriate qualification, shall be presumed to
be misleading if the lawyer reasonably believes that a
lawyer
or
law
firm
not
associated
with
the
originally-retained lawyer or law firm will be associated
or act as primary counsel in representing the client. In
determining whether the statement is misleading in this
respect, the history of prior conduct by the lawyer in
similar matters may be considered.
6

Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011);7 the Fifth's
Circuit's ruling in that case; and this Court's ruling in that same
case, 642 F.Supp.2d 539 (E.D. La. 2009).
In his disciplinary action, Loughlin asserted that the rules
at issue were unconstitutional restrictions of speech, and he
demanded proof that Tweed personally saw the former Web site, as
ODC alleged in the formal charges.

Loughlin submits that the

defendants submitted no such evidence, and, significantly, that
Tweed refused to testify at the administrative hearing held on
February 5, 2013; that the hearing committee allowed Tweed to give
unsworn testimony and introduce new and unauthenticated exhibits,
which the Board later adopted as "facts."

The hearing committee,

in its report issued on May 21, 2013, found that Rules 7.2(c)(1)(B)
and 7.2(c)(5) did not apply to Web sites, but that Loughlin's use
of the word "specializing" violated former Rule 7.4. The committee
recommended that he be publicly reprimanded and assessed other
penalties and fines.
Loughlin objected to the hearing committee report and briefed
the issues to the full Board, which heard argument on July 18,
2013.

Nine months later, the Board issued its ruling, in which it

adopted all of the hearing committee's factual findings.

7

The

At oral argument to the Fifth Circuit, counsel for the
Louisiana Attorney Disciplinary Board told the panel that a
lawyer's past successes, though not mentionable in a television or
radio commercial, can be displayed on the lawyer's Web site, i.e.,
that Rule 7.2(c)(1)(D) did not apply to Web sites.
7

Board, however, rejected the hearing committee's conclusion that
Rules 7.2(c)(1)(B) and 7.2(c)(5) did not apply to Web sites, but
agreed that ODC had failed to prove a violation of those rules
because Loughlin's Web site was offline at the time the rules were
in force (apparently contrary to the impression left by Tweed). As
to former Rule 7.4, the Board agreed with the hearing committee
that Loughlin's former Web site violated it.

The Board noted,

however, that because ODC declined to put on evidence, the Board
could not reach the constitutionality of Rule 7.4.

Nonetheless,

the Board agreed that Loughlin should be publicly reprimanded and
subjected to other fines and punishment.8
Loughlin appealed the Board's ruling to the Louisiana Supreme
Court, which, it is helpful to underscore, dismissed all charges
against him, finding that his actions in drafting his Web site were
not taken with a culpable mental state and that they caused no harm
to the public.

In re Loughlin, 148 So.3d 176, 178 (La. 2014).

The

Supreme Court did not reach the constitutional issues.9
Loughlin then filed suit in the Court, asking for injunctive
relief, damages, and that the defendants be held in contempt for
enforcing Rule 7.6(d) contrary to court order.

As to damages,

8

Loughlin also contends that the Board refused to consider
representations it allegedly made to the Fifth Circuit in Public
Citizen.
9

This Court does not gratuitously reach constitutional issues
that may be avoided and resolved in other ways under the law. See
Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012).
8

Loughlin

seeks,

compensatory

in

addition

contempt,

"all

to

attorney's

available

fees,

general,

costs,

and

special,

and

punitive damages against defendant Tweed allowed by [42] U.S.C. §§
1983 and 1988 or other applicable law, related to the prosecution
of

complainant."

Specifically,

Loughlin

objects

to

Tweed's

initiating the charges against him as the complaining witness and
later refusing to give sworn testimony and be cross-examined.

He

also contends that Tweed falsely asserted that Loughlin's Web site
was online in 2011, when it was not, and he "knowingly concealed
the Judgment rendered by this Court [in Public Citizen] and
knowingly concealed the judicial admissions and representations
made by defendants to the Fifth Circuit [also in Public Citizen].
Accordingly, Tweed is liable for damages under Section 1983 for
violating complainant's right to free speech guaranteed by the
First Amendment."

Loughlin further asserts that his rights at

issue were clearly established at all relevant times, that he was
denied his Sixth Amendment right to confront Tweed as the witness
against him, and that Tweed knew that Loughlin's Web site was
protected by the First Amendment and not subject to the attorney
advertising rules.
Defendant Tweed moves to dismiss the claim for monetary
damages, asserting qualified immunity and absolute prosecutorial
immunity.

He also submits that the Eleventh Amendment to the U.S.

Constitution bars claims for monetary damages, and that he in his

9

official capacity is not a "person" for purposes of § 1983.10
Because this case involves constitutional issues and matters of
widespread concern in the legal community, this Court granted
Loughlin's request for oral argument on the motion.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009) (citing FED. R. CIV. P. 8).
"[T]he

pleading

'detailed

standard

factual

Rule

8

allegations,'

announces

but

it

does

demands

not
more

require
than

an

unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Thus,

in

considering

a

Rule

10

12(b)(6)

motion,

the

Court

Tweed submits that it is unclear from the complaint whether
he is sued in his individual or official capacity. It is, in fact,
quite clear that Tweed is sued in his individual capacity. Thus,
his Eleventh Amendment and "person" arguments fail.
10

"accepts 'all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.'"

See Martin K. Eby Constr. Co.

v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).

But, in

deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
at 1050.

Kaiser, 677 F.2d

Indeed, the Court must first identify allegations that

are conclusory and thus not entitled to the assumption of truth.
Iqbal, 556 U.S. at 678-79. A corollary: legal conclusions "must be
supported by factual allegations." Id. at 678.

Assuming the

veracity of the well-pleaded factual allegations, the Court must
then determine "whether they plausibly give rise to an entitlement
to relief." Id. at 679.
complaints

are

held

to

It is well established that "pro se
less

pleadings drafted by lawyers.

stringent

standards

than

formal

However, regardless of whether the

plaintiff is proceeding pro se or is represented by counsel,
conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss."
Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(internal quotations and citations omitted).
"'To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.'"

Gonzalez v. Kay, 577 F.3d

600, 603 (5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal

11

quotation marks omitted).

"Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact)."
footnote omitted).

Twombly, 550 U.S. at 555 (citations and

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged."

that

the

defendant

is

liable

for

the

Iqbal, 556 U.S. at 678 ("The plausibility

standard is not akin to a 'probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.").

This is a "context-specific task that requires the

reviewing court to draw on its judicial experience and common
sense."

Id. at 679.

"Where a complaint pleads facts that are

merely consistent with a defendant's liability, it stops short of
the line between possibility and plausibility of entitlement to
relief." Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

"[A] plaintiff's obligation to provide the

'grounds' of his 'entitle[ment] to relief'" thus "requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do."

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially "part of the pleadings."

That is,

any documents attached to or incorporated in the plaintiff's

12

complaint that are central to the plaintiff's claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000)).

Also, the Court is permitted to

consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one for
summary judgment.

See United States ex rel. Willard v. Humana

Health Plan of Tex. Inc.,

336 F.3d 375, 379 (5th Cir. 2003).
II.

Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under color
of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any ... person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.
To establish § 1983 liability, the plaintiff must satisfy three
elements:
(1)

deprivation of a right secured by the U.S. Constitution
or federal law,

(2)

that occurred under color of state law, and

(3)

was caused by a state actor.

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
(citation omitted).

13

A. Absolute Prosecutorial Immunity
In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court
held that a state prosecutor enjoys absolute immunity from § 1983
suits for the initiation and pursuit of a criminal prosecution. In
the aftermath of Imbler, the Court has expounded upon the contours
of absolute immunity by clarifying that the application of absolute
prosecutorial immunity is guided and informed by a functional
approach based on the specific activities that give rise to the
cause of action.

See Buckley v. Fitzsimmons, 509 U.S. 259 (1993);

Burns v. Reed, 500 U.S. 478 (1991).

That is, the actions of a

prosecutor are not absolutely immune merely because they are
preformed by a prosecutor.

Buckley, 509 U.S. at 273.

The crux of

Imbler and its progeny is that acts 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.
Buckley, 509 U.S. at 273.

The acts involved need not take place in

the courtroom. Id. at 272. And perhaps even more importantly, when
the activities giving rise to the cause of action do occur in the
prosecutor's role as an advocate for the state, his motivations and
intentions are irrelevant to whether absolute immunity applies, as
are allegations of maliciousness, recklessness, dishonesty, or just
plain negligence.

Imbler, 424 U.S. at 427.

And so, once the

functional test is satisfied, the immunity is unconditional.

14

B. Qualified Immunity
Qualified immunity, however, is the norm, and it will replace
absolute immunity when the prosecutor engages in certain functions
outside the scope of his prosecutorial role, such as providing
legal advice to law enforcement, Burns, 500 U.S. at 495–96, or
making statements to the press, Buckley, 509 U.S. at 277.

When a

plaintiff seeks money damages from government officials for alleged
violations of constitutional or statutory rights, officials sued in
their individual capacities may invoke the defense of qualified
immunity.

Because it is an immunity from suit, and not a defense

to liability, courts are advised to resolve the issue "at the
earliest possible stage in litigation." Hunter v. Bryant, 502 U.S.
224, 227 (1991) (per curiam).
"Qualified immunity shields government officials from civil
damages liability," the U.S. Supreme Court has reiterated, "unless
the official violated a statutory or constitutional right that was
clearly established that the time of the challenged conduct."
Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012)(citing Ashcroft v.
al-Kidd, 131 S.Ct. 2074, 2080 (2011)); Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (This doctrine protects government officials
against individual civil liability "insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.").

"Qualified

immunity balances two important interests -- the need to hold

15

public officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably."

Pearson v.

Callahan, 555 U.S. 223 (2009) (noting that "[t]he protection of
qualified immunity applies regardless of whether the government
official's error is a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.").

In fact,

"[q]ualified immunity represents the norm" and "is designed to
shield from civil liability all but the plainly incompetent or
those who violate the law."

Brady v. Fort Bend County, 58 F.3d

173, 174 (5th Cir. 1995).
In

resolving

a

government

official's

qualified

immunity

defense, courts have traditionally applied the two-prong process
articulated

in

Siegert

v.

Gilley,

500

U.S.

226

(1991),

and

confirmed by the Supreme Court again in Saucier v. Katz, 533 U.S.
194 (2001).

First, the Court must determine whether the plaintiff

has shown a violation of a constitutional right.

Id. at 201.

The

second inquiry requires the Court to consider "whether the right at
issue was 'clearly established' at the time of the defendant's
alleged misconduct."

Pearson v. Callahan, 555 U.S. 223 (2009).

Although the Supreme Court has left to the district court's
discretion the sequence for undertaking these two inquiries, the
Supreme Court has increasingly indicated a preference for first
considering whether a purported right was clearly established by

16

prior case law "without resolving the often more difficult question
whether the purported right exists at all."

Reichle, 132 S.Ct. at

2093 ("This approach comports with our usual reluctance to decide
constitutional questions unnecessarily."); Camreta v. Greene, 131
S.Ct. 2020, 2031 (2011) (observing that "our usual adjudicatory
rules suggest that a court should forbear resolving this issue")
(emphasis in original); Pearson, 555 U.S. at 238-39 (listing
circumstances in which courts might be best served to bypass the
first step of the Saucier process, such as "when qualified immunity
is asserted at the pleadings stage, the precise factual basis for
the plaintiff's claim or claims [is] hard to identify").
In other words, qualified immunity "protects all but the
plainly incompetent or those who knowingly violate the law, so we
do not deny immunity unless existing precedent must have placed the
statutory or constitutional question beyond debate."

Morgan v.

Swanson, 659 F.3d 359, 370-71 (5th Cir. 2011) (en banc) (internal
quotations, citations, and footnotes omitted).

Once a defendant

has invoked the defense of qualified immunity, the burden shifts to
the plaintiff to show that the defense is unavailable.

Collier v.

Montgomery, 569 F.3d 214, 217-18 (5th Cir. 2009); McClendon v. City
of

Columbia,

305

F.3d

314,

323

(5th

Cir.

2002)

(en

banc).

"Although qualified immunity is 'nominally an affirmative defense,'
the plaintiff bears a heightened pleading burden 'to negate the
defense once properly raised.'"

Newman v. Guedry, 703 F.3d 757,

17

761 (5th Cir. 2012) (quoting Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008)). In response to a qualified immunity defense,
"plaintiffs
capacities

suing
must

governmental

allege

officials

specific

conduct

in

their

giving

individual

rise

to

the

constitutional violation." Anderson v. Pasadena Indep. Sch. Dist.,
184 F.3d 439, 443 (5th Cir. 1999); see also FED. R. CIV. P. 7(a).
The heightened pleading standard applicable in cases defended on
qualified immunity grounds requires a plaintiff to plead "with
factual detail and particularity, not mere conclusory allegations."
Id.; see also Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir. 1995).
In the § 1983 context, this standard translates in part into the
requirement that the plaintiff "identify defendants who were either
personally involved in the constitutional violation or whose acts
are causally connected to the constitutional violation alleged."
Anderson, 184 F.3d at 443; DeLeon v. City of Dallas, 141 F. App'x
258, 261 (5th Cir. 2005).
III.
A. Absolute Prosecutorial Immunity
Tweed contends that he is absolutely immune from suit for his
actions because as deputy counsel, he was acting akin to a criminal
prosecutor. He submits that the plaintiff's complaints relative to
the investigation and prosecution of him clearly arise out of
Tweed's

exercise

of

his

prosecutorial

function

because

they

challenge the fundamental decision as to whether to institute a

18

disciplinary action.

The Court cannot agree.

The case literature

betrays the correctness of this assertion.
In Kalina v. Fletcher, a unanimous Supreme Court held that a
prosecutor was not entitled to absolute immunity when she was
acting as a complaining witness rather than a lawyer.
130, 509-10.

522 U.S.

There, a prosecutor personally vouched for the truth

of facts set forth in a certification supporting the issuance of an
arrest warrant.

Id. at 505.

Employing the functional test

applicable to prosecutorial immunity claims, the Supreme Court
found that the prosecutor had "performed an act that any competent
witness might have performed."
it

"put[s]

to

one

side

Id. at 509.

those

aspects

The Court noted that
of

the

prosecutor's

responsibility that cast him in the role of an administrator or
investigate officer rather than that of advocate."
(internal quotation omitted).

Id. at 507

Tweed's conclusory claim that he is

entitled to prosecutorial immunity because the Louisiana Attorney
Disciplinary

Counsel

performs

many

of

the

same

functions

in

attorney disciplinary proceedings as are performed by a criminal
prosecutor is weak at best.

Under Kalina, even if Tweed were a

criminal prosecutor, he would not be entitled to absolute immunity
because of his role as a complaining witness.
B. Qualified Immunity
Tweed submits that Loughlin's complaint fails the two-part
test for qualified immunity, stating simply that he "does not

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properly plead facts establishing that any act of Mr. Tweed was
unreasonable," that the "complaint is completely devoid of any
well-pleaded facts as to any act or omission by Mr. Tweed which
violated his rights other than bringing charges under rules that
have not been held unconstitutional," and that "[n]o facts have
been pled showing that Mr. Tweed was on notice that his conduct in
bringing

formal

charges

against

Plaintiff

in

performing

his

official duties as Deputy Disciplinary Counsel would violate the
clearly

established

(emphasis added).

constitutional

rights

of

the

plaintiff."

Loughlin correctly responds that the complaint

specifically identifies the First, Sixth, and Fourteenth Amendments
to the Constitution and sets forth, in detail, Tweed's improper
conduct.

Loughlin submits with good reason that his complaint

shows that "Tweed's conduct was not only objectively unreasonable
in light of clearly established law, but that he was deliberately
indifferent to Loughlin's right to exercise free and truthful
speech without fear of prosecution."
Tweed's argument for entitlement to qualified immunity centers
on his decision to institute formal charges.

If this were the

conduct at issue, he would indeed even be entitled to absolute
prosecutorial immunity.

However, Tweed offers no compelling or

reasonable argument that he is entitled to qualified immunity for
-- if Loughlin's allegations are proven true -- serving as the
complaining witness in a case bringing charges against Loughlin

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based on the content of a defunct Web site and then refusing to
testify under oath or present admissible evidence.
Accordingly, IT IS ORDERED that the motion to dismiss is
hereby DENIED.

New Orleans, Louisiana, June 10, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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