Cain et al v. New Orleans City et al

Filing 136

ORDER & REASONS denying 97 Motion to Dismiss. Signed by Judge Sarah S. Vance on 5/23/2016. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS
Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,
Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights
action under 42 U.S.C. § 1983 seeking to declare the manner in which the
Orleans Parish Criminal District Court judges collect post-judgment court
costs from indigent debtors unconstitutional. According to plaintiffs, the
judges maintain a policy of jailing criminal defendants who fail to pay their
court costs solely because of their indigence. 1
The “judicial defendants” now ask the Court to dismiss plaintiffs’
claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure.2
Defendants argue that the Criminal District Court judges are not legally
required to inquire into a state-court criminal defendant’s reasons for

See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action
Complaint).

1

2

R. Doc. 97.

nonpayment because the criminal defendant must affirmatively raise his
indigence to excuse his failure to pay. Defendants also argue that indigence
does not excuse nonpayment when the state-court criminal defendant agreed
to pay court costs in his plea agreement with the State. Finally, defendants
argue that named plaintiffs willfully failed to pay their court costs and that
therefore the judges lawfully issued arrest warrants for plaintiffs’
nonpayment, regardless of their indigence.

Finding that defendants’

arguments fail under the law and plaintiffs’ alleged facts, the Court denies
defendants’ motion to dismiss.

I.

BACKGROUND
A.

Factual Allegations

In this section 1983 civil rights lawsuit, plaintiffs allege that the
Criminal District Court judges, among others, maintain an unconstitutional
scheme of jailing indigent criminal defendants and imposing excessive bail
amounts for nonpayment “offenses” in an effort to collect unpaid court
courts. According to plaintiffs, the Criminal District Court maintains an
internal “Collections Department,” informally called the “fines and fees”
department, that oversees the collection of court debts from former criminal
defendants. The “typical” case allegedly proceeds as follows.

When a person is charged with a crime, the Criminal District Court
judges first determine whether the criminal defendant is legally “indigent,”
which means they qualify for appointment of counsel through the Orleans
Public Defenders under Louisiana Revised Statutes § 15:175. According to
plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are
legally indigent. 3 With assistance of counsel, the defendants either plead
guilty to their criminal charges or proceed to trial. If convicted, the criminal
defendants must appear before a judge for sentencing.
At sentencing, in addition to imposing a term of imprisonment or
probation, the judge may assess against the criminal defendants various
“court costs.” These costs may include restitution to any victim, a statutory
fine, fees, or other costs imposed at the judge’s discretion. According to
plaintiffs, the discretionary assessments “fund the District Attorney’s office,
the Public Defender, and the Court[,]” which rely on these collections “to
fund their operations and to pay employee salaries and extra benefits.”4
Plaintiffs allege that the Criminal District Court judges impose court costs
without inquiring into the criminal defendants’ ability to pay.5
3

R. Doc. 7 at 5.

4

Id. at 22-23 ¶ 88.

5

Id. at 23 ¶ 91.

If the criminal defendants cannot immediately pay in full, the judges
allegedly direct them to the Collections Department, or “fines and fees.”
There, a Collections Department employee allegedly imposes, at his
discretion and without inquiring into a defendant’s ability to pay, a payment
schedule—usually requiring a certain amount per month. 6

Collections

Department employees also allegedly warn the defendants that failure to pay
the monthly amount, in full, will result in their arrests. Plaintiffs contend
that Collections Department employees refuse to accept anything less than
full payment. 7
When criminal defendants fail to pay, a Collections Department
employee allegedly issues a pre-printed warrant for the defendant’s arrest by
forging a judge’s name. 8 According to plaintiffs’ allegations, the Collections
Department often issues these warrants “years after a purported
nonpayment,” and the warrants are “routinely issued in error” or without
regard to a debtor’s indigence.9

6

Id. at 27-28 ¶103.

7

Id. at 28 ¶ 106.

8

Id. at 29 ¶ 109.

9

Id. at ¶ 110.

Plaintiffs also allege that each Collections Department arrest warrant
is “accompanied by a preset $20,000 secured money bond required for
release.”10 According to plaintiffs’ allegations, the amount a debtor must pay
to satisfy the $20,000 secured money bond is often more than the entirety
of the debtor’s outstanding court costs. 11 Plaintiffs allege that defendants’
adherence to this “automatic $20,000 secured money bond” results from
defendants’ financial interest in state-court arrestees’ paying for their
release.12 Plaintiffs contend that the Criminal District Court judges collect
1.8% of each bond, while the Orleans Parish District Attorney’s office, the
Orleans Public Defenders’ office, and the Orleans Parish Sheriff each collect
0.4% of each bond. 13
Plaintiffs allege that when criminal defendants are arrested for
nonpayment, they are “routinely told” that to be released from prison, they
must pay for the $20,000 secured money bond, the entirety of their
outstanding court debts, or some other amount “unilaterally determine[d]”

10

Id. at ¶ 113.

11

See id. at ¶ 47.

12

Id. at 21-22 ¶88.

13

Id. at 22 ¶88.

by the Collections Department.14 As a result, these indigent debtors allegedly
“languish” in prison “indefinite[ly]” because they cannot afford to pay any of
the foregoing amounts. 15 Although “arrestees are eventually brought to
court,” plaintiffs allege that defendants “have no set policy or practice”
regarding how long arrestees must wait for a hearing. According to plaintiffs,
indigent debtors “routinely” spend a week or more in prison.16 Plaintiffs
allege that some arrestees, with help from family and friends, pay for their
release without ever having a hearing and thus have “no opportunity to
contest the debt or the jailing.”17
When criminal defendants are brought to court, the judges allegedly
send them back to prison if they are unable to pay their debts or release them
“on threat of future arrest and incarceration” if they do not promptly pay the
Collections Department. 18 The judges allegedly hold these brief “failure-to-

14

Id. at 30 ¶114.

15

Id. at ¶115.

16

Id.

17

Id. at ¶114.

18

Id. at ¶116.

pay hearings” without providing the debtors notice of the critical issues or
considering the debtors’ abilities to pay. 19
Plaintiffs contend that these practices are unconstitutional under the
Fourth and Fourteenth Amendments.
B.

Parties

The named plaintiffs in the First Amended Complaint are six
individuals who were defendants in the Orleans Parish Criminal District
Court—Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste,
Thaddeus Long, and Vanessa Maxwell. 20
The Criminal District Court appointed counsel from the Orleans Public
Defenders to represent each of the named plaintiffs, except Reynaud Variste,
during their criminal proceedings.21 Thus, the court must have determined
that Cain, Brown, Reynajia Variste, Long, and Maxwell were legally indigent

19

Id.

20

Id. at 7 ¶7.

R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012)
(“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for
10/02/2013) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste
Docket Sheet, entry for 10/02/2014) (“Court appointed Lindsey Samuel,
OPD.”) 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) (“Court
appointed Jerrod Thompson-Hicks, OIPD.”); R. Doc.95-7 at 1 (Thaddeus
Long Docket Sheet, entry for 06/02/2011) (“Court appointed Anna Fecker,
OIDP).
21

under Louisiana Revised Statutes §15:175. 22 Reynaud Variste appears to
have retained private counsel. 23
With the assistance of counsel, all of the named plaintiffs pleaded
guilty to their respective criminal charges, which include theft, 24 battery,25
drug possession, 26 “simple criminal damage,”27 and disturbing the peace.28
At plaintiffs’ sentencings, the presiding judges imposed terms of
imprisonment, which were often suspended, as well as terms of active or
inactive probation. In addition, the judges assessed against plaintiffs various
court costs—whether restitution, fines, and/or discretionary fees and costs.29

22

See R. Doc. 7 at 5.

R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/25/2012)
(“Defendant must retain private counsel.”).
23

24

Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea).

25

Id. at 12 (Reynajia Variste Guilty Plea).

26

Id. at 22 (Reynaud Variste Guilty Plea).

27

Id. at 28 (Vanessa Maxwell Guilty Plea).

28

R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea).

R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/30/2013), 6
(Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste
Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet,
entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for
3/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for
7/29/2011).
29

At some point, all of the named plaintiffs were arrested for failing to pay
outstanding court costs on a warrant issued by the court’s Collections
Department.
Plaintiffs now sue, among others, every judge at the Criminal District
Court—thirteen in all—because they allegedly supervise the Collections
Department employees and have failed to provide the parish’s criminal
defendants with constitutionally-required process before imprisoning them
failure to pay court costs. Plaintiffs sue the judges only for declaratory
relief.30
C.

Plaintiffs’ Claims for Relief

Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging
violations of their Fourth and Fourteenth Amendment rights, as well as
violations of Louisiana tort law. 31

30

Id. at 8 ¶13.

Only Cain, Brown, Reynajia Variste, and Maxwell’s claims for equitable
relief remain. In an order addressing an earlier motion to dismiss, the Court
found that Reynaud Variste and Thaddeus Long lacked standing to pursue
prospective equitable relief and dismissed those claims. R. Doc. 109 at 1921.
31

The Court summarizes plaintiffs’ claims as follows:
(1)

Defendants’ policy of issuing and executing arrest warrants for
nonpayment of court costs is unconstitutional under the Fourth
Amendment and the Due Process Clause of the Fourteenth
Amendment;

(2)

Defendants’ policy of requiring a $20,000 “fixed secured money
bond” for each Collections Department warrant (issued for
nonpayment of court costs) is unconstitutional under the Due
Process Clause and the Equal Protection Clause of the
Fourteenth Amendment;

(3)

Defendants’ policy of indefinitely jailing indigent debtors for
nonpayment of court costs without a judicial hearing is
unconstitutional under the Due Process Clause of the Fourteenth
Amendment;

(4)

Defendants’ “scheme of money bonds” to fund certain judicial
actors is unconstitutional under the Due Process Clause of the
Fourteenth Amendment. To the extent defendants argue this
scheme is in compliance with Louisiana Revised Statutes §§
13:1381.5 and 22:822, which govern the percentage of each

surety bond that the judicial actors receive, those statutes are
unconstitutional;
(5)

Defendants’ policy of jailing indigent debtors for nonpayment of
court costs without any inquiry into their ability to pay is
unconstitutional under the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment;

(6)

Defendants’ policy of jailing and threatening to imprison
criminal defendants for nonpayment of court debts is
unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment because it imposes unduly harsh and
punitive restrictions on debtors whose creditor is the State, as
compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest under Louisiana
law; and

(8)

Defendants’ conduct constitutes wrongful imprisonment under
Louisiana law.

In moving for dismissal, defendants limit their arguments to plaintiffs’
claims that defendants unconstitutionally issue and execute arrest warrants
for nonpayment and unconstitutionally imprison court debtors without

meaningfully inquiring into their ability to pay. 32 Accordingly, the Court
limits its analysis to those claims.

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (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. at 678. A court must
accept all well-pleaded facts as true and must draw all reasonable inferences
in favor of the plaintiff. See Lormand v. US Unwired, Inc., 565 F.3d 228,
239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal

See R. Doc. 97 at 1(“[Defendants] move this court for an order
dismissing this action, particularly claims (a) & (d) in plaintiffs’ Request for
Relief.”). Although defendants appear to ask the Court to dismiss plaintiffs’
complaint as a whole, defendants’ arguments are plainly limited to the claims
stated above.
32

conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal evidence of each
element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are
insufficient factual allegations to raise a right to relief above the speculative
level, or if it is apparent from the face of the complaint that there is an
insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S.
at 555.

III. DISCUSSION
In their First Amended Complaint, plaintiffs cite, in passing, Bearden
v. Georgia, 461 U.S. 660 (1983), as support for their constitutional
challenges to defendants’ conduct. Because defendants’ motion to dismiss
focuses on whether certain aspects of Bearden apply to this case, the Court
begins its analysis with a brief discussion of two Supreme Court cases.
In Tate v. Short, the United States Supreme Court addressed a
constitutional challenge to a state’s method of collecting fines from an
indigent criminal defendant. 401 U.S. 395 (1971). The criminal defendant
in Tate had accumulated fines for traffic offenses, offenses punishable only
by fine. Id. at 396-97. Because the defendant was indigent when the state

court imposed the fines, the court sentenced him to a term of
imprisonment—each day counted as five dollars toward the defendant’s
outstanding fines. Id. The Supreme Court invalidated this practice under
the Equal Protection Clause of the Fourteenth Amendment, explaining that
“[t]he Constitution prohibits the State from imposing a fine as a sentence
and then automatically converting it into a jail term solely because the
defendant is indigent and cannot forthwith pay the fine in full.” Id. at 398
(citation omitted).
Over a decade later, in Bearden v. Georgia, the Supreme Court held—
in the context of a probation revocation proceeding—that courts cannot
revoke an indigent defendant’s probation (and thereby sentence him to a
term of imprisonment) for his failure to pay a court-imposed fine or
restitution “absent evidence that the defendant was somehow responsible for
the failure or that alternative forms of punishment were inadequate. See 461
U.S. 660, 665 (1983). Specifically, the Court held:
[A] sentencing court must inquire into the reasons for the failure
to pay. If the probationer willfully refused to pay or failed to
make sufficient bona fide efforts legally to acquire the resources
to pay, the court may revoke probation and sentence the
defendant to imprisonment . . . If the probationer could not pay
despite sufficient bona fide efforts to acquire the resources to do
so, the court must consider alternate measures of punishment
other than imprisonment. Only if alternate measures are not
adequate to meet the State’s interests in punishment and
deterrence may the court imprison a probationer who has made

sufficient bona fide efforts to pay. To do otherwise would deprive
the probationer of his conditional freedom simply because,
through no fault of his, he cannot pay the fine.
Id. at 672-73.
The judicial defendants ask the Court to dismiss plaintiffs’ claims
against them for three reasons. First, defendants argue that, contrary to
plaintiffs’ assertions that a court must inquire into a debtor’s reasons for
failing to pay, Fifth Circuit law imposes an affirmative duty on the debtors to
assert indigence to avoid arrest for nonpayment. 33 Second, defendants argue
that Bearden does not apply to court costs imposed pursuant to a criminal
defendant’s plea agreement with the State.34 Third, defendants argue that
plaintiffs’ conduct “reveals a willful disregard to pay” and that therefore
plaintiffs were legally arrested regardless of their financial status. 35
According to defendants, plaintiffs cannot state a claim because they
did not appear before the court and assert their indigence. Defendants do
not explain in what form and/or at what proceeding plaintiffs were expected
to do so. 36 No court has held that indigent debtors are required to initiate
33

R. Doc. 97-1 at 8-12.

34

Id. at 14-15.

35

Id. at 13.

To the extent defendants argue that plaintiffs should have raised their
indigence at sentencing, when the Criminal District Court judges imposed
36

proceedings to request a modification of their financial obligations or
otherwise risk imprisonment for nonpayment. The two Fifth Circuit cases
defendants cite do not stand for this proposition. In both cases—Garcia v.
City of Abilene and Sorrells v. Warner—the state-court criminal defendants
indicated an ability and willingness to pay their court costs. See 21 F.3d 1109,
*3 n.8. (5th Cir. 1994); 890 F.2d 773, 774 (5th Cir. 1989). The criminal
defendants also failed (or repeatedly failed) to appear, in person, at
previously scheduled court hearings and thus squandered any occasion they
had to inform the courts otherwise. 21 F.3d at *1; 890 F.2d at 774. In both
cases, the Fifth Circuit noted in passing that the criminal defendants’
arguments under Tate and Bearden failed because, in those cases, the
indigent defendants had appeared before the court and “asserted” their
indigence. 21 F.3d at *3; 890 F.2d at 776. Neither case holds that a state
court’s obligation to ascertain the reason for nonpayment depends on the
debtor’s initiating proceedings to raise his indigence to the court. On the
contrary, the Fifth Circuit recently reiterated that Bearden “require[s] a
court to inquire into the reasons for the [criminal defendant’s] failure to pay

court costs, this argument is plainly inconsistent with Bearden. In Bearden,
the lower court revoked the criminal defendant’s probation when he became
unable to pay the court-imposed fine and restitution after sentencing. See
461 U.S. at 663.

before revoking probation.” United States v. Scales, __ F. App’x __, 2016
WL 1072133, at *7 (5th Cir. 2016) (citing Bearden; 461 U.S. at 672; United
States v. Payan, 992 F.2d 1387, 1396 (5th Cir. 1993)).
To the extent that defendants argue that the Criminal District Court
afforded plaintiffs an opportunity to inform the court of their indigence
before being arrested and imprisoned for nonpayment, this is unsupported
by cognizable evidence and is contradicted by the allegations in plaintiffs’
complaint, which the Court must accept as true. 37 According to the First
Amended Complaint, plaintiffs were arrested and imprisoned on

Defendants have asked the Court to take judicial notice of records from
the Criminal District Court files. R. Doc. 95. These records are a jumble of
248 pages, including computer “screen shots,” unsigned arrest warrants,
unsigned and admittedly misdated letters from the court, and what appear
to be place-holder documents for the court’s internal files. See, e.g., R. Doc.
95-3 at 36, 40-41, 47; R. Doc. 95-6 at 17; see also R. Doc. 95 at 1 n.2 (“The
attached payment notices contained the date they were printed and reflect
the print date.”); R. Doc. 97-1 at 7 (“Please note that the date listed on the
Notice is part of the computer program that automatically prints the date of
printing[.]”). None of the documents is authenticated by affidavit or
otherwise. Because of the manner in which these records were submitted,
the Court is unable to discern for itself either their authenticity or relevance
to the issues raised by defendants’ motion. The Court therefore cannot take
judicial notice. See Fed. R. Evid. 201(b) (“The court may judicially notice a
fact that is not subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot reasonably be
questioned.”). Regardless, defendants’ arguments are simply contested
factual disputes—insufficient to demonstrate that plaintiffs’ allegations fail
as a matter of law.

37

improperly-issued warrants, not supported by probable cause, solely for
their failure to pay court costs due to indigence. Plaintiffs allege that the
Criminal District Court judges failed to inquire into plaintiffs’ reasons for
nonpayment before issuing the illegal warrants. In addition, plaintiffs allege
that the Criminal District Court imposed a pre-set $20,000 secured money
bond on each plaintiff, the payment of which cost more than plaintiffs’
outstanding court debts. Plaintiffs also allege that they “languished” in
prison with no set hearing date and that when they were eventually brought
to court—if they were ever brought to court before their release from prison—
the court failed to meaningfully inquire into their ability to pay court costs
before re-imposing strict payment deadlines and sending some plaintiffs
back to prison because they could not afford their debts. Plaintiffs further
allege that they repeatedly told the Collections Department employees—who
had “standing authority” 38 over collecting court costs—that they were unable
to pay due to indigence.

38

R. Doc. 7-1 at 23.

For example, named plaintiff Alana Cain asserts that she advised a
Collections Department supervisor that she did not have enough money to
pay her usual monthly payment. 39 Although Cain allegedly offered to pay a
lower amount, the Collections Department “refuse[d] to accept any payment
smaller than $50,” and the court issued a warrant for her arrest. 40 Plaintiffs
also allege that some debtors argued their indigence, to no avail, directly to
the Criminal District Court judges.

According to the First Amended

Complaint, after plaintiff Ashton Brown was arrested for nonpayment, he
told a Criminal District Court judge that he could not afford his court debts
unless he was released from prison to secure employment, but “[t]he judge
told [Brown] that he could not release [Brown] unless [Brown] paid at least
$100.”41 The judge sent Brown back to jail and told Brown that he would be
kept there unless a family member paid his outstanding debt. 42 Accepting
the well-pleaded factual allegations as true, as this Court must on a 12(b)(6)
motion, plaintiffs have plausibly stated a claim for relief.

39

R. Doc. 7 at 10.

40

Id.

41

Id. at 13.

42

Id. at 13-14.

Defendants also argue that the Criminal District Court judges are not
legally required to inquire into state-court criminal defendants’ failure to pay
outstanding court costs when the defendants “voluntarily agree[] to pay
restitution as part of the[ir] plea agreement[s].”43 The only cases on which
defendants rely for this proposition are non-binding and factually dissimilar.
In United States v. Mitchell, for example, the Court of Appeals for the Armed
Forces interpreted Bearden alongside the Armed Forces’ Manual for Courts
Martial in a case involving a criminal plea agreement. 51 M.J. 490, 493-94
(C.A.A.F. 1999). The criminal defendant “negotiated a pretrial agreement in
which he offered . . . to make full restitution for the bad checks.” Id. at 491
(emphasis added).

The defendant’s plea agreement reflected that he

“underst[ood] and agree[d] that restitution [wa]s a specific condition” the
defendant offered in exchange for the plea agreement. Id. Further, the
defendant represented in the course of negotiating the agreement and in the
court-martial proceeding that he had the necessary financial resources to
make full restitution. Id. When the defendant failed to satisfy his restitution
obligations, his hearing officer concluded that the defendant failed to make
“a sufficient bona fide effort to acquire funds in light of the resources

43

R. Doc. 97-1 at 14.

alternatives he represented to the Government in his pretrial agreement” and
that the defendant “was less than straightforward . . . in representing the
status of his finances.” Id. In affirming the hearing officer’s revocation of
the defendant’s suspended sentence, the Court of Appeals for the Armed
Forces held “that the Due Process Clause does not protect an accused who
offers to make full restitution, knowing full well that he cannot; nor does it
protect an accused who fails to take timely and reasonable steps to safeguard
his assets so that he can make restitution as promised.” Id. at 494.
Relying on Mitchell and another military court opinion, the Supreme
Court of North Dakota has also held that a criminal defendant “who had
control over the plea agreement and its contents” and “knew his financial
situation before he entered into the plea agreement” fails to satisfy Bearden’s
requirement of good faith when he subsequently neglects his restitution
obligations. State v. Nordahl, 680 N.W.2d 247, 252-53.
There are a number of reasons why Mitchell and Nordahl are factually
inapposite. First, defendants emphasize in support of their other arguments
that “inability to pay is not necessarily a permanent state.”44 By the same
logic, a person’s ability to pay is equally impermanent. Neither Mitchell nor

44

Id. at 12.

Nordahl stand for the proposition that a criminal defendant, who
experiences a change in circumstances after pleading guilty, has per se
willfully failed to pay when he cannot later meet his financial obligations. In
addition, Mitchell and Nordahl do not address mandatory financial
obligations, which—by definition—a criminal defendant cannot voluntarily
offer to pay. As defendants have argued to this Court in support of other
motions to dismiss, some of the costs the judges impose are mandatory,45
which means that the state-court defendants have no ability to bargain over
these assessments in their plea negotiations.

Finally, certain Criminal

District Court records show that plaintiffs either did not agree to any amount
of court costs or agreed to an amount less than what the court ultimately
imposed.46 Accepting plaintiffs’ well-pleaded factual allegations as true,

See generally R. Doc. 53-1 (Defendants’ Motion to Dismiss for Failure
to Join Required Parties); R. Doc. 111 at 20 (order denying defendants’
joinder motion).
45

Alana Cain seemingly agreed to pay total of $901.50 in her plea
agreement. R. Doc. 59-3 at 4. Although the presiding judge assessed Cain
with these costs at her sentencing on May 30, 2013, the court also ordered
Cain to pay $1,800 in restitution, an obligation not listed in her plea
agreement, over a month later, on July 8, 2013. Id. at 2 (entries for
05/30/2013 and 07/08/2013). Similarly, Ashton Brown agreed to pay $500
in court costs, but Brown’s docket sheet and Collections Department records
reflect that the court holds Brown responsible for a total debt to $542.50. Id.
at 8; Id. at 5 (entry for 12/16/2013); R. Doc. 95-4 at 37 (Orleans Parish
Collections Department Payment Receipt). According to Vanessa Maxwell’s
plea agreement, she did not agree to pay any amount of court costs, but her
46

supported by the limited Criminal District Court records of which this Court
has taken judicial notice, plaintiffs plausibly state a claim for relief.
Finally, defendants argue that plaintiffs’ conduct “reveals a willful
disregard to pay” their outstanding court costs. 47 Defendants note that in
Bearden, the Supreme Court did not preclude a court’s imprisoning a
defendant who “willfully refuse[s] to pay the fine or restitution when he has
the means to pay.” 461 U.S. 660, 668 (1983). In support of dismissal on this
basis, defendants first argue, again without citation to supporting evidence,
that all of the named plaintiffs received notice of their defaults from the court
and ignored that notice. In addition, defendants argue that if “plaintiffs were
unable to pay . . . they need to come to court and say so.”48 For the reasons
the Court has explained throughout this order, these conclusory arguments
are factually contested or otherwise legally insufficient to warrant dismissal.

docket sheet reflects that the court nonetheless imposed $191.50. R. Doc.
59-3 at 28; Id. at 23 (entry for 03/06/2012).
47

R. Doc. 97-1 at 13.

48

Id.

IV.

CONCLUSION
For the foregoing reasons, the Court DENIES defendants’ motion to

dismiss under Rule 12(b)(6) for plaintiffs’ purported failure to plead their
indigence in state court.

New Orleans, Louisiana, this _______ day of May, 2016.
23rd

___________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE