Cain et al v. New Orleans City et al

Filing 228

ORDER AND REASONS - the Magistrate Judge's order is MODIFIED as follows. Plaintiffs' motion to amend is GRANTED as to the amendments regarding Counts Four and Seven against Sheriff Gusman. Plaintiffs' motion to amend is DENIED as to the amendments regarding: Counts One, Two, and Three against Sheriff Gusman; Claims against the City of New Orleans; Claims against Judicial Administrator Robert Kazik; Claims against Orleans Parish Criminal District Court. Plaintiffs' motion for extension of deadlines is DENIED AS MOOT. The Court will issue a new scheduling order separately after a status conference with all counsel. Signed by Judge Sarah S. Vance on 2/3/17. (NEF: Mag 2) (jjs)

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
Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia
Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights putative
class action under 42 U.S.C. § 1983 seeking to declare the manner in which
the Orleans Parish Criminal District Court collects post-judgment court costs
from indigent debtors unconstitutional and other relief. Plaintiffs appeal
from the Magistrate Judge’s denial of their motion for leave to amend their
complaint. For the following reasons, plaintiffs’ appeal is granted in part and
denied it part.

I.

BACKGROUND
A.

Factual Allegations

Plaintiffs allege that the defendants maintain an unconstitutional
scheme of jailing indigent criminal defendants and imposing excessive bail
amounts for nonpayment “offenses” in an effort to collect unpaid court costs.

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 (2016).
According to plaintiffs, 85% of the criminal defendants in Orleans Parish are
legally indigent.1 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 various “court costs” against the defendants.
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

1

R. Doc. 7 at 5.
2

operations and pay employee salaries and extra benefits.”2 Plaintiffs allege
that the Criminal District Court judges impose court costs without inquiring
into the criminal defendants’ ability to pay. 3
If the criminal defendants cannot immediately pay in full, the judges
allegedly direct them to the Collections Department. There, an 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.4 Collections Department employees also allegedly warn 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.5
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 signature.6

According to plaintiffs’ allegations, the

Collections Department often issues these warrants “years after a purported

2
3
4
5
6

Id. at 22-23 ¶ 88.
Id. at 23 ¶ 91.
Id. at 27-28 ¶103.
Id. at 28 ¶ 106.
Id. at 29 ¶ 109.
3

nonpayment,” and the warrants are “routinely issued in error” or without
regard to a debtor’s indigence. 7
Plaintiffs also allege that each Collections Department arrest warrant
is “accompanied by a preset $20,000 secured money bond required for
release.”8 According to plaintiffs’ allegations, the amount a debtor must pay
to satisfy the $20,000 secured money bond is often more than all of the
debtor’s outstanding court costs. 9

Plaintiffs allege that this “automatic

$20,000 secured money bond” is motivated by defendants’ financial interest
in state court arrestees’ paying for their release. 10 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. 11
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]”

7
8
9
10
11

Id. at ¶ 110.
Id. at ¶ 113.
See id. at 15 ¶ 47.
Id. at 21-22 ¶88.
Id. at 22 ¶88.
4

by the Collections Department.12 As a result, these indigent debtors allegedly
“languish” in prison “indefinite[ly]” because they cannot afford to pay any of
the foregoing amounts. 13 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. 14

According to

plaintiffs, indigent debtors “routinely” spend a week or more in prison.15
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.”16
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. 17 The judges allegedly hold these brief “failure-topay hearings” without providing the debtors notice of the critical issues or
considering the debtors’ ability to pay. 18

12
13
14
15
16
17
18

Id. at 30 ¶114.
Id. at ¶115.
Id.
Id.
Id. at ¶114.
Id. at ¶116.
Id.
5

Plaintiffs contend that these practices are unconstitutional under the
Fourth and Fourteenth Amendments.
B.

Plaintiffs

The named plaintiffs in the First Amended Complaint are six persons
who were defendants in the Orleans Parish Criminal District Court—Alana
Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and
Vanessa Maxwell. 19

During the criminal proceedings, Criminal District

Court judges appointed counsel from the Orleans Public Defenders to
represent each of the named plaintiffs, except Reynaud Variste, during their
criminal proceedings. 20 Thus, the court must have determined that Cain,
Brown, Reynajia Variste, Long, and Maxwell were legally indigent under
Louisiana Revised Statutes § 15:175.21 Reynaud Variste appears to have
retained private counsel. 22

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
See R. Doc. 7 at 5.
22
See R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for
9/25/2012) (“Defendant must retain private counsel.”).
6
19

20

With the assistance of counsel, all of the named plaintiffs pleaded
guilty to their respective criminal charges, including theft, 23 battery, 24 drug
possession,25 “simple criminal damage,” 26 and disturbing the peace.27 At
plaintiffs’ sentencings, the presiding judges imposed terms of imprisonment,
which were often suspended, and terms of active or inactive probation. In
addition, the judges assessed various court costs against plaintiffs, including
restitution, fines, and/or discretionary fees and costs.28 At some point, all of
the named plaintiffs were subsequently arrested for failing to pay
outstanding court costs on a warrant issued by the court’s Collections
Department.
C.

Claims in the First Amended Complaint

Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging
violations of their Fourth and Fourteenth Amendment rights, and violations

Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea).
Id. at 12 (Reynajia Variste Guilty Plea).
25
Id. at 22 (Reynaud Variste Guilty Plea).
26
Id. at 28 (Vanessa Maxwell Guilty Plea).
27
R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea).
28
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).
7
23

24

of Louisiana tort law. 29 The First Amended Complaint named the following
defendants: (1) The City of New Orleans, (2) Orleans Parish Criminal District
Court (OPCDC), (3) Orleans Parish Sheriff Marlin Gusman, (4) Clerk of
Court Arthur Morrell, (5) Judicial Administrator Robert Kazik, and (6)
thirteen individual judges of the Orleans Parish Criminal District Court (the
Judges).

In their original and First Amendment complaints, plaintiffs

primarily alleged claims against, and sought relief from, “Defendants” as a
group, without distinguishing between different actors.

The Court

previously summarized 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

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.
8
29

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, governing the percentage of each
surety bond that 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
9

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 the First Amended complaint, Plaintiffs’ request for relief sought:
(1) declaratory judgements that “the Defendants’” actions violate plaintiffs’
Fourth and Fourteenth Amendment rights; (2) an order enjoining “the
Defendants” from enforcing the purportedly unconstitutional policies; (3)
money damages for named plaintiffs; and (4) attorney’s fees under §1983.
After a round of motions, all claims against the City of New Orleans,
the Orleans Parish Sheriff, and the Orleans Parish Criminal District Court
were dismissed, along with claims against the remaining Judicial Defendants
for monetary and injunctive relief.30 The only remaining claims were for
declaratory relief against the Judges and Administrator Kazik.

30

R. Docs. 119, 123-26.
10

A.

Motion to Amend Complaint.

After these dismissals, plaintiffs moved for leave to amend their
complaint again.31 The proposed amendments would return to this case
claims against the three previously dismissed defendants: the City, the
Sheriff, and OPCDC. Specifically, (1) the City would be added as a defendant
in Count 1, plaintiffs’ claim that City police officers execute the illegal
warrants issued by the Court; (2) the Sheriff would be added as a defendant
in Counts 1, 2, 3, 4, and 7; and (3) OPCDC would be added as a defendant in
Counts 1, 2, 4, and 6. The proposed amendments specify which allegations
and claims are asserted against each defendant. The proposed complaint also
contains various additions, which are summarized as follows:
(1)

Monique Merren is added as a named plaintiff;

(2)

Additional allegations concerning the organizational structure of
OPCDC;

(3)

Additional allegations concerning written grievances sent to jail
staff by Plaintiffs Cain and Maxwell during their incarceration;

(4)

Additional allegations concerning how Collections Department
employees “seek” and “issue” warrants;

31

R. Doc. 161.
11

(5)

Additional allegations concerning disparate treatment between
individuals jailed on Collections Department warrants and other
arrestees, and the Sheriff’s failure to bring fines and fees
arrestees to court;

(6)

Additional allegations concerning the City’s knowledge of the
number of arrests made by City police officers pursuant to
Collections Department warrants, and new allegations regarding
the City’s knowledge of Collections Department practices.

(7)

Additional allegations concerning the City’s budgeting process
and funding of the Collections Department
Plaintiffs’ motion was submitted for decision by Magistrate Judge

Wilkinson, and was opposed by the Judicial Defendants, the Sheriff, and the
City. 32

Magistrate Judge Wilkinson issued an order denying plaintiffs

motion. 33 Because the amendment was submitted well after the deadline for
amendments previously set by the Court, Judge Wilkinson found under Fed.
R. Civ. P. 16(b)(4) that none of the four factors considered when determining
good cause to permit an untimely amendment supported granting plaintiffs’
motion. 34 The Magistrate Judge found that all of plaintiffs’ allegations

32
33
34

R. Docs. 163, 173, 174.
R. Doc. 179
Id.
12

concerning claims and defendants previously dismissed by order of the
District Judge were not important under the Rule 16 analysis because they
were futile.35 Plaintiffs now appeal the order denying their motion to
amend. 36

II.

LEGAL STANDARD
A magistrate judge’s ruling on a non-dispositive civil motion may be

appealed to the district court. Fed. R. Civ. P. 72(a). When a timely objection
is raised, the district judge must review the magistrate judge’s ruling and
“modify or set aside any part of the order that is clearly erroneous or contrary
to law.” Id. Under this standard, a magistrate judge’s ruling “should not be
rejected merely because the court would have decided the matter
differently.” Arvie v. Tanner, No. 12-1638, 2012 WL 3597127, at *1 (E.D. La.
Aug. 21, 2012) (internal quotations omitted). Instead, “[a] finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a

Id.
R. Doc. 183. Plaintiffs also suggest that instead of ruling on their
motion for review, the Court may simply rule on plaintiffs’ motion for
extension of deadlines. R. Doc. 156. Resolving either motion requires the
Court to apply Rule 16(b). Rather than cut a new path, the Court chooses to
instead proceed with the benefit of Magistrate Judge Wilkinson’s analysis,
and considers plaintiffs’ motion for review.
13
35

36

mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948). A legal conclusion, however, is contrary to law “when the
magistrate fails to apply or misapplies relevant statutes, case law, or rules of
procedure.”

Ambrose-Frazier v. Herzing Inc., No. 15-1324, 2016 WL

890406, at *2 (E.D. La. Mar. 9, 2016). Therefore, the court applies plenary
review to the Magistrate Judge’s legal conclusions. See Haines v. Liggett
Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992) (“[T]he phrase ‘contrary to law’
indicates plenary review as to matters of law.”); Bruce v. Hartford, 21 F.
Supp. 3d 590, 594 (E.D. Va. 2014) (“For questions of law there is no practical
difference between review under Rule 72(a)’s contrary to law standard and a
de novo standard.” (internal quotations and modifications omitted)).
The Magistrate Judge found that plaintiffs failed to demonstrate good
cause to amend their pleadings. Rule 16(b) governs amendment of pleadings
after a scheduling order deadline has expired. S&W Enters. v. SouthTrust
Bank of Ala., 315 F.3d 533, 536 (5th Cir. 2003). Under that rule, the Court
will modify the scheduling order, and apply Rule 15(a)’s liberal amendment
standard, “[o]nly upon the movant’s demonstration of good cause.” Id.; Fed.
R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with
the judge’s consent.”). To determine whether plaintiffs have shown good
cause, the Court considers: (1) the explanation for the failure to timely move
14

for leave to amend; (2) the importance of the amendment; (3) potential
prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice. S&W Enters., 315 F.3d at 536 (quoting
Reliance Ins. v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)).
Once a movant demonstrates good cause to modify the scheduling order, the
“more liberal standard of Rule 15(a) appl[ies] to the district court’s decision
to grant or deny leave.” S&W Enters., 315 F.3d at 536; see also Fed. R. Civ.
P. 15(a).
The Magistrate Judge’s order turned in part on his determination that
all of plaintiffs’ new allegations regarding previously dismissed claims and
defendants were not important because they were inadequate to state a claim
and therefore futile. The Court performs plenary review of these conclusions
of law.
An amendment is futile if it would be dismissed under a Rule 12(b)(6)
motion. Marucci Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368,
378 (5th Cir. 2014). To survive a Rule 12(b)(6) motion to dismiss, plaintiffs
must plead enough facts “to state a claim to relief that is 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
15

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, 23233 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the
Court is not bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 556 U.S. at 678.
Generally, a court ruling on a motion to dismiss may rely on only the
complaint and its proper attachments. Fin. Acquisition Partners v.
Blackwell, 440 F.3d 278, 286 (5th Cir. 2006). A court is permitted, however,
to rely on “documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court may not consider
new factual allegations made outside the complaint. See Fin. Acquisition
Partners, 440 F.3d at 289.

III. DISCUSSION
Plaintiffs propose to amend their complaint by adding a named
plaintiff, presenting new factual allegations, and reasserting several
previously dismissed claims. Specifically, plaintiffs seek to: (1) add Monique
Merren as a named plaintiff; (2) reassert claims for non-declaratory relief
16

against Judicial Administrator Kazik based on new allegations purportedly
showing that he is not entitled to absolute quasi-judicial immunity; (3)
reassert claims against OPCDC based on new allegations purportedly
showing that it is not entitled to immunity under the Eleventh Amendment;
(4) reassert Count One against the City for its alleged policies of executing
invalid arrest warrants and funding the Collections Department; (5) reassert
Count One against the Sheriff for his alleged detention of plaintiffs based on
invalid arrest warrants; (6) reassert Count Three against the Sheriff for his
alleged indefinite detention of plaintiffs; (7) reassert claims for prospective,
injunctive relief against the City under Count One, and against the Sheriff
under Counts One, Two, Three, and Four; and (8) reassert Count Seven
against the Sheriff for his alleged wrongful arrest and imprisonment of
plaintiffs under Louisiana tort law. The Magistrate Judge found that each of
these proposed amendments was futile and therefore unimportant. The
Court considers the proposed amendments in turn.
A.

Monique Merren

Merren brings claims that essentially mirror those of the existing
named plaintiffs.

The Court finds no error in the Magistrate Judge’s

determination that adding a new plaintiff at this stage needlessly complicates
the litigation, prejudices defendants and is unimportant to resolving the
17

claims of existing plaintiffs.

Plaintiffs’ motion for leave to amend the

complaint with allegations concerning Monique Merren is therefore properly
denied.
A.

Judicial Administrator Kazik – quasi-judicial immunity

The Court previously concluded that Kazik is protected by quasijudicial absolute immunity and dismissed all of plaintiffs’ non-declaratory
claims against him. 37 Plaintiffs’ amendments do nothing to disturb this
conclusion. Plaintiffs have attempted to restyle their allegations against
Kazik to assert that he seeks rather than issues warrants. 38 In doing so,
plaintiffs hope to tie Kazik to decisions applying qualified immunity to police
and probation officers who submit insufficient affidavits to magistrate judges
in support of warrants. See, e.g., Malley v. Briggs, 475 U.S. 335, 343 (1986);
Galvan v. Garmon, 710 F.2d 214, 215-16 (5th Cir. 1983).

This

reinterpretation of Kazik’s role—as de facto police officer rather than standin judge—is undermined when plaintiffs’ allegations are read as a whole.
Plaintiffs’ principal grievance is that the defendant judges have allegedly
outsourced their job.

Instead of performing the allegedly required

willfulness inquiry, and then ordering arrest only if a defendant’s failure to

37
38

R. Doc. 119.
R. Doc. 183-2 at 34-35.
18

pay is found to be willful, the Judges have purportedly given Kazik and the
Collections Department standing orders to issue warrants for any defendant
who does not pay.
It is clear that framed in this manner Kazik’s alleged role in causing
plaintiffs’ injuries is fundamentally judicial. Unlike the officers in Malley
and Galvan, Kazik does not ask for issuance of a warrant based on his own
investigation. Rather, Kazik applies a formula for issuing warrants set by
judges who are indisputably authorized to issue warrants on their own. This
conclusion is further supported by the materials attached to plaintiffs’
complaint. Exhibit 1, referenced in the proposed complaint, is a transcript
of an evidentiary hearing concerning OPCDC Collections Department
practices.39

In the hearing, Shannon Sims, Deputy OPCDC Judicial

Administrator, explains that the authority to issue Collections Warrants is
given to the Collections Department by the judges of OPCDC.40 According
to Ms. Sims, one section of Court, Section A, issues its own warrants rather
than delegating that responsibility to the Collections Department.41 As made
clear by Ms. Sims’ testimony, when Kazik issues warrants he stands in the
shoes of a judge under a judge’s direction. When Kazik’s authority to issue

39
40
41

R. Doc. 161-5.
Id. at 23.
Id.
19

warrants is rescinded, a judge takes over. In this way Kazik allegedly
“perform[s] functions comparable to those of judges,” and is entitled to
absolute immunity. Da Vinci Inv., Ltd. P’ship v. Parker, 622 F. App’x 367,
373 (5th Cir. 2015) (quoting Beck v. Tex. State Bd. of Dental Exam’rs, 204
F.3d 629, 634 (5th Cir. 2000)).
Because Plaintiffs’ new allegations concerning Kazik do not undermine
the Court’s earlier finding of quasi-judicial immunity, plaintiffs’ attempt to
reinstate claims for damages and injunctive relief against Kazik is futile, and
good cause to permit this amendment after the Rule 16 deadline is not
established.
B.

OPCDC – Eleventh Amendment immunity

Plaintiffs offer a handful of amendments which purportedly
undermine the Court’s earlier ruling that plaintiffs’ claims against OPCDC
are barred by the Eleventh Amendment. 42 The Court finds that these minor
tweaks cannot overcome the clear weight of precedent holding that OPCDC
and similar entities are covered by the Eleventh Amendment. 43
Even if OPCDC’s immunity were impacted by the proposed
amendments, plaintiffs’ claims against OPCDC must fail because it is not a

42
43

R. Doc. 183-2 at 8, 28-29.
See R. Doc. 123.
20

“person” subject to suit under section 1983. See Dunn v. Louisiana, No. 104519, 2011 WL 445684, at *1 (E.D. La. Feb. 3, 2011) (adopting Report and
Recommendation concluding that Section K of the Orleans Parish Criminal
District Court is not a section 1983 person); see also Mumford v. Basinski,
105 F.3d 264, 267 (6th Cir. 1997) (“A state court is not a ‘person’ for purposes
of 42 U.S.C. § 1983 and hence is not subject to lawsuit under that statute.”).
The Court therefore finds that plaintiffs’ proposed amendments regarding
OPCDC are futile.
C.

The City – Count One

In Count One, plaintiffs allege that they have been arrested by City
police officers, who execute the OPCDC warrants that were issued absent
probable cause in violation of the Due Process Clause of the Fourteenth
Amendment. The Court has already found that plaintiffs’ allegations of
arrest and detention pursuant to OPCDC collections department warrants
issued absent probable cause adequately allege a constitutional violation. 44
Because the City is a municipal entity, plaintiffs’ section 1983 claims against
the City must satisfy the Supreme Court’s test first articulated in Monell v.
Dept. of Soc. Servs., 436 U.S. 658 (1978), before the City may be held liable.

44

R. Doc. 136 at 17-19.
21

Plaintiffs point to two alleged city policies that are purportedly
responsible for plaintiffs’ illegal arrests: (1) that “[C]ity officials allow [the
City’s police] officers to execute warrants issued by the Collections
[Department employees]” despite the City’s knowledge that the warrants are
invalid; and (2) that “City officials fund the salaries of the Collection
[Department employees],” despite knowing of the employees’ allegedly
invalid procedures for issuing warrants.45

The Court considers these

contentions in turn under the relevant Monell standards.
i.

Permitting Arrests on Invalid Warrants

Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other 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 in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983.
In section 1983 suits, municipalities cannot be held liable under a
theory of respondeat superior. Pineda v. City of Houston, 291 F.3d 325, 328
(5th Cir. 2002). Instead, the Court must apply the Monell test, which ensures

45

R. Doc. 183-2 at 57.
22

that cities are held responsible only for “their own illegal acts.” Connick v.
Thompson, 563 U.S. 51, 60 (2011) (emphasis in original). To state a claim
under Monell, plaintiffs must allege the existence of (1) an official policy or
custom, of which (2) a policymaker is charged with actual or constructive
knowledge, and (3) a constitutional violation whose “moving force” is that
policy or custom. Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir.
2010).
Thus, a plaintiff seeking to impose liability on a municipality under
section 1983 must “identify a municipal ‘policy’ or ‘custom’ that caused the
plaintiff’s injury.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 403-04 (1997). A policy need not itself be unconstitutional to satisfy
Monell. City of Canton v. Harris, 489 U.S. 378, 387 (1989) (“[W]e reject
petitioner’s contention that only unconstitutional policies are actionable
under the statute.”). The Fifth Circuit has identified three ways in which
plaintiffs may meet their burden to show a policy or custom. See Burge v.
Par. of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999). The first two involve
direct action by a “policymaker,” either in the form of generally applicable
policies or specific, directed actions. Id. The third involves a failure to act
by policymakers when “the need to take some action to control [its agents]
‘is so obvious, and the inadequacy [of existing practice] so likely to result in
23

a violation of constitutional rights, that the policymaker . . . can reasonably
be said to be deliberately indifferent to the need.’” Id. (quoting Canton, 489
U.S. at 390). Since plaintiffs do not allege direct action by City policymakers,
plaintiffs’ allegations must satisfy the third method of showing a policy or
custom.
As noted, in addition to a policy or custom, plaintiffs must allege that
the City’s policy or custom is the moving force behind the constitutional
violation. The “moving force” component of Monell liability is critical.
Canton, 489 U.S. at 389 (holding that municipal liability can be found “only
where [city’s] policies are the moving force [behind] the constitutional
violation” (internal quotations omitted)).

The “moving force” element

requires plaintiff to show “that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.” Bryan Cty.,
520 U.S. at 406 (emphasis in original). “‘[M]unicipal liability under § 1983
attaches where – and only where – a deliberate choice to follow a course of
action is made from among various alternatives’ by city policymakers.”
Canton, 489 U.S. at 389 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 48384 (1986)).
Because plaintiffs do not allege that the City—as opposed to its police
officers—directly inflicted their injuries, the “moving force” analysis requires
24

that “rigorous standards of culpability and causation . . . be applied to ensure
that the municipality is not held liable solely for the actions of its
employee[s].” Bryan Cty., 520 U.S. at 405; see also Mason v. Lafayette CityPar. Consol. Gov’t, 806 F.3d 268, 280 (5th Cir. 2015) (holding that moving
force inquiry requires showing of causation and culpability) As to causation,
“a plaintiff must show a ‘direct causal connection . . . between the policy and
the alleged constitutional deprivation.’” Mason, 806 F.3d at 280 (quoting
Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992)). “The
“moving force” inquiry imposes a causation standard higher than “but for”
causation.” Id.
As to culpability, the applicable standard in this context is deliberate
indifference, or a showing that the City “promulgated the policy with
‘deliberate indifference’ to the known or obvious consequences that a
constitutional violation would result.” Id. (quoting Piotrowski v. City of
Houston, 237 F.3d 567, 579). The conduct of the City employees at issue
consists of police officers’ checking a warrants database maintained by the
Sheriff’s office, determining that a warrant for unpaid fines and fees is
outstanding against a person the officers have encountered for other reasons,
and arresting persons shown to have such outstanding warrants. 46 The

46

R. Doc. 161-4 at 123-25.
25

complaint does not allege that the police officers are aware of any
constitutional defect in the warrants, and plaintiffs appear to accept that the
warrants are facially valid. The custom or practice of executing facially valid
warrants is not unconstitutional. Instead, plaintiffs allege that the Mayor
made the City liable for the unconstitutional system put in place by the
judges of the Criminal District Court, and without the knowing complicity of
the police, by purportedly obtaining information about the practices of
OPCDC and not stopping the police from executing the warrants. Plaintiffs
do not specifically allege what actions the Mayor failed to take.

The

allegations could be read to mean that the Mayor failed to issue an immediate
order to NOPD to refuse to execute all OPCDC issued warrants for
outstanding fines and fees. Alternatively, since the City controls the behavior
of its police by training them to respond to the situations they encounter in
the field, plaintiffs’ allegations could be construed as a failure to train. Under
either construction of plaintiffs’ claims, the standard of culpability is
deliberate indifference. See Bryan Cty., 520 U.S. at 410. (applying deliberate
indifference standard when plaintiffs alleged that the city did not directly
inflict their injury but instead caused employees to do so); Mason, 806 F.3d
at 280 (holding that if policy is facially lawful, plaintiffs must show deliberate
indifference); see also Thompson, 563 U.S. at 61 (“[A] municipality’s failure
26

to train its employees in a relevant respect must amount to ‘deliberate
indifference to the rights of persons with whom the [untrained employees]
come into contact.’” (quoting Canton, 489 U.S. at 388)).
“‘Deliberate indifference’ is a stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious consequence of
his action.” Thompson, 563 U.S. at 61 (quoting Bryan Cty., 520 U.S. at 410).
“Heightened negligence is insufficient to satisfy this standard.” Mason, 806
F.3d at 280. But, “inaction in light of notice that the city’s policy or practice
will cause constitutional violations is the functional equivalent of a decision
by the city to violate the constitution.” Thompson, 563 U.S. at 61-62.
“Policymakers’ ‘continued adherence to an approach that they know or
should know has failed to prevent tortious conduct by employees may
establish the conscious disregard for the consequences of their actions—the
‘deliberate indifference’—necessary to trigger municipal liability.’” Id. at 62
(quoting Bryan Cty., 520 U.S. at 407). In the failure to train context,
“without notice that a course of training is deficient in a particular respect,
decision makers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.” Id.
Applying these standards for Monell liability to plaintiffs’ allegations,
the Court finds that the plaintiffs have failed to plausibly allege that the City’s
27

failure to prevent its officers from executing Collections Department
warrants was a “moving force” behind plaintiffs’ injury or that any City policy
that its police officers execute facially valid warrants was promulgated with
deliberate indifference to the known or obvious consequences that
constitutional violations would result. The need for an immediate order to
stop executing all warrants for unpaid fines and fees or for police training to
look behind all such warrants is not “so obvious,” based upon what the City
allegedly knew about OPCDC’s collection practices, that City policymakers
could reasonably be said to have been deliberately indifferent.
In support of their contention that the City was aware of the alleged
infirmity of the Collections Department warrants, plaintiffs rely on quotes—
with little context—purportedly drawn from memos in the Mayor’s office. 47
The memos allegedly date from 2015, years after OPCDC allegedly started
the practice of Collections Department warrants, and within months of the
filing of this lawsuit. At most, the allegations in the proposed amendment
indicate that the City’s policymakers may have had some unclear, indefinite
information about the alleged collections practices at OPCDC, practices
attributed to judges who are trained in the law and who would not reasonably
be presumed to order citizens locked up without probable cause.

47

R. Doc. 183-2 at 47.
28

The

“internal memos” allegedly dating from April or May of 2015 quoted in
Paragraph 155 of the proposed amendment are unattributed to any source or
recipient. Nor do plaintiffs allege who discussed the reports or whether the
Mayor, the alleged final policymaker, was aware of the reports. The quoted
memos employ hedge words to describe the unidentified author’s
understanding of the alleged OPCDC practices, like “seem to” and leave out
words. The unidentified authors state the judges “seem to be delegating a
number of their powers to the collections departments,” which issued
warrants “without . . . the constitutional safeguard” of a “judicial
determination of probable cause.”48

This “seem to” language suggests

uncertainty by the unnamed author. Further, there is no mention of the role
of City police in the process and no suggestion that the City or its police,
instead of the OPCDC, was responsible for it.
Further, plaintiffs allege that these internal memos “advised the
Mayor’s office” of the Collection Department’s warrant practices “in April or
May of 2015.”49 Only one plaintiff, Thaddeus Long, alleges that he was
arrested after that period. The remaining plaintiffs were either arrested

48
49

Id.
Id. at 46.
29

before or during the “April or May” period, rendering the relevancy of the
memos suspect at best.
None of the other material relied on by plaintiffs is any more indicative
that a City policymaker possessed sufficient knowledge to make plaintiffs’
injuries a “known or obvious” consequence of the City’s failure to train or
direct police. Plaintiffs rely on a report by an advocacy group, but supply no
facts indicating that any policymaker was ever aware of it, much less that the
memo warranted immediate action by the City. 50 They also point to an
unidentified advocacy group memo in the Mayor’s office file from 2015,
which discusses practices by the judges at OPCDC, but does not mention
warrant practices, or the New Orleans police, and recommends that “the
Court should make a systemic indigency determination before imposing
fines and fees.”51 Such a court determination before the imposition of fines
is undoubtedly good policy, but it is not required by the Constitution. See
United States v. Voda, 994 F.2d 149, 154 n.13 (5th Cir. 1993) (citing Williams
v. Illinois, 399 U.S. 235, 243 (1970)), and Bearden v. Georgia, 461 U.S. 660,
663 (1983) (holding indigency no bar to imposing fine but limiting the
penalty courts can impose for nonpayment because of inability to pay)). This

50
51

Id. at 46-47.
Id. at 46.
30

memo, for which no recipient is identified, is not even an accurate source of
information on the constitutional duty of OPCDC, much less a discussion of
the constitutional infirmity of police conduct. Receipt of it in the Mayor’s
office is not a basis for a plausible inference of deliberate indifference.
The upshot of plaintiffs allegations is that the vague, unsourced, notalways-accurate information they describe, some of which they do not even
allege anyone in the Mayor’s office had possession of, was sufficient to
require the Mayor either to immediately order city police officers to refuse to
execute any facially valid, outstanding warrants for unpaid fines and fees
issued under the authority of a duly constituted court, or to provide some
unspecified training for looking behind facially valid warrants. In evaluating
these allegations, the Court is mindful of the Supreme Court’s admonition in
Iqbal, that determining whether a complaint states a plausible claim for
relief will “be a context-specific task that requires the reviewing court to draw
on judicial experience and common sense.” Iqbal, 556 U.S. at 679. And,
“where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct,” the complaint fails to show “that the pleader
is entitled to relief.” Id. These considerations require the Court to find
plaintiffs’ allegation of City liability implausible. Plaintiffs’ allegations are
insufficient to alter the essential import of their allegations in the remainder
31

of Count 1, that the moving force behind the alleged constitutional violation
is the Orleans Parish Criminal District Court and its judges. The court is a
political entity separate and distinct from the City. It is not the Municipal
Court of the City of New Orleans. It is an agency of the State, not the City.
Its judges are its policymakers, not the City Council, the City’s mayor, the
City’s police chief, or any other City official. The allegations in the proposed
amended complaint are insufficient to establish that the City had knowledge
of the alleged practices of OPCDC that made it so obvious to the City that
constitutional violations would occur that the City was deliberately
indifferent to the need to order or train its police officers to alter their
practice of executing facially valid warrants. This is especially true in this
context where Fifth Circuit law holds that “when law enforcement officers
hold[] a warrant for arrest identifying the person named in the warrant, their
duty [is] to arrest him.” Perry v. Jones, 506 F.2d 778, 780 (5th Cir. 1975).
And, this conclusion is buttressed by the fact that plaintiffs’ own exhibit
indicates that at least one OPCDC judge issues her own warrants, and
plaintiffs allege others bore the purported signatures of judges.52

It would

be wholly unrealistic and would stretch the boundaries of Monell liability
beyond recognition to hold that, based on plaintiffs’ allegations, the City

52

See R. Doc. 161-5 at 23.
32

should have instructed its police officers to refuse to execute facially valid
arrest warrants or to go behind them and make their own determination as
to whether probable cause existed to support them.
Plaintiffs have failed plausibly to allege any failure to act by the City
with respect to its police officers’ execution of the challenged warrants that
was a “moving force” behind their allegedly unconstitutional arrests.
Plaintiffs therefore cannot state a claim relating to a City policy, and the
proposed amendments regarding arrests performed by the City are futile.
i.

The City’s funding of the Collections Department.

Plaintiffs assert as a second ground for the City’s Monell liability the
City’s alleged policy of funding the Collections Department. To evaluate
whether the City may be held liable for this policy, the Court must again apply
the Monell factors to determine whether the complaint plausibly alleges that
the City’s own policy caused plaintiffs’ injuries.
This allegation fails at the causation prong. As noted above, for a policy
to be a “moving force” under Monell there must be a “direct causal link”
between City policy and plaintiffs’ injury. Bryan Cty., 520 U.S. at 400. The
Fifth Circuit has made clear that “[t]he ‘moving force’ inquiry imposes a
causation standard higher than ‘but for’ causation.” Mason, 806 F.3d at 280;
see also Fraire, 957 F.2d at 1281 (“[A] direct causal connection must exist
33

between the policy and the alleged constitutional deprivation. This
connection must be more than a mere ‘but for’ coupling between cause and
effect.”). “But for” causation is, in other words, necessary but not sufficient
for Monell liability.
Here, plaintiffs cannot meet even the lower “but for” causation
standard.

“But for” causation exists when “the harm would not have

occurred in the absence of—that is, but for—the defendant’s conduct.”
United States v. Ramos-Delgado, 763 F.3d 398, 402 (5th Cir. 2014) (quoting
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013)).
Plaintiffs allege that the City provides OPCDC with millions of dollars in
funding each year.53 Plaintiffs allege that OPCDC’s budget request for the
fiscal year 2012 indicates OPCDC’s Collection Department employees are
“fully funded” by the City. 54 Additionally, plaintiffs allege that in 2015 the
City provided an additional $92,831 in funding, with the understanding that
this money would be used to hire two new Collections Department
employees.55 The City provides these funds, according to plaintiffs, despite
having no legal obligation to fund the Collections Department. 56

53
54
55
56

R. Doc. 183-2 at 41.
Id.
Id. at 47-48.
Id. at 41.
34

Plaintiffs admit, however, that the City is not OPCDC’s only benefactor.
The proposed complaint states that OPCDC’s “annual budget is composed of
funds from a variety of sources, including the State of Louisiana, grants,
monies generated via fines and fees, and contributions from the City of New
Orleans to the OPCDC general fund.” 57 The money generated for the Court
by fines and fees is allegedly placed in the Judicial Expense Fund, which is
“used in [the Judges’] discretion.”58 OPCDC allegedly collects “millions of
dollars in revenues” for the Fund, and uses this money to “fund [the Court’s]
basic operations” including “employee salaries.” 59
The thrust of these allegations is that the Collections Department
generates millions of dollars in revenue for OPCDC, and that OPCDC is free
to spend that money as it pleases. Assuming, as the Court must, that this is
true, it is simply not plausible that–even if the City cut all funding to the
OPCDC—the court would shutter the Collections Department or restrict its
warrant practices. On the contrary, every dollar not contributed by the City
increases the budgetary pressure on OPCDC. Therefore, a reduction in City
funding would, if anything, cause an increase in the collection activities that
plaintiffs challenge. Plaintiffs have therefore failed to plead a plausible “but

57
58
59

Id. at 40.
Id. at 28-29.
Id. at 30.
35

for” connection between their alleged injuries and the City’s policy of funding
the Collections Department. See City of Oklahoma City v. Tuttle, 471 U.S.
808, 823 (1985) (rejecting notion that a city’s “‘policy’ of establishing a police
force” could justify § 1983 liability because Monell requires “an affirmative
link between the policy and the particular constitutional violation alleged”).
Finally, in the proposed complaint, plaintiffs concede that “OPCDC
retains ultimate control over the daily activities of its employees,” but
nonetheless maintain that “nothing prevents the City from exercising its
authority to understand and oversee the activities of a program it is fully or
largely funding.”60

This purported causal link also stretches “but for”

causation, and is plainly insufficient to meet Monell’s rigorous “moving
force” standard. Plaintiffs cite no authority for finding causation based on a
failure to exercise the City’s implicit power of the purse, and this Court has
rejected similar theories in the past. See Broussard, 2001 WL 258055, at *2
(dismissing city from suit regarding jail policy where city funded and
maintained jail, but sheriff operated facility); Jones v. St. Tammany Par.
Jail, 4 F. Supp. 2d 606, 613 (E.D. La. 1998) (dismissing parish from suit
regarding jail policy where “[p]arish’s responsibility to the jail [wa]s limited
to the funding of the jail”); see also Deaton v. Montgomery Cty., 989 F.2d

60

R. Doc. 183-2 at 42.
36

885, 887 (6th Cir. 1993) (County policy was not “moving force” behind strip
search policy at jail where “County erected the facility and maintained the
physical plant and the City managed and operated the facility”). Because
plaintiffs have failed to plausibly allege the required causal link between their
injuries and the City’s policy of funding the Collections Department,
plaintiffs’ proposed amendments regarding this policy are futile.
D.

Sheriff Gusman – Count One

In Count One Plaintiffs challenge the Sheriff’s authority to jail them at
all on Collections Department warrants. 61 Plaintiffs allege that the Sheriff is
a final policymaker with respect to management of the jail, and argue that
the Sheriff is “aware of his deputies’ custom of booking and detaining
individuals arrested on [Collections Department] warrants.”62
Count One is brought against the Sheriff in his official capacity. As the
Fifth Circuit has noted, “[o]fficial capacity suits generally represent another
way of pleading an action against an entity of which an officer is an agent.”
Burge, 187 F.3d at 466. When a § 1983 claim is asserted against the Sheriff
in this way “proper analysis requires us to separate two different issues . . .
(1) whether plaintiff’s harm was caused by a constitutional violation, and (2)

61
62

Id. at 4, 10-20.
Id. at 12.
37

if so, whether the [Sheriff] is responsible for that violation.” Collins v. City
of Harker Heights, 503 U.S. 115, 120 (1992); see also Bush v. Viterna, 795
F.2d 1203, 1209 (5th Cir. 1986) (“Whenever a cause of action is alleged under
§ 1983, the first question must be whether a federally secured right has been
affected.”).
As noted, the Court has previously determined that plaintiffs’
allegations of arrests and detention under invalid warrants plausibly state a
constitutional violation. 63 But the Sheriff cannot be liable in his official
capacity for these detentions unless plaintiffs can satisfy the liability
standards of Monell. See Burge, 187 F. 3d at 468; Nagle v. Gusman, 61 F.
Supp. 3d 609, 630 (E.D. La. 2014). The Sheriff has no Monell liability unless
he acted or failed to act with deliberate indifference to the resulting
constitutional injury. Mason, 806 F.3d at 280; see also discussion supra
Section III. D. i. To show deliberate indifference, plaintiffs must plausibly
allege that the Sheriff was “on actual or constructive notice” of the invalidity
of the warrants, and therefore that jailing plaintiffs pursuant to these
warrants was “substantially certain to result in the violation of their
constitutional rights.” Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745,
756 (5th Cir. 1993) (quoting Canton, 489 U.S. at 396 (O’Connor, J.,

63

R. Doc. 136 at 17-19.
38

concurring in part and dissenting in part)). The Court finds that Plaintiffs’
allegations concerning the Sheriff’s knowledge do not include sufficient facts
to “nudge[] their claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.
Given the absence of any allegations concerning how the Sheriff was
directly made aware of Collections Department policies, plaintiffs attempt to
rely on alleged media reports concerning poor people in New Orleans facing
jail for failure to pay fines and fees. 64 Even if the Court were to find that
publication of these reports was sufficient to provide the Sheriff with “actual
or constructive notice” of their contents, plaintiffs’ allegations would remain
defective. There is no indication from plaintiffs’ complaint that these media
reports discuss the Collections Department’s warrant practices or suggest
that OPCDC issues warrants without the required finding of probable
cause. 65 Accordingly, plaintiffs have not plausibly alleged that even if the
Sheriff reviewed these publications, he could reasonably be expected to
conclude from reading them that anyone was falsely imprisoned in OPP. The
Court therefore finds that plaintiffs have failed to plausibly allege that the
Sheriff’s alleged policy of detaining individuals pursuant to Collections

64
65

R. Doc. 183-2 at 45-46.
Id.
39

Department warrants occurred with deliberate indifference to a resulting
constitutional injury.
Plaintiffs also argue that the Sheriff was made aware of the infirmity of
the warrants by virtue of being served with the complaint in this case, and
that he has nonetheless continued to detain individuals pursuant to
Collections Department warrants. Prior lawsuits may sometimes be relevant
in evaluating knowledge of Monell defendants. See, e.g., Deaton v.
Montgomery Cty., 989 F.2d 885, 890 (6th Cir. 1993). But, in this instance
the plaintiffs filed their lawsuit after they suffered injury, so that information
acquired after initiation of this suit is irrelevant to determining the Sheriff’s
knowledge at the time of the alleged deprivations.
Because plaintiffs have failed to plausibly allege that the Sheriff was
aware of the Collections Department’s alleged warrant practices, Count One
fails to state a claim as to the Sheriff and the proposed amendments related
to this count are futile. 66
E.

Sheriff Gusman – Count Three

Count Three focuses on the Sheriff’s conduct after plaintiffs were
arrested by New Orleans police officers and brought to Orleans Parish

See infra, Section H. i, for a discussion of plaintiffs’ claims for
injunctive relief under Count One.
66

40

Prison. Plaintiffs challenge the Sheriff’s alleged “indefinite” detention of
them without a court hearing. The Sheriff did not issue or execute the
warrants at issue, but instead detained plaintiffs on the basis of facially valid
arrest warrants.

The Court has already found that plaintiffs failed to

plausibly allege that the Sheriff knew or should have known that the capias
warrants were invalid.
Plaintiffs sue Sheriff Gusman in his official capacity in Count Three. As
in Count One, the Court must ask (1) whether plaintiffs have alleged a
constitutional violation, and (2) whether the Sheriff is responsible for it.
Collins, 503 U.S. at 120.
In Count Three, plaintiffs allege that the Sheriff violated their rights
under the Due Process Clause of the Fourteenth Amendment by jailing them
“indefinitely” without a hearing. Specifically, plaintiffs allege that, after
arriving at OPP, arrestees are informed that to secure their release they must
either: (1) pay the $20,000 bond affixed to the Collections Department
warrant, or (2) pay a sum of money to the Collections Department and
thereby secure an order of release.67 According to the proposed amended
complaint, jail staff do not bring such arrestees before a magistrate for an
initial appearance, the Sheriff does not have written procedures for notifying

67

R. Doc. 183-2 at 36.
41

OPCDC of their arrests, and the Sheriff does not “consistently” inform
OPCDC of the arrest of persons on fines and fees warrants. 68
Plaintiffs further allege that in response to plaintiffs’ discovery
requests in this case, the Sheriff stated that his duty with respect to
individuals held on Collections Department warrants is to maintain custody
until his staff receives an order directing that the inmate be brought to
OPCDC or released. 69

Plaintiffs also plead that, according to OPCDC,

OPCDC has had a policy for five years (in writing since June of 2016) of
placing arrestees for unpaid fines and fees on the Court’s docket within 48
hours of arrest. 70
As a result of the Sheriff’s policies, plaintiffs allege that they
respectively spent seven, 71 fifteen, 72 three,73 seven,74 six, 75 and twelve 76 days
in jail before being either brought before a judge or released. Plaintiffs
describe their eventual release or hearing as dependent on the help of a third
party who either paid the Collections Department or lobbied OPCDC to

68
69
70
71
72
73
74
75
76

Id. at 36.
Id. at 37-38.
Id. at 38.
Id. at 12.
Id. at 13-14.
Id. at 16.
Id. at 18.
Id. at 19.
Id. at 21.
42

secure a place on the docket.77 Finally, plaintiffs also allege that five other
unnamed individuals arrested on Collections Department warrants were
detained between one week and 57 days without a hearing, and that a sixth
arrestee was told he would not be brought to court for at least 12 days unless
he paid $50 to the Collections Department. 78
The Court finds that the alleged detention of plaintiffs for the periods
described under facially valid warrants fails to state an unconstitutional
denial of due process. This conclusion is based on the following authority.
In Baker v. McCollum, 443 U.S. 137, 141 (1979), police arrested McCollum
pursuant to a facially valid warrant and detained him for three days. After
McCollum complained repeatedly, the police released him upon discovering
that although the warrant bore McCollum’s name, he was not the wanted
man. Id. McCollum sued the police under 42 U.S.C. § 1983, alleging that his
three-day detention violated his Fourteenth Amendment protection against
deprivation of liberty without due process. Id. The Court held that whatever
claim McCollum might have under state tort law, he stated no claim under
the Fourteenth Amendment. Id. at 146-47. The Court held that a sheriff
executing a valid arrest warrant is not required by the Constitution to

77
78

Id. at 12-21.
Id. at 38-39.
43

investigate every claim of innocence.

Id. at 146.

“Nor is the official

maintaining custody of the person named in the warrant required by the
Constitution to perform an error-free investigation of such a claim.” Id. The
Court acknowledged that McCollum’s detention for three days under a
facially valid warrant, albeit one that named the wrong person, “indeed
deprived him of his liberty for a period of days.” Id. at 144. But, because the
detention was pursuant to a facially valid warrant, McCollum’s detention did
not give rise to a Fourteenth Amendment claim. Id. The Court noted that
one in McCollum’s position could not be held “indefinitely” in face of
repeated claims of innocence because he enjoyed a right to a speedy trial. Id.
In dicta, the Court assumed for the sake of argument that “depending on
what procedures the State affords defendants following arrest and prior to
actual trial, mere detention pursuant to a valid warrant but in the face of
repeated protests of innocence will, after the lapse of a certain amount of
time, depriv[e] the accused of liberty . . . without due process of law.” Id.
But, the Court said it was “quite certain that a detention of three days” could
not amount to such a deprivation. Id. at 145.
In Harris v. Payne, 254 Fed. Appx. 410, 421 (5th Cir. 2007), the Fifth
Circuit, after considering Baker v. McCollum, found no due process violation
when the Sheriff detained the wrong person for four months on a facially
44

valid capias warrant, despite the arrestee’s protests of innocence and the
failure by the Sheriff and his deputies to access available information that
would have exonerated him. Further, the Fifth Circuit has consistently held,
without in-depth discussion or analysis, that a requirement, either under
state or federal rules, to be promptly taken to court following an arrest within
any particular time period “has not been given constitutional status.”
Anderson v. Nosser, 438 F.2d 183, 196 (5th Cir. 1971) (quoting Kulyk v.
United States, 414 F.2d 139, 141 (5th Cir. 1969)). The Fifth Circuit has
rejected constitutional challenges to even extended periods of detention
without an initial court appearance. See Rheaume v. Tex. Dep’t of Pub.
Safety, 666 F.2d 925, 929 (5th Cir. 1982) (reiterating the Fifth Circuit’s
“holding consistently” that a claim of failure to bring an arrestee before a
judge within time requirements set by state law was not “of constitutional
dimension under the due process clause”); Stephenson v. Gaskins, 539 F.2d
1066, 1067-68 (5th Cir. 1976) (thirty-eight day “failure to take an arrestee
before a magistrate [judge] is not a federal constitutional issue”); Perry v.
Jones, 506 F.2d 778, 780 (5th Cir. 1975) (arrestee detained for six days
without being “promptly taken before a magistrate or given the opportunity
to post bail” made a complaint that “has not been given constitutional
status”); Scarbrough v. Dutton, 393 F.2d 6, 7 (5th Cir. 1968) (seven month
45

detention without preliminary hearing “does not amount to a violation of
constitutional rights”).
Less than a year ago, the Eleventh Circuit reiterated the Fifth Circuit’s
long-standing conclusion that no violation of constitutional rights occurs for
detentions like those alleged in the Count Three of plaintiffs’ proposed
amended complaint. In Taylor v. Taylor, 649 Fed. App’x 737, 748 (11th Cir.
2016), plaintiff asserted a Section 1983 claim against a sheriff and his deputy
based on allegations that “they failed to present her to a judge immediately
after her arrest.” Id. The delay resulted in her detention for nine days, at
which time a judge set a bond, and she was subsequently released. Id. at 741.
The Eleventh Circuit stated:
[W]e note that our predecessor court, by which we are bound,
has ‘held that even though [Georgia state law] required that an
officer arresting under a warrant bring the person arrested
before a committing officer within 72 hours after arrest, failure
to take an arrestee before a magistrate [judge] is not a federal
constitutional issue. . . .’ [Plaintiff] has not shown that her dueprocess rights were violated or that those rights were clearly
established.”
Id. at 748 (emphasis added)(citations omitted).
The Court finds that the decisions of the Fifth Circuit, which bind this
Court, dictate the outcome of plaintiffs’ claims regarding the length of their
detentions without being afforded a hearing, and require a finding that
Count Three fails to allege a constitutional violation. Hence, plaintiffs’
46

allegations fail to satisfy Monell and are futile. Nevertheless, plaintiffs’
allegations about the Sheriff’s systematic incompetence in handling their
detentions, if true, are indeed troubling. The Court also notes that other
circuits have held that allegations similar to plaintiffs’ give rise to actionable
due process violations. See Oviatt Pearce, 954 F. 2d 1470, 1473-77 (9th Cir.
1992); Hayes v. Faulkner County, 388 F.3d 669, 674 (8th Cir. 2004). But
because the Fifth Circuit’s precedent is binding on this Court, the Court must
find that plaintiffs claim in Count Three is futile. This result does not
foreclose plaintiffs from stating a plausible tort claim under State law for
false imprisonment. See discussion of Count Seven infra, Section III. H.
F.

Injunctive relief under Counts One, Two, and Four.
i.

Counts One and Two

Plaintiffs maintain that even if the Court finds the Monell requirements
unfulfilled, it may nevertheless order prospective, injunctive relief against
the Sheriff and City. This power, according to plaintiffs, derives from the
Court’s authority to enjoin “individuals who, as officers of the state, are
clothed with some duty in regard to the enforcement of the laws of the state,
and who threaten and are about to commence proceedings, either of a civil
or criminal nature, to enforce against parties affected an unconstitutional

47

act, violating the Federal Constitution.” Ex parte Young, 209 U.S. 123, 15556 (1908).
The Supreme Court, however, recently held that “claims for
prospective relief, like claims for money damages, fall within the scope of the
‘policy or custom’ requirement.” Los Angeles County, v. Humphries, 562
U.S. 29, 36-37 (2010). In Humphries, plaintiff sued the county, rather than
a county official in his or her official capacity. Id. Plaintiffs argue that
Humphries can be distinguished. They argue that Monell always applies to
municipalities sued in their own name, regardless of the type of relief sought,
because municipalities cannot act, except through the types of policies and
customs discussed in Monell. According to plaintiffs, however, claims
against municipal officials in their official capacities for prospective,
injunctive relief need not check the Monell boxes because a county official
can act on his or her own to commit a constitutional violation.
The problem with plaintiffs’ argument is twofold. First, this argument
does not apply to plaintiffs’ claim against the City, which is brought against
an entity. Second, as to plaintiffs’ claims against the Sheriff, the Supreme
Court has repeatedly stated that a suit against a government official in his
official capacity “is not a suit against the official but rather is a suit against
the official’s office.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
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(1989); see also Monell, 436 U.S. at 690 n.55 (“[O]fficial-capacity suits
generally represent only another way of pleading an action against an entity
of which an officer is an agent.”). The equivalence between official-capacity
and entity suits is further supported by the Supreme Court’s statement that
“[t]here is no longer a need to bring official-capacity actions against local
government officials, for under Monell . . . local government units can be
sued directly for damages and injunctive or declaratory relief.” Kentucky v.
Graham, 473 U.S. 159, 167 n.14 (1985).

Accordingly, since an official

capacity suit is simply a suit against an entity by another name, Humphries
applies whether the plaintiff brings an official capacity suit against a
municipal official or sues the municipality itself.
This conclusion is, however, somewhat in tension with the Ex parte
Young line of cases. Courts have long recognized that under Young “[a] suit
is not ‘against’ a state . . . when it seeks prospective, injunctive relief from a
state actor . . . based on an alleged ongoing violation of the federal
constitution.” NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 (5th Cir.
2015) (quoting K.P. v. LeBlanc, 729 F.3d 427, 439 (5th Cir. 2013)). Rather,
“a state official attempting to enforce an unconstitutional law ‘is stripped of
his official clothing and becomes a private person subject to suit [and s]uits
by private citizens against state officers in their official capacit[ies] are not,
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therefore, categorically barred.’” Id. (quoting K.P. v. LeBlanc, 627 F.3d 115,
125 (5th Cir. 2010). The First Circuit has recognized and discussed, but not
resolved, the competing pull of these doctrines as applied to municipal
officials, sued in their official capacity, for prospective, injunctive relief.
Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 72 (1st Cir. 2002).
Faced with this uncertainty, the Court holds that it may not order
prospective injunctive relief against the Sheriff absent a finding that the
Monell requirements are satisfied. Contrary to plaintiffs’ argument, this
ruling does not upend our constitutional order. The Court entertains no
doubts about its authority and obligation to enjoin constitutional violations.
In applying Monell to plaintiffs’ claim for injunctive relief, the Court merely
recognizes that such relief against a municipal actor is appropriate only when
the municipality’s own actions cause the complained-of injury. Absent this
causal link, the Court’s unquestioned authority to enjoin ongoing
constitutional violations would be misapplied.
Because the Court has already found that plaintiffs failed to meet the
Monell requirements as to Count One against both the Sheriff and City,
plaintiffs cannot state a claim against these parties for injunctive relief under
this Count. Plaintiffs make no argument that the Sheriff is a moving force
behind the injuries alleged in Count Two, and that claim therefore fails for
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the same reason.

Accordingly, the Court finds that the proposed

amendments as to these two counts are futile.
ii.

Count Four

Under Count Four, plaintiffs challenge the constitutionality of sections
22:822 and 13:1381.5 of the Louisiana Revised Statutes. Those provisions
direct the Sheriff to collect “a fee of three dollars for each one hundred dollars
worth of liability on . . . bail bond[s] being presented for the release of a
person on bail.” La. Rev. Stat. § 22:822 (2016). The Sheriff is further
required to divide the collected funds according to a set formula and
distribute them among his own office, OPCDC, the Judicial Expense Fund,
the district attorney, and the public defender. La. Rev. Stat. § 13:1381.5.
Plaintiffs allege that this arrangement robbed them of their Fourteenth
Amendment right to a neutral forum by giving the judge charged with setting
their bond—along with other actors in the criminal justice system—a
financial stake in that bond.
Before evaluating plaintiffs’ claims against the Sheriff, the Court must
determine whether the Sheriff, in enforcing section 22:822, acts as a state or
municipal official. In Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990),
the Fifth Circuit held:
[T]he state cannot dissociate itself from actions taken under its
laws by labeling those it commands to act as local officials. A
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county official pursues his duties as a state agent when he is
enforcing state law or policy. He acts as a county agent when he
is enforcing county law or policy. It may be possible for the
officer to wear both state and county hats at the same time . . .
but when a state statute directs the actions of an official, as here,
the officer, be he state or local, is acting as a state official.
Accordingly, because plaintiffs allege that the Sheriff distributes bond fees as
directed by a state statute, he acts as a state official when he does so. See also
McMillian v. Monroe County, 520 U.S. 781, 783 (1997) (Sheriff was, for
purposes of the issue before the Court, a state policymaker, not a county
policymaker); Bostic v. Schaefer, 760 F.3d 352, 371 n.3 (4th Cir. 2014) (Clerk
for the Circuit Court for the City of Norfolk was “proper defendant” to
challenge state law).
However, as a state actor sued in his official capacity, the Sheriff is
entitled to the protection of the Eleventh Amendment. See Wallace v. Tex.
Tech Univ., 80 F.3d 1042, 1047 n.3 (5th Cir. 1996) (“Suits against state
officials in their official capacity are considered to be suits against the
individual office, and so are generally barred as suits against the state
itself.”). “The Eleventh Amendment bars citizens of a state from suing their
own state or another state in federal court unless the state has waived its
sovereign immunity or Congress has expressly abrogated it.” Raj v. La. State
Univ., 714 F.3d 322, 328 (5th Cir. 2013) (internal citations omitted). Section
1983 does not abrogate Eleventh Amendment immunity, Khan v. S. Univ. &
52

Agric. & Mech. Coll. Bd. of Supervisors, No. 03-30169, 2005 WL 1994301,
at *3 (5th Cir. Aug. 19, 2005), and Louisiana has explicitly asserted its
sovereign immunity by statute La. Rev. Stat. § 13:5106(A) (2016) (“No suit
against the state or a state agency or political subdivision shall be instituted
in any court other than a Louisiana state court.”).
Because the Sheriff’s actions as a state official are protected by
Eleventh Amendment immunity—and that immunity is undermined by
neither abrogation nor consent—plaintiffs’ claims under Count Four may
proceed only if they fall under the limited exception articulated in Ex parte
Young, 209 U.S. 123 (1908). “In determining whether the doctrine of Ex
parte Young avoids an Eleventh Amendment bar to suit, a court need only
conduct a straightforward inquiry into whether the complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,
645 (2002) (internal quotations and modifications omitted). Because this
claim is brought against the Sheriff as a state actor, and not a municipality,
the Court need not apply Monell. See Rounds v. Clements, 495 F. App’x 938,
941 (10th Cir. 2012) (“[T]he ‘policy or custom’ standard . . . [is] a liability
standard for suits against municipalities—entities not immune from suit
under the Eleventh Amendment—and it has no applicability to state officers
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who are immune from suit for damages but susceptible to suit under Ex parte
Young for injunctive relief.”).
Plaintiffs plainly allege that the Sheriff’s enforcement of the challenged
state statutes is ongoing, 79 and seek only “injunctive and declaratory
relief,” 80 which may be fairly characterized as prospective.

The Court

therefore need only determine whether plaintiffs have plausibly alleged that
the statutory scheme, as described, violates a federal constitutional right.
“Trial before ‘an unbiased judge’ is essential to due process.” Pub.
Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001) (quoting Johnson v.
Mississippi, 403 U.S. 212, 216 (1971)); see also Brown v. Edwards, 721 F.2d
1442, 1451 (5th Cir. 1984) (“The right to a judge unbiased by direct pecuniary
interest in the outcome of a case is unquestionable.”). “[M]ost matters
relating to judicial disqualification,” however, do “not rise to a constitutional
level.” FTC v. Cement Inst., 333 U.S. 683, 702 (1948).
Plaintiffs cite to two Supreme Court cases finding due process
violations when judges maintained pecuniary interests in cases before them.
In Tumey v. Ohio, 273 U.S. 510, 510 (1927), a defendant was convicted of
possessing liquor in violation of Ohio’s then-existing Prohibition Act. The

79
80

R. Doc. 183-2 at 27.
Id. at 58.
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Act provided for trial in a “liquor court,” in which the village mayor served as
judge. Id. at 521. The money raised by fines levied in these courts was
divided between the state, the village, a “village safety” fund, and a “secret
service” fund. Id. at 521-22. The latter fund covered expenses associated
with enforcing the Prohibition Act, including nearly $700 paid to the mayor
“as his fees and costs, in addition to his regular salary.” Id. at 522. The
Supreme Court overturned Tumey’s conviction, and held that the mayor,
acting as judge, was disqualified from deciding Tumey’s case “both because
of his direct pecuniary interest in the outcome, and because of his official
motive to convict and to graduate the fine to help the financial needs of the
village.” Id. at 535.
In Ward v. Vill. of Monroeville, 409 U.S. 57, 57 (1972), the Court
considered a challenge to traffic fines imposed by another Ohio “mayor’s
court.” Fines generated by the mayor’s court at issue in Ward provided a
“substantial portion” of the total operating funds for the municipality that
the mayor oversaw. Id. at 58. The Court viewed the case as controlled by
Tumey and noted that “[t]he fact that the mayor there shared directly in the
fees and costs did not define the limits of the principle” of judicial bias
articulated in that case. Id. Instead, the Court offered a general test to

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determine whether an arrangement of this type compromises a defendant’s
right to a disinterested and impartial judicial officer:
[T]he test is whether the [judge’s] situation is one which would
offer a possible temptation to the average man as a judge to forget
the burden of proof required to convict the defendant, or which
might lead him not to hold the balance nice, clear, and true
between the state and the accused.
Id. at 60 (internal quotations omitted). The Court found that this test was
met in Ward because that possible temptation “[p]lainly . . . may also exist
when the mayor’s executive responsibilities for village finances may make
him partisan to maintain the high level of contribution from the mayor’s
court.” Id.
Considering this Supreme Court authority, the Court finds that
plaintiffs have plausibly alleged that the bond fee system described in
sections 22:822 and 13:1381.5 and implemented by the Sheriff is inconsistent
with the right to an impartial judge guaranteed by the due process clause of
the Fourteenth Amendment. Accordingly, the proposed amendment to
permit injunctive relief against the Sheriff in his official capacity under Count
Four should be permitted.
G.

Sheriff Gusman – Count Seven: False Imprisonment

In addition to their federal claims, plaintiffs allege that the Sheriff is
liable for the state law tort of false imprisonment. In Louisiana, false
imprisonment “consists of two elements: ‘(1) detention of the person; and (2)
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the unlawfulness of the detention.’” Waganfeald v. Gusman, 674 F.3d 475,
480 (5th Cir. 2012) (quoting Kennedy v. Sheriff of E. Baton Rouge, 935 So.
2d 669, 690 (La. 2006)). Here, the plaintiffs plainly allege that they were
detained.

The Court therefore need only ask whether plaintiffs have

plausibly alleged that these detentions were unlawful.
Louisiana law provides that a law enforcement officer having custody
of an arrested person shall promptly bring him, “and in any case within
seventy-two hours from the time of the arrest, before a judge for the purpose
of appointment of counsel.” La. Code Crim. Proc. art. 230.1(A) (2016).
Detention beyond this 72 hour period is illegal, and gives rise to a claim for
false imprisonment against the jailer. State v. Wallace, 392 So. 2d 410, 413
(La. 1980) (“[W]hen an arrested person is held in custody more than 72
hours without being brought before a judge, then any detention thereafter is
illegal, whether or not the initial detention was proper, and that detention
(in excess of 72 hours) gives rise to (1) the right to immediate release and (2)
a claim for civil damages for that illegal detention.”).
Every plaintiff except Reynaud Variste alleges specific facts concerning
his or her detention in excess of 72 hours without being brought before a
judge. These plaintiffs have therefore stated a claim for false imprisonment

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under Louisiana law, and the proposed amendments as to this Count are not
futile.
H.

Remaining good cause factors

Having considered the futility—and therefore the importance—of the
proposed amendments, the Court reconsiders the remaining factors to
determine whether plaintiffs have demonstrated good cause to allow
amendment. The Magistrate Judge found that plaintiffs’ explanation for
their failure to timely move for leave to amend was inadequate, that
permitting the proposed amendment would prejudice defendants, and that
this prejudice cannot be cured by granting a continuance. The Court does
not find any of these conclusions to be clearly erroneous.
The factors, however, must be reweighed in light of the above findings
regarding importance and futility. Given the importance of the proposed
amendments in asserting previously dismissed claims, and the general
preference for resolving disputes on the merits, the Court finds that plaintiffs
have shown good cause for permitting those amendments not found to be
futile above.

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IV.

CONCLUSION
For the foregoing reasons, the Magistrate Judge’s order is MODIFIED

as follows. Plaintiffs’ motion to amend is GRANTED as to the amendments
regarding:
● Counts Four and Seven against Sheriff Gusman
Plaintiffs’ motion to amend is DENIED as to the amendments regarding:
● Counts One, Two, and Three against Sheriff Gusman;
● Claims against the City of New Orleans;
● Claims against Judicial Administrator Robert Kazik;
● Claims against Orleans Parish Criminal District Court.
Plaintiffs’ motion for extension of deadlines is DENIED AS MOOT. The
Court will issue a new scheduling order separately after a status conference
with all counsel.
3rd
New Orleans, Louisiana, this _____ day of February, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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