Donahue v. Strain Jr., et al

Filing 88

ORDER AND REASONS re 37 Motion to Dismiss by Brandon Michael Donahue; 49 Motion to Dismiss for Failure to State a Claim by Alex Dantagnan, Steven Gaudet, Sr, Michael Ripoll, Jr, Rodney Jack Strain, Jr; and 67 Motion for Summary Judgment by Brandon Michael Donahue. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SARAH BARNETT DONAHUE,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-6036

SHERIFF RODNEY J. STRAIN, IN HIS
CAPACITY AS SHERIFF OF THE
PARISH OF ST. TAMMANY, ET AL.,
Defendants

SECTION: “E” (3)

ORDER AND REASONS
Before the Court are three motions: (1) a motion for summary judgment filed by
Defendant Brandon Donahue;1 (2) a motion to dismiss pursuant to Rule 12(b)(6) filed by
Defendant Brandon Donahue;2 and (3) a motion to dismiss pursuant to Rule 12(b)(6) filed
by Defendants Rodney J. Strain, Jr. (or his successor, sometimes referred to as the
“Sheriff”),3 Sergeant Michael Ripoll, Jr., Sergeant Alex Dantagnan, Jr., and Sergeant
Steven Gaudet (sometimes referred to as the “Deputies”).4 The motions are opposed.5 The
Court rules on the motions as set forth below.
BACKGROUND
The Plaintiff, Sarah Donahue, brings federal and state-law claims against her exhusband, Brandon Donahue, the Sheriff, and the Deputies arising out of a “continuing

R. Doc. 67.
R. Doc. 37.
3 Rodney J. Strain, Jr. is no longer the sheriff of St. Tammany Parish. The current sheriff of St. Tammany
Parish is Randy Smith. When officials sued in their official capacities leave office, their successors
automatically assume their role in the litigation. FED. R. CIV. P. 25(d)(1). The Court will order the Clerk of
Court to substitute Randy Smith in his official capacity as the Sheriff of St. Tammany Parish for Rodney J.
Strain, Jr. For the purposes of this motion, the Court hereafter will refer to former Sheriff Strain as a
defendant.
4 R. Doc. 49. The Sheriff and the Deputies are referred to collectively as the “Sheriff Defendants.”
5 R. Docs. 38, 60, 85.
1

2

1

series of intentional actions all directed toward a sole end: to thwart the prosecution of
Brandon Donahue, a fellow law enforcement office, for domestic violence.”6
Brandon Donahue served as a reserve deputy with the St. Tammany Parish
Sheriff’s Office from 2012 until 2014.7 According to the Plaintiff, Brandon Donahue
“engaged in a pattern of violence against Sarah, which he justified and excused and was
furthered by virtue of his position as a reserve deputy sheriff.”8 The Plaintiff alleges that,
during the course of their marriage, Brandon Donahue threatened to kill her, threatened
to use his Sheriff’s office-issued taser on her, threw coffee in her face, pressed his knee
into her stomach, and pushed the back of her body into a shower door.9
The Plaintiff alleges that on July 7, 2013, following a domestic disturbance between
the Plaintiff and Brandon Donahue, “[s]everal of Brandon’s colleagues from the St.
Tammany Parish Sheriff’s Office . . . responded to [a] 911 call at the Donahue residence.” 10
According to the Plaintiff, she described her injuries to the deputies and advised them of
Brandon Donahue’s history of domestic abuse, but the deputies refused to arrest Brandon
Donahue.11 This incident, the Plaintiff alleges, was the first act in a continuing conspiracy
between Brandon Donahue and the Deputies “to protect Brandon from prosecution for
assault and to discredit Sarah in order to benefit Brandon in his anticipated divorce and
child custody case against Sarah.”12
The Plaintiff alleges that, in furtherance of the conspiracy, Sgt. Steven Gaudet
conducted a “slip-shod and outcome[-]determinative” investigation into the Plaintiff’s

R. Doc. 35 at 12–13.
Id. at 3, ¶ 11.
8 Id. at ¶ 12.
9 See id. at 3–4.
10 Id. at 4.
11 Id.
12 Id. at 5.
6
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allegations against Brandon Donahue. According to the Plaintiff, Sgt. Gaudet’s police
report “falsely suggested that Sarah had been the aggressor” and falsely stated that the
Plaintiff did not want to pursue criminal charges against Brandon Donahue. 13 The
Plaintiff further alleges that Sgt. Gaudet relied heavily on his “consultation” with Brandon
Donahue instead of the alleged victim, the Plaintiff.14
In furtherance of the conspiracy, the Plaintiff alleges Sgt. Michael Ripoll, when
investigating an alleged assault against the Plaintiff by the Plaintiff’s attorney, “ignor[ed]
and wholly disregard[ed] evidence that supported [the Plaintiff’s] version of events and
[relied] on information provided by Brandon Donahue that discredited [the Plaintiff] by
portraying her as unstable and unreliable.”15
According to the Plaintiff, the conspiracy continued when Brandon Donahue
submitted a written request to the St. Tammany Parish Coroner’s Office for an Order for
Protective Custody for the Plaintiff, “alleging falsely that she had stated several times . . .
that she ha[d] thought about suicide.”16 The Plaintiff alleges she was involuntarily
admitted to the hospital, but was later released.17
Following her release from the hospital, the Plaintiff attempted to pick up her son
“as it was her time to have custody of her child.”18 When the Plaintiff arrived at Brandon
Donahue’s parent’s residence to retrieve her child, a St. Tammany Parish Sheriff’s Office
deputy informed her “he would not release the child to her, despite that it was [her] courtordered night to have custody of her son.”19 In response, the Plaintiff called the Sheriff’s

Id. at 6.
Id.
15 Id. at 7.
16 Id. at 8.
17 Id. at 8–9.
18 Id. at 9.
19 Id.
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Office, which dispatched Sergeant Alex Dantagnan. Sgt. Dantagnan allegedly “blocked
[the Plaintiff] from exiting the house,” “screamed in [the Plaintiff’s] face that she was
psychotic, [and] that she was not leaving with the child,” and threatened to arrest her if
she did not leave the house.20
This event prompted the Plaintiff to file a complaint with the Internal Affairs
Division of the St. Tammany Parish Sheriff’s Office on December 11, 2013. The Plaintiff’s
complaint alleged “unfair favoritism shown by the Sheriff’s Office to Brandon Donahue”
and a “continuous pattern of unfair and harassing treatment she received from the
Sheriff’s Office and the Defendant Deputies.”21 The Plaintiff alleges that, in furtherance of
the conspiracy to protect Brandon Donahue, “the Sheriff’s Office never contacted [her] to
obtain more information or advise her of the status or outcome of her complaint.” 22
According to the Plaintiff, the Sheriff’s Office later advised her that Brandon Donahue had
been cleared of any misconduct.
Finally, the Plaintiff alleges that, on June 24, 2015, she met with Sgt. Gaudet to
inform him she wished to press criminal charges against Brandon Donahue for the alleged
acts of domestic abuse that occurred in July of 2013.23 In furtherance of the conspiracy to
protect Brandon Donahue from arrest and prosecution, Sgt. Gaudet allegedly attempted
to intimidate and discourage the Plaintiff from pursuing charges against Brandon
Donahue by informing the Plaintiff that any criminal charge against Brandon Donahue
had “probably prescribed.”24 According to the Plaintiff, Sgt. Gaudet promised to contact
the district attorney’s office, but never did so.

Id. at 10.
Id. at 10–11.
22 Id. at 11.
23 Id. at 12.
24 Id.
20
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Brandon Donahue was formally charged with domestic abuse aggravated assault
by the St. Tammany Parish District Attorney’s office. The charge was dismissed in July of
2016.25
The Plaintiff filed this lawsuit on November 18, 2015.26 The Court stayed the
proceedings pending the resolution of the criminal matter pending against Brandon
Donahue.27 This matter was reopened on September 22, 2016.28 Thereafter, Brandon
Donahue filed a motion to dismiss,29 which was denied without prejudice upon the filing
of the Plaintiff’s second amended complaint.30
In her second amended complaint, the Plaintiff brings a claim under Section 1983
against Brandon Donahue and the Deputies in their official and individual capacities for
conspiracy to violate her rights under the First and Fourteenth Amendments.31 The
Plaintiff also brings a Monell claim against the Sheriff in his official capacity for municipal
liability for failure to supervise and train.32 Further, the Plaintiff brings state-law tort
claims against Brandon Donahue; a state-law claim for abuse of rights against Brandon
Donahue, the Sheriff, and the Deputies; and claims against Brandon Donahue, the Sheriff,
and the Deputies for violations of the Louisiana Constitution.33
On February 1, 2017, Brandon Donahue filed a motion to dismiss the Plaintiff’s
second amended complaint for failure to state a claim pursuant to Federal Rule of Civil

Id.
R. Doc. 1. The Plaintiff’s amended complaint was filed on January 15, 2016. R. Doc. 11.
27 R. Doc. 13.
28 R. Doc. 20.
29 R. Doc. 17.
30 R. Doc. 27; R. Doc. 35 (Second Amended Complaint).
31 R. Doc. 35 at 13.
32 Id. at 14.
33 Id. at 14–15. The Plaintiff’s abuse of rights claims and claims for violations of the Louisiana Constitution
against the Sheriff are for vicarious liability.
25

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Procedure Rule 12(b)(6).34 On May 8, 2017, the Sheriff Defendants filed a motion to
dismiss the Plaintiff’s claims against them pursuant to Rule 12(b)(6).35 The Plaintiff
opposes both motions.36
On July 11, 2017, Brandon Donahue filed a motion for summary judgment, arguing
the doctrine of issue preclusion applies to the Plaintiff’s state-law tort claims against
him.37
LEGAL STANDARD
I.

Motion to Dismiss

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief.38 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 39
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”40 However, the court does not accept as true legal conclusions or mere
conclusory statements,41 and “conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.” 42 “[T]hreadbare

R. Doc. 37.
R. Doc. 49.
36 R. Docs. 38, 60.
37 R. Doc. 67.
38 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
39 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
40 Id.
41 Id.
42 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
34
35

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recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient.43
In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.”44 “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—that the pleader is entitled to relief.”45 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’”46
II.

Motion for Summary Judgment

Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”47 “An issue is material if its resolution could affect the outcome of the action.”48
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”49 All reasonable inferences are drawn in favor of the nonmoving party.50
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.51

Iqbal, 556 U.S. at 663, 678 (citations omitted).
Twombly, 550 U.S. at 555.
45 Id. (quoting Fed. R. Civ. P. 8(a)(2)).
46 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (unpublished) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
47 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
48 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
49 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
50 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
51 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
43

44

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If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 52 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.53
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) affirmatively demonstrating there is no evidence in the record to establish
an essential element of the nonmovant’s claim.54 When proceeding under the first option,
if the nonmoving party cannot muster sufficient evidence to dispute the movant’s
contention that there are no disputed facts, a trial would be useless, and the moving party
is entitled to summary judgment as a matter of law. 55 When, however, the movant is
proceeding under the second option and is seeking summary judgment on the ground that
the nonmovant has no evidence to establish an essential element of the claim, the
nonmoving party may defeat a motion for summary judgment by “calling the Court’s
attention to supporting evidence already in the record that was overlooked or ignored by

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
53 Celotex, 477 U.S. at 322–24 (Brennan, J., dissenting).
54 Id. at 331–32.
55 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249–50 (1986).
52

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the moving party.”56 Under either scenario, the burden then shifts back to the movant to
demonstrate the inadequacy of the evidence relied upon by the nonmovant.57 If the
movant meets this burden, “the burden of production shifts [back again] to the
nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving
party’s papers, (2) produce additional evidence showing the existence of a genuine issue
for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f).”58 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after
the nonmoving party responds, the court determines that the moving party has met its
ultimate burden of persuading the court that there is no genuine issue of material fact for
trial.”59
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’”60

Celotex, 477 U.S. at 332–33.
Id.
58 Celotex, 477 U.S. at 332–33, 333 n.3.
59 Id.; see also First National Bank of Arizona, 391 U.S. at 289.
60 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
56
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LAW AND ANALYSIS
I.

Brandon Donahue’s Motion for Summary Judgment—Issue
Preclusion
Brandon Donahue filed a motion for summary judgment, seeking dismissal of the

Plaintiff’s tort claims against him on the basis of issue preclusion.61 Brandon Donahue
argues a Louisiana district court’s judgment in the divorce and custody case between him
and the Plaintiff is final, the domestic violence tort claims were decided by the state court
judge, and the doctrine of issue preclusion prevents relitigation of these claims.
“When giving preclusive effect to a state court judgment, this court must apply the
issue preclusion rules of that state.”62 Because the underlying judgment in this case is
from the Twenty-Second Judicial District for the Parish of St. Tammany, Louisiana,
Louisiana issue preclusion rules apply. Louisiana Revised Statutes section 13:4231
provides in pertinent part:
Except as otherwise provided by law, a valid and final judgment is
conclusive between the same parties, except on appeal or other direct
review, to the following extent:
***
(2) If the judgment is in favor of the defendant, all causes of action
existing at the time of final judgment arising out of the transaction or
occurrence that is the subject matter of the litigation are extinguished and
the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with respect to any
issue actually litigated and determined if its determination was essential to
that judgment.
“The requirements for issue preclusion under Louisiana state law are identical to
those recognized by the Fifth Circuit: (1) the parties must be identical; (2) the issue to be

61
62

R. Doc. 67.
In re Keaty, 397 F.3d 264, 270–71 (5th Cir. 2005).
10

precluded must be identical to that involved in the prior action; (3) the issue must have
been actually litigated; and (4) the determination of the issue in the prior action must
have been necessary to the resulting judgment.”63 Because Louisiana’s law is modeled on
the federal doctrine, federal courts can consult federal jurisprudence for guidance when
interpreting Section 13:4231.64
In this case, it is undisputed that the parties are identical to those before the
Louisiana district court. It is also true that the Louisiana district court heard testimony
about many of the same allegations made by the Plaintiff in her second amended
complaint.65 The paramount question is whether the Plaintiff’s state-law tort claims made
in this Court were “actually litigated” in the Louisiana district court.
“The requirement that an issue be ‘actually litigated’ for collateral estoppel
purposes simply requires that the issue is raised, contested by the parties, submitted for
determination by the court, and determined.”66 The Fifth Circuit in Keaty explained “the
scope of collateral estoppel is circumscribed by the particularized findings of the state
court.”67 Thus, collateral estoppel applies only if the Louisiana district court made
“specific, subordinate, factual findings on the identical . . . issue in question—that is, an
issue which encompasses the same prima facie elements” as the issue before this Court.68
“It is insufficient for the invocation of issue preclusion that some question of fact or law
in a later suit was relevant to a prior adjudication between the parties; the contested issue
must have been litigated and necessary to the judgment earlier rendered.” 69

Id.
Id. at 271 (citing Lafreniere Park Found. v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000)).
65 See R. Docs. 67-4, 67-5.
66 In re Keaty, 397 F.2d at 272.
67 Id. (citing Miller v. J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998)).
68 Id.
69 Kaspar Wire Works, Inc. v. Leco Eng. And Mach., 575 F.2d 530, 536 (5th Cir. 1978).
63

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Brandon Donahue argues these claims are barred by issue preclusion, because
Judge Amacker in the divorce and custody proceeding between the Plaintiff and Brandon
Donahue found there to be “no credible evidence . . . to suggest that any [of the Plaintiff’s
allegations of domestic violence are] true of Mr. Donahue.”70 Judge Amacker further
stated “there was no evidence in [the divorce and custody proceeding] record that
[Brandon Donahue] is an abuser or a violent person.”71
Judge Amacker made these findings in the context of considering the twelve factors
used in determining a child’s best interest for the purposes of determining custody
pursuant to Louisiana Code of Civil Procedure article 134. 72 Specifically, Judge Amacker
discussed the Plaintiff’s domestic abuse allegations against Brandon when determining
“the moral fitness of each party, insofar as it affects the welfare of the child” and “the
willingness and ability of each party to facilitate and encourage a close and continuing
relationship between the child and the other party.”73
The Plaintiff could not and did not bring state-law tort claims against Brandon
Donahue in the divorce and custody proceeding.74 Because these tort claims were not
before her, Judge Amacker did not make factual findings with respect to the prima facie
elements of the Plaintiff’s state-law tort claims.75
The Court finds the Plaintiff’s state-law tort claims were not “actually litigated” in
the divorce and custody case before the Louisiana court. As a result, this Court is not
R. Doc. 67-5 at 7.
Id. at 11.
72 LA. CODE CIV. PROC. art 134.
73 Id.
74 Goodman v. Spillers, 686 So. 2d 160, 167 (La. Ct. App. 2 Cir. 12/23/96) (“Issue preclusion does not bar
re-litigation of what might have been litigated and determined, but only those matters in controversy upon
which the prior judgment or verdict was actually based.”).
75 In re Keaty, 397 F.2d at 272 (“[C]ollateral estoppel applies only if the Louisiana district court made
“specific, subordinate, factual findings on the identical . . . issue in question—that is, an issue which
encompasses the same prima facie elements” as the issue before this Court.”).
70
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precluded from hearing the Plaintiff’s state-law tort claims against Brandon Donahue or
any claim under Section 1983 arising from the Plaintiff’s domestic violence allegations.
Accordingly, Brandon Donahue’s motion for summary judgment is denied. 76
II.

Brandon Donahue’s Motion to Dismiss the Plaintiff’s State-Law
Tort Claims Against Him
The Plaintiff brings state law tort claims against the Defendant Brandon Donahue,

claiming her damages arose out of three crimes of violence—aggravated assault,
aggravated battery, and domestic abuse aggravated assault.77 Brandon Donahue seeks
dismissal of these claims, arguing the claims have prescribed under Louisiana law because
the prescriptive period for delictual actions is one year from the date the injury is
sustained. In response, the Plaintiff contends the delictual actions for which she seeks
relief arise due to damages sustained as a result of crimes of violence, for which the
prescriptive period is two years pursuant to Louisiana Civil Code article 3493.10.
Regardless of whether a one-year or two-year prescriptive period applies, the Court
must determine when the prescriptive period began to accrue. Louisiana Civil Code article
3469 provides “Prescription is suspended as between: the spouses during marriage.”78
The Plaintiff alleges her marriage to Brandon Donahue ended in September of 2014. 79
Thus, the prescriptive period for the Plaintiff’s state-law tort claims began to accrue at
that time. The Plaintiff filed the instant lawsuit on November 18, 2015.80
The Court must next determine whether the prescriptive period applicable to the
Plaintiff’s claims is the one-year period for delictual actions under Civil Code article 3492

R. Doc. 67.
R. Doc. 35.
78 LA. CIV. CODE art. 3469.
79 R. Doc. 38 at 17–18.
80 R. Doc. 1. The Plaintiff did not raise these state-law tort claims against Brandon Donahue until she filed
her first amended complaint on January 15, 2016. R. Doc. 11.
76
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or the two-year period for delictual actions which arise due to damages caused by a crime
of violence pursuant to Civil Code article 3493.10.
Article 3493.10 provides for a two-year prescriptive period for “delictual actions
which arise due to damages sustained as a result of an act defined as a crime of violence
under [Louisiana Revised Statutes section 14:2].”81 Louisiana Revised Statutes section
14:2 defines “crimes of violence.”82 The Plaintiff alleges her delictual damages arise out of
three “crimes of violence” committed against her by Brandon Donahue—aggravated
assault, aggravated battery, and domestic abuse aggravated assault, and that as a result,
the two-year prescriptive period applies.
The three crimes of violence alleged require the use of a “dangerous weapon.”83 A
“dangerous weapon” is defined as “any gas, liquid or other substance or instrumentality,
which, in the manner used, is calculated or likely to produce death or great bodily harm.” 84
Thus, the Court must consider each of the Plaintiff’s factual allegations to determine
whether she sufficiently alleges that her tort claims arise due to damages sustained as a
result of an aggravated crime committed through the use of a dangerous weapon. If the
Plaintiff alleges sufficient facts to establish that her delictual claims arose from
“aggravated” crimes, the two-year prescriptive period provided for in article 3493.10 will
apply. Otherwise, the one-year prescriptive period provided for in article 3492 will apply,
and the Plaintiff’s state-law tort claims will have prescribed.

LA. CIV. CODE art. 3493.10.
LA. REV. STAT. ANN. § 14:2(B).
83 See La. Rev. Stat. Ann. § 14:37 (“Aggravated assault is an assault committed with a dangerous weapon.”);
id. § 14:34 (“Aggravated battery is a battery committed with a dangerous weapon.”); id. § 14:37.7 (“Domestic
abuse aggravated assault is an assault with a dangerous weapon committed by one household member or
family member upon another household member or family member.”).
84 Id. at § 14:2(A)(3).
81

82

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A. Aggravated Assault
The Plaintiff alleges that two incidents gave rise to her delictual damages arising
out of aggravated assaults: (1) Brandon Donahue “threatened to use his Sheriff-issued
taser”85 and (2) Brandon Donahue told the Plaintiff that “due [to] his training and
connections as a reserve deputy sheriff, he could get away with assaulting her and even
killing her.”86
Assault is “an attempt to commit a battery, or the intentional placing of another in
reasonable apprehension of receiving a battery.”87 Aggravated assault is defined as
intentionally placing another in reasonable apprehension of receiving a battery “with a
dangerous weapon.”88
With respect to the Plaintiff’s allegation that Brandon Donahue’s threat to use his
taser on her was an aggravated assault, the Plaintiff argues that, because a taser is a
dangerous weapon, she was in reasonable apprehension of receiving a battery with a
dangerous weapon, and thus Brandon Donahue committed an aggravated assault.89
Although a taser may constitute a dangerous weapon in some circumstances,90 the Court
finds the Plaintiff has failed to alleged sufficient facts to show the Plaintiff was in
reasonable apprehension of receiving a battery with a dangerous weapon under these
circumstances.91 The Plaintiff did not allege that Brandon Donahue had the taser in his

R. Doc. 35 at 3–4, ¶ 12.
Id.
87 LA. REV. STAT. ANN. § 14:36.
88 Id. § 14:37.
89 R. Doc. 38 at 18.
90 See State v. Williams, No. 2012 KA 1600, 2013 WL 1792646 (La. App. 1st Cir. 4/26/13) (declining to
overturn jury’s finding that a taser was used as a dangerous weapon); United States v. Quiver, 805 F.3d
1269, 1272 (10th Cir. 2015) (holding that a taser is a dangerous weapon capable of inflicting serious bodily
injury for the purposes of an assault with a dangerous weapon conviction).
91 Louisiana courts have found that a plaintiff must allege an “imminent threat of a battery” for there to be
an assault. Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1135 (5th Cir. 2014) (emphasis added).
85

86

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hand or even nearby when he made the threat. As a result, the Plaintiff was not in
reasonable apprehension of a battery with a dangerous weapon. Accordingly, this claim
is subject to the one-year prescriptive period under article 3492, and the claim for
damages sustained as a result of an aggravated assault for threatening to use a taser must
be dismissed.
The Plaintiff also alleges that Brandon Donahue committed aggravated assault
when he threatened to kill her, and told her that he could get away with killing her due to
his status as a reserve sheriff’s deputy.92 This threat—even if made—would not constitute
an aggravated assault, as no dangerous weapon was used in effectuating the assault.93
Accordingly, the Plaintiff has not sufficiently alleged that these damages arose as a result
of an aggravated assault. Thus, this claim is subject to the one-year prescriptive period
under article 3492, and the claim for damages sustained as a result of an aggravated
assault for Brandon Donahue’s alleged threat to kill her must be dismissed.
B. Aggravated Battery
The Plaintiff alleges she suffered delictual damages that arose out of three
incidents of aggravated battery: (1) Brandon Donahue “threw a cup of hot coffee in [the
Plaintiff’s] face with the intent to cause serious injury and disfigurement”; (2) Brandon
Donahue “pinned [the Plaintiff] to the floor of their home and pressed his knee on her
stomach with the intent to cause serious bodily injury”; and (3) Brandon Donahue
“grabbed [the Plaintiff] by both of her arms and violently pushed the back of her body into
the door of their bathroom shower.”94

R. Doc. 35 at 3–4.
Cf. State v. Hill, No. 47,568–KA, 2012 WL 7859600 (La. Ct. App. Sep. 26, 2012) (finding the defendant
committed aggravated assault when he threated to kill the victim while pointing a gun at the victim’s head).
94 R. Doc. 35 at 4.
92
93

16

Battery is “the intentional use of force or violence upon the person of another, or
the intentional administration of a poison or other noxious liquid or substance to
another.”95 Like aggravated assault, a necessary element of an aggravated battery is that
the battery be committed with a dangerous weapon.96
With respect to the Plaintiff’s allegation that Brandon Donahue threw a cup of hot
coffee on her, the Plaintiff’s claim fails because she does not allege sufficient facts to
establish the coffee used in this incident constitutes a “dangerous weapon.” There are, of
course, instances in which a scalding hot liquid may constitute a dangerous weapon.97 The
Plaintiff, however, does not allege the coffee was scalding hot; instead she alleges it was
hot. Hot coffee is not likely to produce great bodily harm. The coffee was not used in a
manner “calculated or likely to produce . . . great bodily harm,” thus rendering it a
dangerous weapon. The Plaintiff fails to allege facts sufficient to show that Brandon
Donahue’s allegedly throwing hot coffee on her amounts to an aggravated battery. As a
result, the Plaintiff’s claim is subject to the one-year prescriptive period in article 3492,
and has prescribed.
The Plaintiff also alleges that Brandon Donahue committed an aggravated battery
when he “pinned [the Plaintiff] to the floor of their home and pressed his knee on her
stomach with the intent to cause serious bodily injury.”98 The Plaintiff seems to concede
that this incident does not rise to the level of aggravated battery. In her opposition to
Brandon Donahue’s motion to dismiss, the Plaintiff states “while Brandon may not have
used a dangerous weapon against Sarah when he kneed her in the stomach and ripped

LA. REV. STAT. ANN. § 14:33.
Id. § 14:34.
97 See, e.g., State v. Junior, 70 So. 3d 47 (La. Ct. App. 5 Cir. 5/24/11) (defendant committed aggravated
battery when he burned the victim with hot grease).
98 R. Doc. 35 at 4.
95

96

17

her Cesarean stitches,” he is liable for aggravated battery for other acts.99 The Plaintiff is
correct to concede this point. Pursuant to Louisiana law, although portions of the human
body can be dangerous and may produce great bodily harm, there must be proof of the
use of some inanimate instrumentality for a defendant to be guilty of aggravated assault
or battery.100 This claim also has prescribed and must be dismissed.
Finally, the Plaintiff alleges Brandon Donahue committed an aggravated battery
when he “grabbed Sarah Donahue by both of her arms and violently pushed the back of
her body into the door of their bathroom shower.”101 According to the Plaintiff, the shower
door was used as a dangerous weapon, thus making the incident and act of aggravated
battery.102 To constitute a dangerous weapon for the purposes of determining whether the
alleged battery was “aggravated,” the weapon must have been used in a manner likely to
cause great bodily harm.103 The Plaintiff only alleges that Brandon Donahue pushed her
into the shower door—the Plaintiff does not allege that Brandon Donahue used the shower
door in a way to cause her great bodily harm.104 As a result, the Plaintiff has failed to state
a claim for delictual damages arising out of an aggravated battery with respect to Brandon
Donahue allegedly pushing the Plaintiff into a shower door. This claim has prescribed and
must be dismissed.

R. Doc. 38 at 19.
James v. La. Laborers Health & Welfare Fund, No. 91-672, 1993 WL 205095, at *5 (E.D. La. June 9,
1993) (citing State v. Calvin, 24 So. 2d 467, 469 (La. 1945)).
101 R. Doc. 35 at 4.
102 R. Doc. 38 at 19.
103 Id. at § 14:2(A)(3) (emphasis added). See State v. Legendre, 362 So. 2d 570, 571 (La. 1978) (finding a
concrete parking lot did not constitute a dangerous weapon because it was not used to produce great bodily
harm).
104 Louisiana courts have found that a defendant must actively use an object against a victim for it to be
considered a dangerous weapon. See, e.g., State v. Barker, 628 So. 2d 168, 177 (La. Ct. App. 2 Cir. 12/1/93)
(defendant was found to have used a dangerous weapon when he wielded a hammer); State v. White, 590
So. 2d 1330, 1332 (La. Ct. App. 2 Cir. 1991) (finding a baseball bat to be a dangerous weapon when it was
wielded during a robbery).
99

100

18

C. Domestic Abuse Aggravated Assault
The Plaintiff seeks delictual damages sustained as a result of Brandon Donahue’s
alleged actions constituting the crime of domestic abuse aggravated assault. Louisiana
Revised Statutes section 14:37.7 defines domestic abuse aggravated assault as “an assault
with a dangerous weapon committed by one household member or family member upon
another household member or family member.”105 The Plaintiff’s factual allegations
supporting her claim that domestic abuse aggravated assault occurred are the same as the
facts alleged to support her claims that aggravated assaults and aggravated batteries
occurred. Because the Court has found that each one of the Plaintiff’s claims for damages
arising out of aggravated assaults and aggravated batteries have prescribed, her claim for
domestic abuse aggravated assault suffers the same fate.
Accordingly, all the Plaintiff’s state-law tort claims against Brandon Donahue have
prescribed and must be dismissed.
III.

Motions to Dismiss the Plaintiff’s Section 1983 Conspiracy Claim
against Brandon Donahue and the Deputies on the Basis of
Prescription
The Plaintiff brings Section 1983 conspiracy claims against Brandon Donahue,

Deputy Michael Ripoll, Jr., Deputy Alex Dantagnan, and Deputy Steven Gaudet, Sr. (the
“Deputies”) in their official and individual capacities, alleging they conspired to protect
Brandon Donahue from prosecution for domestic abuse he allegedly committed against
the Plaintiff.106
Both Brandon Donahue and the Deputies seek dismissal of the Plaintiff’s Section
1983 conspiracy claims against them. Brandon Donahue argues the Plaintiff does not

105
106

LA. REV. STAT. ANN. § 14:37.7.
R. Doc. 35 at 5, ¶ 16.
19

state an actionable Section 1983 claim against him because she does not allege that he
was acting under the color of state law.107 The Deputies argue the Plaintiff’s Section 1983
conspiracy claim has prescribed.108
A. Brandon Donahue, Even if Not Acting Under Color of State Law, May
Have Liability Under Section 1983 for Conspiracy if He Acted Jointly with
State Actors
As an initial matter, Brandon Donahue is correct that for the Plaintiff to state a
cause of action against him under Section 1983, she must allege that he, as a person who
deprived her of a federal right, was acting under color of state law.109 If Brandon Donahue
was a private citizen not acting under the color of state law at the time he allegedly violated
the Plaintiff’s constitutional rights, he still may have liability under Section 1983 if he
conspired with or acted in concert with state actors.110 A non-state actor may be liable
under Section 1983 if the private citizen was a “willful participant in joint activity with the
State or its agents.”111 Thus, Brandon Donahue may be individually liable under Section
1983 if he conspired with the Deputies to deprive the Plaintiff of her constitutional rights.
The Plaintiff alleges Brandon Donahue and the Deputies reached an agreement to protect
Brandon from criminal prosecution, and Brandon Donahue and the Deputies’ acts
violated the Plaintiff’s constitutional rights.112 Thus, the Plaintiff has sufficiently alleged
that Brandon Donahue is a private actor who conspired with or acted in concert with state
actors. As a result, the Plaintiff’s Section 1983 claims against Brandon Donahue cannot
be dismissed on this basis.

R. Doc. 37-1 at 9.
R. Doc. 49-1 at 18–23.
109 Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004).
110 Id. (citing Cinel v. Connick, 15 F.3d 1338, 1342 (5th Cir. 1994)).
111 Cinel, 15 F.3d at 1343.
112 R. Doc. 35 at 5, ¶ 17.
107

108

20

B. Prescription of the Plaintiff’s Conspiracy Claim Under Section 1983
Before the Court considers whether the Plaintiff has stated a claim for a Section
1983 conspiracy against Brandon Donahue and the Deputies, the Court also must address
the Deputies’ argument that the Plaintiff’s Section 1983 conspiracy claim has prescribed.
Section 1983 conspiracy cases are governed by the prescriptive period for personal
injury actions of the state in which the conduct occurred.113 Wrongs committed by
Louisiana state officials in violation of a plaintiff’s constitutional rights are subject to the
one-year prescriptive period for Louisiana tort actions.114 However, to determine when a
plaintiff’s cause of action accrues, the Court must reference federal law.115 “Federal law
holds generally that an action accrues when a plaintiff has a complete and present cause
of action, or, expressed differently, when the plaintiff can file suit and obtain relief.”116
The prescriptive period begins to run “the moment the plaintiff becomes aware that [she]
has suffered an injury or has sufficient information to know that [she] has been
injured.”117
The Plaintiff does not dispute that a one-year prescriptive period applies to her
Section 1983 conspiracy claims.118 The Plaintiff, however, argues her conspiracy claims
have not prescribed because they are subject to the “continuous violation doctrine,” and,
because Brandon Donahue and the Deputies’ wrongful acts were repeated over time, “the
cause of action does not accrue for limitations purposes until the date of the last harmful
Wilson v. Garcia, 471 U.S. 261 (1985); Jones v. Orleans Parish School Bd., 688 F.2d 342, 344 (5th Cir.
1982) (“It is well established in decisions in this Circuit that wrongs committed by Louisiana state officials
in violation of federal law are considered to be torts subject to the one-year prescriptive period.”).
114 Watts v. Graves, 720 F2d 1416, 1423 (5th Cir. 1983).
115 Heath v. Bd. of Supervisors for the S. Univ. and Agric. and Mech. Coll., 850 F.3d 731, 740 (5th Cir. 2017);
Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008).
116 Walker, 550 F.3d at 414 (citing Wallace v. Kato, 549 U.S. 384 (2007)) (internal quotation marks
omitted).
117 Id. (quoting Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001)).
118 See R. Doc. 60.
113

21

act.”119 The last harmful act alleged by the Plaintiff was her encounter with Sgt. Gaudet on
June 24, 2015, when the Plaintiff alleges she sought Sgt. Gaudet’s assistance with pressing
criminal charges against Brandon Donahue, and he informed her the claims had
prescribed.120 According to the Plaintiff, the prescriptive period on her Section 1983
conspiracy claim did not begin to accrue until that date, and thus her complaint filed on
November 18, 2015121 was timely as to all the wrongful acts.122
In the context of a conspiracy claim under Section 1983, “the actionable civil injury
to a plaintiff results from the overt acts of the defendants, not from the mere continuation
of a conspiracy.”123 The Fifth Circuit has found that “[c]haracterizing Defendants’
separate wrongful acts as having been committed in furtherance of a conspiracy . . . does
not postpone the accrual of claims based on individual wrongful acts . . . . To permit [a
plaintiff] to wait and toll the running of the statute simply by asserting that a series of
separate wrongs were committed pursuant to a conspiracy would enable him to defeat the
purpose of the time-bar, which is to preclude the resuscitation of stale claims.”124 “[A]ny
cause of action against the defendants accrued as soon as plaintiff knew or should have
known of the overt acts involved in the alleged conspiracy.”125
In her second amended complaint, the Plaintiff alleges the first overt act of
Brandon Donahue and the Deputies in furtherance of the conspiracy arose out of an
incident on July 7, 2013, when “Brandon Donahue grabbed Sarah Donahue by both of her
R. Doc. 60 at 21.
See R. Doc. 35 at 12, ¶ 38.
121 R. Doc. 1.
122 R. Doc. 60 at 20–24.
123 Helton v. Clements, 832 F.2d 332, 335 (5th Cir. 1987). Compare the rule with respect to civil conspiracies
with the statute of limitations for a federal criminal conspiracy, which does not begin to run until the last
overt act pursuant to the conspiracy has been committed. Id. (citing United States v. Parker, 586 F.2d 422,
430 (5th Cir. 1978)).
124 Id. (quoting Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1980)).
125 Id.
119

120

22

arms and violently pushed the back of her body into the door of the bathroom shower.”126
According to the Plaintiff, after Brandon Donahue called 911 and St. Tammany Parish
Sheriff’s Office deputies arrived at the scene, Brandon Donahue was not arrested despite
the Plaintiff informing them of Brandon Donahue’s history of domestic abuse. 127 The
Plaintiff alleges the conspiracy between Brandon Donahue and the Deputies “grew out of
Sarah Donahue’s July 7, 2013 report of her husband’s criminally violent behavior.”128
The second overt act alleged by the Plaintiff relates to a July 23, 2013 meeting the
Plaintiff had with an attorney in St. Tammany Parish who “made inappropriate and
unsolicited remarks to Sarah Donahue concerning, among other things, oral sex, and
placed his hand inside her clothing and groped her breast.”129 Sgt. Ripoll was assigned to
investigate the matter, and allegedly “ignor[ed] and wholly disregard[ed] evidence that
supported Sarah Donahue’s version of the events and rel[ied] on information provided by
Brandon Donahue that discredited Sarah Donahue by portraying her as unstable and
unreliable.”130 The Plaintiff alleges Sgt. Ripoll’s actions were in furtherance of the
conspiracy between him, the Deputies, and Brandon Donahue to protect Donahue and to
discredit the Plaintiff.
The third overt act alleged by the Plaintiff as part of the conspiracy occurred on
November 30, 2013, when Brandon Donahue allegedly submitted to the St. Tammany
Parish Coroner’s Office a written request for issuance of an Order of Protective Custody
for Sarah Donahue, which the Plaintiff contends falsely stated she had “stated several

R. Doc. 35 at 4, ¶ 15.
Id.
128 Id. at ¶ 16.
129 Id. at 7, ¶ 22.
130 Id. at ¶ 24.
126
127

23

times lately that she has thought about suicide.” 131 After the Plaintiff was released from
the St. Tammany Parish Hospital, she allegedly sent a text message to Brandon Donahue
that she wished to pick up their son.132 Upon arriving at Brandon Donahue’s residence,
the Plaintiff alleges multiple St. Tammany Parish Sheriff’s Office deputies were present,
including Sergeant Dantagnan, who allegedly “blocked [the Plaintiff] from leaving the
house and told her very aggressively that she was not going to take her son out of the
house.”133 The Plaintiff alleges Sgt. Dantagnan “told Sarah unless she left her son with
Brandon voluntarily, he would arrest her and take her to jail.”134
The fourth overt act alleged by the Plaintiff as part of the conspiracy occurred on
December 11, 2013, when the Plaintiff lodged a complaint with the Internal Affairs
Division (“IAD”) of the St. Tammany Parish Sheriff’s Office about “unfair favoritism
shown by the Sheriff’s Office to Brandon Donahue . . . and the continuous pattern of unfair
and harassing treatment she received from the Sheriff’s Office and the Defendant
Deputies.”135 The Plaintiff alleges “the Sheriff’s Office never contacted [her] to obtain
more information or advise her of the status or outcome of her complaint.”136
The final overt act alleged by the Plaintiff as part of the conspiracy occurred on
June 24, 2015 when the Plaintiff met with Sgt. Gaudet, seeking to press charges against
Brandon Donahue for the July 2013 battery.137 According to the Plaintiff, “[i]n
furtherance of the conspiracy to protect Brandon Donahue from arrest and prosecution,
Sgt. Gaudet attempted to intimidate and discourage Sarah from pursuing charges against

Id. at 8, ¶ 26.
Id. at 9, ¶ 29.
133 Id. at ¶ 32.
134 Id.
135 Id. at 10, ¶ 35.
136 Id. at 11, ¶ 37.
137 Id. at 12, ¶ 38.
131

132

24

Brandon.”138 The Plaintiff further alleges “Sgt. Gaudet falsely told Sarah that the matter
had ‘probably prescribed’ because she waited too long to seek charges.” 139 Sgt. Gaudet
allegedly told the Plaintiff he would contact the district attorney’s office, but never did
so.140
The Court is not persuaded that the “continuing violation” doctrine applies in this
case. “Courts typically find torts to be continuous in nature where each individual act
would not necessarily give rise to a cause of action but the cumulative effect of regularly
occurring or continuous actions results in successive damages from day to day.”141 The
continuing violation doctrine applies when the “unlawfulness of [the] defendant’s actions
becomes apparent only after the cumulation of a series of related events,” and “it does not
apply to a series of related but discrete, discriminatory acts.”142 As the Fifth Circuit has
noted, “courts, including this one, are wary to use the continuing violation doctrine to
save claims outside the area of Title VII discrimination cases.”143
The Court finds that the actions alleged by the Plaintiff are discrete, overt acts, each
of which could give rise to a cause of action for violations of the Plaintiff’s constitutional
rights. “[D]iscrete discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges. Each discrete discriminatory act starts
a new clock for filling charges alleging that act.”144 The Plaintiff [may only recover for

Id.
Id.
140 Id.
141 Griffith v. City of New Orleans, No. 11-245, 2013 WL 5592937, at *3 (E.D. La. Oct. 10, 2013) (citing
Hunter v. Tensas Nursing Home, 743 So. 2d 839, 842 (La. App. 2d Cir. 1999)).
142 Brooks v. Menifee, No. CV07-0131-A, 2010 WL 7827470, at *3 (W.D. La. Sept. 27, 2010), report and
recommendation adopted, No. CV07-0131-A, 2011 WL 5117600 (W.D. La. Oct. 26, 2011).
143 McGregor v. Louisiana State Univ. Bd. of Sup’rs, 3 F.3d 850, 866 n.27 (5th Cir. 1993).
144 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112 (2002); see also Hunter v. Jefferson Par. Pub.
Sch. Sys., No. 17-2015, 2017 WL 2910992, at *7 (E.D. La. July 7, 2017) (quoting Williams v. Otis Elevator
Co., 557 Fed. App’x 229, 302 (5th Cir. 2014)) (The “continuous tort doctrine . . . does not suspend the statute
of limitations indefinitely for discrete acts of discrimination simply because the ripple effects of those acts
138
139

25

those overt acts that [she has] specifically alleged occurred within the prescripti[ve]
period.”145
“[A]ny cause of action against the Defendants accrued as soon as the Plaintiff knew
or should have known of the overt acts involved in the alleged conspiracy.” 146 The Plaintiff
knew at the time of each overt act of the alleged deprivations of her constitutional rights.
As a result, each of the overt acts that occurred before November 18, 2014—one year
before the Plaintiff filed her complaint—have prescribed.147 Only the Plaintiff’s Section
1983 conspiracy claim with respect to her June 24, 2015 interaction with Sgt. Gaudet
occurred within the Section 1983 prescriptive period. The Plaintiff’s causes of action
under Section 1983 for alleged acts of the defendants occurring before November 18, 2014
have prescribed.148
This is not to say that the Court cannot consider the Plaintiff’s allegations with
respect to the four earlier acts. “Any act occurring outside the applicable filing period ‘may
constitute relevant background evidence in a proceeding in which the status of a current
practice is at issue, but separately considered, it is merely an unfortunate event in history
which has no present legal consequences.’”149 Although the Plaintiff cannot recover for
damages arising from any acts the Defendants committed before November 18, 2014, the

cause lingering harm. It is the tort that must be continuous, not the repercussions of that tort. A continuing
tort is occasioned by [the continual] unlawful acts, not the continuation of the ill effects of an original,
wrongful act.”).
145 Morales v. State of La., No. 94-1194, 1996 WL 442229, at *5 (E.D. La. Aug. 2, 1996).
146 Helton, 832 F.2d at 335. “Under federal law, a cause of action accrues the moment the plaintiff knows or
has reason to know of the injury that is the basis of [her] complaint. Thus, the statute of limitations begins
to run from the moment the plaintiff becomes aware that [she] has suffered an injury or has sufficient
information to know that [she] has been injured.” Id. at 334–35.
147 The Plaintiff’s original complaint was filed on November 18, 2015. R. Doc. 1.
148 See Morgan, 536 U.S. at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges.”).
149 Gallentine v. Hous. Auth. of City of Port Arthur, Tex., 919 F. Supp. 2d 787, 800 (E.D. Tex. 2013) (quoting
United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)); see also Morgan, 536 U.S. at 112.
26

Section 1983 prescriptive period “does not preclude the jury from considering those
events as evidence in support of its verdict that [the Defendants] committed overt acts in
furtherance of the scheme after [November 18, 2014], thereby violating [the Plaintiff’s
constitutional] rights.”150
IV.

Brandon Donahue and the Sheriff Defendants’ Motions to Dismiss
the Plaintiff’s Surviving Section 1983 Conspiracy Claim
Now that the Court has concluded a single overt act alleged by the Plaintiff survives

the Section 1983 time bar, the Court must now determine whether the Plaintiff states an
actionable conspiracy claim against Brandon Donahue and the Deputies arising out of her
June 24, 2015 interaction with Sgt. Gaudet.
To state a claim for conspiracy under Section 1983, the Plaintiff must allege: (1) an
agreement between the private and public defendants to commit an illegal act; and (2) a
deprivation of constitutional rights.151 Allegations that are merely conclusory, without
reference to specific facts, will not suffice.152
A. Agreement
The Plaintiff alleges “Brandon Donahue and the Defendant Deputies reached an
agreement to protect Brandon from prosecution for assault and to discredit [the Plaintiff]
in order to benefit Brandon in his anticipated divorce and child custody case against [the
Plaintiff].”153 Further, the Plaintiff alleges the “Defendant Deputies communicated with
Brandon Donahue—rather than Sarah Donahue . . . — during the course of the Sheriff’s
Office’s . . . investigation of Sarah’s assault.”154 Specifically, the Plaintiff alleges Sgt.

Turner v. Upton Cnty., Tex., 967 F.2d 181, 185 (5th Cir. 1992).
Priester, 354 F.3d at 420.
152 Id. (citing Brinkman v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986)).
153 R. Doc. 35 at 5, ¶ 17.
154 R. Doc. 35 at 5, ¶ 17.
150
151

27

Gaudet contacted Brandon Donahue on July 16, 2013 as part of his investigation and
created his investigation report “as a result of consultation with Brandon in order to
discredit Sarah Donahue.”155 Further, the Plaintiff alleges Sgt. Ripoll, when investigating
the Plaintiff’s complaint about her interaction with her attorney, ignored evidence that
supported the Plaintiff’s version of events, and instead relied only “on information
provided by Brandon Donahue.”156 Finally, the Plaintiff alleges Brandon Donahue
“arranged for his colleagues and co-conspirators to be available to assist him” when the
Plaintiff sought to retrieve her son from Brandon Donahue’s residence.157
Construing the Plaintiff’s factual allegations in her favor and drawing all
reasonable inferences from them, the Court finds the Plaintiff has sufficiently alleged an
agreement between Brandon Donahue, a private actor, and public defendants, the
Deputies, to commit an illegal act.
B. Deprivation of Constitutional Rights
The Court must next determine whether the Plaintiff has sufficiently alleged a
deprivation of her constitutional rights. The Plaintiff alleges the acts of Brandon Donahue
and the Deputies violated her “right to petition, free speech and association under the
First Amendment to the United States Constitution, and her rights to privacy, liberty, due
process, and equal protection under the Fourteenth Amendment.”158 The Court will
address each in turn.

Id. at 6, ¶ 21.
R. Doc. 35 at 7, ¶ 24.
157 Id. at 9, ¶ 29.
158 R. Doc. 35 at 14, ¶ 45.
155

156

28

1.

Equal Protection

The Plaintiff alleges Brandon Donahue and the Deputies violated “her rights to
privacy, due process, and equal protection under the Fourteenth Amendment.” 159 With
respect to her interaction with Sgt. Gaudet on June 24, 2015, the Plaintiff alleges she was
“deprived of due process by [Brandon Donahue and the Deputies’] deliberate interference
with her pursuit of relief from the crimes committed against her” and was “denied equal
protection of laws offered to other, similarly-situated [sic] crime victims.”160
With respect to her equal protection claim, the plaintiff contends she is “alleging
that she, as a ‘class of one,’ was ‘intentionally treated differently from others similarly
situated’ for no ‘rational’ reason.”161 In Village of Willowbrook v. Olech, the Supreme
Court held that “the Equal Protection Clause can give rise to a cause of action on behalf of
a ‘class of one’ even when the plaintiff does not allege membership in a protected class or
group.”162 “To state a claim sufficient for relief, a single plaintiff must allege that an
illegitimate animus or ill-will motivated her intentionally different treatment from others
similarly situated and that no rational basis existed for such treatment.” 163 Specifically,
the Plaintiff must allege “that the unequal police protection had no rational basis,” which
requires the Plaintiff to show “that the defendant deliberately sought to deprive [her] of
the equal protection of the laws for reasons of a personal nature unrelated to the duties of
the defendant’s position.”164

R. Doc. 35 at 14, ¶ 45.
R. Doc. 60 at 25.
161 R. Doc. 60 at 25.
162 Shipp v. McMahon, 234 F3d 907, 916 (5th Cir. 2000), overruled in part on other grounds by McClendon
v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) (citing Village of Willowbrook v. Olech, 528 U.S. 562
(2000)).
163 Id.
164 Id. (quoting Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000)) (internal quotation marks
omitted).
159

160

29

The Plaintiff has alleged “Sheriff Strain and the Defendant Deputies intentionally
and maliciously failed to hold Brandon Donahue accountable for his misconduct, and
singled out Sarah Donahue for unequal treatment when her husband, a St. Tammany
Parish Deputy Sheriff, engaged in acts of domestic violence.” 165 The Plaintiff further
alleges the Defendants “engaged in a continuing series of intentional actions all directed
toward a sole end: to thwart the prosecution of Brandon Donahue, a fellow law
enforcement officer, for domestic violence.”166 Specific to her encounter with Sgt. Gaudet
on June 24, 2015, the Plaintiff alleges Sgt. Gaudet discouraged the Plaintiff from pursuing
charges against Brandon Donahue to “protect Brandon Donahue from arrest and
prosecution.”167
The Court finds the Plaintiff has sufficiently alleged that Brandon Donahue and the
Deputies intentionally treated the Plaintiff differently from others similarly situated, that
no rational basis for this treatment existed, and that the “illegitimate animus” of
protecting their colleague from criminal prosecution was the motivating factor in the
Brandon Donahue and the Deputies’ treatment of the Plaintiff. According to the Plaintiff’s
allegations, the reasons for which the Deputies protected Brandon Donahue were of a
“personal nature unrelated to the duties of the defendant’s position.”168 As a result, the
Plaintiff’s “class of one” Equal Protection claim survives Brandon Donahue’s and the
Deputies’ motions to dismiss.

R. Doc. 35 at 13.
R. Doc. 35 at 13.
167 Id. at 12, ¶ 38.
168 Shipp, 234 F.3d at 916 (quoting Hilton, 209 F.3d at 1008).
165

166

30

2.

Due Process

With respect to the Plaintiff’s claim that Brandon Donahue and the Deputies
violated her due process rights guaranteed by the Fourteenth Amendment, the Plaintiff
argues the Brandon Donahue and the Deputies “deprived [her] of due process by
[Brandon Donahue and the Deputies’] deliberate interference with her pursuit of relief
from the crimes committed against her.”169
The Plaintiff met with Sgt. Gaudet on July 24, 2015 because she “wanted to press
charges against Brandon for the July 2013 battery.”170 The Plaintiff alleges Sgt. Gaudet
“attempted to intimidate and discourage” her from pursuing charges against Brandon
Donahue, telling her “that the matter had probably prescribed because she waited too
long to seek charges.”171 According to the Plaintiff, Sgt. Gaudet “promised to contact [the
Plaintiff] after he spoke with the [district attorney’s] office” but never actually contacted
the district attorney’s office because he “never intended to pursue [the Plaintiff’s]
report.”172
In a Section 1983 cause of action asserting a due process violation, a plaintiff must
first identify a life, liberty, or property interest protected by the Fourteenth
Amendment.173 The Plaintiff fails to identify a life, liberty, or property interest that was
violated by Brandon Donahue and the Deputies during the Plaintiff’s July 24, 2015
encounter with Sgt. Gaudet. There is no constitutional right to have an individual
criminally prosecuted.174 As a result, any alleged act by Sgt. Gaudet that interfered with

R. Doc. 60 at 25.
R. Doc. 35 at 12, ¶ 38.
171 R. Doc. 35 at 12, ¶ 38.
172 R. Doc. 35 at 12, ¶ 38.
173 Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995).
174 Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990).
169
170

31

the Plaintiff’s pursuit of criminal charges against Brandon Donahue does not amount to
a violation of the Plaintiff’s due process rights.175
C. The Plaintiff’s Section 1983 Conspiracy Claim for Equal Protection Against
Brandon Donahue and the Deputies in their Official Capacities
The Plaintiff’s remaining Section 1983 conspiracy claim for violation of her
constitutional right to equal protection is brought against Brandon Donahue and the
Deputies in their official and individual capacities.176 The Plaintiff’s second amended
complaint also names as a defendant Sheriff Rodney “Jack” Strain, Jr. in his official
capacity as the Sheriff of St. Tammany Parish.177 It is well settled that a suit against a
municipal official in his or her official capacity is simply another way of alleging municipal
liability.178 Louisiana grants no capacity to be sued to any parish sheriff’s office.179
Concomitantly, a suit may not be filed against a parish sheriff’s office. The Sheriff in his
official capacity is the appropriate governmental entity responsible for any constitutional
violations committed by his office.180
When, as in this case, the Sheriff is a defendant in the litigation, claims against
specific individuals in their official capacities are redundant, and it is appropriate to
dismiss them.181 Accordingly, the Plaintiff’s Section 1983 conspiracy claims against

The Plaintiff’s complaint is less than clear as to which factual allegations could give rise to a violation of
her First Amendment rights to petition, free speech, and association. To the extent the Plaintiff claims her
rights under the First Amendment were violated because she was deprived of her right to seek redress from
the courts, her First Amendment claim fails for the same reason.
176 See R. Doc. 35.
177 Id. at 2, ¶ 4.
178 Monell v. New York City Dept. of Social Servs, 436 U.S. 658 (1978).
179 Cozzo v. Tangipahoa Par. Council-President Govt., 279 F.3d 273, 283 (5th Cir. 2002)
180 Jenkins v. Jefferson Par. Sheriff’s Office, 402 So. 2d 669, 671 (La. 1981)
181 Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001).
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Michael Ripoll, Jr., Alex Dantagnan, and Steven Gaudet, Sr. in their official capacities are
dismissed.182
D. The Plaintiff’s Section 1983 Conspiracy Claim for Equal Protection Against
Brandon Donahue and the Deputies in their Individual Capacities—
Qualified Immunity
The qualified immunity defense serves to shield government officials, sued in their
individual capacities and performing discretionary functions, “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” 183 When
considering a qualified immunity defense raised in the context of a Rule 12(b)(6) motion
to dismiss, the Court must determine whether “the plaintiff’s pleadings assert facts which,
if true, would overcome the defense of qualified immunity.”184 “Thus, a plaintiff seeking
to overcome qualified immunity must plead specific facts that both allow the court to draw
the reasonable inference that the defendant is liable for the harm he has alleged and that
defeat a qualified immunity defense with equal specificity.”185
As discussed above, the Plaintiff has sufficiently alleged facts to state a claim under
Section 1983 for conspiracy to violate her right to equal protection under the Fourteenth
Amendment. Government officials are entitled to qualified immunity only to the extent
that “their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”186 The Court finds the Plaintiff’s right
To the extent the Plaintiff asserts a claim against Brandon Donahue in his official capacity as a reserve
deputy with the St. Tammany Parish Sheriff’s Office, this claim also is dismissed.
183 Kinney v. Weaver, 367 F.3d 337, 349 (5th Cir. 2004).
184 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012); Jordan v. City of New Orleans, No. 15-1922, 2016
WL 633666, at *2 (E.D. La. Feb. 17, 2016).
185 Backe, 691 F.3d at 648. See also Babb v. Dorman, 33 F.3d 472, 475 n.5 (5th Cir. 1994) (“To survive a
motion to dismiss in cases where the qualified immunity defense is raised, a plaintiff must state facts, which
if proven, would defeat the defense.”); Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616, 620 (5th
Cir. 1992).
186 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
182

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to equal protection, including “class-of-one” equal protection, was clearly established at
the time of the alleged constitutional violation.187 The Fifth Circuit in Shipp v. McMahon
found that a class-of-one equal protection claim existed in the context of a domestic
violence victim’s allegation that she received unequal police protection because her
husband’s mother was a deputy at the sheriff’s office.188 Taking the well-pleaded
allegations of the Plaintiff’s second amended complaint as true, the Court finds that an
objectively reasonable officer would have realized that discriminating against a person
with respect to providing police protection was unlawful.
Thus, the Court finds the Plaintiff’s second amended complaint, on its face, shows
an unreasonable violation of a clearly established constitutional right, and the defense of
qualified immunity does not warrant granting a motion to dismiss under Rule 12(b)(6).189
The Defendants may re-urge their entitlement to qualified immunity by motion for
summary judgment.
V.

Motion to Dismiss the Plaintiff’s Claim for Monell Supervisory
Liability
The Plaintiff claims Sheriff Strain is liable in his official capacity for failing to train

and supervise his employees with respect to investigating domestic violence cases. The
Sheriff seeks dismissal of this claim.

For a right to be “clearly established,” “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987).
188 Shipp, 234 F.3d at 916.
189 Even though only Sgt. Gaudet was directly involved in the incident that allegedly occurred on June 24,
2015, the other defendants may still be liable to the Plaintiff for conspiring to violate her right to equal
protection. See Latiolais v. Cravins, 484 F. App’x 983, 991 (5th Cir. 2012) (“Regardless of whether or not
[a defendant’s] actions alone actually caused a constitutional violation, liability can still be imposed on him
through his alleged membership in the conspiracy.”).
187

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A municipality may be liable under § 1983 if it “subjects a person to a deprivation
of rights or causes a person to be subjected to such deprivation.”190 To prevail on a § 1983
claim against a local government or municipality, a plaintiff must establish: (1) an official
policy or custom, of which (2) a policy maker can be charged with actual or constructive
knowledge, and (3) a constitutional violation whose “moving force” is that policy or
custom.191 The Sheriff does not dispute that he is the policymaker for the St. Tammany
Parish Sheriff’s Office.
An “official policy” for purposes of § 1983 includes the following: (1) “[a] policy
statement, ordinance, regulation or decision that is officially adopted and promulgated
by the municipality’s lawmaking officers or by an official to whom the lawmakers have
delegated policy-making authority”; and (2) a persistent and widespread practice of city
officials or employees, “which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute a custom that fairly
represents municipal policy.”192
The Plaintiff’s Monell claim is based on Sheriff Strain’s failure to supervise and
train his employees. The failure to train or inadequate training of officers can be an official
policy that subjects the municipality to liability under § 1983, “only where the failure to
train amounts to deliberate indifference to the rights of persons with whom the police
come in contact.”193 A claim for failure to train must allege sufficient facts to show that (1)
the municipality adopted inadequate training procedures, (2) acted with deliberate

Connick, 563 U.S. at 60 (internal quotation marks omitted).
Valle v. City of Hous., 613 F.3d 536, 541–42 (5th Cir. 2010).
192 Brown v. Bryan Cty., OK, 219 F.3d 450, 457 (5th Cir. 2000). “Actual or constructive knowledge of such
custom must be attributable to the governing body of the municipality or to an official to whom that body
had delegated policy-making authority.” Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984).
193 City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).
190
191

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indifference in doing so, and (3) the inadequate training policy directly caused the
plaintiff’s injury.194
The Sheriff argues the Plaintiff fails to sufficiently allege that a policy existed or
that he acted with deliberate indifference. Usually, a plaintiff suing a municipality must
provide “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”195
“Allegations that provide such notice could include . . . past incidents of misconduct to
others, multiple harms that occurred to the plaintiff [herself], misconduct that occurred
in the open, the involvement of multiple officials in the misconduct, or the specific topic
of the challenged policy or training inadequacy.”196
The Plaintiff alleges the “Sheriff . . . has had longstanding policies, practices,
and/or customs of failing to properly train and supervise his deputies, including each of
the defendant deputies, on the proper handling, investigation, and disposition of
domestic violence incidents and complaints, thereby compromising the quality,
completeness, and consistency of investigations, written reports, and arrests in such
cases.”197 The Plaintiff further alleges “[t]hese policies, practices and/or customs were the
moving force and proximate cause of the damages suffered by Sarah Donahue . . . .” 198
The Court finds the Plaintiff’s allegations are sufficient to state a Monell claim at
the motion to dismiss stage. The Plaintiff alleges multiple instances of misconduct

Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010). A Monell plaintiff must “establish
both the causal link (“moving force”) and the [municipality’s] degree of culpability (“deliberate indifference”
to federally protected rights)” because “[w]here a court fails to adhere to the rigorous requirements of
culpability and causation, municipal liability collapses into respondeat superior liability.” Piotrowski v. City
of Houston, 237 F.3d at 580.
195 Thomas v. City of Galveston, Tex., 800 F. Supp. 2d 826, 841 (S.D. Tex. Aug. 1, 2011) (quoting
Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination, 507 U.S. 163, 168 (1993)).
196 See Thomas, 800 F. Supp. 2d at 843–44.
197 R. Doc. 35 at 14, ¶ 51.
198 Id. at ¶ 52.
194

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involving at least three different officers.199 The Plaintiff also alleges a specific topic on
which the Sheriff’s policies are insufficient or non-existent—the investigation and
handling of domestic violence cases.200 The Court notes that “[i]n the context of municipal
liability, as opposed to individual officer liability, it is exceedingly rare that a plaintiff will
have access to (or personal knowledge of) specific details regarding the existence or
absence of internal policies or training procedures prior to discovery.”201 “Accordingly,
only minimal factual allegations should be required at the motion to dismiss stage.
Moreover, those allegations need not specifically state what the policy is, as the plaintiff
will generally not have access to it, but may be more general.”202
The Plaintiff’s allegations provide to the Sheriff “fair notice of the nature of the
claim” and “grounds on which the claim rests,”203 and also “permit the court to infer more
than the mere possibility of misconduct.”204 As a result, the Sheriff’s motion to dismiss
the Plaintiff’s claim for Monell liability is denied.
VI.

Brandon Donahue, the Sheriff, and the Deputies’ Motions to
Dismiss the Plaintiff’s Claims for Abuse of Rights
The Plaintiff brings state-law claims for abuse of rights against Brandon Donahue

and the Deputies.205 The Plaintiff alleges Brandon Donahue, the Sheriff, and the Deputies’

See, e.g., R. Doc. 35 at 5 (Sgt. Gaudet’s investigation of the July 7, 2013 incident of domestic violence
with Brandon Donahue); id. at 7 (Sgt. Ripoll’s investigation of the July 25, 2013 incident with the Plaintiff’s
attorney); id. at 9–10 (Sergeant Dantagnan’s involvement with the November 30, 2013 incident); id. at 11–
12 (Sgt. Gaudet’s discouraging the Plaintiff on June 24, 2015 against filing criminal charges against Brandon
Donahue for domestic violence).
200 Id. at 14.
201 Thomas, 800 F. Supp. 2d at 843.
202 Id. at 843–44.
203 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).
204 Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). The Supreme Court in Leatherman v. Tarrant Cnty.
Narcotics Intelligence and Coordination Unit held federal courts should not apply a heightened pleading
standard to Section 1983 claims against municipalities. 507 U.S. 163, 168 (1993). Leatherman pre-dates
Twombly and Iqbal.
205 R. Doc. 35 at 16. The Plaintiff brings a claim against the Sheriff for vicariously liability for the Deputies’
abuse of rights.
199

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are liable “under the doctrine of abuse of rights for each of their acts undertaken in
furtherance of their conspiracy because their predominant motive for [the] exercise of
their rights as law enforcement officers was to protect Brandon Donahue from criminal
responsibility for his acts and to cause harm to Sarah Donahue.”206
“The doctrine of abuse of rights has been invoked sparingly in Louisiana.”207 “The
abuse of rights doctrine is a civilian concept which is applied only in limited
circumstances because its application renders unenforceable one’s otherwise judicially
protected rights.”208 The abuse of rights doctrine applies only when one of the following
conditions are met:
(1) the predominant motive for exercise of the right is to cause harm;
(2) there is no serious or legitimate motive for exercise of the right;
(3) the exercise of the right violates moral rules, good faith, or elementary
fairness; or
(4) the exercise of the right is for a purpose other than that for which it was
granted.209
The Court first points out that any claim for abuse of rights against the defendants
arising out of acts occurring before November 18, 2015 have prescribed. Louisiana’s oneyear liberative prescriptive period applies to claims for abuse of rights.210
Even if the Plaintiff’s abuse of right claims had not prescribed, the Court finds the
Plaintiff fails to state a claim for abuse of rights against Brandon Donahue or the Deputies.
The Plaintiff’s second amended complaint does not sufficiently allege that the acts of any
of the defendants met any of the four conditions required to state an abuse of right claim.
Further, the Plaintiff’s contention that the defendants “exercised their rights as law

Id. at ¶ 62.
Steier v. Heller, 732 So. 2d 787, 790 (La. Ct. App. 2 Cir. 5/5/99).
208 Id.
209 Id. at 791.
210 LA. CIV. CODE art. 3492, cmt. b; see also Adams v. First Nat’l Bank of Commerce, 644 So. 2d 219, 223
(La. Ct. App. 4 Cir. 9/29/94).
206
207

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enforcement officers” does not square with the purpose of an abuse of rights claim. The
abuse of rights doctrine typically applies in cases implicating contractual or property
rights.211
Accordingly, the Plaintiff’s claims for abuse of rights must be dismissed.
VII.

Brandon Donahue and the Sheriff Defendants’ Motions to Dismiss
the Plaintiff’s Claims for Punitive Damages under Section 1983

The Plaintiff seeks punitive damages against Brandon Donahue, the Sheriff, and
the Deputies’ on all claims under Section 1983.212 The Plaintiff states that she “does not
disagree that recovery of punitive damages in this action are limited to her § 1983 claims
against Defendants in their individual capacities.”213
Punitive damages may be awarded in §1983 cases only “when the defendant’s
conduct is shown to be motivated by evil motive or intent, or when it involves reckless or
callous indifference to the federally protected rights of others.”214 The “callous
indifference” standard requires ‘recklessness in its subjective form, i.e. a subjective
consciousness of a risk of injury or illegality and a criminal indifference to civil
obligations.”215
The Plaintiff alleges that the defendants “engaged in a continuing series of
intentional actions all directed toward a sole end: to thwart the prosecution of Brandon
Donahue.”216 The Court finds defendants’ actions as alleged in the complaint fail to rise

Schexnider v. Schexnider, No. 6:11-CV-2148, 2014 WL 3899132, at *7 (W.D. La. Aug. 8, 2014).
R. Doc. 35 at 18.
213 R. Doc. 60 at 24. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (“Because absolute
immunity from such damages obtained at common law and was undisturbed by the 42d Congress, and
because that immunity is compatible with both the purposes of § 1983 and general principles of public
policy, we hold that a municipality is immune from punitive damages under 42 U.S.C. § 1983.”). The Court
has determined, supra, that the only claim remaining against any officer in his individual capacity is for
conspiracy to violate the Plaintiff’s constitutional right to equal protection.
214 Smith v. Wade, 461 U.S. 30, 56 (1983).
215 Williams v. Kaufman Cty., 352 F.3d 994, 1015 (5th Cir. 2003) (internal quotation marks omitted).
216 R. Doc. 35 at 12–13.
211

212

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to the level of an “evil motive or intent” or “callous indifference.” As a result, the Plaintiff
has failed to state a claim for punitive damages under §1983 and those claims must be
dismissed.217
VIII. Requests for Attorney’s Fees Pursuant to 42 U.S.C. § 1988
In her second amended complaint, the Plaintiff seeks attorney’s fees pursuant to
42 U.S.C. § 1988 in the event she prevails in her claims against the defendants.
Section 1988 provides, in pertinent part: “In any action or proceeding to enforce a
provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, . . . the court, in
its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the
costs.” The Court, having found that the Plaintiff’s Section 1983 conspiracy claim and her
Monell claim survive Rule 12(b)(6) dismissal, likewise concludes that the Plaintiff’s claims
under Section 1988 are not subject to dismissal at this stage.218
Additionally, both Brandon Donahue, the Sheriff, and the Deputies seek attorney’s
fees under Section 1988 in the event they prevail, arguing the Plaintiff’s civil rights claims
against them are frivolous.219 “A district court may award attorney’s fees to a prevailing
civil rights defendant only upon a finding that the plaintiff's action was frivolous,
unreasonable, or without foundation.”220 “Thus, attorney’s fees for prevailing defendants
are presumptively unavailable unless a showing is made that the underlying civil rights
suit was vexatious, frivolous, or otherwise without merit.”221
See, e.g., Thomas v. Frederick, 766 F. Supp. 540, 562 (W.D. La. 1991) (finding that the plaintiff was
entitled to recover punitive damages from the defendant sheriff because the sheriff “failed to go through
even the procedural motions of carrying out his [] obligations, much less did he have any real objective of
finding the truth . . .”).
218 Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001) (quoting Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 416 (1978)) (“[A] prevailing plaintiff ordinarily is to be awarded attorney's fees in all but special
circumstances.”).
219 R. Docs. 37-1 at 16; 49-1 at 38.
220 Dean, 240 F.3d at 508 (quoting Christiansburg, 434 U.S. at 421) (internal quotation marks omitted).
221 Id.
217

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The Plaintiff’s dismissed claims do not rise to the level of being vexatious or
frivolous. Although many were dismissed, there is no indication that “[t]he plaintiff acted
wrongly in leveling such allegations,”222 as the Plaintiff provided reasonable arguments
as to why these claims were viable. Accordingly, the defendants’ requests for attorney’s
fees pursuant to Section 1988 as to the claims dismissed in this order are denied.
CONCLUSION
IT IS ORDERED that Brandon Donahue’s motion for summary judgment is
DENIED.
IT IS FURTHER ORDERED that Brandon Donahue’s motion to dismiss the
Plaintiff’s state-law tort claims against him is GRANTED. The Plaintiff’s state-law tort
claims against Brandon Donahue are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Brandon Donahue and the Sheriff
Defendants’ motions to dismiss the Plaintiff’s claims for conspiracy under 42 U.S.C. §
1983 against Brandon Donahue, Michael Ripoll, Jr., Alex Dantagnan, and Steven Gaudet,
Sr., in their official and individual capacities, on the basis of prescription are GRANTED
with respect to those allegedly wrongful actions that occurred before November 18, 2014,
and those claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Brandon Donahue and the Sheriff
Defendants’ motions to dismiss the Plaintiff’s claims for conspiracy under 42 U.S.C. §
1983 against Brandon Donahue, Michael Ripoll, Jr., Alex Dantagnan, and Steven Gaudet,
Sr. in their individual capacities are DENIED insofar as the Plaintiff alleges that Brandon

222

Fox v. Vice, 131 S. Ct. 2205, 2214 (2011).
41

Donahue and the Deputies conspired to violate her right to equal protection by the overt
act occurring on June 24, 2015.
IT IS FURTHER ORDERED that Brandon Donahue and the Sheriff
Defendants’ motions to dismiss the Plaintiff’s claims for conspiracy under 42 U.S.C. §
1983 in their official and individual capacities are GRANTED insofar as the Plaintiff
alleges that Brandon Donahue and the Deputies violated her rights to petition, free
speech, and association under the First Amendment and to due process under the
Fourteenth Amendment by the overt act occurring on June 24, 2015 and these claims are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiff’s Section 1983 conspiracy claim
against Brandon Donahue, Michael Ripoll, Jr., Alex Dantagnan, and Steven Gaudet, Sr.
in their official capacities for violation of her right to equal protection arising out of the
overt act occurring on June 24, 2015 is DISMISSED WITH PREJUDICE, but this
claim may proceed against the Sheriff.
IT IS FURTHER ORDERED that the Sheriff’s motion to dismiss the Plaintiff’s
claim against the Sheriff in his official capacity for Monell liability is DENIED.
IT IS FURTHER ORDERED that Brandon Donahue and the Sheriff
Defendants’ motions to dismiss the Plaintiff’s abuse of rights claims are GRANTED. The
Plaintiff’s claims for abuse of rights are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Brandon Donahue and the Sheriff
Defendants’ motions to dismiss the Plaintiff’s claims for punitive damages arising out of
her Section 1983 claims against the Brandon Donahue, the Sheriff, and the Deputies in
their official capacities are GRANTED. The Plaintiff’s claims for punitive damages are
DISMISSED WITH PREJUDICE.
42

IT IS FURTHER ORDERED that Brandon Donahue and the Sheriff
Defendants’ motions to dismiss the Plaintiffs’ request for attorney’s fees pursuant to 42
U.S.C. § 1988 are DENIED.223
IT IS FURTHER ORDERED that Brandon Donahue and the Sheriff
Defendants’ requests for attorney’s fees pursuant to 42 U.S.C. § 1988 with respect to those
of the Plaintiff’s claims that are dismissed in this Order are DENIED.
New Orleans, Louisiana, this 3rd day of August, 2017.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Four of the Plaintiff’s claims survive the motions to dismiss before the Court: (1) the Plaintiff’s Section
1983 conspiracy claim against Brandon Donahue and the Deputies, in their individual capacities, for
conspiring to violate her right to equal protection arising out of the overt act occurring on June 24, 2015;
(2) the Plaintiff’s Section 1983 conspiracy claim against the Sheriff, as the proper defendant for the
Plaintiff’s claims against the Deputies in their official capacities, for the alleged violation of her right to
equal protection arising out of the overt act occurring on June 24, 2015; (3) the Plaintiff’s Section 1983
claim against the Sheriff, in his official capacity, for Monell liability; and (4) the Plaintiff’s request for
attorney’s fees pursuant to 42 U.S.C. § 1988, in the event she is the prevailing party on any of the above
claims.
223

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