Carlisle v. Normand, et al

Filing 178

ORDER AND REASONS granting Kristen Becnel, Tracey Mussal, and Kevin Theriot's 128 Motion to Dismiss; granting in part Joe McNair and McNair & McNair, LLC's 130 Motion to Dismiss; granting in part Richard Thompson and Joseph Marino's 138 Motion to Dismiss. All claims against Kristen Becnel, Tracey Mussal, Kevin Theriot AND Richard Thompson are dismissed with prejudice. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TAYLOR CARLISLE, ET AL.

CIVIL ACTION

VERSUS

NO: 16-3767

NEWELL NORMAND, ET AL.

SECTION: “H”(1)

ORDER AND REASONS
Before the Court are three Motions: a Motion to Dismiss filed by
Defendants Joe McNair and McNair & McNair, LLC (Doc. 130); a Motion to
Dismiss filed by Defendants Richard Thompson and Joseph Marino (Doc. 138);
and a Motion to Dismiss filed by Defendants Kristen Becnel, Tracey Mussal,
and Kevin Theriot (Doc. 128). For the following reasons, Defendants Joe
McNair and McNair & McNair, LLC’s Motion is GRANTED IN PART,
Defendants Richard Thompson and Joseph Marino’s Motion is GRANTED IN
PART, and Defendants Kristen Becnel, Tracey Mussal, and Kevin Theriot’s
Motion is GRANTED.
BACKGROUND
In this suit, Plaintiffs challenge the manner in which the Jefferson
Parish Drug Court (“Drug Court”) is conducted. In addition to their individual
claims, they seek to represent a class of individuals who were similarly
sentenced by the Drug Court.
I.

Allegations of Plaintiffs’ Complaint and First Supplementing
Complaint
1

Plaintiffs’ Complaint and First Supplementing Complaint made the
following allegations. 1
Plaintiff Taylor Carlisle was arrested on November 9, 2012 and charged
in the 24th Judicial District Court for the Parish of Jefferson with possession
of oxycodone in case number 12-6158 and with possession of marijuana and
drug paraphernalia in case number 12-6159. On January 30, 2015 he entered
a guilty plea as to all charges. In case number 12-6159, he was sentenced to
time served, while his plea in case number 12-6158 was entered pursuant to
Louisiana Revised Statutes § 13:5304, also known as the “Louisiana Drug
Court Statute.” He was sentenced to between zero and five years, with the
sentence deferred contingent upon his completion of the Jefferson Parish
Intensive Drug Court Program while on probation. As part of this program,
Carlisle was required to maintain regular contact with the program probation
officer and Drug Court, attend regular AA meetings, consent to regular drug
testing, and present required documentation to the probation officer and Drug
Court. He also agreed to waive due process rights in Drug Court proceedings.
His primary claim involves allegations that he received excessive
sentences from Drug Court for failure to comply with the terms of the program.
On April 28, 2015, he was sanctioned to 90 days flat time. 2 On August 25, 2015,
he was sanctioned with six months of flat time for contempt of court when he
failed to appear for a hearing. Carlisle brings six claims relative to his
experience in Drug Court, essentially averring that the closed courtroom, lack
of court reporter, and lack of adversarial proceedings violate his due process
rights. He also alleges that these sentences were in excess of those permitted

1
2

See Docs. 1, 14.
“Flat time” refers to “[a] prison term that is to be served without the benefit of timereduction allowances for good behavior and the like.” TIME, BLACK’S LAW DICTIONARY (10th
ed. 2014).

2

under the state law authorizing Drug Court and that they are impermissible
flat time sentences. He argues that this is a violation of the Eighth
Amendment’s protections against cruel and unusual punishment and the
Equal Protection Clause of the Fourteenth Amendment. First, he seeks
declaratory and injunctive relief prohibiting Drug Court from acting in this
unconstitutional manner. Second, he brings a § 1983 claim against Sheriff
Normand for deliberate indifference in keeping Carlisle in jail for the flat time
sentences of 90 and 180 days, in violation of Louisiana law and his Equal
Protection and Due Process rights. Third, he brings a § 1983 claim against
Drug Court Administrator Kristen Becnel, Program Supervisor Tracy Mussal,
Probation

Coordinator

Kevin

Theriot

(collectively,

the

“Drug

Court

Administrators”), and Director of Counseling Joe McNair for failure to properly
train and supervise the implements of Drug Court policy.
In addition to these constitutional claims, he brings “pendant state law
claims” against several individuals. First, he brings a legal malpractice claim
against the Drug Court’s Indigent Public Defender Board and its staff attorney,
Joe Marino. Mr. Marino was appointed to represent Carlisle in Drug Court,
and Carlisle contends that he breached his duty by failing to appropriately
defend Carlisle. Second, he brings a claim against Drug Court Clinical Director
Joe McNair for breach of his duty as a therapist. He avers that McNair owed
him a duty to act within the standard of care governing the treatment of
patients with substance abuse problems and that he breached that duty by
failing to make proper recommendations as to his treatment.
Plaintiff Emile Heron has been a participant in the Drug Court program
since April 17, 2012. He pleaded guilty to one count of possession of oxycodone.
He alleges that he suffered periods of detention for technical violations of his
probation without procedural due process. On July 30, 2013, he was sentenced
3

to 24 hours flat time for failing to complete required community service. He
next alleges that, on November 12, 2013, he was sentenced to 30 days flat time
for “associating with a felon” despite having never committed that offense. On
January 14, 2014, he was sanctioned with 60 days flat time for failing to appear
at Drug Court on January 3, 2014. He further avers that he was held for an
additional four and a half months at the end of this sentence while waiting for
a long term care bed to become available. Eventually, he was sent to Assisi
Bridge House in Shreveport for seven and half months of inpatient treatment.
Upon release, he was again sanctioned for noncompliance and sentenced to 16
hours of community service due November 18, 2014. It seems that he failed to
complete this community service and was therefore sentenced to 48 hours in
the Jefferson Parish Correctional Center on December 2, 2014. On February 5,
2015 he was held in contempt for failure to pay $1,624.50 in fines from the
original plea agreement. He was later jailed on December 15, 2015 for failure
to complete community service. He alleges that he was held until January 26,
2016, at which time he was sanctioned with six months’ time. He alleges that
all of these sanctions were imposed without hearing, a court reporter, or formal
notice in violation of due process. He also alleges that, while he was
incarcerated, his probation was extended by motion without his knowledge.
Plaintiffs also seek certification of the following two classes:
Those individual natural persons who, while
participating as probationers in the 24th Judicial
District Court Drug Court program pursuant to Plea
Agreement (hereinafter the “probationers”) have been
sanctioned, for alleged probation infractions and
sentenced with jail time in the Jefferson Parish
Correctional Center or other location, in excess of ten
days as proscribed by LA Code Crim. Proc. 891(c).
and/or in violation of the Drug Court Act, R.S. 13:5304
et seq. These probationers include but are not limited
to those sentenced to “flat time” in connection with
4

said sanctions, as well as those who are alleged to have
committed Contempt and sentenced to jail time
without a hearing or opportunity to defend, or without
a record from which to launch an appeal based on Due
Process waivers executed at the time of the Plea
Agreement.
[and]
[A]ll persons who are or were participants in Jefferson
Parish Drug Court Program “held over” pending (1)
revocation of their probation based on technical
probation agreement violations imposed by the Drug
Court staff or the Court, without evidentiary hearing
and due process or statutory authority for issuance of
jail sanction or (2) holding a probationer in jail and
whose probations were subsequently revoked based on
violations for which they were already sanctioned with
jail terms or (3) for other reasons not prescribed in the
governing statute including pending transfer to a
rehabilitation facility. 3
Plaintiffs aver that all of these individuals were subject to a pattern and
practice of conduct whereby they were deprived of liberty under color of state
law. They aver that the subject class may consist of more than one thousand
individuals and that their claims involve common questions of law and fact.
II.

Initial Round of Motions to Dismiss
Three groups of Defendants moved separately to dismiss Plaintiffs’

claims as stated in the Complaint and First Supplementing Complaint. The
Court addressed the motions with a consolidated Order and Reasons on May
23, 2017. 4
The Court dismissed all personal-capacity claims against Defendant
McNair. The Court dismissed the negligence claims without prejudice, finding

3
4

Doc. 14 ¶¶ 94–95.
Doc. 110.

5

that Plaintiffs failed to sufficiently allege a doctor-patient relationship. 5 The
Court dismissed the failure to train and deliberate indifference claims without
prejudice because the Complaints failed to allege a causal connection between
McNair and the sanctions imposed by a judge. Further, the Court found that
Defendant McNair had qualified immunity against a suit for damages under
§ 1983 in his personal capacity because Plaintiffs failed to establish that the
due process waivers they signed were clearly illegal. The Court accordingly
dismissed the personal-capacity § 1983 claims for damages with prejudice. The
Court found that Plaintiff Heron failed to plead any facts supporting his claims
against Defendant McNair and dismissed Plaintiff Heron’s claims without
prejudice. Finally, the Court struck the class allegations against Defendant
McNair for the failure to plead common questions of law and fact relative to
him.
The Court dismissed without prejudice Plaintiffs’ legal malpractice
claims against Defendants Thompson and Marino. The Court found that
although such claims fell within the Court’s supplemental jurisdiction,
Plaintiffs failed to allege that the actions of Defendant Marino caused the harm
of which Plaintiffs complain. Plaintiffs further made no factual allegations
supporting a malpractice claim against Defendant Thompson.
The Court dismissed with prejudice Plaintiffs’ § 1983 claims for damages
against the Drug Court Administrators in their personal capacities. The Court
found that the Drug Court program is an intensive probation program over
which judges preside. Any role the Defendants played in bringing about the
allegedly unconstitutional sanctions was judicial in nature, entitling the Drug
Court Administrators to absolute judicial immunity. The Court also struck the
class allegations against the Drug Court Administrators for failing to allege
5

Doc. 110.

6

that those Defendants were involved in the deprivation of rights of all class
members.
The Court asked the parties to submit additional briefing on the Court’s
jurisdiction to hear claims against Defendants in their official capacities. The
Court concluded that Drug Court exists under the auspices of the 24th Judicial
District Court for the Parish of Jefferson and is therefore an arm of the state.
The Court dismissed with prejudice Plaintiffs’ official-capacity claims against
Defendants McNair and the Drug Court Administrators as barred by the
Eleventh Amendment. 6
III.

Plaintiffs’ Second Amending and Supplementing Complaint
Having dismissed several of Plaintiffs’ claims without prejudice, the

Court granted Plaintiffs leave to amend, which they did with the submission
of their Second Amending and Supplementing Complaint (“Second Amending
Complaint”). 7 The Second Amending Complaint re-asserts the entirety of the
original Complaint and First Supplementing Complaint. It also adds the
following parties: Officer Patricia Klees of the Gretna Police Department,
alleged to be a team member of Drug Court; McNair & McNair, LLC (“McNair’s
Business”); Defendant Joseph McNair in his official capacity as a member of
the Drug Court team; Jefferson Parish; and two unidentified insurance
companies.
Plaintiffs’ Second Amending Complaint alleges additional factual details
as to how the Drug Court team, including Defendants McNair, Marino, and the
Drug Court Administrators, allegedly conspired to have the Drug Court judge
sanction Plaintiffs in violation of due process. Plaintiffs specifically allege that
Defendant Klees lied to Defendant Theriot about how Klees discovered

6
7

Doc. 136.
See Doc. 117.

7

Plaintiff Carlisle’s missing AA paperwork. Plaintiffs allege that Defendants
knowingly ignored national treatment standards and drug court guidelines in
implementing the program. Plaintiffs allege that the rights of all class
members were violated by Defendants’ policies and practices of ignoring
treatment standards, recommending illegal sanctions, and participating in
proceedings lacking due process.
With respect to the state-law claims against Defendant McNair,
Plaintiffs allege that McNair evaluated them for treatment and admission into
the Drug Court program. Plaintiffs also allege that after the initial February
2013 evaluations, Defendant McNair never again evaluated Plaintiffs or
recommended that they be evaluated by another specialist. Plaintiff Carlisle
alleges that McNair ordered him to go to Oxford House without authority and
in violation of the Drug Court authorizing statutes.
IV.

Second Round of Motions to Dismiss
Three groups of Defendants again move separately to dismiss the

remaining and amended claims against them.
The Drug Court Administrators move the Court to dismiss all claims
against them pursuant to Rules 12(b)(1) and 12(b)(6). 8 They argue that
Plaintiffs, having been discharged from Drug Court, no longer have standing
to bring their claims. The Drug Court Administrators also argue that they have
absolute judicial immunity. Plaintiffs oppose the Motion, arguing that
Plaintiffs do have standing because they continue to suffer harm, that judicial
immunity should not apply, and that the official capacity claims should not
have been dismissed in the first place.
Defendants McNair and McNair’s Business also move to dismiss for lack
of jurisdiction and failure to state a claim, as well as to strike the class
8

Doc. 128.

8

allegations. 9 They argue that Plaintiffs lack standing because they have been
discharged from Drug Court, that any official-capacity claims against them
have been dismissed already pursuant to Eleventh Amendment immunity, and
that the Second Amending Complaint fails to allege either numerosity or
common questions of law and fact as required by Rule 23. Plaintiffs oppose the
motion, arguing that their continued harm gives them standing and that
immunity does not apply.
Defendants Marino and Thompson move to dismiss the state-law
malpractice claims against them on the grounds that a) the claims do not fall
under the Court’s supplemental jurisdiction, b) that even if supplemental
jurisdiction exists, the fact that the sentences of which Plaintiffs complain have
not been overturned presents a compelling reason to decline to exercise
supplemental jurisdiction, and c) that Plaintiffs fail to state a claim for legal
malpractice because the underlying sentences have not been overturned,
Plaintiffs fail to allege causation, and Plaintiffs’ allegations against Defendant
Thompson are merely conclusory. 10 Defendants Marino and Thompson move
to dismiss the § 1983 claims against them on the grounds that a) as defense
attorneys, they are private actors and not subject to suit under § 1983, and b)
that Plaintiffs lack standing to bring claims for injunctive and declaratory
relief. Finally, Defendants Marino and Thompson move to dismiss all claims
against them because they are barred by the application of Heck v. Humphrey
and because Louisiana state courts already adjudicated Plaintiffs’ claims. 11
Plaintiffs oppose the Motion, arguing inter alia that Heck and res judicata do
not apply, and that Defendants Marino and Thompson were not acting as
private individuals because they were not traditional defense attorneys.
Doc. 130.
Doc. 138.
11 See Heck v. Humphrey, 512 U.S. 477 (1994).
9

10

9

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.” 12 A claim
is “plausible on its face” when the pleaded facts allow the court to “[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged.” 13
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 14 The Court need not,
however, accept as true legal conclusions couched as factual allegations. 15
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true. 16 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’” 17 Rather, the complaint must contain enough factual allegations
to raise a reasonable expectation that discovery will reveal evidence of each
element of the plaintiffs’ claim. 18
A Rule 12(b)(1) motion challenges the subject matter jurisdiction of a
federal district court. “A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or constitutional power to
adjudicate the case.” 19 In ruling on a Rule 12(b)(1) motion to dismiss, the court
may rely on (1) the complaint alone, presuming the allegations to be true, (2)
the complaint supplemented by undisputed facts, or (3) the complaint

Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007)).
13 Id.
14 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
15 Iqbal, 556 U.S. at 667.
16 Id.
17 Id. at 678 (quoting Twombly, 550 U.S. at 555).
18 Lormand, 565 F.3d at 255–57.
19 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).
12

10

supplemented by undisputed facts and by the court’s resolution of disputed
facts. 20 The proponents of federal court jurisdiction—in this case, Plaintiffs—
bear the burden of establishing subject matter jurisdiction. 21
LAW AND ANALYSIS
Plaintiffs’ Second Amending Complaint is replete with factual detail, but
at the expense of clarity as to the specific claims that Plaintiffs assert. In the
broadest reading of all complaints together, Plaintiffs appear to assert claims
under § 1983 for both damages and injunctive relief against Defendants
McNair and McNair’s Business, Marino and Thompson, and the Drug Court
Administrators (collectively, “Moving Defendants”) in both their personal and
official capacities. 22
As explained below, none of Plaintiffs’ § 1983 claims against the Moving
Defendants survive. Plaintiffs’ official-capacity claims for damages are barred
by the Eleventh Amendment. Plaintiffs lack standing to bring claims for
injunctive or declaratory relief because the Moving Defendants do not have the
power, in either their official or personal capacities, to redress the harms of
which Plaintiffs complain. And Plaintiffs’ personal-capacity claims for
damages are barred by the doctrines of either qualified immunity or absolute
judicial immunity.
Furthermore, Plaintiffs fail to plead a viable state-law claim against
Defendant Thompson, but Plaintiffs’ legal malpractice claim against
Defendant Marino and negligence claims against Defendants McNair and
McNair’s Business survive.
Den Norske Stats Oljesels kap As v. Heere MacVof, 241 F.3d 420, 424 (5th Cir. 2001).
See Physicians Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).
22 See, e.g., Doc. 117 at 4 (official-capacity claims against Drug Court Administrators, Marino
and Thompson, and McNair); Doc. 1 at 7 (naming Defendants without reference to official
capacity).
20
21

11

I.

Section 1983 Claims for Damages Against Moving Defendants in
Their Official Capacities
Previously, this Court dismissed Plaintiffs’ claims against the Drug

Court Administrators and McNair in their official capacities on the grounds
that Drug Court is an arm of the state and therefore immune to suit under the
Eleventh Amendment. 23 Plaintiffs’ Second Amending Complaint newly asserts
claims against Defendants Marino and Thompson in their official capacities,
alleging that they worked in concert with the other Defendants as part of the
Drug Court team to deprive Plaintiffs of their rights. For the same reasons as
applied to Defendants McNair and the Drug Court Administrators, Plaintiffs’
official-capacity claims against Defendants Marino and Thompson are also
barred by the Eleventh Amendment. Furthermore, state officials named in
their official capacity are not “persons” under § 1983 and therefore are not
amenable to suit. 24 Accordingly, the official-capacity claims for damages
against Defendants Marino and Thompson are dismissed with prejudice.
In their Oppositions, Plaintiffs repeatedly urge the Court to reconsider
the earlier Order and Reasons finding Drug Court to be an arm of the state.
Although Plaintiffs have not made a formal motion to reconsider under Rule
59(e), the standard applicable to that rule is informative. “A motion to alter or
amend judgment must ‘clearly establish either a manifest error of law or fact
or must present newly discovered evidence. These motions cannot be used to
raise arguments which could, and should, have been made before the judgment
issued.’” 25 There has been no change in existing law and Plaintiffs offer no new

Doc. 136. Any official-capacity claims against McNair’s Business are likewise dismissed
because Plaintiffs have asserted no basis for McNair’s Business’s liability separate from
McNair’s liability.
24 See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
25 Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (quoting Simon v. United States, 891
F.2d 1154, 1159 (5th Cir. 1990)).
23

12

evidence that was not available when the Court first requested briefing on the
issue of Eleventh Amendment immunity.
Regardless, the Court’s conclusion that Drug Court is an arm of the state
and therefore immune from suit because of the Eleventh Amendment is
correct. To determine whether a body is a state agency, courts in the Fifth
Circuit must consider,
(1) whether the state statutes and case law
characterize the agency as an arm of the state; (2) the
source of funds for the entity; (3) the degree of local
autonomy the entity enjoys; (4) whether the entity is
concerned primarily with local, as opposed to
statewide, problems; (5) whether the entity has
authority to sue and be sued in its own name; and (6)
whether the entity has the right to hold and use
property. 26
Here, the factors weigh in favor of finding Drug Court to be an arm of
the state. First, the statutes creating the program clearly view it as a function
of the state courts, which are themselves state entities. 27 The statutes state
that the legislature’s intent was to “facilitate the creation of alcohol and drug
treatment divisions in the various district courts of this state,” 28 and authorize
“each district court [to] establish a probation program to be administered by
the presiding judge or judges thereof or by an employee designated by the
court.” 29 Opinions from the Louisiana Attorney General also view drug courts
as programs of the state courts. 30

Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 319 (5th Cir. 2001) (citing Clark v.
Tarrant Cty., 798 F.2d 736, 744 (5th Cir. 1986)).
27 See Bourgeois v. Par. of Jefferson, 20 F.3d 465 (5th Cir. 1994) (holding that Louisiana state
courts are arms of the state and immune under the Eleventh Amendment); Doc. 136 at n.3.
28 La. Rev. Stat. § 13:5301.
29 Id. § 13:5304.
30 See, e.g., La. Att’y Gen. Op. No. 07-0100 (May 1, 2007) (advising that the district court was
the last employer of a drug court staffer, even though the parish paid the staffer’s salary,
because the parish was reimbursed with court funds).
26

13

Second, from the information included in Plaintiffs’ Second Amending
Complaint, Drug Court appears to be funded by federal grants given to the
state and administered by the Louisiana Supreme Court. 31 Presumably, any
judgment against the Drug Court would be paid out of those funds, which are
part of the state treasury.
Third, drug courts are controlled by judicial districts, rather than local
parishes, and those judicial districts are not necessarily coterminous with a
given parish. 32 Control by a state entity that is separate from local government
weighs towards finding that drug courts are arms of the state.
The fourth factor, whether the entity is concerned with mainly local
problems, is mixed. Drug courts are administered by state entities, which
suggests that they tackle issues of statewide import. On the other hand, the
statute leaves each district court the discretion to establish a drug court,
suggesting that the creation of any one drug court program is a response to
local conditions.
The fifth and sixth factors, whether the drug courts can sue, be sued, and
own property in their own names, are less important. 33 The Court does not
have specific information before it relating to those factors. Even if those
factors were to lean in the opposite direction, they would not overcome the clear
weight of the prior factors toward finding Drug Court to be an arm of the state.
Accordingly, all claims for damages against the Moving Defendants in
their official capacities are dismissed with prejudice.
See Doc. 117 ¶¶ 111, 142, 151.
See La. Const. art. V, §§ 14–15 (giving the legislature the power to create judicial districts
comprising multiple parishes); cf. Clark v. Tarrant Cty., Tex., 798 F.2d 736, 745 (5th Cir.
1986) (concluding that the legal distinction between judicial districts and county lines,
though sometimes coterminous, means that probation departments tied to judicial districts
are not concerned with county problems).
33 See Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir. 1999) (“[W]e typically deal
with the last two factors in a fairly brief fashion.”).
31
32

14

While the Eleventh Amendment bars claims against the state, there are
two exceptions relevant to the § 1983 claims here. First, the Ex parte Young
doctrine allows a plaintiff to sue a state officer in his official capacity for
prospective injunctive or declaratory relief. 34 Second, a plaintiff may sue a
state officer in his personal capacity for damages resulting from a deprivation
of the plaintiff’s constitutional rights under color of law. 35
II.

Section 1983 Claims for Injunctive or Declaratory Relief
Plaintiffs assert claims for injunctive and declaratory relief against the

Moving Defendants in their official capacities. The Moving Defendants argue
that Plaintiffs have no standing to sue for declaratory or injunctive relief
because they have been discharged from the Drug Court program. Article III
standing requires a plaintiff to show that he suffered a concrete harm that is
actual or imminent, caused by the defendant, and redressible by the court. 36
When a plaintiff seeks injunctive or declaratory relief, the plaintiff must also
show that he is “likely to suffer future injury by the defendant and that the
sought-after relief will prevent that future injury.” 37
To support their contention that Plaintiffs are no longer participating in
Drug Court, Defendants submit discharge forms signed by Mussall as the Drug
Court Administrator. The forms show that Plaintiff Carlisle was discharged
from Drug Court on August 10, 2016, 38 and that Plaintiff Heron was
discharged on July 20, 2016. 39 Plaintiffs object to the submission of evidence
outside the pleadings, arguing that reliance on such evidence would convert
the motions to dismiss into motions for summary judgment without adequate

See Fontenot v. McCraw, 777 F.3d 741, 752 (5th Cir. 2015).
See Hafer v. Melo, 502 U.S. 21, 30–31 (1991).
36 See Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 2007).
37 James v. City of Dallas, Tex., 254 F.3d 551, 563 (5th Cir. 2001).
38 Doc. 128-2.
39 Doc. 128-3.
34
35

15

discovery. This is incorrect, as Defendants have moved under Rule 12(b)(1) to
dismiss for lack of subject matter jurisdiction. In deciding a jurisdictional issue,
the Court may rely on the complaint supplemented by undisputed facts, or the
complaint supplemented by undisputed facts and by the Court’s resolution of
disputed facts. 40
Plaintiffs do not appear to dispute the fact that they have been
discharged from Drug Court. Plaintiffs submit a minute entry from the 24th
Judicial District Court recording Plaintiff Heron’s revocation and sentencing
on his original charge and claim the document “refutes the standing argument
and more correctly demonstrates the plaintiffs’ current circumstances.” 41 But
Plaintiffs do not assert in any of their oppositions to the motions to dismiss
considered here that Plaintiffs have not been discharged. Therefore, the Court
finds that the fact that Plaintiffs have been discharged from Drug Court is an
undisputed fact. At the very least, the Court finds the Moving Defendants’
evidence sufficient to show that Plaintiffs have been discharged.
While Plaintiffs remain in prison, their current sentences stem from the
revocation of their probation, not the imposition during Drug Court of sanction
or contempt time. A declaration that the practices of Drug Court were unlawful
or an injunction prohibiting such conduct in the future would have no impact
on the sentences that Plaintiffs are currently serving. Furthermore, any future
contact that Plaintiffs may have with Drug Court is merely speculative and
cannot be the grounds for standing. 42 Plaintiffs cannot show that they are
“likely to suffer future injury by the defendant and that the sought-after relief
will prevent that future injury.” 43

Den Norske Stats Oljesels kap As, 241 F.3d at 424.
Docs. 146 at 1; 146-1.
42 See James, 254 F.3d at 563.
43 See id.
40
41

16

Plaintiffs argue that they continue to suffer harm, and thus have
standing, by pointing to a litany of negative impacts caused by the actions of
Defendants while Plaintiffs were enrolled in Drug Court. Plaintiffs do not,
however, demonstrate how declaratory or injunctive relief against the Moving
Defendants is likely to redress the vast majority of that harm. For example,
injunctive or declaratory relief cannot redress Plaintiffs’ lost employment.
Plaintiffs come closest to identifying harms redressible by injunction in
two instances. First, Plaintiffs argue that they continue to suffer harm from
the imposition of flat time sentences because they should be able to apply
against their current post-revocation sentences good time credit that they
earned while imprisoned for the allegedly unlawful sanctions. Second,
Plaintiffs argue that they should receive credit toward their current postrevocation sentences for all time served while in Drug Court because the
underlying infractions were the same events that led to their revocations.
However, none of the Moving Defendants has the power to grant that relief. 44
Even if the Moving Defendants were the correct parties against which to
seek such an injunction, the claim would be barred by Preiser v. Rodriguez. 45
An injunction forcing the state to apply good time or time served credits to
Plaintiffs’ current sentences would result in earlier release, and the only
avenue for such a remedy is a writ of habeas corpus. 46 In Wolff v. McDonnell,
the Supreme Court did allow prisoners to seek a declaration under § 1983 that
the procedures by which they were denied good time credit were
unconstitutional, even though such a judgment could have reduced their

See K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010) (explaining that the Ex Parte Young
exception applies only to state officials with at least “some connection” to the compulsion
or restraint involved in enforcement).
45 See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
46 See id.
44

17

sentences through the application of collateral estoppel and res judicata. 47
Plaintiffs here may not pursue such claims because they, unlike the prisoners
in Wolff, are not currently subject to the procedures they allege to be deficient.
The only interest Plaintiffs now have in changing the Drug Court procedures
is to be released from prison sooner based on a retroactive declaratory
judgment, a claim foreclosed by Preiser.
Plaintiffs have failed to establish that they are suffering, or are about to
suffer, a harm redressible by injunction or declaration directed against the
Moving Defendants. Accordingly, Plaintiffs’ claims for injunctive and
declaratory relief against the Moving Defendants are dismissed with prejudice
for lack of standing.
That Plaintiffs have pled a class action is of no import to the standing
inquiry. 48 “Before we reach the questions regarding the class certification, we
must resolve the standing question as a threshold matter of jurisdiction.” 49 “If
the litigant fails to establish standing, he or she may not seek relief on behalf
of himself or herself or any other member of the class.” 50 Plaintiffs here have
not been certified as class representatives and so their class action claims
cannot preserve their action in the face of Plaintiffs’ lack of personal
standing.
III.

Section 1983 Claims for Damages Against Defendants in Their
Personal Capacities
The Court previously dismissed with prejudice Plaintiffs’ personal-

capacity § 1983 claims for damages against Defendants McNair and the Drug

See Wolff v. McDonnell, 418 U.S. 539, 542, (1974); Serio v. Members of Louisiana State Bd.
of Pardons, 821 F.2d 1112, 1116 (5th Cir. 1987) (elucidating guiding principles from Preiser
and Wolff).
48 See Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976).
49 Cole, 484 F.3d at 721.
50 James, 254 F.3d at 563.
47

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Court Administrators. The Court found that the claims against the Drug Court
Administrators could not proceed because any role they played in the
imposition of the complained-of sanctions was judicial in nature and thus
protected by absolute judicial immunity. 51 Plaintiffs’ claims for damages
against McNair were barred by qualified immunity because Plaintiffs could not
show that the due process waivers they executed were clearly prohibited by
law. 52
Defendants Marino and Thompson argue that Plaintiffs’ § 1983 claims
for damages against them should be dismissed because a) Marino and
Thompson are not state actors, b) Heck v. Humphrey bars § 1983 claims for
damages that impugn a state sentence unless the sentence has already been
invalidated, and c) Plaintiffs’ claims are precluded by prior adjudication. The
Court finds that Plaintiffs’ claims for damages are barred by Heck and
therefore does not reach Defendants Marino and Thompson’s other arguments.
In Heck v. Humphrey the Supreme Court held that before a plaintiff may
maintain a § 1983 action for damages resulting from an unconstitutional
conviction or confinement, the conviction or confinement must be invalidated
in some other proceeding. 53 “Even a prisoner who has fully exhausted available
state remedies has no cause of action under § 1983 unless and until the
conviction or sentence is reversed, expunged, invalidated, or impugned by the
grant of a writ of habeas corpus.” 54 The rule applies not only to claims that
seek damages for the confinement itself, but also those “for other harm caused

Doc. 110 at 15–16.
Doc. 110 at 8–9. For the same reasons, any personal-capacity claims for damages under
§ 1983 against Defendant McNair’s Business are also dismissed. Plaintiffs have advanced
no facts alleging that McNair’s Business is liable separately from McNair himself.
53 Heck, 512 U.S. at 489–90.
54 Id. at 489.
51
52

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by actions whose unlawfulness would render a conviction or sentence
invalid.” 55
Here, Plaintiffs allege that Drug Court violated their constitutional
rights by imprisoning them without due process, in the form of probation
sanctions, contempt convictions, and time spent waiting. An award of damages
to compensate for either the confinement itself or the alleged violations of due
process that led to the confinements would necessarily imply that the
confinements were invalid. Heck requires Plaintiffs to assert the invalidity of
the confinements elsewhere before suing for damages.
Plaintiffs cite to Brown v. Sudduth and argue that Heck does not apply
because Plaintiffs do not challenge the original convictions on which they were
sent to Drug Court. 56 In Brown, the Fifth Circuit explained that a § 1983 action
for false arrest does not necessarily impugn the validity of all subsequent
convictions because a valid conviction can often follow an unlawful arrest. 57
Here, however, the issue is not whether Plaintiffs’ claims would call into
question their original convictions, but rather the imprisonments imposed
upon them during Drug Court. On that point, Plaintiffs are very clear:
“Plaintiffs’ challenge is to various extended flat time ‘incarcerations’ without a
hearing, without evidence, orchestrated by program staff, without convictions,
after inter alia, ex parte communications between administrators and the
judge alleging they committed ‘technical infractions’ of the treatment program
they entered as a part of their probation agreement.” 58 Plaintiffs plainly seek
damages on the grounds that their incarcerations during Drug Court were
invalid. That is exactly the type of claim barred by Heck. At the very least they

Id. at 486.
See Brown v. Sudduth, 255 F. App’x 803, 805–07 (5th Cir. 2007); Doc. 144 at 13–15.
57 Brown, 255 F. App’x at 806.
58 Doc. 144 at 14.
55
56

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seek damages for violations of due process that would necessarily invalidate
the imprisonments imposed as a result of those violations. That the
incarcerations were allegedly not the result of a conviction, even if true, does
not

change

the

analysis,

as

Heck

repeatedly

uses

“incarceration”

interchangeably with “sentence.” 59 Plaintiffs cite to no authority suggesting
otherwise.
Plaintiffs also argue that a majority of the Supreme Court now only
believe Heck applies to prisoners still serving the sentence of which they
complain. The Fifth Circuit, however, explicitly rejected that interpretation
and recognizes Heck as an unequivocal bar. 60
Accordingly, Plaintiffs’ § 1983 claims for damages against Defendants
Marino and Thompson are dismissed with prejudice.
IV.

Remaining Claims
Having dismissed all § 1983 claims against the Moving Defendants, the

only claims that remain are Plaintiffs’ negligence claims against Defendants
McNair and McNair’s Business, and malpractice claims against Defendants
Marino and Thompson.
A. Defendants McNair and McNair’s Business
Defendant McNair moves to dismiss the remaining claims against him
on the grounds that Plaintiffs failed to re-allege a negligence claim against
McNair or re-assert the existence of a therapist-patient relationship. McNair
further argues that any claims against McNair’s business should be dismissed
for the same reasons as the claims against McNair himself.

See Heck, 512 U.S. at 484–90; see also DeLeon v. City of Corpus Christi, 488 F.3d 649, 656
(5th Cir. 2007) (holding that Heck applies to deferred adjudication because such orders are
treated as final and, similar to the sanctions imposed here, involve a “judicial finding that
the evidence substantiates the defendant’s guilt, followed by conditions of probation that
may include a fine and incarceration”).
60 See Black v. Hathaway, 616 F. App’x 650, 653 (5th Cir. 2015).
59

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The Court summarized Plaintiff Carlisle’s negligence claim as presented
in his First Complaint as follows:
Carlisle alleges that McNair served as the Clinical
Director of Drug Court and recommended Carlisle for
the program. He alleges that McNair evaluated him
for program eligibility and that he owed a duty to
properly evaluate Carlisle throughout the program.
He alleges that McNair failed to make appropriate
recommendations
relative
to
his
treatment
61
throughout the program.
Finding those allegations insufficient to establish a patient-therapist
relationship, the Court dismissed Plaintiff Carlisle’s negligence claims.
In his Second Amending Complaint, Plaintiff Carlisle additionally
alleges that Defendant McNair is responsible for the overall treatment protocol
of the program, that McNair is the “supervising counselor,” that McNair
provided recommendations regarding Plaintiffs’ treatment during the
program, that Plaintiff Carlisle and other class members are sent to inpatient
treatment on McNair’s recommendation, and that McNair ordered “antidepressant assessment” for Plaintiff Carlisle. 62 Plaintiff Carlisle further
alleges that McNair imposed or recommended sanctions against Carlisle
without clinical justification or counter to clinical guidelines, including sending
Carlisle to an addiction treatment program despite the fact that Carlisle was
not using drugs or alcohol, 63 demoting Carlisle to Phase 2 of the program as a
punishment, 64 and requiring that Carlisle attend 90 meetings in 90 days. 65
These additions, when viewed in the light most favorable to Plaintiff
Carlisle, state facts that make it plausible there was a therapist-patient
Doc. 110 at 7.
Doc. 117.
63 See Doc. 117 ¶¶ 160, 164, 166–75.
64 Doc. 117 ¶ 161.
65 Doc. 117 ¶¶ 181–82; see also Doc. 117 ¶ 191 (alleging that McNair actively participated in
the imposition of a jail sentence for contempt that didn’t occur).
61
62

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relationship and that Defendant McNair caused harm to Plaintiff Carlisle by
providing substandard care. 66 Defendant McNair’s motion to dismiss is denied
with respect to Plaintiff Carlisle’s negligence claim. Defendant McNair’s
Business advances no independent basis for dismissal of Plaintiff Carlisle’s
negligence claim, and therefore Defendant McNair’s Business’s motion to
dismiss is also denied with respect to Plaintiff Carlisle’s negligence claim.
The Court dismissed Plaintiff Heron’s negligence claim against
Defendant McNair in the First Supplementing Complaint for the failure to
allege any facts supporting a cause of action against McNair. 67 Plaintiff Heron
again makes no specific factual allegations against Defendant McNair that
would support a claim for negligence in the Second Amending Complaint.
Therefore Plaintiff Heron’s negligence claims against Defendants McNair and
McNair’s Business are dismissed with prejudice.
Defendants McNair and McNair’s Business also move to strike the class
allegations against them. In order for an action to be maintained as a class
action under Rule 23 of the Federal Rules of Civil Procedure, each of the four
prerequisites of Rule 23(a) must be satisfied. 68 Additionally, one of the three
conditions of Rule 23(b) must be met by all proposed classes. 69 Ultimately, a
“[d]istrict court maintains great discretion in certifying and managing a class
action.” 70 Courts have routinely applied Rule 23(d)(1)(D), formerly Rule
23(d)(4), to actions where a party seeks to strike class allegations because

Cf. Green v. Walker, 910 F.2d 291, 295 (5th Cir. 1990) (holding that Louisiana law would
extend to a physician hired by an employer to examine an employee the duty to perform
necessary tests and inform the employee of the results).
67 Doc. 110 at 11.
68 Fed. R. Civ. P. 23.
69 Id.; see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
70 Berger v. Compaq Computer Corp., 257 F.3d 475,478 (5th Cir. 2001) (quoting Mullen v.
Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)).
66

23

plaintiffs have not met the requirements of Rule 23. 71 A court may strike class
allegations under Rule 23 where a complaint fails to plead the minimum facts
necessary to establish the existence of a class. 72
Rule 23(b) allows a class action only when 1) separate actions risk
inconsistent judgments or would impair the rights of class members, 2)
injunctive or declaratory relief is appropriate for the class as a whole, or 3) the
questions of law and fact that are common to the class predominate over those
that are individual. 73 Plaintiffs make no argument regarding the first element,
and all claims for injunctive or declaratory relief against Defendants McNair
and McNair’s business have been dismissed, negating the second element. The
only remaining claim against Defendants McNair and McNair’s Business is
Plaintiff Carlisle’s claim for negligence, and Plaintiffs have failed to
demonstrate how common issues of fact or law regarding that claim
predominate. The negligence claim is highly individual, depending on specific
facts to establish a therapist-patient relationship and the ways in which
Defendants allegedly breached the resulting duty. Accordingly, the class
allegations as to Defendants McNair and McNair’s Business are stricken.
B. Defendants Marino and Thompson
Defendants Marino and Thompson move to dismiss Plaintiffs’ legal
malpractice claims against them on the grounds that a) the Court lacks subject
matter jurisdiction over the claims or should decline to exercise it, b) that
Plaintiffs fail to state a claim for malpractice because Plaintiffs were the
proximate cause of their own imprisonment, and c) that Plaintiffs fail to allege

Markey v. La. Citizens Fair Plan, No. 06-5473, 2008 WL 5427708, at *1 (E.D. La. Dec. 30,
2008) (citations omitted).
72 Aguilar v. Allstate Fire & Cas. Ins. Co., No. 06-4660, 2007 WL 734809, at *2 (E.D. La. Mar.
6, 2007).
73 Fed. R. Civ. P. 23(b).
71

24

any facts that would prove Defendants Marino and Thompson breached their
duty to Plaintiffs.
Defendant Thompson also moves to dismiss on the ground that Plaintiffs’
only allegations against him, for failure to train or supervise, are entirely
conclusory. The Court previously found that Plaintiffs’ Complaint and First
Amending Complaint were completely devoid of any factual allegations against
Defendant Thompson. Plaintiffs have added nothing to the Second Amending
Complaint regarding Thompson other than conclusory allegations that he
failed to train Marino. Having been granted leave to amend once before,
Plaintiffs’ state-law claims against Defendant Thompson are dismissed with
prejudice.
The Court previously held that Plaintiffs’ legal malpractice claims
against Defendant Marino shared a common nucleus of operative fact with the
§ 1983 claims and therefore fell within the Court’s supplemental jurisdiction. 74
The Court also found that no exceptional circumstances existed to cause the
Court to decline to exercise that jurisdiction. The dismissal of the all federal
claims against Defendant Marino does not change those findings. Nor does it
allow for the dismissal of Plaintiffs’ state law claims under 28 U.S.C.
1367(c)(3), because § 1983 claims arising from the same nucleus of operative
facts remain against other defendants. 75
Although Defendant Marino argues that Plaintiffs have failed to allege
that Marino either breached his duty to Plaintiffs or was the proximate cause
of Plaintiffs’ injuries, the Court finds that Plaintiffs have done both. The Court

74
75

Doc. 110 at 11–13.
See Enochs v. Lampasas Cty., 641 F.3d 155, 161 (5th Cir. 2011) (gathering authority for
the general rule that state-law claims should be dismissed when all federal claims have
been dismissed); Charles Allen Wright, et al., 13D FEDERAL PRACTICE & PROCEDURE
§ 3567.3 (3d ed. 2017) (“If any claim invoking an independent basis of subject matter
jurisdiction remains viable . . . § 1367(c)(3) will not apply.”).

25

already held that Louisiana law does not require a criminal defendant to
supply proof of innocence before maintaining a legal malpractice action. 76
Plaintiffs have alleged that Defendant Marino failed to bring any objections to
the Drug Court judge over allegedly unconstitutional procedures employed by
the Drug Court team and Drug Court itself. Plaintiffs’ Second Amending
Complaint provides specific factual allegations regarding Defendant Marino’s
supposedly deficient representation, including the failure to object to the
classification of a former Drug Court participant as a felon 77 and the failure to
object to the imposition of contempt sentences. 78 These allegations, if true,
make it plausible that Defendant Marino’s performance fell below the standard
of care required of him and caused Plaintiffs harm. 79 As those are the only
elements of a legal malpractice claim that Defendant Marino challenges, his
motion to dismiss Plaintiffs’ malpractice claims is denied.
CONCLUSION
For the foregoing reasons, Defendants’ Motions are GRANTED IN
PART.
All of Plaintiffs’ § 1983 claims against Defendants Joe McNair, McNair
& McNair, LLC, Richard Thompson, Joseph Marino, Kristen Becnel, Tracey
Mussal, and Kevin Theriot in their personal and official capacities, whether for
injunctive or declaratory relief or damages, are DISMISSED WITH
PREJUDICE.
Plaintiff Carlisle’s negligence claims against Defendants McNair and
McNair & McNair, LLC REMAIN.

Doc. 110 at 14.
Doc. 117 ¶ 196–98, 218.
78 Doc. 117 ¶ 220.
79 See Iqbal, 556 U.S. at 667.
76
77

26

Plaintiff Heron’s negligence claims against Defendants McNair and
McNair & McNair, LLC are DISMISSED WITH PREJUDICE.
The class allegations against Defendants McNair and McNair & McNair,
LLC are STRICKEN with respect to the negligence claims.
All of Plaintiffs’ claims against Defendant Thompson are DISMISSED
WITH PREJUDICE.
Plaintiffs’ legal malpractice claims against Defendant Marino REMAIN.
New Orleans, Louisiana this 31st day of October, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

27