Carlisle v. Normand, et al

Filing 618

ORDER AND REASONS denying 566 Motion for Summary Judgment by former Jefferson Parish Sheriff Newell Normand and current Jefferson Parish Sheriff Joseph Lopinto, 580 Motion for Partial Summary Judgment Against Sheriff, and 608 Motion to Certify Class Respecting Sheriff Claims and to Issue Notice to Class Members. IT IS ORDERED that Plaintiffs' putative class claims against the Sheriff are hereby DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo. (ecm)

Case 2:16-cv-03767-JTM-JVM Document 618 Filed 03/23/21 Page 1 of 12

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TAYLOR CARLISLE, ET AL.

CIVIL ACTION

VERSUS

NO: 16-3767

NEWELL NORMAND, ET AL.

SECTION: “H”

ORDER AND REASONS
Before the Court are three Motions: the Motion for Summary Judgment
by former Jefferson Parish Sheriff Newell Normand and current Jefferson
Parish Sheriff Joseph Lopinto (Doc. 566); Plaintiffs’ Motion for Partial
Summary Judgment Against Sheriff (Doc. 580); and Plaintiffs’ Motion to
Certify Class Respecting Sheriff Claims and to Issue Notice to Class Members
(Doc. 608). For the following reasons, all three Motions are DENIED.

BACKGROUND
In this suit, Plaintiffs challenge the manner in which the Jefferson
Parish Drug Court (“Drug Court”) is conducted. Plaintiffs Taylor Carlisle and
Emile Heron were convicted of the possession of various controlled substances
and, as part of their sentences, enrolled in Drug Court. The gist of Plaintiffs’
claims is that the Drug Court administrators deprived them of due process in
various ways, leading to unlawful incarcerations and other negative
consequences.
Relevant to the pending Motions are Plaintiffs’ claims against Defendant
Joseph Lopinto in his official capacity as the Sheriff of Jefferson Parish (the
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“Sheriff”).1 Plaintiffs brought “putative class action claims against the Sheriff
for declaratory and injunctive relief and damages under § 1983, challenging
the imposition of jail time for alleged probation violations by Drug Court
participants.”2 On September 25, 2018, this Court held that the Supreme Court
case of Heck v. Humphrey precluded Plaintiffs’ claims against the Sheriff to the
extent Plaintiffs sought relief for detention based on judicial incarceration
orders that had not been invalidated.3 Following this Court’s September 25,
2018 ruling, Plaintiffs’ only remaining claims against the Sheriff were those
alleging that the Sheriff’s Office imprisoned Plaintiffs and denied them good
time credit either without, or in contravention to, a judicial order.4
On December 13, 2018, the Sheriff filed a Motion for Summary Judgment
in which he argued that Plaintiffs were, at all relevant times, incarcerated
pursuant to a valid court order. On August 7, 2019, the Court granted the
Sheriff’s Motion for Summary Judgment in part, finding (1) that valid Drug
Court orders undermine most of Plaintiffs’ claims for wrongful imprisonment
and (2) that Plaintiffs failed to demonstrate that they were wrongfully denied
good time credit.5 The Court did, however, allow Plaintiffs’ claims for wrongful
imprisonment to proceed as to two specific periods of incarceration for which

The Motion for Summary Judgment currently before the Court was technically filed by
former Sheriff Normand in his individual capacity and Sheriff Joseph Lopinto in his official
capacity. See Doc. 443. By rule, Sheriff Lopinto was substituted as the Defendant Sheriff
regarding Plaintiffs’ claims in 2017 when Lopinto was appointed to replace Normand. See
FED . R. CIV. P. 25(d). Because Plaintiffs never alleged any individual capacity claims
against Normand, he is no longer a defendant in this suit; no claims remain against him.
Accordingly, this Court will construe the instant Motion for Summary Judgment as one by
Sheriff Lopinto. The Court will refer to the official capacity claims against Lopinto as
claims against the “Sheriff” to avoid confusion.
2 See Doc. 521 at 1–5.
3 See Doc. 359. See also Heck v. Humphrey, 512 U.S. 477, 482 (1994).
4 See Doc. 436 at 4–5 (the Court’s discussion of Plaintiffs’ remaining claims following the
Court’s ruling on the Sheriff’s Motion to Dismiss).
5 See Doc. 545.
1

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the Court could not find evidence of the Sheriff’s lawful authority to jail them.
For Plaintiff Carlisle, this is his period of incarceration from August 25, 2015
to September 1, 2015. For Plaintiff Heron, this is his period of incarceration
from mid-to-late June 2016 to July 20, 2016.6 Today, Plaintiffs’ only remaining
claims against the Sheriff are that the Sheriff’s Office held them in prison
during these two discrete periods without a Drug Court order directing the
Office to do so.
Now before the Court are three Motions concerning Plaintiffs’ claims
against the Sheriff. The first Motion is Defendant Sheriff Lopinto’s second
Motion for Summary Judgment in which he provides new evidence that
purportedly demonstrates the Sheriff’s legal authority to incarcerate the
Plaintiffs for the time periods at issue. The second Motion before the Court is
Plaintiffs’ Motion for Partial Summary Judgment, wherein Plaintiffs ask this
Court to find that the Sheriff’s Office incorrectly reported Plaintiffs’ jail time
to the Louisiana Department of Safety and Corrections (“DOC”). The third and
final Motion before the Court is Plaintiffs’ Motion to Certify Class Respecting
Sheriff Claims and to Issue Notice to Class Members. All Motions are opposed.
LEGAL STANDARD
I.

Motion for Summary Judgment
“The court shall grant summary judgment 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.”7 “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will

6
7

Doc. 5
FED . R. CIV. P. 56.

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properly preclude the entry of summary judgment.”8 Nevertheless, a dispute
about a material fact is “genuine” such that summary judgment is
inappropriate “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”9
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor.10 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 11 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 12
“In response to a properly supported motion for summary judgment, the
nonmovant must identify specific evidence in the record and articulate the
manner in which that evidence supports that party’s claim, and such evidence
must be sufficient to sustain a finding in favor of the nonmovant on all issues
as to which the nonmovant would bear the burden of proof at trial.”13 The Court
does “not . . . in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.”14 Additionally, “[t]he mere argued
existence of a factual dispute will not defeat an otherwise properly supported
motion.”15
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 248.
10 Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
11 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
12 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
13 Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
14 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
15 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
8
9

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II.

Motion to Certify Class
To be certified under Rule 23, the class must first satisfy four threshold

requirements. A court may certify a class only if:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical
of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.16
After the prerequisites of Rule 23(a) have been met, the proposed class
must satisfy one of the three provisions for certification under Rule 23(b). This
class action purports to be an action under Rule 23(b)(2), which allows for class
certification when “the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a
whole.”17
A Court must determine whether to certify an action as a class action “at
an early practicable time after a person sues or is sued as a class
representative.”18 In the Eastern District of Louisiana, the Local Rules require
that a plaintiff move for class certification “[w]ithin 91 days after filing of a
complaint in a class action or filing of a notice of removal of the class action
from state court, whichever is later, . . . unless this period is extended upon
motion for good cause and order by the court.”19

FED . R. CIV. P. 23(a).
FED . R. CIV. P. 23(b)(2).
18 FED . R. CIV. P. 23(c)(1)(A).
19 L.R. 23.1(B).
16
17

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LAW AND ANALYSIS
There are currently three Motions before the Court: (1) the Sheriff’s
Motion for Summary Judgment; (2) Plaintiffs’ Motion for Partial Summary
Judgment; and (3) Plaintiffs’ Motion to Certify Class. Each Motion will be
discussed in turn.
I.

The Sheriff’s Motion for Summary Judgment (Doc. 566)
In the Sheriff’s Motion for Summary Judgment, the Sheriff provides new

evidence that arguably demonstrates that Plaintiffs were at all relevant times
incarcerated pursuant to a valid court order. The Court will address the
evidence presented as to each Plaintiff separately.
A. Plaintiff Carlisle
In this Court’s Order and Reasons addressing the Sheriff’s first Motion
for Summary Judgment, this Court found that a genuine issue of material fact
existed as to whether the Sheriff’s incarceration of Carlisle from August 25,
2015 to September 1, 2015 was pursuant to a valid court order. In so holding,
the Court looked to an August 25, 2015 minute entry which stated:
The Defendant, Taylor E. Carlisle, appeared before the bar of the
Court this day for Drug Court.
The Defendant was represented by Joseph A. Marino, Jr.
The Court ordered the Defendant to be given a sanction of 6
months JPCC, flat time/contempt.
The Court ordered the Defendant to be held for Revocation after
his sanction is completed.
The Defendant is to appear in Court September 1, 2015.20
Finding the minute entry relatively silent as to whether Carlisle was to be
remanded to Jefferson Parish Correctional Center (“JPCC”) prior to his
September 1, 2015 court date, this Court found a genuine issue of fact as to
whether Carlisle’s detention during that time was pursuant to a court order.

20

Doc. 525-4 at 5.

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In his current Motion for Summary Judgment, Sheriff Lopinto presents
two new pieces of evidence to demonstrate that the Drug Court ordered
Carlisle’s imprisonment from August 25, 2015 until September 1, 2015. First,
the Sheriff presents an “Order of Attachment” dated August 25, 2015, wherein
the Sheriff of Jefferson Parish is directed to “attach the body of Taylor E.
Carlisle” and have him appear in court “to answer for a contempt in neglecting
or refusing to attend before said Court as a Defendant.” 21 Second, the Sheriff
presents one page from Carlisle’s “Criminal History Report” which states that,
on August 25, 2015, Carlisle was arrested pursuant to a Drug Court
attachment and “needs to be held brought to Drug Court Tuesday September
1, 2015.”22 The Court finds these two documents alone insufficient to warrant
summary judgment in the Sheriff’s favor.
First the Court cannot ignore the inconsistency between the August 25,
2015 minute entry, which states that Carlisle appeared in court,23 and the
August 25, 2015 Order of Attachment, which states that Carlisle is to be
arrested for his failure to appear.24 Second, although the Criminal History
Report indicates that Carlisle was to be held and brought to Drug Court on
September 1, 2015, the report does not indicate who gave the officer this order.
Moreover, the Sheriff does not provide this Court with affidavits or testimon y
that would clarify or otherwise authenticate the documents.
Carlisle asserts in his affidavit that he was arrested outside of the
courthouse without cause after making his appearance in Drug Court on
August 25, 2015 and that the Order of Attachment was fraudulently created

Doc. 566-4.
Id. (emphasis omitted).
23 See Doc. 525-4 at 5.
24 See Doc. 566-4.
21
22

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to support his unlawful arrest.25 The Sheriff has not provided this Court with
proper summary judgment evidence to refute Carlisle’s assertion. Accordingly,
the Sheriff’s Motion for Summary Judgment on Carlisle’s remaining claim
against him is denied.
B. Plaintiff Heron
In this Court’s Order and Reasons addressing the Sheriff’s first Motion
for Summary Judgment, this Court found a genuine issue of material fact as
to whether the Sheriff unlawfully held Plaintiff from mid-to-late June 2016 to
July 20, 2016.26 In so holding, this Court found evidence that, on January 19,
2016, Plaintiff was given a six-month sanction. On January 26, 2016, that
sanction was amended to include credit for time served between December 15,
2015 to January 26, 2016. Heron’s six-month sentence therefore should have
ended in mid-to-late June 2016. As the Sheriff did not provide evidence as to
why Heron remained in prison until July 20, 2016, this Court found that
Heron’s wrongful imprisonment claim persisted during the period from midto-late June 2016 to July 20, 2016.
In the Sheriff’s current Motion for Summary Judgment, the Sheriff now
presents a previously unsubmitted document titled “Court Disposition,” dated
June 17, 2016, on Jefferson Parish Sheriff’s Office letterhead.27 The Court
Disposition bears the typed signature of a clerk, Jaime Plaisance, and indicates
that Heron “is to be held for revocations.”28 The Sheriff argues that this
document suffices to demonstrate that Plaintiff’s incarceration from June 2016
until his revocation hearing on July 20, 2016 was pursuant to a valid court
order. This Court disagrees. Unlike the other minute entries upheld by this

Doc. 525-2 at 31–32.
See Doc. 545 at 10–11.
27 See Doc. 566-7.
28 Id.
25
26

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Court, the Court Disposition does not bear the seal of the 24th Judicial District
Court or otherwise indicate that it is a court-sanctioned document. In the
deposition of Deputy Steven Abadie, the 30(b)(6) representative of the Sheriff
and Administrator of JPCC, Abadie stated that court dispositions are
ordinarily written by sheriff’s deputies but that a typed document like the one
at issue was likely supplied by “court staff.”29 In any event, Abadie testified
that he did not understand the document to be a court order. 30 The Sheriff’s
Motion for Summary Judgment on Plaintiff Heron’s claim is therefore denied.
II.

Plaintiffs’ Motion for Partial Summary Judgment (Doc. 580)
In Plaintiffs’ Motion for Partial Summary Judgment, Plaintiffs ask this

Court to find in their favor on their purported claim that, after Plaintiffs were
revoked from the Drug Court program, the Sheriff failed to accurately report
Plaintiffs’ time spent in JPCC to the DOC (hereinafter the “inaccurate
reporting claim”). Plaintiffs thus contend that the Sheriff unlawfully deprived
them of credit for time served in contravention to orders from the 24th Judicial
District Court. However, as this Court has explained many times before, this
claim is not properly before this Court.
Plaintiffs’ inaccurate reporting claim was brought before this Court for
the first time in Plaintiffs’ proposed Fourth Amended and Supplementing
Complaint.31 On March 20, 2019, the Magistrate Judge denied Plaintiffs’ leave

Doc. 611-2 at 7, 17–18.
Id. at 18.
31 In Plaintiffs’ Reply, Plaintiffs assert that their inaccurate reporting claim was properly
alleged in their Original Complaint. In the Original Complaint, Plaintiff Carlisle alleges
that the Sheriff wrongfully kept him “in jail . . . for mere probation infractions. The
Defendant Sheriff Normand knew that under LSA- R.S. LSA- R.S. 15:571.3 only the sheriff
can issue ‘flat time’ . . . Sheriff Normand did not release Carlisle for good time even though
he knew he was entitled to it. Sheriff Normand knew that although the Drug Court ordered
‘flat time’ . . . the Drug Court statute requires that all time be credited if revocation occurs
and the Drug Court lacked that authority under LSA-R.S. 15:571.3 which states that
29
30

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to file said complaint, finding that Plaintiffs’ amendment was both untimely
and an attempt to shift the claims in response to the Court’s rulings.32 On
August 7, 2019, this Court affirmed the Magistrate Judge’s decision on appeal.
On

September

27,

2019,

this

Court denied

Plaintiffs’

Motion

for

Reconsideration of its August 7, 2019 decision.33 Now, a year and a half later
and for the third time, Plaintiff asks this Court to reverse the Magistrate
Judge’s decision and address the claims in their proposed Fourth Amended and
Supplemental Complaint. The Court declines to do so.34
Moreover, any claims that Plaintiffs had timely alleged regarding the
Sheriff’s failure to credit good time have been dismissed. Specifically, Plaintiffs
alleged that the Sheriff refused to award Plaintiffs good time credit as a result
of “flat time” sanctions.35 The Court found, however, that Plaintiffs’ flat time
sanctions were ordered by the Drug Court and that Plaintiffs’ related claims
against the Sheriff were barred under Heck v. Humphrey.36 Accordingly, the
only claims that remain against the Sheriff are Plaintiff Carlisle’s claim that
he was wrongfully held in JPCC from August 25, 2015 to September 1, 2015

EVERY prisoner is entitled to good time unless he has committed a sexual crime or a
violent crime on two or more occasions. Furthermore the Sheriff knew that only the Sheriff
is authorized to order flat time.” See Doc. 1. at 27–28. The Court does not find these
allegations in the Original Complaint sufficient to state a claim against the Sheriff for
inaccurate reporting. Rather, Plaintiffs clearly assert the inaccurate reporting claim for
the first time in their proposed Fourth Amended and Supplementing Complaint. See Doc.
490-1 at 36.
32 See Doc. 521.
33 See Doc. 553.
34 For the reasons stated herein, the Court cannot address the merits of Plaintiffs’ inaccurate
reporting claim. The Court does, however, acknowledge that Plaintiffs have presented
evidence that the Sheriff’s Office was indeed reporting less than the actual time a prisoner
served to the DOC in derogation of Civil Code of Procedure Article 880. The Court laments
that Plaintiffs’ inaccurate reporting claim was not timely brought before the Court as
Plaintiffs’ evidence demonstrates cause for concern.
35 “Flat time” refers to a prison term served without benefit of good time credit. See Doc. 117
at 56 n.14.
36 See Doc. 545 at 12–13.

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and Plaintiff Heron’s claim that he was wrongfully held from mid-to-late June
2016 to July 20, 2016. To the extent that Plaintiffs contend that they have
additional claims against the Sheriff, the Court emphasizes that these are not
before the Court. Plaintiffs’ Motion for Partial Summary Judgment is denied.

III.

Plaintiffs’ Motion to Certify Class Respecting Sheriff Claims
and to Issue Notice to Class Members (Doc. 608)

In Plaintiffs’ Motion to Certify, Plaintiffs ask this Court to certify their
claims against the Sheriff as a class action. Specifically, Plaintiffs ask this
Court to certify a class of Drug Court participants sentenced to jail time at
JPCC for whom,
despite judicial order and/ or in violation of the Drug Court statute,
and La. Code Crim Proc Art. 880, and Art. 900 and related
regulations, the Sheriff of Jefferson Parish did not calculate and
provide “credit for time in custody” upon the probationers’
revocation and re- sentencing to “hard labor” to be served in the
Department of Public Safety and Corrections.37
Plaintiffs’ defined class is a restatement of Plaintiffs’ proposed inaccurate
reporting claim. As explained above in response to Plaintiffs’ Motion for Partial
Summary Judgment, this claim is not before the Court. Accordingly, Plaintiffs’
Motion to Certify such a class is denied.
To the extent that Plaintiffs ask this Court to certify a class relating to
Plaintiffs’ wrongful imprisonment claims, Plaintiffs’ request is also denied. 38
Plaintiffs each only have one, highly fact-specific claim remaining against the

Doc. 608 at 2. For the purpose of preserving the record on appeal, Plaintiffs also define a
second class but acknowledge that the claims within the proposed second class are no
longer before this Court. See id. at 2–3.
38 The Court does not perceive Plaintiffs’ Motion to Certify as asking this Court to certify
Plaintiffs’ remaining wrongful imprisonment claim but addresses the claim out of an
abundance of caution as the proposed class was addressed in the Original and First
Supplementing Complaints. See Doc. 1 at 8; Doc. 14 at 10.
37

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Sheriff. Plaintiffs therefore have not demonstrated that they can “fairly and
adequately protect the interests of the class” or that the certified questions
“predominate.”39
For the above reasons, Plaintiffs’ Motion to Certify is denied. Plaintiffs’
putative class action claims against the Sheriff are dismissed with prejudice.
CONCLUSION
Accordingly, the Sheriff’s Motion for Summary Judgment, Plaintiffs’
Motion for Partial Summary Judgment, and Plaintiffs’ Motion to Certify Class
are DENIED.
IT IS ORDERED that Plaintiffs’ putative class claims against the
Sheriff are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 23rd day of March, 2021.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

39

See Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986) (“Defendants have
not shown that the representatives are ‘inadequate’ due to an insufficient stake in the
outcome or interests antagonistic to the unnamed members.” (citations omitted)) (“In order
to ‘predominate,’ common issues must constitute a significant part of the individual cases.”
(citations omitted)).

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