McKey v. August et al
Filing
210
ORDER AND REASONS: IT IS HEREBY ORDERED that Motion to Dismiss is GRANTED. All of Susan Dillard McKey's claims asserted against Tammy Houston, Roberta Zeno August, and the St. John the Baptist Parish Library Board in Civ. A. No. 19-8033 are DISMISSED WITH PREJUDICE, and that case is hereby DISMISSED. IT IS FURTHER ORDERED that the 145 Motion for Summary Judgment on All Claims in Civil Action No. 19-08033 is DENIED as moot. Signed by Judge Wendy B Vitter on 8/13/2021. (jeg)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SUSAN DILLARD MCKEY
CIVIL ACTION
VERSUS
NO. 16-13642-WBV-MBN
c/w 19-8033
ROBERTA ZENO AUGUST, ET AL.
SECTION: D (5)
ORDER AND REASONS1
Before the Court is a Motion to Dismiss, filed by Tammy Houston, Roberto
Zeno August, and the St. John the Baptist Parish Library Board (collectively,
“Defendants”).2 Defendants seek to dismiss the Complaint filed by Susan Dillard
McKey in Civ. A. No. 19-8033. McKey opposes the Motion,3 and Defendants have
filed a Reply.4 During a January 30, 2020 Status Conference, the Court discussed
the Motion with counsel, and allowed counsel to present additional arguments in
support of their positions. After careful consideration of the parties’ memoranda and
the applicable law, as well as the arguments presented by counsel during the January
30, 2020 Status Conference, the Motion is GRANTED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This consolidated matter arises out of the 2016 civil rights lawsuit filed by
McKey, a former employee of the St. John the Baptist Parish Library (the “”Library”),
Unless otherwise indicated, all of the citations to the record in this Order and Reasons refer to
documents filed in the master file of this consolidated matter, Civ. A. No. 16-13642.
2 R. Doc. 119.
3 R. Doc. 120.
4 R. Doc. 125.
1
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who alleges reverse racial discrimination and deprivation of continued family health
insurance coverage without due process of law.5 In 2019, McKey filed a second
lawsuit6 alleging constitutional violations stemming from her termination, arrest,
and prosecution for allegedly stealing Library documents and/or deleting certain files
from her work computer without authorization.7 Because the instant Motion to
Dismiss concerns the allegations in the Complaint filed in the 2019 lawsuit, the Court
will limit its recitation of the procedural background to the facts of that case.
On April 3, 2019, McKey filed a Complaint in this Court, seeking damages
under 42 U.S.C. § 1983 from Tammy Houston, Roberto Zeno August, and the St. John
the Baptist Parish Library Board (the “Library Board”) (collectively, “Defendants”)
for violating her federal constitutional rights by causing her termination and
subsequent arrest and prosecution.8 McKey alleges that on May 27, 2015, she was
terminated from her 29-year employment as the Assistant Director of the Library by
August, the Director of the Library, who acted in concert with Houston, the
Administrative Services Coordinator of the Library. McKey asserts that on or about
July 2, 2015, Houston and August made a false criminal report to the St. John the
Baptist Parish Sheriff’s Office (the “Sheriff’s Office”), reporting that McKey “had
stolen documents belonging to the Library and had injured public records of the
Library.”9 McKey alleges that on July 6, 2015, Lieutenant Richard Dubus of the
See, R. Docs. 1 & 44.
Plaintiff’s first lawsuit, Susan Dillard McKey v. August, et al, Civ. A. No. 16-13642, is consolidated
with this second case and remains pending.
7 See, R. Doc. 1 at ¶¶ 10 & 24 in Civ. A. No. 19-8033, McKey v. August, et al., (E.D. La.) (“McKey II”).
8 R. Doc. 1 in McKey II.
9 Id. at ¶ 10.
5
6
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Sheriff’s Office was assigned to investigate the accusations, and that he met with
Houston, August, and Edward Sims, the Library’s Information Technology (“IT”)
Director, on July 15, 2015 in connection with the investigation.10 McKey asserts that,
upon information and belief, Houston and August told Dubus during that meeting
that they wanted to press criminal charges against McKey “for essentially the same
reasons for which she was terminated.”11
McKey alleges that on or about August 5, 2015, the Sheriff’s Office issued a
warrant for her arrest and that she reported to the St. John the Baptist Parish Jail
that same day and was arrested for violating La. R.S. 14:132(B), Injuring Public
Records.12 McKey alleges that Houston and August caused her termination and
prosecution, both of which were racially motivated.13
McKey also alleges that
Houston and August took these actions even though they knew that McKey “had on
May 13, 2015 at 10:00 a.m. returned all library documents that had been requested
by Defendant August.”14 McKey alleges that on September 24, 2015, she was formally
charged by the St. John the Baptist Parish District Attorney’s Office (the “District
Attorney’s Office”) with 51 felony counts of injuring public records, in violation of La.
R.S. 14:132(B), and two felony counts of attempted criminal damage to property, in
violation of La. R.S. 14:56, charges that she contends were “false, pretextual, and
unfounded.”15 According to McKey, the prosecution’s theory was that McKey had
Id. at ¶¶ 11-13.
Id. at ¶ 13.
12 Id. at ¶ 14.
13 Id. at ¶ 16. McKey alleges that she is Caucasian and that Houston and August are AfricanAmerican. Id. at ¶ 17.
14 Id. at ¶ 15.
15 Id. at ¶ 22.
10
11
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deleted certain files from her work computer and had moved them to the computer’s
recycle bin.16 McKey claims the prosecution concluded three years later on November
8, 2017, when the 40th Judicial District Court for St. John the Baptist Parish
determined that there was no probable cause for the 53 felony counts.17 The District
Attorney’s Office subsequently dismissed the claims with prejudice via nolle prosequi
on December 12, 2018.18 McKey filed this lawsuit four months later on April 3, 2019,
asserting four causes of action against Defendants: (1) a 42 U.S.C. § 1983 claim for
malicious detention and prosecution without probable cause, in violation of the
Fourth Amendment; (2) a § 1983 claim for violating the Equal Protection Clause of
the Fourteenth Amendment, based on her racially motivated detention and
prosecution; (3) a § 1983 claim for violating her rights to due process in the criminal
proceeding by intentionally losing and/or destroying material evidence; and (4) a state
law claim of malicious prosecution.19
Defendants filed the instant Motion to Dismiss on June 10, 2019, seeking to
dismiss all of McKey’s claims for failure to state a claim under Fed. R. Civ. P.
12(b)(6).20 McKey opposes the Motion, asserting that the Motion should be denied
because she has alleged sufficient facts in support of each of her claims.21 In response,
Defendants maintain that the Motion should be granted.22
Id. at ¶ 24.
Id. at ¶ 27.
18 Id. at ¶ 29.
19 Id. at ¶¶ 32-35.
20 R. Doc. 17 in McKey II; R. Doc. 119.
21 R. Doc. 18 in McKey II; R. Doc. 120.
22 R. Doc. 125.
16
17
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II.
LEGAL STANDARD
A. Rule 12(b)(6) Standard
It is well-settled in this Circuit that motions to dismiss under Fed. R. Civ. P.
12(b)(6) are viewed with disfavor and are rarely granted.23 To overcome a defendant’s
motion to dismiss, a plaintiff must plead a plausible claim for relief.24 A claim is
plausible if it is pleaded with factual content that allows the court to reasonably infer
that the defendant is liable for the misconduct alleged.25 But, no matter the factual
content, a claim is not plausible if it rests on a legal theory that is not cognizable. 26
In ruling on a motion to dismiss, the Court accepts all well-pleaded facts as true and
views those facts in the light most favorable to the plaintiff.27 However, the factual
allegations must be enough to raise a right to relief above the speculative level on the
assumption that all of the complaint’s allegations are true.28
“[C]onclusory
allegations or legal conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.”29 In deciding a Rule 12(b)(6) motion to dismiss, a
court is generally prohibited from considering information outside the pleadings, but
may consider documents outside of the complaint when they are: (1) attached to the
motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.30 The
Financial Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006) (quoting Lowrey
v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).
24 Romero v. City of Grapevine, Tex., 888 F.3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
25 Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).
26 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010).
27 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
28 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
29 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal citations omitted).
30 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).
23
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Court can also take judicial notice of matters that are of public record, including
pleadings that have been filed in a federal or state court.31
III.
ANALYSIS
A. McKey’s 42 U.S.C. § 1983 Claims Against the Library Board Must Be
Dismissed for Failure to State a Plausible Claim for Municipal
Liability.
McKey has asserted three claims under 42 U.S.C. § 1983 against the
“Defendants,” alleging that: (1) Defendants willfully and maliciously caused her
detention and prosecution without probable cause and in violation of the Fourth
Amendment; (2) Defendants caused her detention and prosecution based on her race,
in violation of the Equal Protection Clause of the Fourteenth Amendment; and (3)
Defendants violated her rights to due process under the Fourteenth Amendment after
her arrest, but before the conclusion of her criminal prosecution, by intentionally
losing and/or destroying several items of material evidence.32
Under 42 U.S.C. § 1983, every person who, under color of any state law,
subjects or causes to be subjected, any person within the jurisdiction of the United
States to a “deprivation of any rights, privileges, or immunities under the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.”33 To state a viable § 1983 claim, the
complaint must allege: (1) the violation of a constitutional right; and (2) that the
In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.
Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004)).
32 R. Doc. 1 in McKey II, at ¶¶ 32-34.
33 42 U.S.C. § 1983.
31
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violation was committed by a person acting under color of state law.34 The Supreme
Court has made clear that, “a municipality cannot be held liable under § 1983 on a
respondeat superior theory.”35 According to the Fifth Circuit, “A municipality is liable
only for acts directly attributable to it ‘through some official action of imprimatur.’”36
“To establish municipal liability under § 1983, a plaintiff must show the deprivation
of a federally protected right caused by action taken ‘pursuant to an official municipal
policy.’”37
A plaintiff asserting a claim against a municipality under § 1983 must allege:
(1) the existence of an official policy or custom; (2) a policymaker’s actual or
constructive knowledge of the policy or custom; and (3) a constitutional violation
whose “moving force” is that policy or custom.38 An “official policy or custom” can be
shown through evidence of “an actual policy, regulation or decision that is officially
adopted and promulgated by lawmakers or others with policymaking authority.”39
The Fifth Circuit has held that the plaintiff must identify “each and any policy which
allegedly caused constitutional violations . . . .”40
The Fifth Circuit has also
recognized that a single decision by a policymaker may, under certain circumstances,
Rowley v. Tchefuncta Club Estates, Inc., 151 Fed.Appx. 349, 350 (5th Cir. 2005) (quoting Cornish v.
Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005)) (internal quotation marks omitted).
35 Monell v. Dept. of Soc. Servs of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d
611 (1978).
36 Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010) (quoting Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001)).
37 Valle, 613 F.3d at 541 (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018).
38 Valle, 613 F.3d at 541-42 (internal quotation marks omitted) (citing Monell, 436 U.S. at 694, 98 S.Ct.
2018).
39 Valle, 613 F.3d at 542 (citing Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003)).
40 Piotrowski, 237 F.3d at 579-80. See, Terry v. City of New Orleans, 523 F. Supp. 2d 486, 496 (E.D.
La. 2007) (same).
34
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constitute a policy for which a municipality may be liable.41 However, the Fifth
Circuit cautioned that, “this ‘single incident exception’ is extremely narrow and gives
rise to municipal liability only if the municipal actor is a final policymaker.” 42 This
Court has likewise recognized that, “isolated unconstitutional actions by municipal
employees will almost never trigger liability.’”43
Defendants assert that all of McKey’s § 1983 claims against the Library Board
must be dismissed because she has not alleged that August or Houston acted
pursuant to any policy, statement, ordinance, regulation or custom.44 Defendants
point out that the Complaint merely alleges that August was responsible for the
administration of the Library and was required to carry out the policies, rules and
regulations established by the Library Board.45 Defendants maintain that these
allegations are insufficient for the Court to infer that August was acting pursuant to
any written policy or custom promulgated by the Library Board when she reported
suspected criminal activity to the police in June 2015.
McKey argues that decisions of an official or officials possessing “final policy
making authority” represent official policy,46 and that even a single decision by a
policymaker may constitute an act of official policy.47 McKey asserts that the Library
Valle, 613 F.3d at 542 (quoting Brown v. Bryan County, 219 F.3d 450, 462 (5th Cir. 2000)) (internal
quotation marks omitted).
42 Valle, 613 F.3d at 542 (quoting Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008)).
43 Terry, 523 F. Supp. 2d at 495-96 (quoting Piotrowski, 237 F.3d at 578).
44 R. Doc. 119 at p. 7.
45 Id. (quoting R. Doc. 1 in McKey II, at ¶ 8).
46 R. Doc. 120 at p. 5 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105
L.Ed.2d 598 (1989)) (internal quotation marks omitted).
47 R. Doc. 120 at pp. 5-6 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89
L.Ed.2d 452 (1986)).
41
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Board delegated policymaking authority to August as the Library Director, since she
had the authority to hire, fire, transfer, promote and reassign employees. 48 Relying
on the allegations in her Complaint, McKey claims that August was also delegated
final policymaking authority as to when and under what circumstances criminal
charges would be instigated.49
McKey further alleges that August’s decision to
“instigate charges” against her was final, was not reviewed in any appeal process by
the Library Board, and that as the Library Director, it was within August’s delegated
authority to make policy in relation to the institution of criminal charges.50
In response, Defendants assert that McKey fails to judge the Complaint
against the law she cites and overstates the facts that she actually alleged.51
Defendants point out that McKey specifically alleged that August was responsible for
carrying out the policies “that the Library Board established,” which indicates
that August was responsible for following policies established by the Library Board.52
Defendants further assert that August’s authority to supervise the Library staff is
not tantamount to a delegation of final policymaking authority on all issues, nor is it
a grant of authority to establish new Library Board policy regarding reporting
criminal activity to the police.53
Defendants argue that if taken to its logical
conclusion, McKey’s argument would mean that every decision of any official
R. Doc. 120 at p. 6.
Id. (citing R. Doc. 1 in McKey II, at ¶ 8).
50 R. Doc. 120 at p. 6.
51 R. Doc. 125 at p. 4.
52 Id. at p. 5 (emphasis in original).
53 Id.
48
49
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authorized to manage and supervise staff constitutes the official policy of the
municipality-employer, which is not the law.
The Court agrees with Defendants that McKey does not allege in her
Complaint that August or Houston were acting pursuant to a custom or policy of the
Library Board when they made a report to the police regarding McKey in 2015. But
that does not end the inquiry for purposes of municipal liability under § 1983. As
McKey correctly points out, the Fifth Circuit has recognized an “extremely narrow”
exception whereby a single decision by a final policymaker can constitute a policy for
which the municipality can be held liable.54 To succeed on this claim, however,
McKey must show that August or Houston had final policymaking authority and that
their decision to make a complaint to the police was the moving force behind the
constitutional injury.
While McKey alleges in the Complaint that August was “an official
policymaker in personnel and related matters,”55 there is no allegation that Houston
was a final policymaker for the Library Board. Thus, McKey has failed to allege
sufficient facts to show that Houston’s decision to report suspected criminal activity
to the police constitutes an official policy or custom of the Library Board. As to
August, McKey has alleged that the Library Board “establishes the policies, rules and
regulations governing the operation of the St. John the Baptist Parish Library,
including personnel and related matters involving Library employees,” and that, “The
See, Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010) (quoting Brown v. Bryan County, 219
F.3d 450, 462 (5th Cir. 2000)) (internal quotation marks omitted).
55 R. Doc. 1 in McKey II, at ¶ 5.
54
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Director of the Library administers the policies, rules and regulations established by
the Board.”56 McKey further alleged that, “Under Art 3 § 1 of the By-Laws of the
Board, the Director is considered the executive officer of the Library and has the
responsibility for the administration of the Library and is required to carry out the
policies, rules and regulations established by the Board.”57
Nonetheless, McKey
summarily asserts that, “The Board has thereby delegated policymaking authority in
personnel and related matters to the Director, defendant August.
At all times
relevant hereto, therefore, August was making official policy with regard to the
library system employees.”58 McKey reasserts this argument in her Opposition brief,
relying on the same conclusory allegation in her Complaint.59 McKey does not cite
any factual support for this allegation in the Complaint or her Opposition brief.
While the Court must accept McKey’s well-pleaded facts as true and view them
in the light most favorable to McKey in the context of a motion to dismiss, the Fifth
Circuit has made clear that, “[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”60
Accordingly, McKey’s conclusory assertion that August was a final policymaker is not
sufficient to withstand a motion to dismiss. Without that conclusory allegation, the
Complaint repeatedly asserts that the Director of the Library (August) merely carries
out the policies established by the Library Board. Such allegations are insufficient
Id. at ¶¶ 7-8 (emphasis added).
Id. at ¶ 8 (emphasis added).
58 Id.
59 R. Doc. 120 at p. 6 (citing R. Doc. 1 in McKey II, at ¶ 8).
60 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal citations omitted).
56
57
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to show that August was a final policymaker of the Library Board. Accordingly,
McKey has failed to allege any facts to show that August’s decision to report
suspected criminal activity to the police constitutes an official policy or custom of the
Library Board.
Further, it is evident to the Court that, like the plaintiffs in Valle v. City of
Houston,61 McKey is conflating August’s decision-making authority over certain
personnel matters with final policymaking authority. The Fifth Circuit “has long
distinguished between final decisionmaking authority and final policymaking
authority.”62 According to the Fifth Circuit, “A municipal policymaker is someone
who has ‘the responsibility for making law or setting policy in any given area of local
government’s
business.’”63
Municipal
liability
only
attaches
“where
the
decisionmaker possesses final authority to establish municipal policy with respect to
the action ordered.”64 Citing the Supreme Court’s decision in Pembaur v. City of
Cincinnati in her Opposition brief, McKey asserts that the Library Board delegated
policymaking authority to August as the Library Director because she had the
authority to hire, fire, transfer, promote and reassign employees.65
McKey’s
argument reflects a clear misunderstanding of Pembaur and Fifth Circuit
precedent.66 As the Fifth Circuit explained in Valle, “We have long recognized that
Valle v. City of Houston, 613 F.3d 536, 542-43 (5th Cir. 2010).
Valle, 613 F.3d at 542; See, Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1247 (5th Cir. 1993) (citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 484 n.12, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); City of
St. Louis v. Praprotnik, 485 U.S. 112, 130, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)).
63 Valle, 613 F.3d at 542 (quoting Praprotnik, 485 U.S. at 125, 108 S.Ct. 915).
64 Valle, 613 F.3d at 542 (quoting Pembaur, 475 U.S. at 481, 106 S.Ct. 1292) (internal quotation marks
omitted).
65 R. Doc. 120 at pp. 5-6 (citing, 475 U.S. at 480, 106 S.Ct. 1292).
66 Valle, 613 F.3d at 543 (citing Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008)).
61
62
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the ‘discretion to exercise a particular function does not necessarily entail final
policymaking authority over that function.”67 McKey has failed to allege any facts to
show that August’s decision-making authority over certain personnel matters,
including the ability to hire and fire employees, also constituted final policymaking
authority.
Further, the Complaint is completely devoid of any allegations that
August is responsible for making law or setting policy for the Library Board.68 As
such, McKey has failed to allege sufficient facts to show that August was a final
policymaker of the Library Board, or that her decision to make a complaint to the
police constituted a policy or custom of the Library Board.
Because McKey cannot satisfy the first requirement of a § 1983 claim for
municipal liability against the Library Board, the Court finds that McKey’s first,
second and third causes of action against the Library Board fail to state a plausible
claim against the Library Board and must be dismissed.
B. Houston and August Are Entitled to Qualified Immunity From
McKey’s 42 U.S.C. § 1983 Claims.
McKey asserts the same three § 1983 claims against Houston and August as
she alleged against the Library Board.69 McKey specifies in the Complaint that
August and Houston are sued in their individual capacities as employees of the
Valle, 613 F.3d at 543 (quoting Bolton, 541 F.3d at 549; Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241,
1247 (5th Cir. 1993)).
68 Valle, 613 F.3d at 542 (quoting Praprotnik, 485 U.S. at 125, 108 S.Ct. 915).
69 R. Doc. 1 in McKey II, at ¶¶ 32-34.
67
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Library.70 Defendants argue that all three § 1983 claims against August and Houston
must be dismissed because they are entitled to qualified immunity.71
A state official can be sued in his individual capacity and held personally liable
under § 1983 if a plaintiff can show that the official, acting under state law, caused
the deprivation of a federal right.72 According to the Fifth Circuit, “This standard
requires more than conclusional assertions: The plaintiff must allege specific facts
giving rise to a constitutional violation.” 73 As a defense to § 1983 claims, government
officials may invoke qualified immunity, which shields government officials
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.74 The Supreme Court has made clear that
qualified immunity functions as an immunity from suit, rather than a mere defense
to liability.75 “[T]he qualified immunity standard ‘gives ample room for mistaken
judgments’ by protecting ‘all but the plainly incompetent or those who knowingly
Id. at ¶¶ 4-5.
R. Doc. 119-1 at pp. 9-14.
72 Terry v. City of New Orleans, 523 F. Supp. 2d 486 (E.D. La. 2007) (citing Hafer v. Melo, 502 U.S. 21,
25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)).
73 Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (citing Baker v. Putnal, 75 F.3d 190, 194 (5th Cir.
1996); Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999)) (internal citation
omitted).
74 Club Retro, LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (quoting Pearson v. Callahan, 555 U.S.
223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009)) (internal quotation marks omitted).
75 Pearson v. Callahan, 555 U.S. 223, 237, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (quoting Mitchell
v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (internal quotation marks
omitted).
70
71
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violate the law.’”76 “This means that even law enforcement officials who reasonably
but mistakenly commit a constitutional violation are entitled to immunity.”77
Once the government official asserts qualified immunity, the burden shifts to
the plaintiff to negate the defense.78 To overcome a claim of qualified immunity, a
plaintiff must demonstrate: (1) that the official violated a statutory or constitutional
right; and (2) that the right was “clearly established” at the time of the challenged
conduct.79
According to the Fifth Circuit, a constitutional right is “clearly
established” when the contours of the right are “sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” 80 A defendant’s
actions “are held to be objectively reasonable unless all reasonable officials in the
defendant’s circumstances would have then known that the defendant’s conduct
violated the United States Constitution or the federal statute as alleged by the
plaintiff.”81
a. McKey’s § 1983 Claim Based Upon Fourth Amendment
Violations.
In her first cause of action, McKey alleges that Defendants “willfully and
maliciously caused the detention and prosecution of the Plaintiff without probable
Brumfield v. Hollins, 551 F.3d 322, 326-27 (5th Cir. 2008) (quoting Mendenhall v. Riser, 213 F.3d
226, 230 (5th Cir. 2000)).
77 Bazan v. Hidalgo County, 246 F.3d 481, 488 (5th Cir. 2001) (quoting Glenn v. City of Tyler, 242 F.3d
307, 312 (5th Cir. 2001) (internal quotation marks omitted).
78 Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citation omitted).
79 Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citation
omitted); Club Retro, LLC, 568 F.3d at 194 (citations omitted).
80 Thompson v. Upshur County, TX, 245 F.3d 447, 457 (5th Cir. 2001) (quoting Anderson v. Creighton,
483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)) (internal quotation marks omitted); Club
Retro, LLC, 568 F.3d at 194 (quoting Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004) (en banc)).
81 Thompson, 245 F.3d at 457 (citing Anderson, 483 U.S. 635, 107 S.Ct. at 3040; Malley v. Briggs, 475
U.S. 335, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); Pierce v. Smith, 117 F.3d 866, 871 (5th Cir.
1997)) (emphasis in original).
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cause, in violation of the Fourth Amendment to the United States Constitution,
violations which are made actionable by 42 U.S.C. § 1983.”82 Defendants assert that
August and Houston are entitled to qualified immunity from this claim because
McKey alleges that they violated her Fourth Amendment rights by reporting false
information to the police, yet the mere filing of a police report does not implicate a
constitutional right.83 Defendants claim that when a plaintiff only alleges that a
defendant provided information to the authorities, but does not allege facts from
which one could plausibly infer that the report alone led to the plaintiff’s arrest,
courts have found it appropriate to dismiss the plaintiff’s complaint for failure to
adequately plead causation.84 Defendants argue that McKey has only alleged that
“the prosecution of the Plaintiff was caused by Houston and August,” which is
conclusory and insufficient to allege a deprivation of her Fourth Amendment rights.85
McKey asserts that the cases cited by Defendants are easily distinguishable
from the facts in this case, as they did not involve defendants intentionally filing false
complaints with the police or allegations that a plaintiff suffered a constitutional
violation as a result of a false police report.86 McKey claims that she has alleged that
she was arrested and subsequently prosecuted as a result of Defendants’ actions, that
she was prohibited from traveling out of state without the court’s permission, and
R. Doc. 1 in McKey II, at ¶ 32.
R. Doc. 119-1 at p. 10 (citing Wearen v. Maryland, Civ. A. No. GJH-16-2205, 2016 WL 4082623, at
*2 (D. Md. July 28, 2016); Royster v. Schluderberg, Civ. A. No. PJM 10-2121, 2013 WL 781599 (D. Md.
Feb. 28, 2013)).
84 R. Doc. 119-1 at pp. 11-12 (citing Republic Fire & Cas. Ins. Co. v. Charles, Civ. A. No. 17-5967, 2018
WL 310378, at *3-5 (E.D. La. Jan. 5, 2018)).
85 R. Doc. 119-1 at p. 12 (quoting R. Doc. 1 in McKey II, at ¶ 16) (internal quotation marks omitted).
86 R. Doc. 120 at pp. 10-11 (citations omitted).
82
83
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that she was required to appear in court 24 times, all of which deprived her of her
liberty interests.87 McKey relies on Castellano v. Fragozo, wherein the Fifth Circuit
held that, “The initiation of criminal charges without probable cause may set in force
events that run afoul of explicit constitutional protection,” including “the Fourth
Amendment if the accused is seized and arrested” and “other constitutionally secured
rights if a case is further pursued.”88 McKey further asserts that these rights were
clearly established at the time of Defendants’ actions based upon the Fifth Circuit’s
2008 decision in Brown v. Miller.89 McKey asserts that the Fifth Circuit in Brown
held that the deliberate or knowing creation of a misleading and scientifically
inaccurate serology report violates a defendant’s due process rights, and that the law
was clearly established, for purposes of § 1983, that a state crime lab technician would
have known that suppression of exculpatory blood test results would violate a
defendant’s rights.90 McKey then asserts that, “If the right not to be prosecuted on
the basis of falsified evidence was clearly established in 1984, then certainly it was
clearly established in 2015,” and that public officials in August’s and Houston’s
positions would be aware of such rights.91
In response, Defendants argue that they do not contend that reporting criminal
activity to the police can never implicate a constitutional right, as McKey suggests.92
Instead, Defendants assert that McKey has not alleged that Houston’s and August’s
R. Doc. 120 at p. 12 (quoting R. Doc. 1 in McKey II, at ¶ 14) (internal quotation marks omitted).
R. Doc. 120 at p. 13 (quoting Castellano, 352 F.3d 939, 953-54 (5th Cir. 2003)) (internal quotation
marks omitted).
89 R. Doc. 120 at p. 13 (citing Brown, 519 F.3d 231 (5th Cir. 2008)).
90 R. Doc. 120 at pp. 13-14 (quoting Brown, 519 F.3d at 237-38) (internal quotation marks omitted).
91 R. Doc. 120 at p. 14.
92 R. Doc. 125 at p. 6.
87
88
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complaint to the police violated her constitutional rights in this case because McKey
has not alleged sufficient facts to show that the constitutional deprivation she claims
she suffered – prosecution without probable cause – was legally caused by their
complaint, as opposed to information supplied by Ed Sims or Lt. Dubus’
investigation.93 Defendants argue that McKey’s entire Opposition brief focuses on
her contention that she adequately alleged a constitutional injury, but does not
respond to Defendants’ argument that she failed to allege causation.94
The Court finds that McKey has failed to allege sufficient facts to show that
the actions of August and Houston, in reporting suspected criminal activity to the
police on July 2, 2015, violated her Fourth Amendment rights. In the Complaint,
McKey alleges that Defendants “willfully and maliciously caused the detention and
prosecution of the Plaintiff without probable cause.”95 It is unclear from this nebulous
language what Fourth Amendment rights McKey claims were violated, as McKey
seems to conflate claims for false arrest, false imprisonment, and malicious
prosecution. To the extent that McKey is alleging a false arrest or false imprisonment
claim, such allegations fail to state a constitutional violation by August or Houston
because they are not the government officials who arrested or detained her. As
alleged in her Complaint, it was Lt. Dubus of the Sheriff’s Office who obtained a
warrant for McKey’s arrest and ultimately arrested her.96 McKey also alleges that
Lt. Dubus conducted his own investigation into the accusations made by Houston and
Id.
Id. at p. 7.
95 R. Doc. 1 in McKey II, at ¶ 32.
96 R. Doc. 1 in McKey II, at ¶¶ 11-14.
93
94
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August, which resulted in the issuance of McKey’s arrest warrant.97 McKey has not
directed the Court to any legal authority indicating that a false arrest or false
imprisonment claim can be brought against someone who reported criminal activity
to the police and is neither a law enforcement officer nor the attorney bringing the
criminal prosecution.98 Accordingly, Houston and August are entitled to qualified
immunity as to any Fourth Amendment claim premised upon McKey’s false arrest or
false imprisonment.
To the extent McKey asserts a § 1983 claim against August and Houston
based upon malicious prosecution, the Fifth Circuit has held that, “the federal
Constitution does not include a ‘freestanding’ right to be free from malicious
prosecution.”99
“Instead, it must be shown that the officials violated specific
constitutional rights in connection with a ‘malicious prosecution.’”100 According to
the Fifth Circuit, “the initiation of criminal charges without probable cause may set
in force events that run afoul of the . . . Fourth Amendment if the accused is seized
and arrested . . . or other constitutionally secured rights if a case is further
Id.
The Court notes that the cases cited by McKey involve lawsuits filed against law enforcement officers
and municipalities for constitutional violations stemming from their unlawful arrest or detention. See,
R. Doc. 120 at pp. 12-13 (citing Manuel v. City of Joliet, III, 137 S.Ct. 911, 920, 197 L.Ed.2d 312 (2017)
(fourth amendment violations based upon arrest and detention brought against municipality and
several of its police officers); Nieves v. Bartlett, 139 S.Ct. 1715, 1726, 204 L.Ed.2d 1 (2019) (first
amendment retaliation claim brought against arresting officers); Brown v. Miller, 519 F.3d 231 (5th
Cir. 2008) (suit against municipality, law enforcement officers and lab technician who fabricated
evidence for alleged misconduct in the investigation and prosecution of case). McKey also cites
Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003), where, “The heart of Castellano’s claim is
that the prosecution obtained his arrest and conviction by use of manufactured evidence and perjured
testimony . . . .” See, R. Doc. 120 at p. 13 (citing Castellano, 352 F.3d at 955, 959). See also, Castellano,
352 F.3d at 959-60. Those cases are clearly distinguishable from the facts of this case.
99 Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (citing Castellano v. Fragozo, 352 F.3d 939,
945 (5th Cir. 2003))
100 Deville, 567 F.3d at 169.
97
98
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pursued.”101 Further, “courts have recognized that ‘a plaintiff may state an actionable
claim under the Fourth Amendment arising out of a pretrial detention resulting from
initiation of a prosecution without probable cause.”102 Such claims, however, rely on
a finding that the defendants lacked probable cause for the plaintiff’s arrest. 103
Here, McKey alleges that August and Houston caused her prosecution and
that, “Houston’s and August’s instigation of the criminal felony charges against the
Plaintiff was malicious and without probable cause.”104 This conclusory statement,
without more, is insufficient to state a constitutional violation by August or Houston.
While McKey alleges that Houston and August “made a false report of a crime or
crimes allegedly committed by Mrs. McKey,” McKey has not alleged any facts to show
how the complaint to the police was false.105 The Court notes that McKey gives shortshrift to August’s and Houston’s complaint to the police, dedicating only a sentence
to it in the Complaint, even though the complaint is the basis for all of her claims in
this suit. McKey merely alleges that her employment at the Library “was terminated
on May 27, 2015 by Defendant August, acting in concert with the Defendant
Houston,”106 that Houston and August “reported that the Plaintiff had stolen
documents belonging to the Library and had injured public records of the Library,”107
and that Houston and August told Lt. Dubus that they wanted to press criminal
Deville, 567 at 169 (quoting Castellano, 352 F.3d at 953-54).
Dorosan v. Stewart, Civ. A. No. 18-181-SDD-RLB, 2019 WL 4738790, at *6 (M.D. La. Sept. 27, 2019)
(quoting Seals v. McBee, Civ. A. No. 16-14837, 2019 WL 2451630 at *5 (E.D. La. June 12, 2019)).
103 Dorosan, Civ. A. No. 18-181-SDD-RLB, 2019 WL 4738790 at *6 (citing authority).
104 R. Doc. 1 in McKey II, at ¶¶ 16 & 20.
105 Id. at ¶ 10.
106 Id. at ¶ 9.
107 Id. at ¶ 10.
101
102
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charges against McKey for “essentially the same reasons for which she was
terminated.”108
McKey does not allege any additional facts in the Complaint
regarding why she was terminated, nor does she allege that it was a result of the
report made to the police. More importantly, however, McKey clearly admits that she
took documents from the Library, alleging that, “These criminal charges related to
actions allegedly taken by the Plaintiff while she was still a supervisory employee of
the Library. As was well known to the Defendants Houston and August, the Plaintiff
had on May 13, 2015 at 10:00 a.m. returned all library documents that had been
requested by Defendant August.”109 Although no further explanation is provided
regarding the documents taken or returned by McKey, this allegation rebuts her
prior, conclusory allegation that August and Houston falsely accused her of criminal
activity.
The Court further finds that McKey seems to conflate the filing of a police
report with the filing of criminal charges. Contrary to McKey’s insinuation, the two
are not synonymous. As alleged in the Complaint, Houston and August reported
suspected criminal activity to the police on July 2, 2015, Lt. Dubus investigated those
accusations and, after that investigation, the District Attorney’s Office formally
charged McKey on September 24, 2015 with 51 counts of injuring public records, in
violation of La. R.S. 14:132(B).110 To the extent that McKey alleges the charges
brought against her by the District Attorney “were false, pretextual, and unfounded,”
Id. at ¶ 13.
Id. at ¶ 15 (emphasis added).
110 Id. at ¶¶ 10-14, 22.
108
109
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such allegations concern actions taken by the District Attorney, not Houston or
August.111 As such, the allegations are insufficient to state a constitutional violation
by August or Houston for malicious prosecution.
Because McKey has failed to allege a constitutional violation by August or
Houston based upon their reporting of criminal activity to the police, they are entitled
to qualified immunity from McKey’s § 1983 claims based upon Fourth Amendment
violations, and the claims must be dismissed.
b. McKey’s § 1983 Claim Based Upon Equal Protection
Violations.
In her second cause of action, McKey asserts that Defendants “caused the
detention and prosecution of the Plaintiff because of her race, in violation of the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution,
violations which are actionable by 42 U.S.C. § 1983.”112 While not a model of clarity,
it appears that McKey is asserting that Houston’s decision to make a complaint to
the police, which caused her detention and prosecution, was racially motivated.113
Defendants argue that the claim should be dismissed because McKey has failed
to allege disparate treatment, as required to state an equal protection claim.114
Defendants assert that, “No equal protection violation occurs where a plaintiff’s
allegations fail to allege any facts showing that [others were] similarly situated.”115
Id. at ¶ 22.
Id. at ¶ 33.
113 McKey affirms this in her Opposition brief. R. Doc. 120 at p. 15.
114 R. Doc. 119-1 at pp. 12-13.
115 Id. at 12 (quoting Williams v. City of Irving, Texas, Civ. A. No. 3:15-CV-1701-BH, 2017 WL 507402,
at*4 (N.D. Tex. Jan. 13, 2017)) (internal quotation marks omitted).
111
112
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Defendants further claim that courts have dismissed actions when plaintiffs failed to
allege, or prove, that they were treated differently than similarly situated members
of other groups.116 Defendants assert that McKey has not identified anyone who was
similarly situated to her, nor has she alleged that August or Houston treated her
differently than those individuals.117 As such, Defendants argue that she has not
alleged sufficient facts to establish a deprivation of her right to equal protection.
McKey argues that while many equal protection claims are based upon
disparate treatment, that is not the only possible basis for an equal protection
claim.118 McKey asserts that her claim is different because she alleges that Houston
and August caused her to be prosecuted based on their false accusations because she
is white.119 McKey contends that courts in this Circuit have indicated that an equal
protection claim may lie where a government official uses a racial epithet or stated
that they targeted the plaintiff because of race and infringed upon the rights of the
plaintiff, regardless of how other “similarly situated” individuals were treated.120 As
such, McKey claims that she is not required to investigate Defendants’ treatment of
other employees, whether Defendants have had African-American employees
arrested on false charges, or whether they systematically discriminated against
R. Doc. 119-1 at pp. 12-13 (citing Woodard v. Andrus, 419 F.3d 348, 354 (5th Cir. 2005); Thomas v.
Jackson, Civ. A. No. 3:14-cv-4530-B-BN, 2016 WL 749558, at * (N.D. Tex. Feb. 5, 2016)).
117 R. Doc. 119-1 at p. 13.
118 R. Doc. 120 at p. 14.
119 Id. at p. 15 (quoting Integrity Collision Ctr. v. City of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016))
(internal quotation marks omitted).
120 R. Doc. 120 at pp. 15-17 (citing Club Retro, LLC v. Hilton, 568 F.3d 181, 193 (5th Cir. 2009);
Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999); Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989),
abrogated on other grounds by Harper v. Harris Cty., Tex, 21 F.3d 597 (5th Cir. 1994)).
116
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Caucasian employees based on their race.121 Because she has alleged that August
and Houston caused her wrongful prosecution because of her race, McKey argues that
she has alleged that she was intentionally discriminated against based on her
membership in a protected class and, therefore, she has stated a viable equal
protection claim.122
In response, Defendants reiterate their position that the hallmark of an equal
protection claim is disparate treatment of the plaintiff as compared to others under
similar circumstances, which McKey has failed to allege.123
To state an equal
protection claim against August and Houston, Defendants assert that McKey must
allege facts from which one could plausibly infer that they treated McKey differently
than they would have treated others under the same circumstances because of her
race. Defendants argue that even accepting the allegations in the Complaint as true,
as the Court must, McKey has failed to state a viable equal protection claim against
August or Houston.124
The Equal Protection Clause prohibits a state from denying to any person
within its jurisdiction the equal protection of the laws, which “is essentially a
direction that all persons similarly situated should be treated alike.”125 “It is well
established that a showing of discriminatory intent or purpose is required to establish
R. Doc. 120 at p. 17.
Id. at pp. 17-18 (citing Johnson, 876 F.2d 477).
123 R. Doc. 125 at p. 7.
124 Id. at pp. 7-8.
125 Club Retro, LLC v. Hilton, 568 F.3d 181, 212 (5th Cir. 2009) (quoting Qutb v. Strauss, 11 F.3d 488,
492 (5th Cir. 1993)) (internal quotation marks omitted).
121
122
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a valid equal protection claim.”126 The Fifth Circuit has likewise explained that, “[t]o
state a claim of racial discrimination under the Equal Protection Clause and section
1983, the plaintiff must allege and prove that [(1) he or she] received treatment
different from that received by similarly situated individuals and that [(2)] the
unequal treatment stemmed from a discriminatory intent.”127
Pertinent to the
instant case, the Fifth Circuit has held that, “Allegations [of discriminatory intent]
that are merely conclusory, without reference to specific facts, will not suffice.”128
The Court finds that McKey has failed to sufficiently allege that August’s or
Houston’s report of suspected criminal activity to the police in 2015 was motivated
by a discriminatory intent based on race. As Defendants point out, McKey alleges in
the Complaint that she is Caucasian and that August and Houston are AfricanAmerican. She further alleges that August terminated her on May 27, 2015, and that
“Defendants’ causing of the termination of the Plaintiff’s employment and the
Plaintiff’s arrest were both racially motivated.”129 These conclusory allegations are
insufficient to state an equal protection violation by August or Houston.
Regarding Houston’s and August’s “racial animus,” McKey alleges that: (1) she
was terminated “because of racial and other animus towards her by the Defendant
Houston and other African American employees of the library;” (2) documentary
evidence produced in the 2016 lawsuit shows that “there is a racial divide in her
Muslow v. Bd. of Supervisors of Louisiana State Univ. and Agric. and Mechan. College, Civ. A. No.
19-11793, 2020 WL 1864876, at *22 (E.D. La. Apr. 14, 2020) (quoting Doe v. Silsbee Indep. Sch. Dist.,
402 Fed.Appx. 852, 855 (5th Cir. 2010)).
127 Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th Cir. 2015) (quoting Priester v. Lowndes
Cty., 354 F.3d 414, 424 (5th Cir. 2004)) (internal quotation marks omitted).
128 Fennell, 804 F.3d at 412 (quoting Priester, 354 F.3d at 420).
129 R. Doc. 1 in McKey II, at ¶¶ 9, 16, 17.
126
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department that is as wide as the Mississippi River;” (3) Houston testified in the 2016
lawsuit that there has been racial tension at the Library since Houston was hired; (4)
Houston testified in the 2016 case that she has had a grudge against McKey going
back 25 years; (5) Houston and August stripped away many of her job duties over
time and reassigned them to African-American employees; (6) Houston and August
demoted McKey in 2015 based on their false allegation that McKey had expressed an
inability to fulfill her position of Assistant Director; (7) August accused McKey in
writing of violating state criminal law on May 7, 2015; (8) Houston “continuously
snubbed” McKey and spoke to her in a condescending manner during her
employment; (9) Houston testified that the District Attorney is her long-time friend;
and (10) Houston conducted her own legal research and provided it to the District
Attorney’s Office or the Sheriff’s Office, which resulted in the original bill of
information being filed against McKey by the District Attorney’s Office. 130 Even
accepting these allegations as true, as the Court must, these allegations are
conclusory, fail to allege a discriminatory intent on the part of Houston or August,
and offer no factual support for McKey’s equal protection claim based upon her
“detention and prosecution . . . because of her race.”131 As such, these allegations are
“not probative of disparate treatment or discriminatory intent.”132 McKey also alleges
that between March 2010 and her termination in 2015, “Houston initiated a barrage
of write-ups, often of a racial nature, that were designed for the purposes of creating
R. Doc. 1 in McKey II, at ¶ 19.
Id. at ¶ 33.
132 Club Retro, LLC v. Hilton, 568 F.3d 181, 213 (5th Cir. 2009).
130
131
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a phony paper trail to mask her own racial discrimination and make Mrs. McKey so
miserable that she would resign.”133 The Court likewise finds that this allegation
does not provide factual support for an equal protection claim based upon McKey’s
“detention and prosecution.”134
While McKey contends that she need not assert disparate treatment under
the Fifth Circuit decisions in Club Retro, LLC v. Hilton,135 Williams v. Bramer,136 and
Johnson v. Morel,137 her arguments reflect a flawed interpretation of those cases. In
Club Retro, LLC, a 2009 decision, the Fifth Circuit made clear that an equal
protection claim requires allegations of both disparate treatment and discriminatory
intent.138 Although perhaps overlooked by McKey, in the very first sentence of the
Fifth Circuit’s equal protection analysis, the court clearly held that the defendants
“are entitled to qualified immunity for plaintiffs’ Fourteenth Amendment equal
protection claims because plaintiffs have failed to allege either an intent to
discriminate or unequal treatment.”139 Moreover, contrary to McKey’s insinuation,
the plaintiffs in Club Retro, LLC did allege disparate treatment in the form of “the
absence of similar raids against GG’s, a white-owned nightclub that caters to white
patrons . . . .”140 Thus, to the extent McKey argues that Club Retro, LLC implies that
she need not allege disparate treatment by August or Houston to assert a plausible
R. Doc. 1 in McKey II, at ¶ 19(e).
Id. at ¶ 33.
135 Club Retro, LLC, 568 F.3d 181.
136 180 F.3d 699 (5th Cir. 1999).
137 876 F.2d 477 (5th Cir. 1989).
138 Club Retro, LLC, 568 F.3d at 212-13.
139 Id. at 212 (emphasis added).
140 Id. at 213.
133
134
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equal protection claim against them, her argument is completely baseless.141
Although the Fifth Circuit’s earlier decisions in Williams and Johnson, issued in 1999
and 1989, respectively, indicate that an equal protection claim requires only an
allegation of intentional discrimination based upon membership in a protected class,
this Court must follow the most recent guidance provided by the Fifth Circuit on this
issue, which is Club Retro, LLC. Under that guidance, the Court finds that Houston
and August are entitled to qualified immunity from McKey’s §1983 equal protection
claim because she has failed to allege unequal treatment.
c. McKey’s § 1983 Claim Based Upon Due Process Violations.
In her third cause of action, McKey alleges that Defendants violated her due
process rights after her arrest, but before the conclusion of her criminal prosecution,
by: (1) intentionally losing and/or destroying material evidence, including the notes
of Edward Sims, a Library employee who investigated the criminal accusations
against McKey at the request of August and Houston, and documentary evidence
showing whether McKey had permission to access the computer server at the Library
and whether there were any limitations on that access; (2) destroying and/or losing
the backup logs of McKey’s work computer; and (3) returning the hard drive of
McKey’s work computer, which McKey “allegedly tampered with,” back into service
in the Library without making a forensic copy of it, thereby destroying any
The Court further notes that McKey seems to interpret Club Retro, LLC, Williams, and Johnson as
implying that she need not allege disparate treatment if there is an allegation that Defendants
targeted her because of her race. R. Doc. 120 at pp. 15-17. The Complaint is devoid of any allegation
that Houston or August stated that they reported criminal activity in 2015 based upon McKey’s race.
Thus, even under her own erroneous interpretation of the jurisprudence, McKey’s allegations are
insufficient to state an equal protection claim against August or Houston.
141
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evidentiary value of the hard drive.142 McKey alleges that these actions violated her
due process rights because Sims was not trained to conduct criminal investigations,
all of the lost/destroyed evidence was material to the investigation and defense of the
criminal charges brought against McKey, and they prolonged her criminal case,
interfered with fair hearings and trial preparation, and added to the attorney’s fees
and litigation expenses incurred by McKey in defending the criminal case.143
Defendants assert that McKey has failed to allege a plausible due process claim
because she has not alleged that August or Houston lost or destroyed the evidence in
question, nor has she alleged facts from which one could conclude that they caused
the alleged loss or destruction of evidence.144 Even if McKey could overcome that
hurdle, Defendants assert that she would still be unable to allege facts to establish
that August or Houston deprived her of her due process rights because the criminal
charges against her were dismissed before trial. Defendants contend that when
criminal charges are dismissed before trial, courts have held that no constitutional
due process deprivation can be established as a matter of law.145 As such, Defendants
argue that the Court should dismiss her § 1983 claims against August and Houston
based upon their qualified immunity from suit.
According to McKey, Defendants have argued that they are entitled to
qualified immunity because she only alleged that Sims, not August or Houston,
R. Doc. 1 in McKey II, at ¶ 34.
Id.
144 R. Doc. 119-1 at p. 13.
145 Id. at p. 14 (citing Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999); Rogala v. District of
Columbia, 161 F.3d 44, 55-56 (D.C. Cir. 1998); Taylor v. Waters, 81 F.3d 429, 435-36 (4th Cir. 1996);
McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988); Nygren v. Predovich, 637 F. Supp.
1083, 1087 (D. Colo. 1986)).
142
143
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destroyed the evidence and because she suffered no constitutionally-recognized harm
since her criminal case was dismissed.146
McKey argues that Defendants’ first
argument is “mistaken” because she alleged that Houston and August, not Sims, lost
or destroyed the evidence at issue. McKey notes that it is unlikely that Sims would
have even had the means to destroy the evidence, and that he acted at all times as
an agent of Defendants.147 McKey further asserts that Defendants’ second argument,
which relies on authority from outside the Fifth Circuit, similarly lacks merit. McKey
argues that the liberty and property interests of which she was deprived “constitute
constitutional harm under Castellano v. Fragozo, supra,” and that, “the Fifth Circuit
expressly held in Brown v. Miller, supra, [that] suppression of exculpatory evidence
violates a clearly established right.”148 Without any further analysis, McKey asserts,
“Thus, Defendants’ argument fails.”149
In response, Defendants assert that McKey failed to distinguish the cases cited
in their Motion to Dismiss, and failed to cite any cases finding a deprivation of a due
process right where exculpatory evidence was lost or destroyed and the plaintiff was
never tried or convicted.150 Defendants maintain that, under the cases cited in their
Motion, no deprivation of any due process right can be caused by the unavailability
of evidence if there is no trial or opportunity to present evidence because the criminal
R. Doc. 120 at p. 18.
Id.
148 Id. at pp. 18-19 (citing Castellano, 352 F.3d 939 (5th Cir. 2003); Brown, 519 F.3d 231, 237-38 (5th
Cir. 2008)).
149 R. Doc. 120 at p. 19.
150 R. Doc. 125 at pp. 8-9.
146
147
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charges are dismissed. As such, Defendants argue that the Court should dismiss
McKey’s Fourteenth Amendment due process claim.
Reading the allegations in the Complaint together with the arguments in
McKey’s Opposition brief, it is unclear to the Court what constitutional right forms
the basis of McKey’s due process claims against Houston and August.
In the
Complaint, McKey asserts that Defendants violated her “rights to due process of law
after the Plaintiff’s arrest but prior to the conclusion of the criminal prosecution,” by
intentionally losing and/or destroying evidence that was “material to the
investigation and defense of the criminal charges brought against” McKey.151 McKey,
however, fails to cite any legal authority in her Opposition brief to support a due
process claim based upon the loss or destruction of material evidence in a matter
where the criminal charges are dismissed and the case does not proceed to trial.
McKey also fails to cite any legal authority to show that such a claim can be brought
against August and Houston, who are neither law enforcement officers nor
prosecutors in the criminal matter.
In her Opposition brief, however, McKey asserts that, “The liberty and
property interests of which Mrs. McKey was deprived constitute constitutional harm
under Castellano v. Fragozo, supra. Moreover, as the Fifth Circuit expressly held in
Brown v. Miller, supra, suppression of exculpatory evidence violates a clearly
established right.”152 The Court is unable to decipher the constitutional violation
R. Doc. 1 in McKey II, at ¶ 34.
R. Doc. 120 at pp. 18-19 (citing Castellano, 352 F.3d 939 (5th Cir. 2003); Brown v. Miller, 519 F.3d
at 237-38).
151
152
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alleged by McKey in these conclusory statements. To the extent McKey cites
Castellano without any context for her reliance thereon, the Fifth Circuit in that case
determined that, “’malicious prosecution’ standing alone is no violation of the United
States Constitution, and that to proceed under 42 U.S.C. § 1983 such a claim must
rest upon a denial of rights secured under federal and not state law.”153 The Fifth
Circuit in Castellano further held that, “a state’s manufacturing of evidence and
knowing use of that evidence along with perjured testimony to obtain a wrongful
conviction deprives a defendant of his long recognized right to a fair trial secured by
the Due Process Clause . . . .”154 McKey, however, has not alleged in either the
Complaint or her Opposition brief that August or Houston manufactured evidence
that resulted in a wrongful conviction. Nor can she, since the criminal charges
brought against her were dismissed with prejudice “via nolle prosequi.”155 Thus,
McKey’s conclusory reliance upon Castellano fails to show any constitutional
violation by August or Houston with respect to the lost or destroyed evidence.
McKey’s reliance upon Brown v. Miller156 fares no better. In Brown, the Fifth
Circuit held that a lab technician who fabricated a serology report that was used to
convict the defendant violated the defendant’s due process rights, and that a
reasonable laboratory technician would have known that those actions violated those
rights.157 As such, the Fifth Circuit held that the lab technician was not entitled to
Castellano, 352 F.3d at 942.
Id.
155 R. Doc. 1 in McKey II, at ¶ 29.
156 519 F.3d 231, 237-38 (5th Cir. 2008)).
157 519 F.3d at 237.
153
154
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qualified immunity.158 In the portion of the opinion specifically cited by McKey, the
Fifth Circuit held that, “A criminal defendant’s due process rights are violated when
the government obtains a conviction with testimony that government agents know is
false.”159 The Fifth Circuit recognized that, “The Supreme Court held in Brady v.
Maryland that a criminal prosecutor’s failure to disclose exculpatory evidence to a
criminal defendant violates a defendant’s right to a fair trial. A police officer’s
deliberate concealment of exculpatory evidence violates this same right, and can give
rise to liability under § 1983.”160 As with Castellano, the Court finds that Brown is
inapplicable in this case because McKey has not alleged that Houston or August
fabricated evidence to obtain a conviction or that they were criminal prosecutors who
failed to disclose exculpatory evidence to McKey.
Based on the foregoing, and the conclusory nature of McKey’s allegations in
both her Complaint and Opposition brief, the Court concludes that McKey has failed
to allege a constitutional violation by August or Houston to support her § 1983 claim
for a due process violation relating to her criminal proceeding. Accordingly, Houston
and McKey are entitled to qualified immunity from this claim, which must be
dismissed.
C. McKey’s Malicious Prosecution Claims Against Defendants.
In her fourth cause of action, McKey asserts that, “The Defendants are jointly
and severally liable to the Plaintiff for having committed the state law tort of
Id. at 238.
Id. at 237 (citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)).
160 Brown, 519 F.3d at 237 (citing Brady, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)).
158
159
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malicious prosecution.”161 Defendants assert that McKey’s Complaint fails to state a
viable claim for malicious prosecution under 42 U.S.C. § 1983 or Louisiana law
because it does not sufficiently allege that Defendants’ actions caused her arrest or
subsequent prosecution.162 Specifically, Defendants argue that the Complaint fails
to allege sufficient facts to show that August, Houston, or the Library Board caused
Lt. Dubus to arrest McKey or caused the District Attorney’s Office to bring the
criminal proceedings against her.163 Defendants argue that an individual or entity
who reports suspected criminal activity to the police is not liable for malicious
prosecution under Louisiana law if law enforcement’s independent actions and
investigation break the chain of causation between the citizen’s complaint and the
resulting arrest.164 Defendants claim that Louisiana courts have found causation
lacking in malicious prosecution cases when an independent decision is made to bring
criminal charges after a person reports suspected criminal activity to the police.165
Defendants also assert that Louisiana courts have found the element of causation
lacking in malicious prosecution cases against private citizens who report to the
R. Doc. 1 in McKey II, at ¶ 35.
R. Doc. 119-1 at pp. 14-15.
163 Id. at p. 15.
164 Id. (citing Adams v. Harrah’s Bossier City Inv. Co., 41,468, pp. 4-9 (La. App. 1 Cir. 1/10/07), 948
So.2d 317, 320-22).
165 R. Doc. 119-1 at pp. 15-16 (citing Williams v. Higbee Lancoms, LP, Civ. A. No. 15-2486, 2016 WL
772650, at *5 (E.D. La. Feb. 29, 2016); Duncan v. City of Hammond, Civ. A. No. 08-5043, 2009 WL
10680100, at *4 (E.D. La. July 9, 2009); Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La.
7/10/06), 935 So.2d 669, 690 n.20; Banks v. Brookshire Bros., 93-1616 (La. App. 3 Cir. 6/1/94), 640 So.2d
680, 682; Republic Fire & Cas. Ins. Co. v. Charles, Civ. A. No. 17-5967, 2018 WL 310378 (E.D. La. Jan.
5, 2018)).
161
162
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police when the police bring charges against the plaintiff based on information
obtained from multiple sources.166
Defendants argue that, as in the cases cited, McKey cannot state a claim for
malicious prosecution because the independent investigation of Lt. Dubus and actions
of the District Attorney’s office broke the chain of causation between August and
Houston reporting potential criminal activity to the police and McKey’s arrest.167
Defendants point out that McKey alleged in the Complaint that Lt. Dubus was
assigned to investigate the accusations made by Houston and August, that he did so
by meeting with August, Houston, and Ed Sims, the Library’s IT Director, that an
arrest warrant was issued for McKey, and that the District Attorney’s Office formally
charged her with injuring public records.168
Thus, Defendants neither arrested
McKey nor selected the charges filed against her. Defendants claim that Lt. Dubus
also obtained information from sources other than August and Houston (i.e., Sims)
regarding McKey’s conduct before arresting her, and that August’s and Houston’s
involvement was limited to making a report to the police and cooperating with Lt.
Dubus’ investigation. Defendants contend that the actions of Lt. Dubus and the
District Attorney’s Office sufficiently broke the chain of causation between
Defendants’ actions and McKey’s arrest, such that the malicious prosecution claim
should be dismissed.169
R. Doc. 119-1 at p. 16 (citing Bohn v. Miller, 2015-1089, pp. 8-10 (La. App. 3 Cir. 4/6/16), 189 So.3d
592, 598).
167 R. Doc. 119-1 at p. 16.
168 Id. at pp. 16-17 (citing R. Doc. 1 in McKey II, at ¶¶ 14 & 22).
169 R. Doc. 119-1 at p. 17.
166
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McKey argues that the causation requirement is met in this case “due to lack
of probable cause and of a completely independent investigation.”170 McKey asserts
that lack of probable cause is evidence of causation, and that there is a presumption
that August and Houston acted with malice and caused her unconstitutional seizure
because the charges against McKey were dismissed with prejudice for lack of probable
cause.171 McKey also claims that Lt. Dubus’ investigation into the accusations made
by August and Houston was not an independent investigation because it was based
on the suspicions of August and Houston, and the information provided by Sims was
under the oversight and at the direction of Defendants. 172 McKey contends that
Defendants had continuous involvement and influence over her prosecution, pointing
out that Houston “conducted her own defective research,” and that August and
Houston met with prosecutors, served as witnesses, and attended all scheduled
hearings of the criminal case.173
As such, McKey argues that her arrest and
prosecution were based on the individual suspicions of August and Houston alone,
and the lack of an independent investigation free from those suspicions fails to break
the chain of causation.
McKey asserts that the cases cited by Defendants are
distinguishable because this case involves a police complaint filed in bad faith and an
investigation that was based solely on the information provided by Defendants.174
R. Doc. 120 at p. 19.
Id. at pp. 19-20 (citing McCoy v. Burns, 379 So.2d 1140, 1142 (La. App. 2 Cir. 1980)).
172 R. Doc. 120 at pp. 20-21 (citing James v. Woods, 899 F.3d 404, 409 (5th Cir. 2018); Craig v. Carter,
30,625 (La. App. 2 Cir. 9/23/98), 718 So.2d 1068, 1070-71).
173 R. Doc. 120 at p. 21.
174 Id. at pp. 21-22 (citations omitted).
170
171
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Nonetheless, if the Court determines that Lt. Dubus conducted an independent
investigation, McKey argues that Defendants’ actions were the legal cause of her
prosecution because they intentionally made false accusations to police that McKey
had engaged in criminal conduct knowing that the accusations would lead to her
arrest.175 McKey avers that the initiation and continuation of criminal proceedings
against her were the foreseeable consequences of Defendants’ actions “intentionally
instituted as a result of racial animus.”176 McKey claims that Houston conducted her
own legal research and provided it to officials to cause the filing of the original bill of
information against her.177 As such, McKey maintains that Defendants’ actions were
the but-for cause of her prosecution, regardless of any outside actions taken by
officials.
Although McKey contends that she has sufficiently stated a claim for malicious
prosecution because the District Attorney lacked probable cause for her prosecution,
Defendants argue that lack of probable cause and legal causation are separate
elements of a malicious prosecution claim and that McKey must allege sufficient facts
to plausibly allege both of them.178 Defendants contend that while the Court could
infer that the District Attorney did not have probable cause to prosecute McKey based
upon her allegation that the judge dismissed the criminal proceeding, that fact is not
sufficient to allow the Court to infer that Houston’s and August’s complaint to the
police legally caused the prosecution.
Similarly, Defendants contend McKey’s
Id. at p. 23 (citing R. Doc. 1 in McKey II, at ¶ 20).
R. Doc. 120 at p. 24 (citing R. Doc. 1 in McKey II, at ¶ 19).
177 R. Doc. 120 at p. 24 (citing R. Doc. 1 in McKey II, at ¶ 19).
178 R. Doc. 125 at p. 9.
175
176
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argument that Lt. Dubus’ investigation was not completely independent or resulted
from deception and influence does not render the factual allegations in the Complaint
sufficient to support that argument. Defendants argue that the facts alleged in the
Complaint do not support any inference that Lt. Dubus’ investigation lacked
independence, or that August or Houston deceived or improperly influenced him or
the District Attorney.179 According to Defendants, McKey alleges that August and
Houston reported that she removed and deleted library documents after she claims
she returned them and, notably, McKey does not deny that she took the documents.
McKey then alleges that Lt. Dubus investigated the allegations by requesting an
additional meeting with August and Houston, and by seeking information from
others. Read in its entirety, Defendants argue that the Complaint demonstrates that
Lt. Dubus’ investigation broke the legal chain of causation. As such, Defendants
maintain that the Court should dismiss McKey’s malicious prosecution claim.
To prevail in a malicious prosecution claim, a plaintiff must prove the following
six elements: (1) the commencement or continuance of an original criminal or civil
judicial proceeding; (2) its legal causation by the present defendant against the
plaintiff who was defendant in the original proceeding; (3) a bona fide termination in
favor of the present plaintiff; (4) the absence of probable cause for such proceeding;
(5) the presence of malice therein; and (6) damage.180 According to the Louisiana
Supreme Court, “Never favored in our law, a malicious prosecution action must
Id. at p. 10.
Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So.2d 669, 690 n.20 (citing
Miller v. East Baton Rouge Parish Sheriff’s Dept., 511 So.2d 446, 452 (La. 1987); Jones v. Soileau, 448
So.2d 1268, 1271 (La. 1984)).
179
180
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clearly establish that the forms of justice have been perverted to the gratification of
private malice and the willful oppression of the innocent.”181 The central issue before
the Court is legal causation, and whether McKey has alleged sufficient facts to
plausibly allege that Defendants caused her prosecution.
The Fifth Circuit has recognized that under Louisiana law, merely reporting
an individual to law enforcement for a suspected crime may cause that individual’s
prosecution if, after reporting the crime, there is no subsequent police
investigation.182
If, however, a report of suspicious conduct is followed by an
independent investigation by law enforcement, “the chain of causation between that
initial report and the ultimate prosecution may be broken; that is to say, merely
reporting the crime may not satisfy the requirement that the defendant have caused
the prosecution.”183 “However, there are cases in which there may not be enough of
an intervening police investigation to break the chain of causation.”184 As explained
by the Fifth Circuit, “[I]n order to break the chain of causation, law enforcement’s
investigation must be independent of any individual suspicions.”185
By way of
example, the Fifth Circuit pointed to the Louisiana appellate court decision in Adams
v. Harrah’s Bossier City Investment Co., LLC, where the court held that a police
officer’s viewing of security footage, even with the assistance of the defendants, was
Kennedy, 2005-1418, 935 So.2d at 690 n.20 (citing Johnson v. Pearce, 313 So.2d 812, 816 (La. 1975));
See, James v. Woods, 899 F.3d 404, 408-09 (5th Cir. 2018) (quoting Kennedy, supra).
182 James, 899 F.3d at 409 (citing Craig v. Carter, 30,625 (La. App. 2 Cir. 9/23/98), 718 So.2d 1068,
1070-71).
183 James, 899 F.3d at 409 (citing LeBlanc v. Pynes, 46,393 (La. App. 2 Cir. 7/13/11), 69 So.3d 1273,
1281) (emphasis in original).
184 Republic Fire & Cas. Insur. Co. v. Charles, Civ. A. No. 17-5967, 2018 WL 310378, at *3 (E.D. La.
Jan. 5, 2018) (citing Craig, 30,625, 718 S.2d at 1070).
185 James, 899 F.3d at 409.
181
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a sufficiently independent investigation to break the chain of causation because the
defendant’ involvement did not rise to such a level as to prevent the police
investigation from being independent of defendants’ own suspicions.186
The Court finds that Lt. Dubus conducted an independent investigation that
broke the chain of causation between the complaint to the police and McKey’s
criminal prosecution notwithstanding August’s and Houston’s involvement in the
investigation. Specifically, the allegations in the Complaint are insufficient to show
that McKey’s arrest and prosecution were based solely on the information provided
by August and Houston. As Defendants point out, McKey alleges that Lt. Dubus met
with August, Houston, and Edward Sims, the Library’s IT Director, as part of his
investigation.187 The Complaint is devoid of any allegation regarding the information
provided by Sims to Lt. Dubus or the extent of Sims’ participation in the investigation.
As previously mentioned, McKey only briefly mentions the accusations made by
Houston and August to the police, alleging that Houston and August accused her of
stealing Library documents. Elsewhere in the Complaint, however, McKey alleges
that the “purported theory of the prosecution” in her criminal case was that she had
“deleted certain computer files from the computer that she was assigned and had
moved them to a recycle bin.”188 Taken together, these allegations suggest that Lt.
Dubus spoke to Sims in connection with McKey’s alleged deletion of computer files
from her work computer which, according to McKey, was not mentioned by August or
Id. (quoting Adams, 41,468 (La. App. 1 Cir. 1/10/07), 948 So.2d 317, 320).
R. Doc. 1 in McKey II, at ¶ 11.
188 Id. at ¶¶ 10 & 24.
186
187
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Houston in their complaint to the police. Thus, unlike the cases relied upon by
McKey,189 this is not a case where McKey’s arrest stemmed solely from Lt. Dubus’
reliance upon Houston’s and August’s accusations with only a limited investigation
into their veracity.190
The Court likewise finds that August’s and Houston’s involvement in the
investigation did not rise to such a level as to prevent Lt. Dubus’ investigation from
being independent of their suspicions regarding McKey.191 The Court recognizes that
McKey alleges in the Complaint that Houston conducted her own legal research and
provided it to “the District Attorney’s Office or the Sheriff’s Office, resulting in the
original bill of information being filed against the Plaintiff by the District Attorney’s
office.”192 Setting aside the conclusory nature of this assertion, even if the Court
accepted the allegation as true and viewed it in the light most favorable to McKey, it
does not suggest that Lt. Dubus received or reviewed Houston’s research during his
subsequent investigation. The Court further finds that McKey’s own allegations in
See, R. Doc. 120 at pp. 20-21 (citing Craig v. Carter, 30,625 (La. App. 2 Cir. 9/23/98), 718 So.2d
1068; LeBlanc v. Pynes, 46,393 (La. App. 2 Cir. 7/13/11), 69 So.3d 1273).
190 The Court notes that McKey alleges, as part of her § 1983 due process claim, that Defendants lost
or destroyed “the notes of the Library employee, Mr. Edward Sims, who investigated the criminal
accusations against the Plaintiff at the request of Defendants Houston and August,” and that, “Mr.
Sims conducted this purported criminal investigation even though he was not an employee of the
Sheriff’s Office, or the District Attorney’s Office, and was not trained to conduct criminal
investigations.” R. Doc. 1 in McKey II, at ¶ 34(a) & (b). McKey, however, never alleges that the results
of any investigation conducted by Sims were provided to Lt. Dubus or to the District Attorney’s Office.
Thus, even accepting these allegations as true and viewing them in the light most favorable to McKey,
they do not support McKey’s contention that Lt. Dubus’ investigation was based solely upon the
allegations by August and Houston. See, R. Doc. 120 at pp. 21-22 (“All of the information obtained by
officers in the instant case was provided by the Defendants.”).
191 See, Adams v. Harrah’s Bossier City Inv. Co., LLC, 41,468 (La. App. 2 Cir. 1/10/07), 948 So.2d 317,
320 (concluding that even if Harrah’s security reviewed the surveillance video with police officers and
pointed out what they believed was the criminal act, “this involvement does not rise to such a level as
to prevent the police investigation from being independent of Harrah’s own suspicions. As such, the
independent investigation by the police breaks any legal causation.”).
192 R. Doc. 1 in McKey II, at ¶ 19(k).
189
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her Complaint suggest that Houston and August did not provide false information to
the police. In the Complaint, McKey alleges that August and Houston reported “false”
information that “Plaintiff had stolen documents belonging to the Library.”193
McKey, however, subsequently admits that she did take Library documents, alleging
that she was arrested even though, “As was well known to the Defendants Houston
and August, the Plaintiff had on May 13, 2015 at 10:00 a.m. returned all library
documents that had been requested by Defendant August.”194 These allegations do
not support an inference that Houston and August “maliciously mislead or
intentionally provided false information to the intermediary.”195
The Court further finds the fact that the criminal charges against McKey were
ultimately dismissed does not necessarily result in an inference that August or
Houston intentionally provided false information to law enforcement.196 “Rather this
allegation states only a threadbare legal conclusion as one of the elements of a
malicious prosecution claim requires a ‘bona fide termination in favor of the present
plaintiff’ with a lack of probable cause.”197 According to the Complaint, the judge in
McKey’s criminal proceeding determined there was no probable cause for the 53
felony counts against her on November 8, 2017, and the District Attorney dismissed
with prejudice via nolle prosequi all charges against McKey on December 12, 2018.198
The Court finds these facts support the third and fourth elements of a malicious
R. Doc. 1 in McKey II, at ¶ 10.
Id. at ¶ 15 (emphasis added).
195 Republic Fire & Cas. Insur. Co. v. Charles, Civ. A. No. 17-5967, 2018 WL 310378, at *4 (E.D. La.
Jan. 5, 2018).
196 Id., Civ. A. No. 17-5967, 2018 WL 310378 at *5.
197 Id.
198 R. Doc. 1 in McKey II, at ¶¶ 27 & 29.
193
194
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prosecution claim (bona fide termination in favor of the plaintiff and absence of
probable cause for such proceeding), but they do not give rise to an inference that the
information provided by Houston and August to law enforcement was false or
misleading.
Based on the foregoing analysis, it is clear to the Court that McKey’s arrest
and subsequent criminal prosecution resulted from an independent investigation
conducted by Lt. Dubus, which broke the chain of causation between August’s and
Houston’s reporting to the police and McKey’s arrest. As such, McKey has failed to
allege a plausible claim for malicious prosecution against Defendants, and the claim
must be dismissed.
D. Leave to Amend is Denied.
In her Opposition brief, McKey requests leave to amend her claim if the Court
“perceives any deficiencies in the complaint.”199 While the Court will “freely give
leave [to amend] when justice so requires,”200 leave to amend “is by no means
automatic.”201 In exercising its discretion, this Court may consider such factors as
“undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, and futility of the
amendment.”202
R. Doc. 120 at p. 24.
Fed. R. Civ. P. 15(a).
201 Halbert v. City of Sherman, Tex., 33 F.3d 526, 529 (5th Cir. 1994) (citation omitted).
202 Nolan v. M/V SANTE FE, 25 F.3d 1043 (5th Cir. 1994) (citing Gregory v. Mitchell, 635 F.2d 199,
203 (5th Cir. 1981)).
199
200
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The Court denies McKey’s request to amend her Complaint, finding that it
would cause undue delay in this matter. McKey filed her Complaint on April 3, 2019
and Defendants filed the instant Motion to Dismiss on June 10, 2019.203 The case
was subsequently consolidated with McKey’s 2016 lawsuit on July 25, 2019.204 The
Court held a Status Conference with counsel on January 30, 2020, during which the
Court discussed with counsel the instant Motion to Dismiss.205
During the
conference, which lasted an hour, the Court gave counsel an opportunity to present
additional arguments in support of their respective positions. Counsel for both sides
seized the opportunity and went into great detail regarding the arguments contained
in their briefs. The Court asked detailed questions of both counsel, during which the
Court repeatedly expressed doubt regarding the sufficiency of McKey’s allegations of
malicious prosecution, which is the foundation for all of the claims asserted in the
Complaint.
The lengthy discussion of the Motion to Dismiss during the January 30, 2020
Status Conference should have put McKey’s counsel on notice that the Court agreed
with several arguments raised by Defendants, as the Court pointed out several
deficiencies in McKey’s allegations. Despite being afforded the opportunity to hear
how the Court was leaning with respect to the instant Motion to Dismiss, McKey has
never sought to amend her Complaint. The Court notes that 18 months have now
passed since that January 30, 2020 Status Conference, during which McKey could
See, R. Docs. 1 and 17 in McKey II.
See, R. Doc. 20 in McKey II.
205 R. Doc. 176.
203
204
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have moved to amend her Complaint. McKey, however, made the deliberate choice
not to do so. Now, after several continuances, this matter is set for a jury trial on
August 23, 2021. Allowing McKey leave to amend on the eve of trial would necessarily
require a continuance of the trial date, further prolonging this litigation and
increasing the costs to the litigants. To avoid further undue delay of this matter, the
Court denies McKey’s request for leave to amend her Complaint.
IV.
CONCLUSION
IT IS HEREBY ORDERED that Motion to Dismiss206 is GRANTED. All of
Susan Dillard McKey’s claims asserted against Tammy Houston, Roberta Zeno
August, and the St. John the Baptist Parish Library Board in Civ. A. No. 19-8033 are
DISMISSED WITH PREJUDICE, and that case is hereby DISMISSED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment on All
Claims in Civil Action No. 19-08033207 is DENIED as moot.
New Orleans, Louisiana, August 13, 2021.
______________________________
WENDY B. VITTER
United States District Judge
206
207
R. Doc. 119.
R. Doc. 145.
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