Gilbert v. Cates et al
Filing
75
ORDER AND REASONS: ORDERED that 33 Motion for Leave to File First Amendment of Consolidated Complaint is DENIED. FURTHER ORDERED that 65 Motion to File a Supplemental or Second Amended Complaint is DENIED. Signed by Magistrate Judge Karen Wells Roby. (Reference: All Cases)(cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEAN E. GILBERT
CIVIL ACTION
VERSUS
NO:
17-04786 c/w
17-12195
SIDNEY H. CATES, ET AL.
SECTION: “H” (4)
ORDER AND REASONS
Before the Court is Plaintiff’s Motion for Leave to File First Amendment of
Consolidated Complaint (R. Doc. 33) and Motion to File a Supplemental or Second Amended
Complaint (R. Doc. 65). The motions are opposed. R. Doc. 41, 45, 46, 67, 68. The motions were
heard on the briefs.
I.
Background
A. Original Complaint
Plaintiff, Dean Gilbert (“Dean Jr.”), filed this lawsuit contending that his constitutional
rights, 1 Title 42 U.S.C. § 1981 2, 1983 3, and 1985 4 were violated and alleges state law claims 5 in a
1
Gilbert contends that the defendants violated his Civil Rights in violation of the First Amendment
(protecting the free exercise of religion, speech and press, assembly, and petition for redress of grievances), Fourth
Amendment (protects the right to be secure in your house and papers against search and seizure), Fifth Amendment
(provides for a grand jury, protects against double jeopardy, provides for due process, and against compulsory
witness), Eighth Amendment (protects against excessive bail and cruel and unusual punishment), and Fourteenth
Amendment (protects against laws that abridge the privileges or immunities of citizens, provides for due process and
equal protection).
2
Section 1981 protects the right to make and enforce contracts.
3
Section 1983 provides the right to sue the government for civil rights violations.
4
Section 1985 provides for damages for a conspiracy to interfere with civil rights and failure to report if
conspiracy is known.
5
Gilbert also alleges the following state law violations: (1) malicious prosecution; (2) conspiracy; (3)
retaliation; (4) negligence; and (5) intentional inflection of emotional distress.
1
state court succession proceeding involving the death of his mother Bernadette Gaines Gilbert.
Dean Jr. contends that after his mother died intestate on December 9, 2011, his brother Dwight
persuaded their father, Dean Gilbert Sr., who was experiencing cognitive decline, that Dean Jr.
had killed his mother and conspired with other relatives to kill their father.
While the father remained in Michigan with his brother, Dean Jr. alleges that Road Home
demanded that he open his mother’s estate to pay a contractor for construction work done on her
home post Hurricane Katrina through its Small Rental Property Program. As a result, he opened
his mother’s succession through Duty Judge Robin Giarrusso, rather than the allotted judge, Judge
Sidney Cates on February 29, 2012 and was appointed the succession’s administrator on March 1,
2012. He contends that he notified all heirs of his appointment by voicemail and certified mail. R.
Doc. 33-1, p. 9.
The Court notes that upon learning that Dean Jr. had filed a motion seeking to have himself
appointed as succession administrator, the family members filed a motion to revoke the
appointment on April 26, 2012. Due to a procedural defect in the appointment pleadings, Dean
Jr.’s appointment was deemed null and this saga began.
Dean Jr. alleges that Judge Cates used his judicial office to retaliate against him.6 He does
not allege how the judge retaliated and nor does he allege why he would retaliate. Nevertheless
he also alleged that the state court judge conspired with Sheriff Marlin Gusman and “others” to
violate his civil rights.
While the original complaint clearly attempts to assert a civil rights claim against Judge
Cates and Sheriff Gusman, the lawsuit also identify as parties, Baldwin Haspel Burke & Mayer,
6
On November 8, 2017, the Louisiana Fourth Circuit affirmed the Judgement of Possession rendered by the
trial court on partially May 2012 and October 12, 2015 relative to his mother’s succession. The Circuit court noted
that Dean in the underlying proceeding filed a multitude of pleadings, all containing abusive and discourteous language
toward the judges of Civil District Court and the law firm representing the succession.
2
LLC, a Louisiana law firm, Thomas J. Cortazzo, Joel Mendler, Karl Zimmerman and Brodie
Glenn, attorneys with the Baldwin Haspel firm who were retained to represent his brother Dwight
in the succession proceedings. Dean Jr. also named his brother Dwight Gilbert, Michelle Mouton,
the law clerk to Judge Cates, and Laurie Hendrickson, the court reporter to Judge Cates as
defendants. Finally in the original complaint, Dean Jr. also sued the Parish of Orleans. He does
not, however, set forth any allegations against any of the defendants other than his brother, the
judge, and a rather vague allegation against Sheriff Gusman.
Thereafter, motions to dismiss were filed by the sheriff, court reporter, the law clerk, the
judge, the attorneys, and their law firm. R. Docs. 3, 5, 6, 11, 22, 24 and 29. In response to the
motions to dismiss, Dean Jr. filed a motion seeking permission to file an amended complaint on
October 23, 2017, which was granted. R. Doc. 13. Dean Jr. was granted an extension until
November 12, 2017 to file his amended complaint. R. Doc. 14. He then filed a motion seeking
an extension of the deadline until November 27, 2017, which was granted by the undersigned. R.
Doc. 16. Dean Jr. filed the subject motion on February 12, 2018, some three (3) months late seeking
to amend the complaint. R. Doc. 33. This proposed complaint is eighty-two (82) pages in length.
B. The Proposed Amended Complaint
The proposed Amended Complaint seeks to add eighteen (18) new defendants and assert
new causes of action, some having criminal connotations. 7 In the proposed amended complaint,
Dean Jr. alleges that because he and his brother do not speak to one another, he was not aware of
the fact that the Baldwin Haspel firm was hired using their father’s money to have him removed
7
The proposed new claims include: (1) fraud; (2) conversion or theft; (3) identity theft; (4) elder abuse; (5)
false imprisonment; (6) false imprisonment; (7) “over detention;” (8) defamation; (9) legal malpractice; (10) invasion
of privacy; (11) breach of fiduciary duty; (12) unlawful arrest in presence of the media; (13) denial of due process;
(14) violation of RICO statute; (15) mail fraud; (16) wire fraud; and (17) bank fraud.
3
as administrator. R. Doc. 33-1, p.9, ¶ 41. He contends that the Baldwin Haspel lawyers alleged
that removing Dean Jr. as administrator was necessary to protect the successions assets, which
according to Dean Jr. had already been converted by his brother and his lawyers. Id.
1. Baldwin Haspel Burke & Mayer, LLC (“Baldwin Haspel”)
Dean Jr. alleges that the Baldwin Haspel lawyers (Cortazzo, Rouchell, Mendler,
Zimmerman, Glenn), 8 sued in their “individual and official capacities,” failed to advise the judge
that they had already transferred and converted estate funds.
He alleges that he was enjoined
without a hearing and denied due process. He alleges that the lawyer then took the pleading, met
with Judge Cates or his law clerk, and the judge signed a temporary restraining order, which he
called a “second ex-parte order,” removing Dean Jr. as administrator pending a hearing. He alleges
that the hearing date was open-ended with no scheduled hearing date on the Rule to Show Cause
why he should be removed as administrator. R. Doc. 33-1, ¶ 42. Dean Jr. alleges that once he was
temporarily removed, he did not get notice of the hearing to permanently remove him as
administrator and he was also denied a copy of the transcript by the court reporter. Id. at p. 10,
¶44.
Dean Jr. alleges that after the order was signed, his brother returned to the family rental
home, evicted him from the property, and changed the locks. He alleges that the hearing for
possession was scheduled in April of 2012, despite this fact he was neither served nor notified of
the hearing because the law firm had him permanently removed as administrator and issued an
order of usufruct to his father. Dean Jr. contends that the Baldwin Haspel lawyers have claimed
8
Thomas Cortazzo, John A. Rouchell, Brodie Glenn, Karl Zimmerman, and Joel Mendler are each attorneys
with the Baldwin Haspel firm who were retained by Dwight Gilbert to represent his father in the succession. Each of
these defendants were sued individually and in their capacity as partner. R. Doc. 33-1.
4
post-judgment moneys that were not shared with him. As a result, he alleges that he needs to reopen
the Succession to make his claim.
2. Clark Hill, P.L.C.
Dean Jr. also sued the Michigan law firm privately retained by his father to draft his will
which resulted in Dean Jr. being disinherited. R. Doc. 33-2, pp. 9-15. He also sued the firm and
its lawyer, Joseph Bonventure, because he also prepared a power of attorney for Dean Sr. which
granted the power to handle his affairs to Dean Jr.’s brother Dwight and in the event of Dwight’s
death, Dwight’s wife, Julia Gilbert. Id. at pp. 14-18.
3. Michelle Mouton
Dean Jr. alleges that Judge Tiffany Chase coordinated with Michelle Mouton, Judge
Cates’s law clerk, who served as a signatory and issued a Rule to Show Cause on a petition for
possession. R. Doc. 33-1, p. 9. He also seeks to sue her because she refused to notify him of certain
unidentified court orders. Id. at p. 12. Dean Jr. alleges that after he complained to the judge’s law
clerk about not sending him copies of significant orders, the judge issued an ex parte and sua
sponte protective order against him presumably forbidding him from contacting her. He alleged
that during the proceedings he had many oral and written questions that were sent to the judge’s
law clerk, but that his questions were ignored. Id. at. p. 15.
4. Laurie Hedrickson
After his father was placed in possession of the property, Dean Jr. requested a copy of the
transcript from Judge Cates’s court reporter, Laurie Hendrickson. He alleges that Hendrickson
refused to provide him with a copy. He contends that this act denied him his civil rights and
violated due process. He alleges that Hendrickson, like Mouton, refused to answer questions he
submitted. Id.
5
Dean Jr. alleges that Hendrickson edited transcripts and refused to produce other
transcripts for him and the media. Id. at p. 16. He further alleges that Hendrickson discriminated
against him by denying him a public trial and access to his court file. Id. at p. 19.
He does not allege how Hendrickson “denied him a public trial,” nor does he allege her
role in the denial of “access to his court file,” which is typically in the custody of the clerk of court.
Id. He also alleges that Hendrickson, either alone or in concert, instigated his prosecution by falsely
testifying against him and by providing misleading information. Id. at. p. 20.
Additionally, Dean Jr. alleges that Hendrickson, along with the judge, sheriff, and law
clerk, intentionally caused him to be falsely imprisoned and arrested for which he seeks punitive
damages. He also includes Hendrickson in the group of defendants who conspired to defraud his
father and violated Dean Jr.’s due process rights by liquidating and transferring his father’s
property. Id. at p. 32.
5. Judge Sidney Cates
a. Section 1983 claims
Dean asserts rather incendiary allegations against Civil District Court Judge Cates both in
his individual and official capacities. He alleges that the judge violated Title 42 U.S.C.A. Section
1983 because of alleged conflicts of interest because the judge presided over a case with “avid
campaign contributors,” held ex-parte communications with the campaign contributor, refused to
reveal any business relationship with the law firm, allegedly instructed the court reporter to delete
portions of the transcript, and avoided or refused to consider evidence of elder abuse, undue
influence, theft, identity, money laundering and perjury by Baldwin Haspel and their client,
Dwight Gilbert. Dean Jr. also alleges that the judge sealed and then unsealed the case record,
closed and reopened the hearings, allowed attorney Cortazzo to waive his right to local rule 9.5,
6
and quashed subpoenas for the medical records of his father. He alleges that the judge twice
convicted him of constructive and direct “criminal” contempt of court for allegedly the same
offense without due process. Id. at p. 11, ¶ 45(q).
He alleges that the judge refused to hold the law firm accountable for taking money out of
the safe deposit box, created opportunities for the judge’s friends to sell the estate property, and
charged excessive fees to the estate. Dean Jr. alleges that his discovery motion was denied, the
judge refused to recuse himself after revealing the “relationship between the judge’s personal
friends and the succession,” allegedly purged documents in the trial record, and disinherited Dean
Jr. He alleges that the judge retaliated against him by denying him due process and violated his
constitutional rights by assessing economic sanctions to chill his right to free speech.
In addition, Dean Jr. alleges that the judge unjustly held him in contempt and sentenced
him to jail for eleven (11) days which he contends is outside of the judge’s jurisdiction. He also
alleges that the judge trampled over Dean Jr.’s First Amendment rights, refused to respond to a
bill of particulars, and insisted on convicting him on vague and over broad charges. Dean Jr. alleges
that the judge committed fraud by accepting false and perjured testimony, false and misleading
documents, affidavits, as well as committing other “gross procedural errors.” Dean Jr. alleges that
the judge rubber stamped a final succession order that failed to indicate the final value of the estate
and amount distributed to the heirs. Id. at p. 12.
He also alleges that the judge violated his due process rights because he was removed as
the administrator of his mother’s estate without a hearing. Id. at p. 41, ¶151. He alleges that the
treatment he received from Judge Cates is because he treats lighter skinned African Americans
more favorably than darker skinned African Americans. Id.
7
While the initial removal order was identified as temporary, when Dean Jr. showed up for
the hearing the judge allegedly saw him, denied his request, and removed him as administrator of
his mother’s estate.
b. Injunction Against Prospective Retaliation
Dean Jr. seeks a temporary restraining order and permanent injunction prohibiting Judge
Cates from retaliating against him. He alleges that every order issued by Judge Cates against him
was retaliatory and contends that it is because he is a dark skinned African American. R. Doc. 331, ¶ 45-54. Specifically, Dean Jr. requests that this court issue a temporary restraining order
preventing Judge Cates from exercising jurisdiction of his mother’s succession, in connection with
his need to reopen the succession, and he alleges that he cannot do so without the risk of being
imprisoned by Judge Cates.
c.
Fraud
Dean Jr. also alleges that the defendants committed a fraud upon the court because the
succession proceeding was wrought with false and perjured testimony, false and misleading
documents and affidavits, and other procedural errors. He alleges that he does not seek to reverse
any of the rulings rendered in the succession case. Id. at p. 12, ¶46. Dean Jr. also alleges that Judge
Cates, after learning about media queries due to his alleged treatment of and unequal
administration of justice by dark versus light skinned African Americans, sealed the record, and
barred the media from observing the final sanctions hearing. Id. at p. 13, ¶ 50. Dean Jr. seeks a
temporary restraining order and a preliminary injunction to prevent Judge Cates from exercising
jurisdiction over the now closed case involving the Succession of Bernadette Gaines Gilbert. Id.
at p. 14, ¶ 55. He alleges that he is “barred” from fully disclosing to this court the reason he is
seeking an injunction against Judge Cates but would do so in camera.
8
d. First Amendment Rights
Dean Jr. also alleges that Judge Cates violated his exercise of his First Amendment Rights
when he ignored his questions on pending matters. As a result, Dean Jr. alleges that he would
resubmit the questions for consideration because they were relevant to the issue before the court.
He itemizes a sundry of questions which challenge the judge’s rulings, his staff’s action and refusal
to authorize the production of documents, and information post his removal as the Administrator
of the Succession. 9 He contends that because the judge was insulted and categorized his queries as
insulting or discourteous, the judge violated Dean Jr.’s right to free speech when the judge held
him in contempt, remanded him to jail, closed the proceeding from media scrutiny and ordered
him to pay ten thousand dollars in a fine to the judge’s “campaign contributor.” Id. at p. 17, ¶65.
e. Conspiracy to Retaliate
Dean generally alleges that Judge Cates conspired with Baldwin, Cortazzo, Mendler and
Mouton to retaliate against his conduct which claims violates his right to protect speech. Id. ¶ 70,
P. 18. The gravamen of Deans’s complaint is that he challenges the court’s authority to manage its
cases which cannot conflict with his absolute right to free speech.
f.
Contempt Proceeding Violated Sixth Amendment
Dean Jr. alleges that the judge, his law clerk, and the court reporter discriminated against
him because he had a right to a public trial and access to the court record was denied. He complains
that he also had a right to counsel, to be informed of the specific charges, and the right against self-
9
The questions that form the basis for Dean Jr.’s First Amendment claim are: (a) the location of the ex parte
meeting to remove him as Administrator; (b) why the court did not issue a removal order in an actual signed order;
(c) why the law clerk refused to mail orders to him; (d) why the court quashed his subpoena to the defendants; (e) why
the court refused to allow him to obtain appraisals of the Succession properties; (f) why the court’s personal friends
sold the succession property after it was published; (g) why the court did not require the defendants to produced
receipts for moneys spent on successions matters allegedly spent on Dean Jr.’s bills; (h) the court declared him to be
racist while expressing sympathy to the law firm; (i) why was he evicted from the estate property; and (j) identification
of documents purged by the court and a listing of comments the court found insulting
9
incrimination before he was held in contempt. Dean Jr. also alleges that the contempt trial should
have been heard by another judge to guard against the possibility of actual bias or the appearance
of bias. Id. at p. 19, ¶ 76.
Dean Jr., who describes himself as a dark-skinned African American male, contends that
the judge (who is black), lawyers, law clerk (who is black), court reporter (who is black), and
financial institutions discriminated against him due to his race and color (i.e. dark-skinned African
American). Id. at p. 20, ¶ 77. He alleges that the defendants deprived him of his right to property
under the Fifth and Fourteenth Amendments and seeks to have the defendants held liable jointly
and severally for compensatory and punitive damages. Id., ¶ 77-78.
g. Malicious Prosecution
Dean Jr. next alleges that the judge, law clerk, his court reporter, and Cortazzo, conspired
to prosecute him by forcing the law clerk and the court reporter to testify falsely against him in
order to build a case. He alleges that the judge refused to answer a Bill of Particulars detailing why
Dean Jr. was being prosecuted and ultimately sanctioned for over $60,000. He alleges that the law
firm engaged in elder abuse, that the judge routed the estate business to the judge’s family and
friends, and refused to distribute his father’s estate share until after his death. Id. at p. 21, ¶ 81. As
a result, Dean Jr. contends that he suffered mental and emotional pain and suffering. He also seeks
punitive damages for the malicious prosecution claim.
4. Sheriff Gusman
a. False Imprisonment
Dean Jr. next alleges that the judge, Sheriff Gusman, and other persons identified as Jane
and John Does violated his Fourth, Fifth, and Fourteenth Amendment rights under the United
States Constitution. He alleges that a “criminal hearing,” rather than a contempt hearing, took place
10
on May 5, 2016 before Judge Cates and which was closed to the public and the media. He alleges
that he was not advised of the charges, found guilty, arrested, and incarcerated for eleven (11)
days. He alleges that Sheriff Gusman kept him in jail beyond the eleven days ordered by the
presiding civil court judge. Id., ¶ 87. However, there is no indication of how long or if he was
actually detained after the order expired.
b. Failure to Train, Supervise & Discipline
Dean Jr. alleges that Sheriff Gusman is responsible for training, instructing, and
supervising employees that work for the Sheriff’s Office. He alleges generally that Sheriff Gusman
violated his constitutional rights because of his race and because the Sheriff’s Office should have
been able to recognize and correct incarceration orders from Civil Court Judges that were written
to retaliate against him. He alleges that the judge’s order promoted false imprisonment and that
“whites, light-skinned African Americans, and wealthy people are not subjected to false
imprisonment.” He alleges that the judge, sheriff, law clerk, court reporter, and unidentified
persons acted intentionally to cause him to be falsely arrested and imprisoned without regard for
his rights. He seeks punitive damages against Gusman.
5.
Orleans Parish
Dean Jr. generally alleges that he seeks to have the sheriff, judge, and the Parish of Orleans
liable under Monell 10 and for their supervisory liability. He generally alleges that there was
misconduct that was the result of policies, practices, and customs where their employees detained
indigent minority and dark-skinned African Americans. Id., ¶ 112-16.
6. Cates, Mouton, Hendrickson, Wight Gilbert, Cortazzo, Clark Hill, Darryl M. Gilbert,
Joan Heisser, Melanie Duplechain, Ronald M. Carrere, Joseph A. Bonventure and
Joel Mendler
10
Monell v. Dept. of Social Servs. Of City of New York, 436 U.S. 658 (1978).
11
Dean Jr. next alleges that the judge, his law clerk, court reporter, the lawyers from New
Orleans and Michigan, his brothers, and the president of the realty company violated his rights
pursuant to Title $2 U.S.C. Sections 1985 and 1986 for their monetary gain by their elder abuse as
well as racial and class animus. Id., ¶ 140-44. He alleges that all of the defendants profited from
the liquidation and transfer of his father’s property.
7. Conversion
Dean Jr. next allege that his brothers, Dwight and Darryl, Cortazzo, Mendler, Bonventure,
Baldwin Haspel, and Clark Hill, PLC converted succession funds. Id., p. 45, ¶160. He also alleges
that Melanie Duplechain, along with his brothers, coerced their father who was not functioning at
full mental capacity to transfer his lakefront property for their and Judge Cates’s benefit. Id. He
alleges that Joan Heisser, President of Great Developments and Realtors, was granted the exclusive
right to sell the property to her friend Melanie Duplechain, a private person. Id., ¶161. He also
alleges that the judge authorized the sale of another piece of succession property under market
value to a personal friend, Ronald Carerre, Manager of CTC Holdings, LLC. Id., ¶163. He alleges
that his brother Darryl committed money laundering by taking their father to various banks and
financial institutions and telling him how to transfer his assets, which he contends constitute
conversion of succession assets. Id., at p. 44, ¶156-158.
He next alleges that the judge, Joan Heisser (an alleged campaign contributor of the judge),
and Capital One aided and abetted the conversion. He alleges that Capital One unlawfully released
all of the money held in the succession. He alleges that his brothers impersonated him in his role
as administrator of the estate. He alleges that his brothers committed mail fraud (Title 18 U.S.C.
§ 1341), wire fraud (Title 18 U.S.C § 1343), bank fraud (Title 18 U.S.C. § 1962), money laundering
(Title 18 U.S.C. §§ 1956, 1957), interstate or foreign transportation of more than $5000 in stolen
12
money (Title 18 U.S.C. § 2314) and receipt of stolen money that has crossed state or national
borders (Title 18 U.S.C. § 2315).
8. State Law Claims
a. Cates, Gusman, and Does 1-10
Dean Jr. contends that the judge, sheriff and the Does 1-10 should be held liable to him for
negligently detaining him longer than the order indicated. Id., ¶103-108. He contends that the
defendants failed to timely release him despite his repeated inquiries about the length of his
detention. Id. He also seek to have these defendants, the law clerk, and court reporter held liable
for failing to prevent the harm he suffered.
b. Cates and Gusman--Respondeat Superior
Dean next alleges that both Judge Cates and Sheriff Gusman should be held liable for the
“torts” committed by their agents. He does not describe the alleged torts that the employees
committed. He suggests that Judge Cates’s liability extends to the illegal activity that he required
his law clerk and court reporter to perform for him. Again, there is no description of what they
allegedly performed for him. Id., ¶ 117-120. Dean Jr. contends that the Sheriff should be held liable
for the payment of damages as a result of the conduct of his employees. Id., ¶ 121-24.
c. Insurance Companies
Dean Jr. seeks to sue the insurance companies of the defendants, which he identified as
ABC Insurances Companies 1-10, who he contends would be contractually liable to pay for the
illegal and unconstitutional acts of the “defendants.” Id., ¶125-129.
d. Fraud
Dean Jr. alleges that his brothers committed insurance fraud when they filed a police
report on behalf of their father for their deceased mother’s wedding ring. Id. at p. 47, ¶173-177.
13
According to Dean Jr., his brother Dwight’s wife Julie took the wedding ring from their mother’s
safe keeping and that his brothers exercised undue influence over their father in order to get him
to file an insurance claim. Id. He alleges that the judge allowed the lawyers and his brothers to
fraudulently charged $146,016.58 against the estate as money owed to their dad for his
contribution to the renovation of this mother’s property. Id., at p. 48, ¶180(b).
Dean Jr. alleges that the judge awarded his brothers $13,000 from his inheritance for the
sale of a 2006 Honda minivan that was in his possession. He contend that the court ignored his
argument that the vehicle was overvalued and that the estate did not own the vehicle. Id. at p. 49,
¶180(c). He alleges that the judge awarded his brothers $4,000.00 for his household contents
which they allegedly disposed of. Id., ¶180(d). He also alleges that the judge awarded his
brothers over $600 for parking tickets and for a phone bill which were allegedly both paid for by
the Succession for Dean Jr.’s account. Id.
Dean Jr. also alleged that the judge allowed his brothers to take another vehicle out of
the estate after was purchased by their father, even though it was owned by their dad. Id., ¶180(g).
He alleges that his brothers and the law firm used the money they controlled to purchase a vehicle
that was already owned from themselves for themselves. He characterizes this action as money
laundering. Id. Dean Jr. alleges that the judge awarded the law firm and his brothers $41,188.90
in attorney’s fees against him so it was able to charge all the fees to his account without double
billing. Id. He thereafter itemized his complaints about the law firms impact on
the
administration of justice: (1) ex parte contacts; (2) requesting verification for funds withdrawn
for transportation and housing expenses; (3) recusal of the lawyers because of their relationship
with the judge; (4) his objection to the false legal description of the property (5) his objection to
the denial of due process; (6) his objection to the court’s sua sponte order to seal the record and
14
hearing; and (7) the judges failure to take notice of any evidence of alleged elder abuse from his
campaign contributors. Dean Jr. proceeds to cite to the Dred Scott opinion stating that blacks
have no rights which the white man was bound to respect. 11 He proceeds to cite to reversed
Supreme Court law as a suggestion that the judge “weaponized” La. C.C. P. 221 to criminalize
his attempt to receive impartial justice and incarcerated him for his complaint of theft by wealthy
white lawyers. He suggests that the heirs, white people, and light skinned African Americans
are not subject to bias and animus by the judge.
e.
Unlawful Arrest and Imprisonment
Dean Jr. next contends that the judge violated his rights under the Fourth, Fifth, and
Fourteenth Amendments by having him incarcerated in front of the media. He alleges that the
media and public were removed from the hearing and that investigative reporter David Hammer
announced his presence and made attempts to obtain transcripts of the proceedings. He contends
that the judge, his staff, and attorney Cortazzo under color of law knowingly deprived him of his
constitutional rights because the sheriff escorted him to jail before the media.
f.
Right to Privacy
Dean Jr. alleges that in 2012, his brothers, while he was out of town returned to the rental
house (owned by Debra Dave’s friend and rented to his parents), sorted through his personal
effects, kept items they wanted, and discarded other items and information. Dean Jr. alleges that
his losses included his glasses, money, computer, toothbrush, clothes, medicine, and shoes. He
alleges that his brothers and their lawyers conspired to unlawfully evict him from the rental
property and to remove him as administrator. He alleges that his brother’s violated Section 1983,
also but fails to provide an explanation.
11
Notably, Gilbert describes himself as a dark-skinned African American male and the Judge is also an
African American male.
15
g. Defamation
Dean Jr. alleges that the lawyers had an incentive to defame him so as to ensure that their
client would be appointed administrator. He alleges Heisser, the President of Lake Forest
Homeowners Association, used insider information to ensure that his father would be moved out
of Louisiana to cover up an illegality concerning the house next door to his mother. 12
Dean Jr. alleges that the judge embraced the defendants defamation did the same thing in
Michigan by using what happened in Louisiana. Id. at p. 70, ¶260-265. He alleges that his brothers
contended that he contributed to their mother’s death. He alleges that his brother Dwight had an
incentive to defame him in order to replace him as administrator and made sure that the costs and
expenses to manage the estate were paid before the estate was closed. Id.
h. Legal Malpractice
Gilbert next alleges that the lawyers hired by his brother to represent his father was a legal
fiction because his father had an impaired mental and physical condition. Id. at p. 74, ¶267-280.
He alleges that the lawyers knew or should have known of his father’s impaired mental and
physical condition. Further, he contends his brother Dwight brought his dad to Michigan and his
sister-in-law advised Road Home that his father never received treatment for cognitive impairment.
Id. He alleges that his brothers, under counsel by the lawyers, took advantage of his father and
caused his father to transfer monies held in bank accounts for their own personal use. He alleges
that the lawyers aided and abetted the transfer because his father lacked the capacity to contract,
could not hire, nor expressed a desire to sell his property. Id.
12
Dean Jr. alleges that his mother’s oncologist, who is not a party, violated HIPAA by releasing his
mother’s treatment information and his alleged erratic and irrational behavior which “caused his mother to be
without critical health care.”
16
i. Breach of Trust, Breach of Fiduciary Duty and Intentional Infliction of
Emotional Distress.
Dean Jr. also alleges that the lawyers of Baldwin Haspel, namely Hill, Cortazzo, Rouchell,
Glenn, Zimmerman, Mendler and Bonventure, breached their fiduciary duties. Dean Jr. alleges
that the lawyers owed his father and the other heirs a fiduciary duty by virtue of the attorney-client
relationship and a duty not to enrich one heir to the detriment of the others. Id. at p. 76, ¶281-288.
He contends that the lawyers breached their fiduciary duty to him and his father. Id. Dean Jr.
alleges that the transactions, sales, and financial deductions for expenses and the refusal to
withdraw his father’s share of the succession until after his death was for the benefit of his brother
Dwight, the lawyers, and the judge. Id. He thereafter detailed a list of the ways in which Dwight
breached the fiduciary duty. 13
j. Intentional Infliction of Emotional Distress
Dean Jr. generally alleges that all of the defendants acted intentionally when they
unlawfully removed him as administrator, defrauded his father, sanctioned him, and incarcerated
him for over 12 days. Id. at p. 79-80, ¶296-299. He alleges that “their” extreme and outrageous
conduct caused him severe emotional distress and anxiety. Id.
13
Failed or refused to render a true inventory, conducted an unsupervised and unwitnessed pilferage, hid the
insurance claim and proceeds for his mom’s ring, failed to maintain property insurance which resulted in depreciation
of the property, and negligence caused by Road Home violations. He also alleged that Dwight failed to provide
documentation for $10,000 in costs, charged $13,000 from his inheritance for a van, deducted over $150,000 from his
dad’s estate for repairs paid in a grant to Road Home, violated conditions of the Succession bond. He also alleged
that Dwight failed to keep the properties rented, failed to account for rental income, failed to sell property, failed to
provide documentation for expenses, failed to submit accurate information regarding valuation of his mom’s stocks,
bonds, annuities and insurance policies, failed to pursue a claim the decedent had for the formaldehyde in the FEMA
trailer contributing to his deceased mothers lung cancer. He further alleges that Dwight threatened his mom and dad’s
physicians for revealing their true medical treatments, failed to receive $7500 grant Road Home for the Winchester
property to anchor the foundation, and failed to complete $15,000 of work scheduled from Road Home on the punch
list for the Conti property.
17
k. Bank Negligence
Gilbert alleges that Capital One, the Chicago Teachers Union, and Hancock Holdings were
negligent by allowing his brothers to empty the accounts belonging to his father. He alleges that
Hancock Holding allowed his brothers to empty and close their mother’s safe deposit box. He also
alleges that Capitol One allowed Dwight to empty the savings accounts and money market fund
of over $100,000 through impersonation of the plaintiff.
9. Louisiana Supreme Court
Gilbert alleges a claim against the Louisiana Supreme Court contending that Rule XXIII,
Section 23 is unconstitutional and violates his First Amendment rights. Id., ¶184. He alleges
that he needs a waiver from the court to include a record of the disciplinary action in his appeal,
which was denied. Id. He alleges that as a result, the Louisiana Supreme Court deprived him of
the opportunity to reveal all of the facts of the case and the judge’s alleged motives for his
retaliatory actions toward him to the Louisiana Fourth Circuit Court of Appeal depriving him of
his right of speech and advocacy. Id. He thereafter restates all of the allegations against Judge
Cates that he wanted to make known to the Circuit Court and the fact that he filed a judiciary
complaint against the judge.
10. RICO Violations
Next, Dean Jr. alleges that the judge and lawyers violated the criminal RICO statute and
also the whistleblower provision because the judge, in concert with the lawyers, his brothers,
and the realtor, operated his division of court as a corrupt “enterprise” in the form of an
“association-in-fact” which was the result of the judge’s manner of improperly administering
justice. Id., ¶184. He alleges that the most flagrant act was the judge’s refusal to allow the state
of Louisiana to collect taxes from his friends (Harvey), by procuring allegedly pay-for-play
18
settlements from his contributors (Hooks), and by rigging judicial elections in local district and
appellate courts for wealthy and influential candidates (Woods and Johnson), none of whom are
parties to this lawsuit. Id.
He alleges that the judge had ex-parte communications with the lawyers and conspired
to defraud his dad of money due to his diminished capacity. Id. He points to six judiciary
complaints that he filed, complaints to the media outlets, letters of complaint to the Chief Judge
of the Civil District Court, and a bar complaint against the lawyer and a court appointed attorney.
He alleges that he was injured as a result of the judge’s actions because the succession
assets of both his mom and dad were depleted and converted by the judge’s friends and that the
banks--namely Capital One, Hancock Holdings and Citibank--failed to protect the funds and
deposits his parents had entrusted to them. He alleges that the RICO violation constitutes a
deprivation of his rights pursuant to Title 42 U.S.C. Section 1983.
11. Due Process violations
a. By the Court and City of New Orleans
Gilbert next contends that the Civil District Court in Orleans Parish under the leadership
of Chief Judge Cates, the Louisiana Supreme Court, and the Mayor of the City of New Orleans
Mitch Landrieu have a custom, policy, and practice of discriminating against minority, indigent,
and/or dark-skinned citizens charged with criminal contempt in state court. Id. at p. 60, ¶210.
He alleges generally that poor defendants charged with constructive criminal contempt are not
presumed innocent, offered counsel, given a public trial, or counseled on their rights. He also
alleges that the defendant is not deemed guilty beyond a reasonable doubt.
He alleges that the Louisiana Supreme Court failed to properly train the judges of the
Civil District Court for the Parish of Orleans, which constitutes a municipal policy or custom
19
that results in deliberate indifference to the rights of indigent minorities or parties including but
not limited to Dean Jr.
b. By the Law Clerk
Gilbert also alleges that Mouton, the Judge’s law clerk, conspired with the judge, his
brother Dwight, and the lawyers to hold ex-parte hearings. Id. at p. 61, ¶214-218.
He alleges
that she signed judgments as well as organized and facilitated his removal as administrator
through the duty judge without a contradictory hearing. Id. He further alleges that she removed
his motions from the court’s docket, purged the file of his letters critiquing her conduct, refused
to memorialize any order dismissing the lawyers’ motions and refused to send certain court
orders to him. He alleges that her conduct violated Tile 42 U.S.C. Section 1983 and is under
color of state law. Id.
c. By the Judge’s Court Reporter, Laurie Hendrickson
Dean Jr. alleges that Ms. Hendrickson violated his constitutional right to due process
because she allegedly conspired with the judge to edit the court transcripts because the transcripts
had no record of orders signed during ex-parte hearings and the transcripts contained deletions
of his argument and the court’s commentary toward him. Id. at p. 62, ¶219. He alleges that in
September of 2012 the attorney inadvertently admitted to redirecting and opening plaintiff’s
mail, which was stricken from the record. He alleges that the court reporter embellished evidence
that would assist the judge in incarcerating him for twelve days. He seeks to have her held liable
under Title 42 U.S.C. Section 1983.
d. By the Judge for Failing to Disclose Exculpatory Evidence
Dean Jr. alleges that the judge manufactured evidence and determined in a conclusory
fashion that Dean Jr. violated the orders of the court. He contends that the hearing was not fair
20
since it was a criminal proceeding entitling him to receive exculpatory evidence that was relevant
to his incarceration. He alleges that the court denied multiple requests for information during
the hearing. He contends that his incarceration was retaliatory and intended to chill his rights to
appellate review. He alleges that the judge’s actions were based upon colorism.
C. Oppositions
Defendant Dwight Gilbert opposes the proposed amended complaint as being futile.
Dwight contends that he was not served in the case, which should be dismissed for insufficient
process of service. R. Doc. 45. Dwight also contends that the proposed amended complaint Counts
15, 16, 18, 27, 28, 32, and 33 are futile because they fail to state a claim for which relief may be
granted. Id. Dwight argues that none of the allegations concerning him as administrator of mother’s
estate in Louisiana create a viable cause of action for the plaintiff. Id.
The City of New Orleans opposes the motion because: (1) it is untimely and therefore futile
because the City of New Orleans has no authority over the judiciary; and (2) the amendment would
prejudice the city because the period for filing an amended complaint expired several months
earlier. R. Doc. 46.
Sheriff Marlin Gusman opposes the motion noting the court’s statement that no additional
amended pleadings could be filed. R. Doc. 43. Gusman argues that it is untimely and Dean Jr.
presents no explanation for the lateness of his submission.
The Baldwin, Haspel, Burke & Mayer firm, and its lawyers oppose the filing of the
amended complaint. They also contend that: (1) the filing is untimely and therefore dilatory; and
(2) the claims against them are pre-empted.
Judge Cates, his law clerk, and court report also oppose the filing the motion to amend. R.
Doc. 16. The judge and his staff contend that they are entitled to absolute immunity, the claims
21
filed by Dean Jr. are prescribed and untimely for violating the undersigned’s order that required
the subject amended complaint to be filed not later November 27, 2018. Id.
D. Supplemental or Second Amended Complaint
Dean Jr., during the pendency of the original request to amend, filed a proposed
supplemental or second amended complaint to add additional allegations against Judge Cates. He
complains that on February 14, 2018, he filed a motion seeking the recusal of the judge and that
after he filed a writ application in the circuit court on March 9, 2018, the judge ultimately recused
himself on March 12, 2018. The stated reason for his recusal were the continued personal attacks
against him, his family, and staff members. Dean Jr. disputes that he personally attacked the judge
and that there were not any witnesses to the alleged personal attacks. Dean Jr. thereafter summarily
re-alleged the conspiratorial allegations against the judge. He does not, however, state any new
claims.
II.
Standard of Review
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial.
Rule 15(a) allows a party to amend its pleadings “only with the other party’s written consent or
the court’s leave.” Fed. R. Civ. P. 15(a)(2). Moreover, the Rule urges that the Court “should
freely give leave when justice so requires.” Id. In taking this liberal approach, the Rule “reject[s]
the approach that pleading is a game of skill in which one misstep by counsel may be decisive to
the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision
on the merits.” Conley v. Gibson, 355 U.S. 41, 48 (1957).
“Rule 15(a) requires a trial court ‘to grant leave to amend freely,’ and the language of this
rule ‘evinces a bias in favor of granting leave to amend.’” Jones v. Robinson Prop. Grp., 427 F.3d
987, 994 (5th Cir. 2005) (internal quotations marks omitted) (quoting Lyn–Lea Travel Corp. v.
22
Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002)). When denying a motion to amend, the court
must have a “substantial reason,” considering such factors as “‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated failures to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party . . . and futility of the amendment.’” Marucci
Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting Jones,
427 F.3d at 994).
III.
Analysis
A. Timeliness of Submission
As an initial matter, Dean Jr. has violated the undersigned’s filing deadline. The Court
notes that he was originally granted permission to file his amended complaint by November 12,
2017. R. Doc. 14. An extension was granted until November 27, 2017, but the subject proposed
amended complaint was not filed until February 12, 2018, some three months after the Court’s
deadline. The Court notes that he did not file a pleading explaining the delay.
The Court only in this limited circumstance will permit the untimely filing because the
proposed amended complaint is an eighty-two (82) page document. Given the length of the
proposed amended complaint, the Court will excuse only this untimely filing. However, Plaintiff
is cautioned that the same rules that apply to attorneys applies to him as a pro se litigant. He
therefore will be held accountable for complying with the Court’s deadlines.
B. Futility
1. Baldwin Haspel Firm and Lawyers and the Clark Hill Firm and Lawyers
a. The Baldwin Haspel Firm and its Lawyers
Dean Jr. contends that the Baldwin Haspel lawyers, Cortazzo, Rocuhell, Mendler,
Zimmerman, and Glenn, individually and in their official capacities (hereinafter referred to as the
23
“Baldwin Layers”) failed to tell the judge that estate funds were transferred or converted, that he
was enjoined without a hearing, and that the lawyers covertly took the pleading to the judge and
secured a temporary restraining order. He complains that the law firm later had him permanently
removed as administrator and an order of usufruct was issued to his father. He does not allege that
the lawyers were retained to represent his interest.
“Peremption is a period of time fixed by law for the existence of a right. The right is
extinguished upon the expiration of the peremptive period. When the peremptive period has run,
the cause of action itself is extinguished unless timely exercised." Rando v. Anco Insulations, Inc.,
16 So. 3d 1065, 1082 (La. 2009) (citing La. Civ. Code art. 3458) (internal citations omitted).
Louisiana Revised Statute 9:5605 governs legal malpractice and states that an "action for
damages . . . whether based upon tort, or breach of contract, or otherwise, arising out of an
engagement to provide legal services" is subject to a peremption period of one year from the date
of the "alleged act, omission, or neglect" or one year from the date on which such "alleged act,
omission, or neglect is discovered or should have been discovered." La. R.S. 9:5605(A). Moreover,
legal malpractice actions are also subject to a peremption period of three years from the date of
the alleged act, omission, or neglect. Id. As the Louisiana Third Circuit Court of Appeal explained
in Atlas Iron and Metal Co. v. Ashy, 918 So. 2d 1205, 1209-10 (La. App. 3d 01/04/06):
There are two ways to start the peremption clock running under La. R.S. 9:5605. The
peremption period will begin to run one year from the date when a client knew or should
have known about the act, omission, or negligence on the part of his or her attorney that
indicates that the client may be a victim of an act of malpractice. See La. R.S.9:5605(A).
Additionally, the peremption clock will start running on the date of the act, omission, or
negligence that allegedly constitutes malpractice, and will toll three years from that date
regardless of whether a client discovered, knew, or should have known about the attorney's
alleged malpractice.
The Louisiana Supreme Court has explained that, pursuant to La. R.S. 9:5605, a cause of
action for legal malpractice can perempt even if the client never discovers that cause of action, or
24
the facts never ripen into a justiciable case. Reeder v. North, 701 So.2d 1291, 1297 (La. 1997)
("[T]here is no doubt that the [Louisiana] Legislature intended that three years after the 'act,
omission, or neglect,' the cause of action is extinguished, regardless of when the negligence is
discovered and regardless of whether a malpractice action may be brought within that three-year
period.") "If no damages are incurred within three years of the act, omission, or negligence, the
cause of action and right of action perempts regardless." Atlas, 918 So.2d at 1213 (citing Reeder,
701 So.2d at 1297).
The acts about which Dean Jr. complains relating to the Baldwin lawyers is that they did
not tell the judge in April of 2012, when they were seeking to have Dean Jr. removed as
administrator, that they had already transferred and converted estate funds. He alleges that at the
time the lawyers improperly took the removal papers to Judge Cates or his law clerk and got a
temporary restraining order signed. He implies that the lawyers never served him or notified him
about any subsequent hearing because he had been removed permanently and that after securing
the Judgement of Possession, which occurred on October 12, 2015, they claimed moneys that were
not shared with him.
He does not allege that these lawyers were retained to represent him individually. He does
acknowledge that they were hired to represent the succession and his father’s interest. Based upon
the allegations set forth by Dean Jr., it is clear that the alleged acts or omissions by the Baldwin
lawyers are preempted as the right to assert such a claim arising out of the administrative removal
proceeding extinguished in April of 2015. Further, the degree to which he could have asserted a
claim arising out of the possession of claimed unshared monies, that claim prescribed on October
2016, one year from the date the alleged taking occurred because the record is clear that he was
25
aware of the taking at the time. As a result, the claim against Baldwin Haspel and the Baldwin
lawyers is futile. The request to amend to assert the proposed claims against them is denied.
b. Clark Hill, P.L.C. and the Clark Hill Lawyers
Dean Jr. also sued the Michigan law firm, Clark Hill, P.L.C. and Joseph Boventure, in
their individual and official capacity. He alleges that the firm and Joseph Boventure drafted trusts
and powers of attorney which disinherited Dean Jr. and his offspring. He alleges that the Clark
lawyers gave his brother Dwight unfettered and unaccountable access to their father’s assets.
Dean Jr. attached as an exhibit his father’s Last Will and Testament. Article Four of the
Will clearly indicates that he was disinherited by his father. R. Doc. 33-2, pp. 9-13. The will
expressly states that “my son, Dean Edward Gilbert will be deemed to have predeceased me
leaving no descendants surviving.” Id. The will was executed on January 31, 2013.
He also seeks to sue the Clark Hill lawyers because they drafted a durable power of attorney
for his father, which gave the power of attorney to his brother Dwight and only upon Dwight’s
death to his wife, Julia Gilbert. The Power of Attorney was signed on January 8, 2013 by his father
and witnessed by a Clark Hill lawyer. R. Doc. 33-2, p.17.
Like the claim against the Baldwin lawyers, the claim against the Clark Hill lawyers is
preempted with respect to the will. The claim ceased to exist on January 31, 2016. Additionally,
the claim against the Clark Hill lawyers with respect to the power of attorney is perempted and no
longer exists as of January 8, 2013, three years after Dean Jr. knew about the existence of the
power of attorney. Therefore, the proposed amended complaint seeking to assert claims against
Clark Hill and the Clark Hill lawyers is denied.
26
2.
Judge Cates, Michelle Mouton, and Laurie Hendrickson
a. Judge Cates, IV
Dean Jr. asserts a series of allegations against the judge assigned to preside over the
succession proceedings in his individual and official capacity. He seeks to assert a §1983 claim.
In summary, he first alleges that the judge had a conflict of interest because he presided over a
case where lawyers appeared before him and who had also made contributions to his campaign
fund. Second, he alleges that the judge improperly sealed the proceeding and case record and then
unsealed it. Third, he alleges that the judge violated § 1983 when he twice convicted him of direct
and circumstantial contempt of court.
He challenges essentially every judicial act that the judge engaged.
In addition to
challenging the action of the judge, he also contends that he was discriminated against by the judge
because he is a lighter-skinned black person. Dean Jr. seeks a temporary restraining order and a
preliminary injunction preventing Judge Cates from exercising jurisdiction over the now closed
case involving the Succession of Bernadette Gaines Gilbert.
He contends that the judge and his staff violated his First Amendment rights when they
refused to authorize the production of documents and information post his removal as
administrator. He broadly, without any factual basis, alleges that the judge conspired with the
lawyers to violate his free speech and which presumably arises out of the temporary sealing of the
record and proceeding. Although he was disinherited by his father, he alleges that somehow the
judge and his staff sought to deprive him of “his” right to property.
Section 1983 provides that any person who, under color of state law, deprives another of
“any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress....”
27
Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citing 42 U.S.C. § 1983). Section 1983
does not create any substantive rights, however; it simply provides a remedy for the rights
designated therein. Id. “Thus, an underlying constitutional or statutory violation is a predicate to
liability under § 1983.” Id. (citation omitted).
However, it is well established that judges enjoy absolute judicial immunity from lawsuits
that cannot be overcome by allegations of bad faith or malice. Stump v. Sparkman, 435 U.S. 349,
355-56 (1978). Judicial immunity is clearly applicable in cases, such as the instant one, brought
pursuant to 42 U.S.C. § 1983. See Sparkman, 435 U.S. at 356; Pierson v. Ray, 386 U.S. 547, 55455 (1967). The Supreme Court has recognized only two instances in which judicial immunity is
inapplicable. “First, a judge is not immune from liability for non-judicial actions, i.e. actions not
taken in the judge's judicial capacity. Second, a judge is not immune for actions through judicial
in nature, taken in the complete absence of all jurisdictions.” Mireles v. Waco, 502 U.S. 9, 11
(1991) (internal citations omitted).
Regarding the first exception, the Supreme Court has noted:
The relevant cases demonstrate that the factors determining whether an act by a judge is a
“judicial” one relate to the nature of the act itself, i.e., whether it is a function normally
performed by a judge, and to the expectations of the parties, i.e. whether they dealt with
the judge in his judicial capacity. Sparkman, 435 U.S. at 362.
In the past, judicial officers did not enjoy absolute immunity from suits seeking injunctive
relief. Relief of that nature was available under Section 1983 against state court judges acting in
their judicial capacity. Pulliam v. Allen, 466 U.S. 522, 541–42 (1984). However, the Federal
Courts Improvement Act of 1996 (“FCIA”) amended Section 1983 to provide that “in any action
brought against a judicial officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief
is unavailable.” 42 U.S.C. § 1983; See Machetta v. Moren, 726 F. App’x 219, 220 (5th Cir. 2018).
28
Dean Jr.’s allegations against Judge Cates arise out of decisions made during the succession
proceeding, which was clearly within the judge’s jurisdiction. For example, he complains about
the judge’s denial of his request for a bill of particulars, the finding of contempt on two occasions,
the decision to remove him as administrator, the decision to deny his request for copies of orders,
the decision to close the proceeding for the contempt hearing, the decision to seal an unseal the
record, and the decision to execute a judgment of possession. Dean Jr. also challenges the judge’s
decision to appoint experts to handle the sale of succession property. The doctrine of absolute
judicial immunity bars Dean Jr.’s suit against Judge Cates in his official capacity.
Although he does not set forth any claims against Judge Cates wherein he challenged
conduct outside of his status as judge, he did nonetheless sue him in his individual capacity.
However, these claims are prescribed.
Because 42 U.S.C. § 1983 contains no statute of limitations, federal courts look to the most
analogous state statute of limitations had the action been brought in state court. Wilson v. Garcia,
471 U.S. 261 (1985). In Louisiana, delictual actions are subject to a prescriptive period of one
year. LSA-C.C. Art. 3492; Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989). The prescriptive
period begins to run from the moment the plaintiff knows or has reason to know of the injury that
forms the basis of his complaint. Helton v. Clements, 832 F.2d 332, 334-35 (5th Cir.1987).
According to the plaintiff’s complaint, the judge removed him as administrator in April of
2012. Dean Jr. also alleges that on May 28, 2012, the judge improperly issue and ex parte Order
of Possession. Additionally, he alleges that the judge issue a final judgment of possession on
October 12, 2015, and allegedly violated his rights by closing the contempt proceeding which he
characterized as a criminal trial to the media. The exhibit attachments to the complaint show that
he was held in contempt and ordered incarcerated on May 5, 2016. At the latest, the prescriptive
29
period would have run by May 5, 2017. Dean Jr. filed the subject lawsuit on May 8, 2017, on the
368th day. Prescription ran on May 5, 2017. As a result, the claims against Judge Cates are futile
and therefore the proposed amendment is denied.
Additionally, Dean Jr. also seeks to enjoin the judge from retaliating against him because
the now closed succession proceeding of his mother is still allotted to the judge. However, the
Federal Courts Improvement Act of 1996 (“FCIA”) amended Section 1983 to provide that “in any
action brought against a judicial officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief is unavailable.” 42 U.S.C. § 1983.
The FCIA therefore statutorily overruled Pulliam v. Allen’s holding regarding the
availability of injunctive relief against a state judge in his official capacity. Guerin v. Higgins, No.
00–0244, 2001 WL 363486, at *1 (2d Cir. 2001) (unpublished); Nollet v. Justices of the Trial Ct.
of Mass., 83 F. Supp. 2d 204, 210 (D. Mass. 2000); see also Bolin v. Story, 225 F.3d 1234, 1242
(11th Cir. 2000) (the 1996 amendment to Section 1983 would limit the relief available from a
judge to declaratory relief). Injunctive relief is not available to Dean Jr. in this Section 1983 action
against Judge Cates. Tesmer v. Granholm, 114 F. Supp. 2d 603, 618 (E.D. Mich. 2000); Nollet, 83
F.Supp.2d at 210. Therefore, Dean Jr.’s proposed amendment seeking to assert a claim for
injunctive relief is denied.
b. Michelle Mouton
Dean Jr. also seeks to sue the judge’s law clerk individually and in her official capacity.
Dean Jr. alleges that the judge’s law clerk or the judge signed the order removing him as
administrator of the succession. He alleges that Judge Chase coordinated with Mouton who served
as a signatory and issued a Rule to Show Cause on a petition for possession.
30
He also seeks to sue her because she refused to notify him of certain unidentified court
orders. He alleges that after he complained to the judge’s law clerk about not sending him copies
of significant orders, the judge issued an ex parte and sua sponte protective order against him
presumably forbidding him from contacting her. Dean Jr. alleges that during the proceeding he
had many oral and written questions that were sent to the judge’s law clerk but that his questions
were ignored.
Although he does not allege any specific conduct by Mouton, he alleges that she, the judge,
and court reporter denied him a “public trial” and “access to the court file”. R. Doc. 33-1, p. 19.
He alleges that Mouton was used by the judge when she testified falsely during the contempt
proceeding. He alleges that the law clerk unlawfully detained him and falsely imprisoned him
when she drafted the “strategically misleading incarceration order”. Id. at p. 22. He alleges that
she failed to intervene when the judge violated his constitutional rights and which caused him to
suffer pain and injury. Id. at p. 26. He also alleges that Mouton along with the others conspired to
violate his rights by defrauding his father and denying him due process. Id. at. p. 31.
However, a “judge's law clerk, when assisting the judge in carrying out the former's judicial
functions, is likewise entitled to absolute immunity.” Mitchell v. McBryde, 944 F.2d 229, 230 (5th
Cir. 1991). Here, there is no question that Mouton was assisting the judge in carrying out his
judicial functions. In fact, plaintiff alleges that Mouton impermissibly usurped the role of the
judge. He also alleges that the law clerk was manipulated by the judge when she testified and also
failed to intervene once Dean Jr. was held in contempt. Under these circumstances, Mouton enjoys
absolute immunity from claims against her in her official capacity.
The individual liability claims against Mouton are also prescribed. According to a brief
filed by Dean Jr., the actual contempt hearings took place on April 8, 2016 and April 29, 2016. R.
31
Doc. 41-3, p. 6. The allegations against Mouton clearly began in April 2012 and would have ended
either on April 8, 2016 or April 29, 2016 at the latest, the date of the second contempt hearing if
she testified at that hearing. The original lawsuit was filed on May 5, 2017 or on the 372 day such
that the claim against Mouton is time-barred. The deadline for filing the complaint against her
was on April 29, 2017. As a result, the claims against Mouton are futile and the request to amend
to file the proposed amended complaint is denied.
c. Laurie Hendrickson
Laurie Hendrickson, the court reporter for Judge Cates, was also sued by Dean Jr. in her
individual and official capacity. He alleges that Hendrickson, like Mouton refused to answer
questions he submitted. R. Doc. 33-1, p. 15. He alleges that Hendrickson edited transcripts and
refused to produce other transcripts for him and the media. Id. at. p. 16. He further alleges that
Hendrickson discriminated against him by denying him a public trial and access to his court file.
He does not allege how Hendrickson “denied him a public trial,” nor does he allege her
role in the denial of “access to his court file,” which is typically in the custody of the clerk of court.
Id. at p. 19. He also alleges that Hendrickson, either alone or in concert, instigated his prosecution
by falsely testifying against him and by providing misleading information. Id. at. p. 20.
Additionally, he alleges that Hendrickson along with the judge, sheriff, and law clerk intentionally
caused him to be falsely imprisoned and arrested. He also includes Hendrickson in the group of
defendants who conspired to defraud his father and also violate Dean Jr.’s due process rights by
liquidating and transferring his father’s property. Id. at p. 32.
Hendrickson contends that she is entitled to absolute immunity for her actions which were
the result of the direction of the judge. Hendrickson also alleges that the claims asserted against
her in her individual capacity are prescribed.
32
It is well established that the Eleventh Amendment only bars recovery against an employee
who is sued in her official capacity; it does not protect an employee from personal liability if she
is sued in her “individual” or “personal” capacity, since the state treasury is not at risk. See Farid
v. Smith, 850 F.2d 917, 921–23 (2d Cir.1988); see also Eng v. Coughlin, 858 F.2d 889, 897 (2d
Cir.1988) ( “It is only when the state official is sued and held liable in his individual capacity that
the suit may lie.”) (citing Papasan v. Allain, 478 U.S. 265, 278 & n. 11 (1986)). Therefore, the
official capacity claims against Hendrickson are barred.
The individual capacity claims against Hendrickson, like Mouton, are prescribed.
According to Dean Jr.’s proposed complaint her conduct that was problematic for him was: (1)
refusal to answer his questions; (2) editing transcripts and refusing to produce them; (3) refusing
him access to a public trial and the court record; and (4) failing to intervene to protect his rights of
free speech and entitlement to a public hearing. He also alleges that Hendrickson falsely testified
which resulted in his arrest. However, all of these alleged actions occurred during the succession
proceeding. The final judgment of possession was issued on October 12, 2015. Additionally, the
contempt order was issued on May 5, 2016 and the latest hearing took place on April 29, 2016.
As a result, the claim against Hendrickson would have expired on April 29, 2017 and the complaint
in this case was not filed until May 5, 2017, more than one year after the last act that could possibly
give rise to a claim against Hendrickson. As a result, the claims against Hendrickson are futile and
the request to file an amended complaint is denied.
3.
Sheriff Marlin Gusman
Dean Jr. also sued Sheriff Marlin Gusman in his individual and official capacities for (1)
detaining him beyond the order of incarceration; (2) for failing to properly train, instruct and
supervise employees that work for the Sheriff’s Office; and (3) for failing to intercede because he
33
should have been able to recognize and correct incarceration orders from Civil Court Judges which
were written to retaliate against him. He alleges that the judge, sheriff, law clerk, court reporter
and unidentified persons acted intentionally to cause him to be falsely arrested and imprisoned
without regard for his rights. He seeks punitive damages against Gusman.
Officials in their individual or official capacities cannot be held liable for a subordinate's
actions via § 1983 on the basis of respondeat superior. Valle v. City of Houston, 613 F.3d 536,
541 (5th Cir. 2010); Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375,
381 (5th Cir. 2005). So strongly have the courts sought to avoid this possibility that they require a
showing of deliberate indifference attributable to the official or municipality before allowing a
claim to proceed. Bd. of Cnty. Comm'rs of Bryan County v. Brown, 520 U.S. 397, 407 (1997). The
institution of this standard then explicitly forecloses the ability to rest merely on a showing of
negligence (or even gross negligence). Estate of Davis, 406 F.3d at 375 (5th Cir. 2015). Putting
this standard into the sequence necessary for a plaintiff to properly plead his claim and create a
triable issue of fact, the question then is if the official undertook or adopted a policy or custom for
which he can be said to be deliberately indifferent to the right of the plaintiff to be free from the
use of extended detention past a court order and that specific policy decision was the “moving
force of” the constitutional injury. Brown v. Bryan County, OK, 219 F.3d 450, 457 (5th Cir.2000).
Here, Dean Jr. alleges that the order of incarceration was issued on May 5, 2016 such that
he should have been released on May 16, 2016. R. Doc. 33-2, p. 1. Instead, he alleges that he was
incarcerated for twelve days. R. Doc. 33-1, ¶ 222. Somehow, Dean Jr. blames the court for his
continued detention by the Sheriff. Id. He also suggests that his detention was because he is a darkskinned African American. Id., ¶113. The claim against the sheriff is frivolous as the allegations
in the 82-page complaint do not remotely suggest that he was aware that Dean Jr. was detained
34
beyond May 16, 2016. As stated by the case law, the sheriff cannot be held liable via respondeat
superior because of the conduct of his subordinates. As a result, the individual and official
capacity claims alleging the sheriff’s responsibility for the actions of his subordinates are frivolous
such that the proposed amendment request is denied.
Dean Jr. also suggests that the failed to train his deputies on how to interpret court orders.
The order which the Sheriff allegedly failed to train his deputies on how to interpret was issued on
May 5, 2016. Considering that the claim against the Sheriff is also a Section 1983 claim, the
limitations period of one year expired on Friday, May 5, 2017, the one year date from when the
order would have been interpreted by the Sheriff’s deputies. Dean Jr. did not file the claim against
the sheriff until Monday, May 8, 2018. Therefore, Dean Jr.’s request to amend to assert the above
claims against Sheriff Marlin Gusman is denied.
4.
Dwight and Darryl Gilbert
a. Elder Abuse
Dean Jr. also sued his brothers Dwight and Darryl. He alleges that his brother Dwight
persuaded their father Dean Gilbert Sr., who was experiencing cognitive decline, that Dean Jr. had
killed his mother and conspired with other relatives to kill their father. He also alleges Dwight
retained the Clark Hill P.L.C. firm to prepare a power of attorney for his father which granted the
power to handle his affairs to his brother Dwight and in the event of his death, Dwight’s wife Julia
Gilbert. R. Doc. 33-1. Dwight contends that none of the allegations concerning him as
administrator of mother’s estate in Louisiana create a viable cause of action for Dean Gilbert, the
plaintiff.
Dean Jr. alleges that his brothers, Dwight and Darryl, the lawyers, and the firms they hired
converted succession funds. Id. at p. 45, ¶160. He contends that his brothers committed elder abuse
35
against their father. He alleges that his brother Darryl had tens of thousands of dollars of loans
from their father for a real estate purchase, his wedding, and his treatment for infertility forgiven.
Id. at p. 35. He alleges that both of his brother’s sought to have him removed as administrator.
Louisiana Revised Statutes 15:1501-1511 protect people who are 60 or older from physical
or emotional abuse as well as neglect by care givers. The law also protects seniors from selfneglect. The law protects seniors from other people misusing or stealing their money. This
provides the possibility of criminal penalties against individuals that are deemed to have abused
an older person. However, it does not provide for civil penalties.
Louisiana Revised Statute 15:1504 protects adults who cannot physically or mentally
protect themselves and who are harmed or threatened with harm through action or inaction by
themselves or by the individuals responsible for their care or by other parties, by requiring
mandatory reporting of suspected cases of abuse or neglect by any person having reasonable cause
to believe that such a case exists. It is intended that, as a result of such reports, protective services
shall be provided to the adult.
This statute provides a means to protect the elder from abuse and does not provide for a
independent cause of action for damages by a child (who is not appointed as guardian) and who
suspects that his father was being “abused” by other members of the family. Louisiana would also
not have any jurisdiction of the alleged conduct of his brothers regarding the care of their father,
who was located in Michigan. Dean Jr.’s allegations are futile and the request to sue his brothers
is denied.
36
b. Mail Fraud, Wire Fraud, RICO
Dean Jr. alleges that his brothers impersonated him in his role as administrator of the estate,
committed mail fraud, wire fraud, bank fraud, money laundering and received stolen money cross
state borders. R. Doc. 33-1, ¶201.
Mail fraud is a criminal offense pursuant to 18 U.S.C. § 1341. 18 U.S.C. § 241, which
criminalizes conspiracy, is the "criminal analogue to § 1985(3)." Griffin v. Breckenridge, 403 U.S.
88, 98 (1971). Likewise, 18 U.S.C. § 242 is the "criminal counterpart" to 42 U.S.C. § 1983. Adickes
v. S. H. Kress & Co., 398 U.S. 144, 166 (1970).
Unlike their civil equivalents, "criminal statutes . . . do not provide a basis to impose civil
liability." See Randolph v. U.S. Dep't of Justice Identity Theft Task Force, No. WMN-16-36, 2016
WL 112545, at *2 (D. Md. Jan. 8, 2016) (citing Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir.
1985)). Thus, "[w]hile criminal penalties may arise under [18 U.S.C. § 241], there is no authority
given for private citizens to bring a civil suit for damages under this provision." Taccino v. City of
Cumberland, Md., WMN-09-2703, 2010 WL 3070146, at *2 (D. Md. Aug. 5, 2010). Nor is there
a civil cause of action for violation of § 242. See United States v. Lanier, 520 U.S. 259, 270 (1997)
(noting that "[42 U.S.C. § 1983] has a civil and [18 U.S.C. § 242] a criminal role"). No private
right of action exists for mail fraud. See Uhre v. Emmett A. Larkin Co., 205 F. Supp. 2d 475, 478
(D. Md. 2002).
Construing Dean Jr.’s claim liberally, mail fraud qualifies as racketeering activity, for
which a civil action exists under the Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. § 1961 et seq. See 18 U.S.C. § 1961(1) (defining racketeering activity). RICO
"'is concerned with eradicating organized, long-term, habitual criminal activity,'" not "'all instances
of wrongdoing.'" Mitchell Tracey v. First Am. Title Ins. Co., 935 F. Supp. 2d 826, 841 (D. Md.
37
2013) (quoting U.S. Airline Pilots Ass'n v. Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010). When
an enterprise involved in interstate commerce engages in "a pattern of racketeering activity or
collection of unlawful debt," RICO provides a cause of action against any individual associated
with the enterprise and participating in the racketeering activity. 18 U.S.C. § 1962(c). The term
“enterprise” is defined broadly to include any “group of individuals associated in fact.” Kings
Square Partnership v. South Savings & Loan Association, 1987 WL 9811 (E.D. La. Apr. 16, 1987).
A pattern of racketeering activity is “at least two acts” indictable under an enumeration of state
and federal criminal laws. Id.
To state a claim for relief based on a violation of § 1962(c), Dean Jr. must allege "(1)
conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496 (1985). Additionally, the enterprise must affect interstate commerce.
See Day v. DB Capital Group, LLC, No. DKC-10-1658, 2011 WL 887554, at *13 (D. Md. Mar.
11, 2011).. To allege that Defendants engaged in a pattern of racketeering activity, Plaintiff must
plead sufficient facts to allege "'continuity plus relationship,'" i.e., that Defendants engaged in at
least two related offenses that constitute racketeering activities, and that those activities "'amount
to or pose a threat of continued criminal activity.'" U.S. Airline Pilots, 615 F.3d at 318 (quoting
H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989)). It
It is noteworthy that while two acts are necessary, they may not be sufficient. H.J. Inc., 492
U.S. at 237 (quoting Sedima, 473 U.S. at 496 n.14), as "'proof of two acts, without more, does not
establish a pattern. Id.
at 238 (quoting 116 Cong. Rec. 18940 (1970) (statement of Sen.
McClellan)). Rather, Plaintiff must demonstrate either a closed period of repeated conduct or past
conduct that by its nature projects into the future with a threat of repetition. Id. at 241. Open-ended
continuity exists where "the racketeering acts themselves include a specific threat of repetition
38
extending indefinitely into the future," or "the predicate acts or offenses are part of an ongoing
entity's regular way of doing business" or "the predicates are a regular way of conducting
defendant's ongoing legitimate business . . . or RICO 'enterprise.'" Id. at 242-43. Yet, open-ended
continuity is not present when the fraudulent acts occur in an isolated sale. See GE Investment
Private Placement Partners II v. Parker, 247 F.3d 543, 549-50 (4th Cir. 2001).
Although mail fraud may qualify as a racketeering activity, Dean Jr. does not allege that
mail was the means by which his brothers withdrew the funds from the bank. Further, Dean Jr.’s
allegations in the complaint establish that his brother Dwight was given power of attorney to
transact business on behalf of his father, which naturally would include access to the father’s
finances held in banks.
The Court notes that the allegations in the complaint do not constitute a claim for mail
fraud. Further, his claim of bank fraud is futile. Finally, the claim of wire fraud is defined as
“having devised or intending to devise any scheme or artifice to defraud ... transmits or causes to
be transmitted by means of wire, radio, or television communication ... for the purpose of executing
such scheme or artifice.” 18 U.S.C. § 1343. In the complaint, Dean Jr. fails to assert allegations
indicating how either of his brothers executed a scheme to defraud him by their actions regarding
the succession of their father. Fraud is to be specifically pled pursuant to Federal Rule of Civil
Procedure 9(b).
Dean Jr.’s attempt to assert a wire fraud claim against his brothers fails for the reasons
assigned above. As a result, to the degree that Dean Jr. intended to uses these claims as predicate
acts for a RICO claim, this attempt fails and the request to assert these claims against Dwight and
Darryl is denied because they are futile.
39
5.
Orleans Parish
Dean Jr. alleges that the Parish of Orleans had institutionally a policy to violate the “due
process rights of indigent” dark-skinned minority parties subject to contempt of court. Dean then
alleges that the Civil District Court in the Parish of Orleans, which he believes was under the
leadership of the chief judge, the mayor, and the Louisiana Supreme Court had a “well-known
documented custom, policy and practice of failing to protect the rights of dark-skinned citizens
charged with criminal contempt in Civil Court.” R. Doc. 33-1, ¶208-213. He alleges that the chief
judge, Louisiana Supreme Court and the Parish of Orleans failed to train the judges of the Civil
District Court resulting in harm to indigent minorities.
Municipalities and local government units are persons subject to liability under § 1983.
Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658, 690 (1978). Therefore, local
governing bodies “can be sued directly under § 1983 for monetary, declaratory, or injunctive relief
where, ... the action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body's
officers.” Id. A local governing body, however, cannot be held liable on the basis of respondeat
superior. Id. Rather, plaintiff must demonstrate that the local government entity had an official
policy (or custom) which was a “moving force” behind a constitutional violation that a “policy
maker” of the local government entity knew of, or must have known about. See Pineda v. City of
Houston, 291 F.3d 325, 328 (5th Cir. 2002) (citation omitted).
As an initial matter, the Parish of Orleans is different than the City of Orleans which is the
actual municipality. Second, the City has no authority over the judiciary and does not set any
policies setting forth the administration of the courts, nor is it responsible for the training of judges.
In contrast, the powers of the judiciary flow from the State Constitution and are vested in the
40
various courts. La. Const. art. II, section 1; La Const. art. V, section 1. Dean Jr.’s claim against
the Parish of Orleans is futile. As a result, the request to amend to assert a claim against the Parish
of Orleans is denied.
6.
Joan D. Heisser
Joan Heisser, the President of Great Developments and Realtors, was also sued by Dean
Jr. He contends that she forced the sale of the Succession’s property in contravention of his father’s
wishes. He alleges that she had previously sold a house next door to his parent’s property with an
encroachment on it. He also identified Heisser in count eighteen as having committed fraud.
However, he does not set forth any acts of fraud by Heisser.
Federal Rule of Civil Procedure Rule 9(b) requires particularity when pleading “fraud or
mistake," while allowing "[m]alice, intent, knowledge, and other conditions of a person's mind [to]
be alleged generally." Fed. R. Civ. P. 9(b). But "generally" is a relative term. In the context of Rule
9, it is to be compared to the particularity requirement applicable to fraud or mistake. Rule 9
merely excuses a party from pleading discriminatory intent under an elevated pleading standard.
It does not give him license to evade the less rigid--though still operative--strictures of Rule 8. See
5A C. Wright & A. Miller, Federal Practice and Procedure § 1301, p 291 (3d ed. 2004) ("[A] rigid
rule requiring the detailed pleading of a condition of mind would be undesirable because, absent
overriding considerations pressing for a specificity requirement, as in the case of averments of
fraud or mistake, the general 'short and plain statement of the claim' mandate in Rule 8(a) . . .
should control the second sentence of Rule 9(b)").
In this case, Dean Jr. only alleges that Heisser sold the property despite his dad’s wishes.
He does not allege how this amounts to fraud or any other claim. He also does not indicate why
he, after having been disinherited, would be the proper person to advance a claim that would have
41
allegedly resulted in injury to his father’s property. Further, he fails to explain how her prior
actions in the sale of the house with an encroachment amounts to fraud. The Court, therefore,
finds that the claim against Joan Heisser is futile. The request to permit the filing of the proposed
amended is denied.
7.
The Financial Defendants
Dean Jr., who was disinherited, alleges that Capitol One unlawfully released the money
held in the success. He believes that his brothers impersonated him in his role as administrator of
the estate, committed mail fraud, wire fraud, bank fraud, money laundering, engaged in interstate
or foreign transportation of more than $5000 in stolen money and received stolen money cross
state borders. He further alleges that the Chicago Teachers Union and Hancock Holdings were
negligent by allowing his brothers to empty the accounts belonging to his dad, his mom’s safety
deposit box, and a money market fund of over $100,000.00.
First, Dean Jr. does not allege why he would have standing to challenge the release of
deposited funds in either banking institution because the accounts were in his parents name and
his father disinherited him. Second, the allegations do not set forth any harm he may have
sustained. The harm, if any, could only have been to his father who granted the power of attorney
to his son Dwight. The court finds that the proposed claims against Capitol One, Chicago Teachers
Union, and Hancock Holdings are therefore futile. The request to amend the complaint to add
them as defendants is denied.
8.
Melanie Duplechain
Dean Jr. also sued Melanie Duplechain for conversion. He alleges that Ms. Duplechain
coerced his father, Dean Gilbert, Sr. to make real estate transfers. He alleges that the transfers were
for the benefit of the other defendants who liquidated the property.
42
Under Louisiana law, a conversion occurs when:
(1) possession is acquired in an unauthorized manner;
(2) the chattel is removed from one place to another with the intent to exercise
control over it;
(3) possession of the chattel is transferred without authority;
(4) possession is withheld from the owner or possessor;
(5) the chattel is altered or destroyed;
(6) the chattel is used improperly; or
(7) ownership is asserted over the chattel.
Dual Drilling Co. v. Mills Equip. Invs, Inc.., 721 So. 2d 853, 857 (La. 1998). The intent
requirement is “not conscious wrongdoing, but rather, an intent to exercise a dominion or control
over the goods that is inconsistent with another's rights.” Tubos de Acero de Mex., SA 292 F.3d
411, 479 (5th Cir. 2002) (citing La. State Bar Ass'n v. Hinrichs, 486 So.2d 116, 121 (La.1986)).
Further, it does not matter “what subsequent application was made of the converted property, or
that defendant derived no benefit from his act.” Quealy v. Paine, Webber, Jackson & Curtis, Inc.,
475 So.2d 756, 760 (La.1985). Therefore, for Dean Jr. to succeed on his conversion claim, he must
prove: (1) he owned the real estate that was sold by Duplechain; (2) that Duplechain used the
property in a manner inconsistent with Dean Jr.’s right of ownership; and (3) the possession
constituted a wrongful withholding of the property. See Chrysler Credit Corp. v. Perry Chrysler
Plymouth, Inc., 783 F.2d 480, 484 (5th Cir. 1986). However, when the owner consents to or ratifies
the taking of his property, he is estopped from bringing an action for conversion. Blair v. Source
One Mortgage Services Corp., 1997 WL 250040 (E.D. La. May 9, 1997) (citing Aymond v. State,
Dept. of Revenue & Taxation, 672 So.2d 273, 276 (La. App. 1st Cir. 1996)).
In this case, Dean Jr. clearly indicates that the real estate at issue was his father’s real estate,
not Dean Jr.’s. As a result, because Dean Jr. did not own the real estate that was transferred, his
attempt to assert a claim for conversion fails. The court also notes that he had no ownership interest
43
in his father’s portion of the property because he was disinherited by his father, who executed a
will doing so before his death. Therefore, Dean Jr.’s request to permit the filing of the proposed
amendment seeking to assert a conversion claim against Duplechain is futile and therefore denied.
9.
Louisiana Supreme Court
Dean Jr. alleges that Louisiana Supreme Court is required to keep all records of their
investigation and discipline of Judge Cates, who presided over his mother’s succession proceeding.
Dean Jr. points out that he wanted to include a copy of the complaint he filed against Judge Cates
in this proceeding, but he needed a waiver to do so which was not granted by the Court. Dean
alleges that Rule XXIII, Section 23 (which is incorrectly identified as Rule XXII, Section 23),
which provides for the confidential nature of judiciary complaints, is unconstitutional as applied
to him because it precludes him from revealing Judge Cate’s motives for his “retaliatory action.”
Dean Jr. alleges that the court’s restriction is unconstitutional and the court should be enjoined
from concealing his disciplinary complaint against the judge.
Rule XXIII, Section 23 is titled ‘Confidential’ and provides that “(a) (1) all documents
filed with, and evidence and proceedings before the Judiciary Commission or its hearing officers
are confidential. Confidentiality may not be waived by the respondent judge; however, the judge
may request a waiver of confidentiality from the Supreme Court or the Commission in accordance
with the provisions of this section. The record filed by the Commission with this Court and
proceedings before this Court are not confidential” and “(2) The Commission may provide
documents, evidence, and information from confidential proceedings to entities or individuals in
appropriate cases without this Court’s approval, in accordance with Subsection (b).”
Subsection (b) provides that the information, although confidential, may be released to law
enforcement agencies and the judges and lawyers assistance program, if the judge is up for
44
appointment the information may be released to any state or federal agency, or pursuant to a waiver
by the judge or a waiver of confidentially by the Supreme Court or Commission.
Rule 17(b) of the Federal Rules of Civil Procedure instructs that “capacity to sue or be sued
is determined ... by the law of the state where the court is located.” Fed. R. Civ. P. 17(b). Therefore,
the Court must determine, as an initial matter, whether the Louisiana Supreme Court has the legal
capacity to sue or be sued.
Under Louisiana law, an entity must qualify as a “natural person” or a “juridical person”
to possess the capacity to sue or be sued. See, e.g., Dugas v. City of Breaux Bridge Police Dep't,
99–1320 (La. App. 3 Cir. 2/2/00); 757 So.2d 741, 743. It is clear that the Supreme Court is not a
natural person. A juridical person is “an entity to which the law attributes personality, such as a
corporation or partnership.” La. Civ. Code. ann. art. 24. Comment (d) to article 24 also provides
that “the capacity of a juridical person is governed by provisions in its charter, governing
legislation, and customs.” La. Civ. Code. Ann. art. 24, cmt. (d). “[I]n the absence of law providing
that an entity may sue or be sued, the entity lacks such capacity.” Dantzler v. Pope, No. 08–3777,
2009 WL 959508, *1 (E.D. La. Apr. 3, 2009) (Africk, J.) (citing City Council of Lafayette v.
Bowen, 94–584, 649 So.2d 611, 615 (La. App. 3d Cir. 11/2/94).
In Roberts v. Sewerage & Water Bd. of New Orleans, the Supreme Court set forth the
framework for determining whether an entity qualifies as a juridical person and, as a result, has
the capacity to sue and be sued:
The important determination with respect to the juridical status or legal capacity of
an entity is not its creator, nor its size, shape, or label. Rather the determination that
must be made in each particular case is whether the entity can appropriately be
regarded as an additional and separate government unit for the particular purpose
at issue. In the absence of positive law to the contrary, a local government unit may
be deemed to be a juridical person separate and distinct from other government
entities, when the organic law grants it the legal capacity to function independently
45
and not just as the agency or division of another governmental entity. 92–2048,
634 So. 2d 341, 346 (La. 3/21/94).
Where there is no constitutional or statutory authority for the entity to sue or be sued, that
entity is without capacity to be sued under the Roberts analysis. Green v. District Attorney Office,
No. 08–3685, 2009 WL 651132, *4 (E.D. La. Mar. 10, 2009) (Feldman, J.) (citing Bowen, 649
So.2d at 613–616). With this in mind, Dean Jr.’s proposed amended complaint seeking to add a
claim against the Louisiana Supreme Court is futile and therefore denied.
10. Ronald M. Carrere
Ronald Carrerre also was sued in his individual and official capacity as Manager of CTC
Holdings, LLC. He allegedly conspired to commit “wrongful acts to violate Dean Jr.’s rights in
violation of § 1985 and §1986 for their monetary gain through elder abuse and race based animus.”
R. Doc. 33-1. Dean Jr. alleges that Ronald Carrere is a friend of the judge or the seller’s agent and
he allegedly purchased the properties at undervalued prices. The properties were presumably the
properties of Dean Jr’s father.
Section 1985 provides a cause of action for civil rights conspiracies that deprive a person
or class of persons of the equal protection of the laws or of equal privileges and immunities under
the laws. See 42 U.S.C. § 1985(3). However, as the Supreme Court explained in Griffin v.
Breckendrige, 403 U.S. 88 (1971), a § 1985 conspiracy claim requires class-based discrimination
based on “invidiously discriminatory animus.” Id. at 102 n. 10.
Dean Jr. seeks to allege that Carrere and the other defendants, some of whom are African
American, conspired to discriminate against him and others because he is a “dark-skinned” African
American. He does not allege how Carrere as the selling agent of his father’s properties, who
allegedly purchased the property, violated Dean Jr.’s civil rights. The properties about which Dean
Jr. complains were his father’s properties, not his. The degree to which he had an interest in the
46
properties, Dean Jr. does not allege that Carrere engaged in the sale with the intent to treat him
differently because he is a “dark-skinned.” Nor is there any allegation as to the skin tone of
Carrere. Dean Jr.’s claim against Carrere does not state a claim of invidious discrimination and
therefore is futile.
Dean Jr. also alleges a § 1986 claim for neglecting to prevent a conspiracy under § 1985.
See 42 U.S.C. § 1986. However, a § 1986 claim depends upon a valid § 1985 claim. See Mississippi
Women's Med. Clinic v. McMillan, 866 F.2d 788, 795 (5th Cir. 1989). The Plaintiffs do not plead
facts sufficient to support a conspiracy claim under § 1985. Thus, he cannot allege a § 1986
violation that Carrere is liable for failing to prevent the conspiracy.
11. Debra Dave
Dean Jr. also sued Debra Dave, a private person and an alleged agent of the Succession of
Bernadette Gaines Gilbert, who was his deceased mother’s niece. He alleges that Dave granted
access to the interim rental house where Dean Jr. lived. R. Doc. 33-1, p. 68. He alleges that his
brothers thereafter sorted through his items and took his personal effects including his business
papers. He also alleges that Dave had an incentive to defame him because his brother Dwight
promised her that if he became Administrator that the Succession would hire her as an agent and
that she would have the first opportunity to buy the property for herself or sell it to her friends.
In Jaubert v. Crowley Post–Signal, Inc., 375 So.2d 1386 (La. 1979), the Supreme Court of
Louisiana noted that the right to privacy “embraces four different interests:” (1) appropriation of
an individual's name or likeness; (2) unreasonable intrusion on an individual's physical solitude or
seclusion; (3) publicity which places an individual in a false light; and (4) unreasonable public
disclosure of embarrassing private facts. Id. at 1388. The court further explained:
In Louisiana jurisprudence, the right to privacy has been variously defined as ‘the
right to be let alone’ and ‘the right to an inviolate personality.’ Where an individual
47
has such a right, in the form of one of the interests outlined above, other members
of society have a corresponding duty not to violate that right. A violation constitutes
a breach of duty, or fault, and may be actionable under C.C. 2315, which provides
that “every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.” Where no such right to privacy exists,
however, a person's conduct may be the cause of another person's embarrassment,
discomfiture, or monetary loss, but it will not constitute a “legal cause,” because no
duty has been breached.
Even where there right to privacy is found to exist, Louisiana courts have
distinguished between invasions of that right which are actionable and those which
are not. An actionable invasion of privacy occurs only when the defendant's
conduct is unreasonable and seriously interferes with the plaintiff's privacy interest.
For an invasion to be actionable, it is not necessary that there be malicious intent
on the part of the defendant. The reasonableness of the defendant's conduct is
determined by balancing the conflicting interests at stake; the plaintiff's interest in
protecting his privacy from serious invasions, and the defendant's interest in
pursuing his course of conduct.
Id. at 1388-89 (internal citations and quotations omitted).
Based upon Dean Jr.’s allegations against Dave, she allegedly violated his privacy in the
Spring of 2012. A right to privacy claim is subject to a one year prescriptive period. Delictual
actions are subject to a prescriptive period commencing from the date that the injury or damage is
sustained. La. C.C. art. 3492. Prescription may be interrupted by the commencement of an action
against the obligor. La. C.C. art. 3492. Therefore, Dean Jr.’s claim against her for violating his
privacy expired in the Spring of 2013, and this lawsuit was not filed until May 5, 2017, four years
too late. Therefore, Dean Jr.’s request to amend to assert a right to privacy claim against Dave is
denied as futile.
Dean Jr. Also seeks to hold Dave liable for an undescribed defamation. His complaint in
this area is bare bones at best. He simply alleges that Dave had an incentive to defame him.
However, nowhere in the eighty-two page complaint does he set for the statements that constitute
defamation.
48
Defamation claims sound in tort and as such are subject to a prescriptive of one year, which
commences to run from the day the injury is sustained. Alexander v. Times Picayune, 221 So.3rd
198 (4th Cir. 2017). Generally, in the context of defamation, prescription begins to run from the
date of the publication of the allegedly defamatory remarks. Id. at 203. The burden of proving
prescription generally lies with the party asserting prescription, however, when a claim has
prescribed on its face the burden shifts to the plaintiff to prove that his claim has not prescribed.
Id. In some exceptional circumstances, the doctrine of contra non valentum may serve to interrupt
prescription “[w]here the cause of action is neither known nor reasonably knowable by the
plaintiff.” Id. However, where the plaintiff could have learned of his cause of action through
reasonable diligence, the “discovery exception” of contra non valentum will not apply to interrupt
prescription. Id.
Again, the alleged defamation by Dave occurred in Spring of 2012 and expired one year
later in Spring 2013. Therefore, Dean Jr.’s proposed amendment seeking to assert a defamation
claim against Dave is denied.
12. Robert W. Veith, M.D.
Dean Jr. also seeks to sue his mother’s oncologist, allegedly because he violated HIPAA
laws and allowed himself to be known as his mother’s primary care physician, and who discharged
his mother as a patient because of Dean Jr.’s conduct. Dean Jr. alleges that Dr. Veith disagreed
with the decision he and his dad made when they took his dying mother to MD Anderson because
Dr. Veith recommended surgical removal of the cancer. Dean Jr. alleges that while his brothers
were not interested in aiding in the complicated healthcare decisions regarding their mother, as
soon as she died they decided to use a declaration of Dr. Veith to support their allegations of Dean
Jr.’s “erratic and irrational behavior.” R. Doc. 33-1, p. 71.
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HIPPA provides both civil and criminal penalties for improper disclosures of medical
information. However, all courts to consider the matter have held that HIPPA does not create a
private right of action. See Acara v. Banks, 470 F.3d 569, 571–72 (5th Cir.2006) (“While no other
circuit court has specifically addressed this issue ... [e]very district court that has considered this
issue is in agreement that the statute does not support a private right of action.”) (citations omitted).
HIPPA “specifically indicates that the Secretary of HHS shall pursue the action against an alleged
offender, not a private individual.” Logan v. Dept. of Veterans Affairs, 357 F. Supp. 2d 149, 155
(D. D.C. July 28, 2004); University of Colorado Hosp. v. Denver Pub. Co., 340 F. Supp. 2d 1142,
1144–45 (D. Colo. Aug. 2, 2004). Since HIPPA does not make available a private right or cause
of action, plaintiff has no entitlement to injunctive or monetary relief for alleged violations of the
HIPPA. Howard v. Douglas County Jail, 2009 WL 1504733, at *4 (D. Kan. May 28, 2009); see
also Acara, 470 F.3d at 572 (“[T]here is no private cause of action under HIPPA and therefore no
federal subject matter jurisdiction.”); Smith v. Smith, 2007 WL 2332394, at *2 (E.D. Ky. Aug. 13,
2007) (Because plaintiff had no private right of action under HIPPA, claim must be dismissed with
prejudice.); Taylor v. Morse, 2008 WL 3822962, at *6 (N.D. Cal. Aug. 13, 2008) (Because there
is no such right, plaintiff's HIPPA claim is not cognizable under 42 U.S.C. § 1983.). Therefore,
Dean Jr.’s proposed amended complaint seeking to sue Dr. Vieth for violating HIPPA is denied
because it is futile.
13. John and Mary Does 1-10, ABC Insurance Companies 1-10 and ABC Bond
Companies
Dean Jr. also seeks to sue ten different unknown insurance companies, ABC Insurance
Companies 1-10, to the extent that they provided coverage. John and Mary Does 1-10 are allegedly
unknown individuals or entities involved in the violation of the RICO statutes, fraud, theft,
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conversion, identity theft, elder abuse, violation of Dean Jr.’s civil and constitutional rights,
malicious prosecution, false imprisonment, and over detention. R. Doc. 33-1, p. 6. Dean Jr. alleges
that that these fictitiously named defendants are responsible, in some manner, for the occurrences
alleged. Id. ABC Bond Companies 1-10 are named as “yet unknown bond companies who cover
one or more of the defendants.” Id.
However, fictitious party practice is not permitted in federal court. Murray v. Sevier, 50 F.
Supp. 2d 1257, 1280 (M.D. Ala. 1999) (observing that there is “no provision for fictitious party
practice under federal law”); Wiggins v. Risk Enterprise Management Limited, 14 F. Supp. 2d
1279, 1279 n.1 (M.D. Ala. 1998) (“[T]here is no fictitious practice in the Federal Courts.”); Floyd
v. Allstate Insurance Company, 989 F. Supp. 1435, 1436 n.1 (M.D. Ala. 1998) (“[T]he fictitious
Defendants named in Plaintiff's Complaint are due to be dismissed, there being no provision for
fictitious party practice under federal law.”) Therefore, Dean Jr.’s proposed amendment seeking
to add the ten insurance companies, bond companies, and John and Mary Does’ is denied.
C. Supplemental or Second Amended Complaint
Dean Jr. filed a proposed supplemental or second amended complaint to add additional
allegations against Judge Cates. R. Doc. 65. He alleges he filed a motion to recuse on February 14,
2018, and the judge only granted it after Dean Jr. filed a writ application and the judge said he did
so because of Dean Jr.’s personal attacks. Dean Jr. disputes that he personally attacked the judge,
his family, and staff and indicates that the judge has no witnesses, did not file a police report, and
has no evidence to support the reason for his recusal.
In reviewing Dean Jr.’s new amended complaint, it does not state a new claim. It merely
provides additional facts which have no direct bearing on the lawsuit. To the extent that he is
challenging the Judge’s recusal decision, he is challenging his action as a judge for which Judge
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Cates is absolutely immune. As a result, Dean Jr.’s request to file the supplemental or second
amended complaint is denied.
IV.
Conclusion
IT IS ORDERED that the Plaintiff's Motion for Leave to File First Amendment of
Consolidated Complaint (R. Doc. 33) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to File a Supplemental or Second
Amended Complaint (R. Doc. 65) is DENIED.
New Orleans, Louisiana, this July 13, 2018.
KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE
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