Mary et al v. Brister et al

Filing 135

ORDER AND REASONS - IT IS ORDERED that the Plaintiffs' Motion for Reconsideration (Rec. Doc. 130 ) is DENIED, as set forth in document. Signed by Judge Jane Triche Milazzo on 5/30/2019. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARJORIE MARY ET AL.

CIVIL ACTION

VERSUS

NO: 17-4977

PATRICIA BRISTER ET AL.

SECTION: “H”(1)

ORDER AND REASONS
Before the Court is Plaintiffs’ Motion for Reconsideration (Doc. 130). For
the following reasons, the Motion is DENIED.
BACKGROUND
The facts of this matter have been detailed in other rulings, and this
Court need not repeat them here. In ruling on Defendants’ Motion for
Summary Judgment, this Court held, among other things, that Plaintiffs failed
to establish an equal protection claim. 1
reconsider that holding.

1

Doc. 123.

1

Plaintiff now asks this Court to

LEGAL STANDARD
A Motion for Reconsideration of an interlocutory order is governed by
Federal Rule of Civil Procedure 54(b), which states that: “[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as to
any of the claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and
liabilities.” “Under Rule 54(b), ‘the trial court is free to reconsider and reverse
its decision for any reason it deems sufficient, even in the absence of new
evidence or an intervening change in or clarification of the substantive law.’” 2
“‘[T]he power to reconsider or modify interlocutory rulings is committed to the
discretion of the district court, and that discretion is not cabined by the
heightened standards for reconsideration’ governing final orders.’” 3
LAW AND ANALYSIS
In dismissing Plaintiffs’ equal protection claim on summary judgment,
the Court stated:
This Court holds then that Plaintiffs’ equal protection claim
likewise sounds in selective enforcement. To succeed on a “class of
one” selective enforcement equal protection claim, Plaintiffs must
show (1) that they were intentionally treated differently from
others similarly situated, (2) that there is no rational basis for the
difference in treatment, 4 and (3) that the “government official’s
Austin v. Kroger Texas, L.P., No. 16-10502, 2017 WL 1379453, at *9 (5th Cir. 2017)
(quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).
3 Id. (quoting Saint Annes Dev. Co. v. Trabich, 443 Fed. Appx. 829, 831–32 (4th Cir.
2011)).
4 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
2
2

acts were motivated by improper considerations, such as race,
religion, or the desire to prevent the exercise of a constitutional
right.” 5 Defendants allege that Plaintiffs cannot succeed on any of
these prongs. Because this Court finds that Plaintiffs cannot
succeed on the third prong, it need not address the others.
To prove the third prong of improper animus, “it must be
shown that the selective enforcement was deliberately based upon
an unjustifiable standard such as race, religion, or other arbitrary
classification.” 6 Plaintiffs have not shown this. Plaintiffs assert
that Defendant Paul Carroll lied and misled Plaintiffs regarding
the fill on their neighbors’ property to cover up his own mistake in
erroneously approving the fill plan and save himself professional
embarrassment or negative employment consequences. They
allege that such an improper motive is sufficient to satisfy this
prong. Even assuming these facts are true, however, they do not
show that Defendants treated Plaintiffs differently because of
their race, religion, or other arbitrary classification. Accordingly,
Plaintiffs have not created a material issue of fact as to this prong
and cannot establish a constitutional violation. Because Plaintiffs
have failed to establish an equal protection claim, “we need not
address the second prong (defendants’ objective reasonableness)
for qualified-immunity analysis.” 7 Defendants are entitled to
qualified immunity on Plaintiffs’ equal protection claims against
them in their individual capacities.
Plaintiffs now thoughtfully argue that this Court applied an unduly
narrow standard to the third prong of their claim. Plaintiffs argue that Fifth
Circuit case law does not require a showing that Plaintiffs were treated
differently because of their “race, religion, or other arbitrary classification.”
Rather, they argue that they need only show that the “defendant deliberately
sought to deprive [them] of the equal protection of the laws for reasons of a
Bryan v. City of Madison, Miss., 213 F.3d 267, 277 (5th Cir. 2000).
Beeler v. Rounsavall, 328 F.3d 813, 817 (5th Cir. 2003).
7 Porter v. Valdez, 424 F. App’x 382, 388 (5th Cir. 2011).
3
5
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personal nature unrelated to the duties of the defendant’s position.” 8 Even
assuming that Plaintiffs’ interpretation of Fifth Circuit case law is correct,
however, this Court is not compelled to alter its holding.
In seeking reconsideration, Plaintiffs rely on the Fifth Circuit’s ruling in
Shipp v. McMahon. 9 In Shipp, the plaintiff alleged that she was being abused
by her husband, the son of a sheriff’s deputy, and that the sheriff’s office had
failed to protect her. She brought a § 1983 class-of-one equal protection claim.
The Fifth Circuit stated that:
In Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073,
1074–75, 145 L.Ed.2d 1060 (2000), the Court held that the Equal
Protection Clause can give rise to a cause of action on behalf of a
“class of one” even when the plaintiff does not allege membership
in a protected class or group. To state a claim sufficient for relief,
a single plaintiff must allege that an illegitimate animus or ill-will
motivated her intentionally different treatment from others
similarly situated and that no rational basis existed for such
treatment. Id. . . . Applying the rationale of Olech, the Seventh
Circuit addressed the consequences of unequal police protection
under the Equal Protection Clause. The court reasoned that in the
unusual setting of “class one” equal protection cases alleging
unequal police protection, demonstrating that the unequal police
protection had no rational basis requires a plaintiff to “present
evidence that the defendant deliberately sought to deprive him of
the equal protection of the laws for reasons of a personal nature
unrelated to the duties of the defendant’s position.” Hilton v. City
of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000). 10
In applying this standard to the facts before it, the Fifth Circuit held that:

Doc. 130 (quoting Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir. 2000), overruled
on other grounds by McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002)).
9 Shipp, 234 F.3d at 916.
10 Id.
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8

It is undisputed that Betty Shipp’s son engaged in reprehensible
behavior against her daughter-in-law that finally resulted in law
enforcement and judicial intervention. It is not improbable that
Betty Shipp developed some animosity against her daughter-inlaw during her volatile relationship with [her son, Dalton,] or after
Shipp fled when Dalton’s escalated abuse prompted criminal
charges against him. If deputy Betty Shipp did foster ill-will
against her daughter-in-law that ultimately influenced the level of
protection Shipp received from the WPSO, Shipp may be able to
establish an unequal police protection claim within the framework
elucidated in Village of Willowbrook v. Olech. As such, the district
court should allow Shipp to amend her complaint accordingly. 11
This Court reads Shipp, and the cases citing Shipp and relied upon by
Plaintiffs, as requiring a finding that the defendant acted with some ill-will or
personal vindictiveness toward the plaintiff. 12 There are no such facts in this
case. Here, Plaintiffs allege that Carroll and his supervisors acted with the
improper motive of self-interest and self-preservation. There are no facts before
this Court that Defendants had any ill-will or animus towards Plaintiffs in
particular. There are not even facts indicating that Defendants deliberately
sought to deprive Plaintiffs of their constitutional rights. Instead, the facts of
this case, when viewed in a light most favorable to Plaintiffs, indicate only that
Defendants sought to protect themselves at the expense of Plaintiffs. Plaintiffs
have not cited this Court to any case where such a motive is sufficient to
establish a selective enforcement equal protection claim. Indeed, Plaintiffs
have not cited this Court to any Fifth Circuit case finding a selective
Id. at 916–17.
The Court finds it telling that the Fifth Circuit in Shipp could have found that Betty
Shipp’s improper motive was a desire to protect her son. Instead, it looked for an ill-will
toward her daughter-in-law.
5
11
12

enforcement, class-of-one equal protection claim on a basis other than ill-will
toward the plaintiff. 13 Accordingly, this Court declines to find an improper
motive here and subsists in its holding that Plaintiffs have failed to state an
equal protection claim.
CONCLUSION
For the foregoing reasons, the Motion is DENIED.
New Orleans, Louisiana this 30th day of May, 2019.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
See Mata v. City of Kingsville, TX, 275 F. App’x 412, 416 (5th Cir. 2008) (holding
that “there is no evidence that illegitimate animus or ill will motivated the” disparate police
protection even where it was “conceivable that members of the police department may have
harbored ill will towards [Plaintiff] since [her husband] was employed as an officer of the
department”); Kelley v. City of Wake Vill., Texas, No. 5:04CV137, 2007 WL 654323, at *8
(E.D. Tex. Feb. 27, 2007), aff’d, 264 F. App’x 437 (5th Cir. 2008) (holding that the fact that
officers told plaintiff that if she did not stop calling them to report domestic violence, they
would take her children was insufficient to show “that the defendant deliberately sought to
deprive [her] of the equal protection of the laws for reasons of a personal nature unrelated to
the duties of the defendant’s position”). See also Olech, 528 U.S. at 563 (discussing that “state
action was motivated solely by a spiteful effort to ‘get’ [plaintiff] for reasons wholly unrelated
to any legitimate state objective”); Bastida v. LeBlanc, 372 F. App’x 443, 444 (5th Cir. 2010)
(holding that plaintiff “has not established that he was treated differently as a result of
‘illegitimate animus or ill-will’ or that the different treatment was intentional”); Sheffield v.
Trevino, 207 F. App’x 403, 405 (5th Cir. 2006) (holding that defendant’s motivation was “a
belief that [plaintiff] had been convicted of compelling prostitution” not an illegitimate
animus or ill-will).
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