Mid-City Neighborhood Organization et al v. Gusman et al

Filing 22

ORDER AND REASONS granting 12 Motion to Remand to State Court, as set forth in document. Signed by Judge Sarah S. Vance on 10/5/2018. (Attachments: # 1 Remand Letter) (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MID-CITY NEIGHBORHOOD
ORGANIZATION, ET AL.
VERSUS

CIVIL ACTION
NO. 18-3705

GUSMAN, ET AL.

SECTION “R” (4)

ORDER AND REASONS
Plaintiffs Mid-City Neighborhood Organization, Orleans Parish Prison
Reform Coalition, Voice of the Experienced, Women with a Vision, Yvette
Thierry, and Don Everard move to remand this matter to the Orleans Parish
Civil District Court on the ground that removal was improper under the
federal officer removal statute.1 Because quasi-judicial immunity is not a
colorable defense when a federal court officer is sued only in his official
capacity, the Court finds that the federal officer removal statute is
inapplicable in this action and grants plaintiffs’ motion.

1

R. Doc. 12.

I.

BACKGROUND
A.

Plaintiffs’ Complaint

This case arises from the Orleans Parish Sheriff’s Office’s (OPSO)
alleged use of a temporary detention center. 2 Plaintiffs allege that a 2011
ordinance by the New Orleans City Council mandated that a proposed new
jail facility in Orleans Parish could not exceed 1,438 beds.3 The ordinance
allegedly also required the city to demolish or decommission a temporary
detention center within 18 months after the new jail opened. 4 Plaintiffs state
that the temporary detention center was constructed to house inmates while
the new jail facility was built. 5 Plaintiffs assert that the new 1,438-bed jail
facility—the Orleans Justice Center—became fully operational in October
2015.6

The city ordinance thus allegedly required that the temporary

detention center be decommissioned or demolished by April 2017. 7 But
plaintiffs allege that on June 29, 2017, the New Orleans Department of Safety
and Permits issued a Temporary Occupancy Certificate allowing the OPSO
to continue housing inmates at the temporary detention center. 8 Plaintiffs

2
3
4
5
6
7
8

R. Doc. 1-1.
Id. at 10 ¶¶ 48-49.
Id. at 11 ¶¶ 52-53.
Id. ¶ 54.
Id. ¶ 56.
Id. ¶ 57.
Id. ¶ 58.
2

allege that the OPSO “began housing inmates in [the temporary detention
center] beginning in July 2017.” 9
On March 14, 2018, plaintiffs filed the present lawsuit in the Civil
District Court for the Parish of Orleans.10 Plaintiffs allege that the New
Orleans Department of Safety and Permits issued the Temporary Occupancy
Certificate ultra vires and that the OPSO’s continued use of the temporary
detention center violates the city ordinance.11 Plaintiffs seek (1) a declaratory
judgment that the Temporary Occupancy Certificate was issued ultra vires;
(2) an injunction enjoining defendants from violating the city ordinance; (3)
reasonable attorneys’ fees and all costs plaintiffs incur in the proceeding; and
(4) any other general and equitable relief the Court may deem appropriate. 12
Plaintiffs named as defendants (1) Sheriff Marlin Gusman, in his official
capacity as Sheriff of the Parish of Orleans; (2) Darnley R. Hodge, in his
official capacity as the Compliance Director of the Orleans Parish Prison
(Compliance Director), (3) Jared E. Munster, in his official capacity as

Id. ¶ 59. Plaintiffs do not explain whether the OPSO continued to
house inmates at the temporary detention center from April 2017 until the
Department of Safety and Permits issued the Temporary Occupancy
Certificate in late June 2017.
10
Id. at 1.
11
Id. at 11 ¶¶ 58-59.
12
Id. at 15.
3
9

Director of the City of New Orleans Department of Safety and Permits, and
(4) the City of New Orleans. 13
B.

Defendants’ Notice of Removal

On April 9, 2018, defendants removed the case to this Court. 14
Defendants assert that removal is proper under the federal officer removal
statute because Hodge, in his role as the court-appointed Compliance
Director, is an “officer of the courts of the United States.” 15 See 28 U.S.C. §
1442(a)(3).
Hodge’s role as the Compliance Director stems from a Stipulated Order
in Jones v. Gusman, No. 12-859. In Jones, individuals incarcerated at the
Orleans Parish Prison filed a class action lawsuit against Sheriff Gusman
alleging they were subject to unconstitutional conditions of confinement.
No. 12-859 (E.D. La. Apr. 2, 2012). In June 2013, the court approved a
Consent Judgment between plaintiffs, Sheriff Gusman, and intervenor the
United States. Jones, No. 12-859 (E.D. La. June 6, 2013). The Consent
Judgment set forth policies and procedures that the Orleans Parish Prison
must adopt to protect the constitutional rights of prisoners. Id. at 5. The
parties were ordered to select a monitor jointly to oversee implementation of

13
14
15

Id. at 1, 9 ¶ 42
R. Doc. 1.
Id. at 6.
4

the agreement. Id. at 44. In April 2016, the plaintiffs and the United States
moved for a court-appointed receiver to take control of the Orleans Parish
jail facilities, arguing that Sheriff Gusman had failed or refused to comply
with the Consent Judgment. Jones, No. 12-859 (E.D. La. Apr. 25, 2016). In
June 2016, the parties agreed to a Stipulated Order that created the position
of Compliance Director. Jones, No. 12-859 (E.D. La. June 21, 2016). In
January 2018, after the first Compliance Director resigned, the court
appointed Hodges as the Acting Compliance Director, effective February 19,
2018. Jones, No. 12-859 (E.D. La. Jan. 29, 2018).
Plaintiffs have moved to remand this proceeding to the Orleans Parish
Civil District Court. 16 Defendants oppose the motion. 17

II.

LEGAL STANDARD
The federal officer removal statute provides, in relevant part:
(a) A civil action or criminal prosecution that is commenced in a
State court and that is against or directed to any of the following
may be removed by them to the district court of the United States
for the district and division embracing the place wherein it is
pending: . . .
(3) Any officer of the courts of the United States, for or relating
to any act under color of office or in the performance of his
duties.

16
17

R. Doc. 12.
R. Doc. 21.
5

28 U.S.C. § 1442(a)(3). The Supreme Court has explained that the purpose
of the federal officer removal statute is to protect the lawful activities of the
federal government from undue state interference.

See Willingham v.

Morgan, 395 U.S. 402, 406 (1969). Because the federal government “can act
only through its officers and agents,” it has a strong interest in ensuring that
the states do not hinder those officers in the execution of their duties. Id.
(quoting Tennessee v. Davis, 100 U.S. 257, 263 (1880)). If federal officers
acting within the scope of their authority “can be arrested and brought to
trial in a State court, for an alleged offense against the law of the State, yet
warranted by the Federal authority they possess, and if the general
government is powerless to interfere at once for their protection . . . the
operations of the general government may at any time be arrested at the will
of one of its members.” Id. (quoting Davis, 100 U.S. at 263); see also Watson
v. Philip Morris Cos., 551 U.S. 142, 148 (2007) (“As Senator Daniel Webster
explained [in 1833], where state courts might prove hostile to federal law,
and hence to those who enforced that law, the removal statute would ‘give a
chance to the [federal] officer to defend himself where the authority of the
law was recognized.’”) (quoting 9 Cong. Deb. 461 (1833)).
Because of its broad language and unique purpose, the federal officer
removal statute has been interpreted to operate somewhat differently than
6

the general removal provision. Unlike the general removal statute, which
must be “strictly construed in favor of remand,” Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002), the federal officer
removal provision must be liberally interpreted. Watson, 551 U.S. at 147.
Also unlike the general removal provision, there is no requirement in the
federal officer removal provision that the district court have original
jurisdiction over the plaintiff’s claim. See Jefferson County, Alabama v.
Acker, 527 U.S. 423, 430-31 (1999). A case against an officer of the federal
courts may be removed even if a federal question arises as a defense rather
than as a claim apparent from the face of the plaintiff’s well-pleaded
complaint. Id.
Accordingly, in order to qualify for removal, an officer of the federal
courts must (1) “raise a colorable federal defense,” and (2) “establish that the
suit is ‘for an act under color of office.’” Id. at 431 (emphasis in original)
(quoting 28 U.S.C. § 1442(a)(3)). Courts have construed the colorable
defense requirement broadly, “recognizing that ‘one of the most important
reasons for removal is to have the validity of the defense of official immunity
tried in a federal court.’” Id. (quoting Willingham, 395 U.S. at 407). Courts
therefore “do not require the officer virtually to ‘win his case before he can
have it removed.’” Id. (quoting Willingham, 395 U.S. at 407). As in all cases,
7

the party asserting federal jurisdiction in a case removed under Section 1442
bears the burden of establishing that jurisdiction exists. Winters v. Diamond
Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998).

III. DISCUSSION
Defendants argue that removal is proper because Hodge may raise the
colorable federal defense of quasi-judicial immunity. 18 Judges are protected
by absolute immunity in the exercise of their judicial functions. See Butz v.
Economou, 438 U.S. 478, 509 (1978); Imbler v. Pachtman, 424 U.S. 409,
422–23 (1976); Pierson v. Ray, 386 U.S. 547, 554 (1967). The Supreme
Court has also extended absolute immunity to certain other “quasi-judicial”
administrative officers who perform functions closely associated with the
judicial process. See Butz, 438 U.S. at 513.
Plaintiffs argue in their motion to remand that the defense of quasijudicial immunity is unavailable to Hodge because their complaint seeks only
injunctive and declaratory relief.19 Plaintiffs cite Holloway v. Walker, 765
F.2d 517, 525 (5th Cir. 1985)—which involved a claim brought under 42

R. Doc. 1 at 7; R. Doc. 21 at 8-14.
R. Doc. 12-1 at 6. Plaintiffs do not mention in their motion that they
also seek “reasonable attorney fees and all costs” incurred in the proceedings,
in addition to injunctive and declaratory relief. See R. Doc. 1-1 at 15. But the
Court’s decision does not turn on the nature of the relief plaintiffs seek.
8
18
19

U.S.C. § 1983—for the proposition that this defense is only applicable to
claims for damages.20 Defendants respond that Holloway and the Supreme
Court case it relied upon, Pulliam v. Allen, 466 U.S. 522 (1984), were
“superseded” by the Federal Court Improvement Act of 1996 (FCIA). 21 The
FCIA amended 42 U.S.C. § 1983 to establish 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 was unavailable.” Pub. L. No. 104-317, 110
Stat. 3847.
But neither party addresses controlling precedent establishing that
even after the FCIA, the defense of quasi-judicial immunity is not available
to a defendant sued only in his official capacity, regardless of whether the
suit is for monetary damages, injunctive relief, or declaratory relief. See
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 483 (5th
Cir. 2000) (“[D]efenses such as absolute quasi-judicial immunity, that only
protect defendants in their individual capacities, are unavailable in officialcapacity suits.”); see also Hafer v. Melo, 502 U.S. 21, 25 (1991) (holding that
“officials sued in their personal capacities, unlike those sued in their official

20
21

R. Doc. 12-1 at 6.
R. Doc. 21 at 10.
9

capacities, may assert personal immunity defenses”); Kentucky v. Graham,
473 U.S. 159, 166-67 (1985) (stating that “[i]n an official capacity action . . .
[immunity] defenses are unavailable,” and that “[t]he only immunities that
can be claimed . . . are forms of sovereign immunity that the entity . . . may
possess”).
In Turner, which was decided four years after the FCIA was enacted,
the Fifth Circuit addressed whether members of the Houma Municipal Fire
and Police Service Board could assert quasi-judicial immunity for their
adjudicative actions as a defense to the plaintiff’s § 1983 claim. 229 F.3d at
479-81. The plaintiff alleged that the Board and its members discriminated
against him on the basis of his race, and he sought compensatory and
punitive damages, as well as injunctive relief and a declaration that the
defendants’ actions violated his constitutional rights. Id. at 481. The plaintiff
made clear in an interrogatory that he was asserting only official-capacity
claims against the Board members. Id.
The Fifth Circuit noted that courts often discuss personal immunity
defenses like quasi-judicial immunity “without clearly articulating to whom
and in which capacity those defenses applied.” Id. at 485. But the court held
that a “precise reading” of Fifth Circuit case law indicated that the defense of
quasi-judicial immunity was not available to defendants sued only in their
10

official capacities. Id. at 484. This rule is rooted in the fact that “official
capacity suits generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Id. at 483 (quoting
Graham, 473 U.S. at 165). Accordingly, “a § 1983 suit naming defendants
only in their ‘official capacity’ does not involve personal liability to the
individual defendant,” rendering a personal immunity defense inapplicable.
Id. Courts in this circuit have consistently applied Turner to find that
personal immunity defenses cannot be asserted in the context of an officialcapacity claim. See, e.g., Stallworth v. Slaughter, 436 F. App’x 337, 340 (5th
Cir. 2011) (“[U]nder Supreme Court case law, the personal defense of
qualified immunity does not apply to official-capacity claims.”); Cain v. City
of New Orleans, 184 F. Supp. 3d 379, 391 n.54 (E.D. La. 2016) (in the context
of claims against state judicial officers, noting that “[a]bsolute immunity
does not apply to claims against a defendant in his official capacity”).
Here, the case caption in plaintiffs’ petition explicitly states that Hodge
is sued only in his official capacity as the Compliance Director. 22 And when
viewing plaintiffs’ petition as a whole, it is clear the real party in interest is
the entity Hodge oversees—the Orleans Parish Prison.

The only relief

plaintiffs specifically seek from Hodge is an injunction enjoining him “and

22

R. Doc. 1-1 at 1.
11

the Orleans Parish Sheriff’s Office” from continuing to violate the city
ordinance. 23 Plaintiffs’ action is thus plainly an attempt to stop the Orleans
Parish Prison and OPSO from taking certain actions, which indicates the suit
is against Hodge in his official, rather than personal, capacity. Graham, 473
U.S. at 165-66 (official-capacity suits “represent only another way of pleading
an action against an entity of which an officer is an agent” (quoting Monell
v. New York City Dep’t of Social Servs., 436 U.S. 658, 690 n.5 (1978))).
Removal is therefore improper because Hodge is sued only in his official
capacity and thus cannot raise the federal defense of quasi-judicial
immunity. See Turner, 229 F.3d at 481-83; Graham, 473 U.S. at 165-67.
Granting plaintiffs’ motion to remand is consistent with the Court’s
responsibility to interpret the officer removal statute broadly.

See

Willingham, 395 U.S. at 407. While the test for removal under § 1442(a)(3)
is broader than the test for quasi-judicial immunity, see id. at 405, a
defendant cannot remove a case under the statute by simply asserting a
possible federal defense that is facially inapplicable. See Mesa v. California,
489 U.S. 121, 133 (1989) (ruling that the officer removal statute did not justify
removal when defendants “have not and could not present an official
immunity defense” to their criminal prosecution). The Supreme Court has

23

Id. at 15.
12

refused to “divorce the federal official immunity defense from the pleadings
required to allege it,” because doing so would in effect “transform those
pleading requirements into an independent basis for jurisdiction.”

Id.

Where, as here, defendants fail to present a federal immunity defense that
could conceivably apply, it is proper to grant plaintiffs’ motion to remand.
Lastly, defendants note that the Ninth Circuit affirmed a district court’s
exercise of jurisdiction in an analogous case brought against a courtappointed receiver for the California Department of Corrections and
Rehabilitation. 24 See Med. Dev. Int’l v. Cal. Dep’t of Corr. & Rehab., 585
F.3d 1211 (9th Cir. 2009). In Medical Development International, the
plaintiff’s only remaining claims against the receiver were against him in his
official capacity. Id. at 1219. The Ninth Circuit affirmed the district court’s
exercise of jurisdiction, but ultimately ruled that under the particular
circumstances of that case, the receiver was not entitled to the defense of
judicial immunity. Id. at 1221-22. The Ninth Circuit’s opinion implied that
there could be times under that Circuit’s precedent where a court officer
could employ the defense of judicial immunity when he is sued only in his
official capacity. But this Court is bound by the Fifth Circuit’s explicit ruling
that the defense of quasi-judicial immunity is not available to defendants

24

R. Doc. 21 at 14.
13

sued only in their official capacities. Turner, 229 F.3d at 483. And when
clear precedent bars a defendant from raising a defense, that defense is not
“colorable” for the purposes of the officer removal statute. Mesa, 489 U.S.
at 133.
Because defendants’ notice of removal fails to state a colorable federal
defense, removal under 28 U.S.C. § 1442(a) is improper.

IV.

CONCLUSION
For the foregoing reasons, plaintiffs’ motion to remand is GRANTED.

5th
New Orleans, Louisiana, this _____ day of October, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

14