Robinson v. Harrison et al
Filing
123
OPINION: IT IS ORDERED that 72 Motion for Summary Judgment is granted. FURTHER ORDERED that 80 Motion to Dismiss is granted. FURTHER ORDERED that 73 Motion for Summary Judgment is denied. FURTHER ORDERED that 101 , 102 , and 103 are denied. Signed by Judge Ivan L.R. Lemelle on 07/08/2020. (ko)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SEAN ROBINSON
CIVIL ACTION
VERSUS
NO. 18-4733
NOPD SUPERINTENDENT
MICHAEL S. HARRISON, ET AL.
SECTION: “B”(1)
OPINION
I.
NATURE OF MOTIONS AND RELIEF SOUGHT
Before the Court are:
(1)
defendant
Colonel
Kevin
Reeves’ 1
(“LSP”)
motion
for
summary judgment (Rec. Doc. 72);
(2)
defendants
Superintendent
Michael
Harrison,
Sergeant
Lawrence Jones, Detective Reuben Henry, and Detective
Orlynthia Miller’s 2 (“NOPD”) motion to dismiss or in the
alternative motion for summary judgment (Rec. Doc. 80);
(3)
plaintiff’s motion for summary judgement (Rec. Doc. 73);
(4)
all parties’ responses in opposition to each motion for
summary judgment (Rec. Docs. 81, 82, 83);
In his official capacity as superintendent for the Louisiana State Police
(“LSP”).
2 All defendants are being sued in their official capacities.
1
1
(5)
all parties’ reply’s in opposition (Rec. Docs. 87, 89,
92);
(6)
defendants NOPD’s supplemental memorandum in support of
its motion to dismiss (Rec. Doc. 116); and
(7)
plaintiff’s sur-reply in opposition to defendants NOPD
and LSP’s motions for summary judgment (Rec. Doc. 106).
For the reasons and limitations outlined below,
IT IS ORDERED that defendant LSP’s motion for summary judgment
(Rec. Doc. 72) is GRANTED;
IT IS FURTHER ORDERED that defendant NOPD’s motion to dismiss
or alternatively for summary judgment (Rec. Doc. 80) is GRANTED;
IT IS FURTHER ORDERED that plaintiff’s motion for summary
judgment (Rec. Doc. 73) is DENIED; and
IT IS FURTHER ORDERED that all other pending motions are
DENIED. (Rec. Docs. 101,102,103)
II.
FACTS AND PROCEDURAL HISTORY
This is a civil rights case alleging violations of the Fourth
and Fourteenth Amendments. At the time that the First Supplemental
and Amended Complaint (Rec. Doc. 34) was filed, Plaintiff Sean
Robinson was a 32-year-old resident of New Orleans, Louisiana. See
Rec. Doc. 34 at ¶ 22. He was convicted of sexual battery in 2011
and is required to register as a sex offender in accordance with
state law. See id. at ¶ 5. Defendant Colonel Kevin Reeves (“LSP”)
2
is being sued in his official capacity as Superintendent of the
Louisiana
State
Superintendent
Police.
Michael
See
Rec.
Harrison,
Doc.
35
at
Sergeant
4.
Defendants
Lawrence
Jones,
Detective Reuben Henry, and Detective Orlynthia Miller (“NOPD”)
are all employed by the New Orleans Police Department and are being
sued in their official capacities only. See Rec. Doc. 34 at ¶¶ 9–
17.
Plaintiff
is
considered
a
“Tier
I
sex
offender”
under
Louisiana law, and as such he is required to register as a sex
offender for a period of fifteen (15) years. Id. at ¶ 24. If
plaintiff
became
incarcerated
for
any
reason,
“other
than
a
misdemeanor arrest or conviction, or for a felony arrest, which
does
not
result
in
a
conviction,”
his
registration
period
recommences on the day he is released, with no credit offered for
his previous compliance. Id. Plaintiff received a sentence of five
(5) years’ probation and a five-year suspended sentence for his
2011 sexual battery conviction. Id. Plaintiff was convicted of
Failure to Register on April 14, 2014 and plead guilty to a second
charge of Failure to Register on March 6, 2018. Id. at ¶¶ 25–26.
He was incarcerated for “failure to secure housing and pay fines
and fees from 2011 to 2014, and in 2014 was sentenced to serve the
remainder of his five (5) year suspended sentence from his 2011
sexual battery conviction. Id. at ¶ 27.
3
Plaintiff was released on August 5, 2017 and was homeless
until he obtained housing in January of 2018. Id. at ¶¶ 28–29.
Plaintiff complied with the sex offender registration requirements
by paying both the annual registration fee of $60.00 and $193.50
to publish notice in the newspaper, as required by the Louisiana
Sex Offender Statute. 3 Id. at ¶ 33. Plaintiff alleges that he is
unable to pay the cost of the community notification requirement
to send post cards to all neighbors within a one-mile radius of
his home.
On March 13, 2018, plaintiff met with Detective Rueben Henry
(“Detective
Henry”)
and
was
unable
to
pay
for
the
community
notification postcards at a cost of $861.50. Id. at ¶ 36. At
3
The relevant statutes state in pertinent part:
“A. Any adult residing in this state who has pled guilty to . . .
a sex offense as defined in R.S. 15:541 . . . shall be required to
provide the following notifications . . . (2)(a) Give notice of
the crime for which he was convicted, his name, jurisdiction of
conviction, a description of his physical characteristics as
required by this Section, and his physical address by mail to all
people residing . . . within twenty-one days of the date of release
from confinement or within twenty-one days of establishing
residency in the locale where the offender plans to have his
domicile, and the notice shall be published . . . without cost to
the state, in the official journal of the governing authority of
the parish where the defendant plans to reside and, if ordered by
the sheriff or police department or required by local ordinance, in
a newspaper which meets the requirements of R.S. 43:140(3) . . .”
LA. REV. STAT. § 15:542.1 (A)(2)(a).
D. The offender shall pay to the appropriate law enforcement
agencies with whom he is required to register . . . an annual
registration fee of sixty dollars to defray the costs of maintaining
the record of the offender . . . Failure by the offender to pay the
fee within thirty days of initial registration shall constitute a
failure to register and shall subject the offender to prosecution
under the provisions of R.S. 15:542.1.4(A)(3).
LA. REV. STAT. § 15:542 (D).
4
plaintiff’s next meeting on April 12, 2018, accompanied by a
paralegal from the New Orleans Public Defender’s Office, he met
with Detective Orlynthia Miller (“Detective Miller”). Id. at ¶ 38.
Plaintiff informed Detective Miller that he still did not have the
required funds to pay for his community notification postcards.
Id. Detective Miller then phoned an unidentified person and asked
how she should proceed because of plaintiff’s non-compliance with
the Louisiana Sex Offender law for failure to complete postcard
notifications within 21 days. Id. Detective Henry soon thereafter
arrived in the office and informed plaintiff that he would not
issue a warrant that day and provided him with four weeks to obtain
the required funds. Id. Detective Henry further noted that after
May 11, 2018, a warrant would be issued for his arrest if he failed
to comply with the notification requirements. 4 Id. On May 4, 2018,
Counsel for plaintiff sent a letter to Superintendent Michael
Harrison (“Superintendent Harrison”) stating that plaintiff had
been declared indigent by a Criminal District Court Judge on
January 3, 2018. 5 See id. at 44.
Superintendent Harrison has yet
4 To this date, plaintiff has not been arrested, nor has a warrant been issued
for his arrest.
5 On June 8, 2017, the New Orleans Public Defenders Office sent a letter to
Superintendent Harrison requesting that individuals not be placed under
arrest for failure to complete sex offender registration requirements due to
indigency, who are making good faith efforts to comply with registration and
notification requirements. Superintendent Harrison responded on August 2,
2017 by letter and indicated that upon receipt of a “determination by a
court” of indigency, the NOPD would honor such order. Further, plaintiff’s
indigent status was reaffirmed on June 22, 2018. See Rec. Doc. 31
5
to
respond
to
plaintiff’s
May
4,
2018
letter
asserting
the
indigency of plaintiff. Id.
Plaintiff filed suit on May 8, 2018 requesting a temporary
restraining order and preliminary injunction to prevent the NOPD
and LSP from arresting and incarcerating him for failure to comply
with sex offender registry and notification requirements due to
indigency. See Rec. Doc. 1. Plaintiff’s complaint alleges: (1)
Louisiana Revised Statute 15:541 et seq., violates plaintiff’s
right to procedural due process and substantive due process rights
by “infringing upon fundamental fairness”; (2) Louisiana Revised
Statute
15:541
Protection
et
Clause
seq.,
is
because
unconstitutional
it
“infring[es]
under
upon
the
Equal
fundamental
fairness”; (3) and no probable cause exists to arrest plaintiff
under the Fourth amendment because there is no “proof of an
intentional failure to pay.” Rec. Doc. 34 at ¶¶ 69–76.
Plaintiff
specifically
requests
this
Court:
(1)
order
a
temporary restraining order and/or preliminary injunction barring
defendants from arresting plaintiff for failure to comply with the
community notification requirements and requiring the recall of
any warrants currently outstanding relating to plaintiff’s failure
to pay for community notification; (2) issue a permanent injunction
barring defendants from arresting plaintiff for failure to pay sex
offender
notification
fees
and
requiring
the
recall
of
any
outstanding warrants for plaintiff’s failure to comply with the
6
same; (3) issue a declaratory judgment that “the lack of a general
fee waiver provision” for indigent persons subject to the Louisiana
Sex
Offender
Registration
law
is
unconstitutional
as
applied
according to the Fourth and Fourteenth amendments; (4) issue an
order pursuant to 28 U.S.C. §§ 2201–2202 declaring the state of
Louisiana and its agencies cannot arrest indigent registrants who
have made bona fide efforts to comply; and (5) award attorney’s
fees to plaintiff. Id. at p. 17–18.
On May 10 plaintiff was directed to file a motion in Louisiana
state court requesting review and clarification of the State trial
court’s previous determination as to plaintiff’s indigent status.
Rec. Doc. 16 at 2. That same order required defendants to “provide
advance notice to this Court and the State court of any decision
to
request
issuance
of
a
warrant
for
plaintiff’s
arrest
in
conjunction with his failure to pay the registry or notification
costs or fees at issue.” Id. Subsequently, plaintiff filed his
motion with the State court as directed, and then requested a
meeting with Detective Henry to inquire about a possible payment
plan for the community notification requirements. Rec. Doc. 34 at
¶¶ 49–50. It is alleged that Detective Henry did not respond to
this inquiry. Id. at ¶ 50.
On June 22, 2018, the State court ruled that it did not have
the ability to rule on the willfulness issue under Bearden v.
Georgia, 461 U.S. 660 (1983), nor whether the $861.50 post card
7
notification fee was waivable. See Rec. Doc. 31. Further, by letter
dated June 26, 2018, plaintiff requested a meeting with the NOPD
regarding his sex offender registration compliance and notified
the NOPD that a state court had recently declared him indigent.
Rec. Doc. 34 at ¶¶ 56–57; see also Exhibit A to Plaintiff’s Amended
and Supplemental Complaint. The NOPD has failed to respond to
plaintiff’s June 26, 2018 letter. As of this date, to this Court’s
knowledge, plaintiff has not yet been arrested nor has a warrant
been issued for his arrest due to his lack of compliance with the
Louisiana Sex Offender Registration law.
III. PARTIES’ CONTENTIONS
A. Defendant NOPD’s Contentions
Defendant NOPD has filed a motion to dismiss or in the
alternative for summary judgment asserting there are no factual
allegations in plaintiff’s amended complaint giving rise to a
plausible claim for relief against defendant NOPD. Rec. Doc. 80.
Defendant NOPD asserts that plaintiff’s entire case should be
dismissed for failure to state a claim, or in the alternative that
summary judgment is proper in defendant NOPD’s favor. See id.
Defendant NOPD asserts plaintiff has failed to allege a claim
upon which relief can be granted, pursuant to Monell v. Dep’t of
Social
Servs.,
436
U.S.
658
(1978).
Defendant
contends
that
plaintiff has failed to identify a “Municipal Policy” promulgated
8
by the NOPD, an essential showing under Monell. Rec. Doc. 80-1 at
10.
Defendant
NOPD
then
turns
to
the
Fourteenth
Amendment,
asserting plaintiff has failed to state a plausible claim for which
relief can be granted for violation of plaintiff’s substantive due
process
rights,
Protection
procedural
Clause.
Id.
at
due
process
15–20.
rights,
First,
or
the
defendant
Equal
asserts
plaintiff has failed to articulate a fundamental right that has
been infringed upon by defendant’s actions. Id. at 16. Second,
defendant asserts plaintiff has failed to allege a valid Equal
Protection claim because plaintiff “neglected to allege that he
was treated differently from those that are similarly situated.”
Id. at 18. Third, defendant asserts that plaintiff’s reliance on
Bearden v. Georgia, and its predecessors, Williams v. Illinois and
Tate v. Short, is misplaced. Id. Specifically, defendant NOPD
contends that the community notification is not a “fine or fee,”
unlike the fee in Bearden, which required a defendant to pay
restitution resulting from burglary and theft convictions. Id. at
19. Defendant also asserts that plaintiff has no standing to
challenge a violation of his Fourth Amendment rights. Id. at 21.
Specifically, because “he has not yet suffered an injury-in-fact”
as plaintiff has not yet been arrested, imprisoned, nor has a
warrant
been
issued
for
non-compliance
notification requirements. Id. at 21–23.
9
with
the
community
Defendant NOPD then turns to plaintiff’s request for an
injunction. Defendant contends that plaintiff is not entitled to
an injunction
because: (1) plaintiff cannot establish substantial
likelihood of success on the merits of his claim; (2) plaintiff
has failed to show a substantial threat of irreparable injury as
a result of not granting the injunction; (3) the threat of injury
resulting from not granting the injunction does not outweigh the
harm caused as a result of granting the injunction; and (4) if an
injunction is granted then it will disserve the public interest.
Id. at 23–28.
B. Defendant LSP’s Contentions
Defendant LSP has filed a motion for summary judgment (Rec.
Doc. 72) asserting that there is no genuine issue of material fact,
LSP is entitled to a judgment as a matter of law, and this Court
should dismiss all claims against LSP. Rec. Doc. 72.
First, Defendant LSP asserts plaintiff lacks standing to
bring an action against the State Police because, “he is not under
an imminent threat of arrest by the State Police.” Rec. Doc. 72-2
at 2. Further, defendant LSP asserts that even if the relief sought
by plaintiff is granted, it will not bind all law enforcement
agencies and plaintiff will still be subject to arrest by another
agency, thus providing no redress for plaintiff’s alleged injury.
Id. In the alternative, defendant LSP asserts that if all law
enforcement agencies are bound by this Court’s order, then those
10
agencies are all necessary parties under Federal Rule of Civil
procedure 19 and are required to be named for the suit to proceed.
Id.
Second, defendant LSP contends that local law enforcement
monitors and enforces sex offender registration, community notice
requirements, and sex offenders’ compliance therewith, not the
State Police. Rec. Doc. 72-2 at 5. Defendant LSP asserts that they
have not threatened plaintiff with arrest nor have they threatened
issuing a warrant for plaintiff’s arrest for failure to comply
with his community notification requirement. Id. Defendant LSP
further contends that the State Police do not actively monitor
compliance
with
sex
offender
registration
and
notification
requirements, and “typically only conduct a compliance check after
being contacted and provided information from the local or managing
law enforcement agency . . .” Id. (emphasis added).
Third, defendant LSP asserts that plaintiff’s circumstances
have improved, thus rendering his claims moot. Id. at 8. Defendant
also argues that plaintiff previously had funds to pay for his
community
notification,
by
way
of
an
inheritance.
Further,
defendant contends that plaintiff has been employed since August
2019, working 30-40 hours per week, and making $9 per hour. Id. at
8–9. Defendant argues that this change in financial circumstances
renders plaintiff’s claim that he is indigent and unable to pay,
moot. Id.
11
Finally, defendant asserts that Bearden is not applicable to
plaintiff’s
claim,
as
it
does
not
mandate
police
to
conduct
indigency determination hearings prior to an arrest being made.
Id. at 2 (emphasis in original). Specifically, defendant contends
that
Bearden
concerns
post-arrest
proceedings,
while
the
controversy at issue in this case concerns “what is required of a
police officer prior to arrest.” Id. at 13.
Defendant asserts
that any determination by police officers regarding the indigency
of
a
sex
offender
before
issuing
warrants
for
arrest
for
noncompliance would effectively usurp the role of the judiciary.
Id.
B. Plaintiff’s Contentions
Plaintiff has filed a motion for summary judgment regarding
his first, second, and third claims. Rec. Doc. 73. Plaintiff seeks
granting of his motion for summary judgment, and an entry of
declaratory relief and a permanent injunction. Plaintiff requests
that this court declare La. Rev. Stat. Ann. §
15:542.1.2(A)(1) &
(2) unconstitutional as they violate the Fourteenth Amendment of
the United States Constitution and that arresting plaintiff for
violation of La. Rev. Stat. Ann. § 15:542.1.2(A)(1) & (2) violates
the Fourth Amendment of the United States Constitution as there is
no probable cause to believe he has willfully refused to pay his
required fees. Rec. Doc. 73 at 1-2. Plaintiff also seeks this Court
to permanently enjoin defendants NOPD and LSP from seeking a
12
warrant or arresting plaintiff based on his failure to provide
community notifications. Id. at 2.
Plaintiff asserts that the Registry Statute violates his due
process
and
equal
protection
rights
against
punishment
for
inability to pay, as articulated in Bearden v. Georgia, 461 U.S.
660 (1983). Plaintiff contends that the relevant provisions of
Section
15:542.1.4
should
be
declared
unconstitutional
and
enjoined. Alternatively, Plaintiff asserts that if the relevant
provisions
of
the
statute
are
not
stricken,
that
defendants
enforcement policy and practice of seeking an executing arrest
warrants that are “unsupported by evidence of willfulness violate
the Fourth Amendment’s probable cause requirement.” Rec. Doc. 731 at 6.
In
plaintiff’s
consolidated
opposition
to
defendants’
motions, he urges denial of defendants’ motions entirely and
instead grant of plaintiff’s motion for summary judgment.
First, plaintiff contends that he has standing to pursue this
action. As to defendant NOPD, plaintiff asserts that this Court
has already determined that under Ex parte Young, a city official
enforcing a state statue may be sued under 42 U.S.C. § 1983, and
that defendant NOPD has conceded that the risk of arrest is enough
to confer standing. Rec. Doc. 83 at 3. As to defendant LSP’s claim
that plaintiff’s claim is moot due to a change in financial
circumstance, plaintiff asserts that his circumstances have not
13
changed in such a way as to enable him to pay for the community
notifications.
Further,
Id.
as
to
defendant
LSP,
plaintiff
contends that the relief sought need not address every injury, and
that current relief sought, if granted, will redress his injury as
to
all
named
defendants,
which
is
sufficient
to
meet
the
redressability requirement. Id.
Next, plaintiff contends that he has sufficiently alleged
causes of action under both the Fourteenth and Fourth Amendments
to the United States Constitution. Id. at 11. First, plaintiff
asserts that Bearden governs the instant case because it requires
“the imprisonment of and an assessment of fines against individuals
who
fail
to
pay
the
costs
necessary
to
provide
community
notification, without requiring an ability-to-pay determination .
. .” Id. Second, plaintiff asserts that Bearden is not limited to
imprisonment for failure to pay fines, as suggested by defendant
NOPD. Id. Third, plaintiff asserts that he does not seek a “prearrest Bearden hearing” and that defendants have mischaracterized
his claim. Id. at 13. Instead, plaintiff contends that they seek
a
declaration
that
Louisiana
Revised
Statute
15:542.1
is
unconstitutional because it does not include language allowing a
consideration of their ability and willingness to pay for the
registration and notification fees. Id. Fourth, plaintiff argues
that there is no existing state court process that would allow a
court to inquire as to a sex offender’s ability to pay or his
14
willfulness. Id. at 14. Fifth, plaintiff asserts that he has
properly alleged an Equal Protection claim due to the wealth-based
distinction allegedly created by the statute at issue, and that
the court in Bearden concluded that a traditional equal protection
analysis is not favored, and the modified standard articulated in
Bearden is correct. Id. at 16.
Finally, plaintiff asserts that he meets the requirements for
imposing a permanent injunction. Plaintiff contends that he has
shown that: (1) there is a substantial probability of success on
the merits; (2) irreparable injury; (3) that any injury to the
plaintiff will outweigh any injury to the opposing party; and (4)
the injunction will not disserve the public interest. Id. at 17.
Specifically, plaintiff asserts that defendant NOPD incorrectly
analyzes
the
third
element
of
an
injunction
as
between
the
plaintiff and the public, not between the plaintiff and defendant.
Id. at 18. Plaintiff further asserts that “‘it is always in the
public
interest
to
prevent
the
violation
of
a
party’s
constitutional rights’” in support of the fourth element of the
permanent injunction analysis. Id. at 18 (quoting Jackson Women’s
health Org. v. Currier, 760 F. 3d 448, 458 n.9 (5th Cir. 2014).
LAW AND ANALYSIS
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate
when
“the
pleadings,
15
depositions,
answers
to
interrogatories,
and
admissions
on
file,
together
with
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue of material fact exists if the evidence would allow
a reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
court
should
view
all
facts
and
evidence
in
the
light
most
favorable to the non-moving party. United Fire & Cas. Co. v. Hixson
Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory
allegations are insufficient to defeat summary judgment. Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
The
movant
must
point
to
“portions
of
‘the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together
with
the
affidavits,
if
any,’
which
it
believes
demonstrate the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. If and when the movant carries this
burden, the non-movant must then go beyond the pleadings and
present other evidence to establish a genuine issue. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). However, “where the non-movant bears the burden of proof
at trial, the movant may merely point to an absence of evidence,
16
thus shifting to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material
fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d
616, 618 (5th Cir. 1994). “This court will not assume in the
absence of any proof that the nonmoving party could or would prove
the necessary facts, and will grant summary judgment in any case
where critical evidence is so weak or tenuous on an essential fact
that it could not support a judgment in favor of the [non-movant].”
McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).
B. Motion to Dismiss Pursuant to FRCP 12(b)(6)
Rule 12(b)(6) is designed to test the pleadings. “A district
court may, in its discretion, treat a motion to dismiss as a motion
for
summary
judgment
and
consider
evidence
outside
of
the
pleadings.” Beiller v. Atlantic Specialty Ins. Co., No.16-512,
2016 WL 915424, at *2 (E.D. La. March 10, 2016); see Fed. R. Civ.
P. 12(d); see also Soley v. Star & Herald Co., 390 F.2d 364, 366
(5th Cir. 1968). As defendant NOPD has presented matters outside
of the pleadings with their motion to dismiss, this Court will
construe defendant NOPD’s motion to dismiss for failure to state
a claim, or alternatively for motion for summary judgment, as a
motion for summary judgment under Rule 56, in accordance with Rule
12(d). See Jones v. St. Tammany Parish Jail, 4 F. Supp. 2d 606,
610 (E.D. La. 1998) (“When matters outside the pleadings are
17
presented to and not excluded by the court, a Rule 12(b)(6) motion
is converted into a motion for summary judgment.”).
C. Standing
Both defendants LSP and NOPD contend that plaintiff lacks
standing to bring suit against either of them. Defendant LSP
contends that the LSP does not enforce the community notification
obligations pertaining to sex offenders, nor have they issued a
warrant, attempted to arrest, or threatened to arrest plaintiff
for his violations of those obligations. Rec. Doc. 72-2 at 5.
Defendant NOPD also argues that plaintiff cannot establish Monell
liability to bring suit against defendant NOPD. Defendant NOPD
argues that plaintiff does not have standing to bring suit against
defendant
NOPD
as
defendant
has
not
yet
arrested,
but
only
“threatened” to arrest plaintiff. Rec. Doc. 80-1 at 13. Plaintiff
counters that under Ex parte Young, those enforcing a statute may
properly be sued under 42 U.S.C. § 1983, rendering the Monell
liability analysis inapplicable to the instant case. Plaintiff
further alleges that a threat of arrest is sufficient to create
standing in the instant matter.
a. Monell liability
Defendant NOPD asserts that there are no factual allegations
giving rise to a plausible claim for relief against the officers
of the New Orleans Police Department, because the suit was brought
against individual NOPD officers in their official capacity. See
18
Rec. Doc. 80-1 at 7. As such, defendant contends that the suit is
effectively against the City of New Orleans, a municipality, and
plaintiff has the burden of proving that there was a constitutional
deprivation and that an official municipal policy was the moving
force for the deprivation, under Monell. Rec. Doc. 80-1 at 8. This
argument is misguided.
In Monell v. New York Department of Social Services, the
United States Supreme Court held that a municipality may not be
held liable under § 1983 on the basis on respondeat superior.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 694 (1978).
Instead, for a municipality to be liable under § 1983, plaintiff
has the burden of proving that there is a (1) constitutional
deprivation and (2) that a municipal policy was the “moving force”
behind
said
municipal
deprivation.
officials
act
Id.
in
Monell
their
is
local
only
applicable
capacity,
not
when
where
municipal officials perform actions as a state actor. See Viet Anh
Vo, 2017 WL 1091261, at *4 (citing Cain v. City of New Orleans,
No. 15-4479, 2017 WL 467685 (Feb. 3, 2017).
In defining a state actor, the Fifth Circuit has held that
when a municipal official is enforcing state law, that he is acting
as a state official. See Echols v. Parker, 909 F. 2d 795, 801 (5th
Cir. 1990); see also Viet Anh Vo v. Gee, No. 16-15639, 2017 WL
1091261, at *4 (Mar. 23, 2017). The Fifth Circuit explains:
19
[T]he State cannot dissociate itself from actions taken
under its laws by labeling those it commands to act as
local officials. A county official pursues his duties as
a state agent when he is enforcing state law or policy.
He acts as a county agent when he is enforcing county
law or policy. It may be possible for the officer to
wear both state and county hats at the same time, but
when a state statute directs the actions of an official,
as here, the officer, be he state or local, is acting as
a state official.”
Echols, 909 F.2d at 801 (internal citations omitted). Thus, a
municipal official that is enforcing state law will be regarded as
a state official.
As previously stated, a municipal official that is actively
enforcing state law is considered a state official. Here, defendant
NOPD’s officers were enforcing the Louisiana Sex Offender law
registry and community notification requirements. Therefore, they
are considered state actors.
b. Ex Parte Young
Plaintiff has standing to bring suit against defendants NOPD
and LSP under the Ex parte Young exception. To establish whether
plaintiff
may
maintain
exception
“[this]
Court
his
claims
need
only
under
the
conduct
a
Ex
parte
Young
straightforward
inquiry into whether [Plaintiff’s First Supplemental and Amended
Complaint] alleges [1] an ongoing violation of federal law and [2]
seeks relief properly characterized as prospective.” See Mathia v.
Bd. Of Sup’rs of Louisiana State University and Agr. Mech. College,
20
959 F. Supp. 2d 951, 957-58 citing to Verizon Md., Inc. v. Pub.
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002).
Furthermore, plaintiff must show “some connection” between
the
state
official,
and
the
enforcement
of
the
disputed
unconstitutional state act. See Doe v. Caldwell, 913 F. Supp. 2d
262, 272 (E.D. La. 2012). The state official must be acting,
threatening to act, or at least have the ability to act to enforce
the unconstitutional state act. See Sonnier v. Crain, 649 F. Supp.
2d 484, 493 (E.D. La. 2009). The state official must not have a
general duty to see that the laws of the state are implemented but
a particular duty to enforce the law in question. See Morris v.
Livingston,
739
F.3d
740,
746
(5th
Cir.
2014).
This
“some
connection” requirement is designed to prevent litigants from
misusing the Ex parte Young exception. See K.P. v. LeBlanc, 627
F.3d 115, 124 (5th Cir. 2010). It is important to note that the
“some connection” requirement is not a hard requirement to meet.
It is a threshold question. As the Fifth Circuit has observed:
Ex Parte Young gives some guidance about the required
"connection" between a state actor and an allegedly
unconstitutional act. "The fact that the state officer,
by virtue of his office, has some connection with the
enforcement of the act, is the important and material
fact, and whether it arises out of the general law, or
is specially created by the act itself, is not material
so long as it exists."
See id. (quoting Ex parte Young, 209 U.S. at 157).
21
The Ex parte Young exception is appropriate here because
defendant NOPD is acting as state actor when it enforces the
provisions of Louisiana Revised Statute 15:540 et seq. Further,
the alleged constitutional violations, namely the imminent arrest
of
plaintiff
for
failure
without
ongoing,
meet
the
community
inquiry
requirements
to
into
his
indigent
plaintiff
as
has
still
not
paid
for
notification
status,
his
are
community
notifications. These same reasons also hold true for defendant
LSP, as noted in this Court’s Order and Reasons denying defendant
LSP’s motion to dismiss. Rec. Doc. 35 at 7-8.
There is also “some connection” between defendant NOPD and
the
enforcement
of
the
registration
and
notification
statute
because Louisiana Revised Statute 15:542 requires sex offenders
who “reside[] in a municipality with a population in excess of
three hundred thousand persons” to “register in person with the
police department of the municipality of residence.” LA. REV. STAT.
§ 15:542 B(1).
Finally, the relief sought can be fairly characterized as
prospective as plaintiff requests injunctive relief. See generally
Rec. Doc. 34; see also Viet Anh Vo, 2017 WL 1091261, at *4 (citing
Cain v. City of New Orleans, No. 15-4479, 2017 WL 467685 (Feb. 3,
2017). As such, plaintiff need not meet the requirements set forth
in Monell, and the action may continue under the exception noted
in Ex parte Young with respect to both defendants.
22
c. Injury in Fact – Fourth Amendment
Defendant NOPD also contends that plaintiff lacks standing to
bring suit, as he has suffered no injury in fact because he has
not been arrested or imprisoned for failure to pay his community
notification obligations. Rec. Doc. 80-1 at 23. Plaintiff contends
that the allegation of a future injury may suffice to bestow
standing, if the threatened injury is certainly impending or there
is substantial risk that the harm will occur. Rec. Doc. 83 at 67.
To have Article III standing, the Supreme Court has set forth
the analysis for Article III standing as follows:
First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest which
is (a) concrete and particularized, . . . and (b) actual
or imminent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury and
the conduct complained of—the injury has to be fairly
... trace[able] to the challenged action of the
defendant, and not ... th[e] result [of] the independent
action of some third party not before the court. Third,
it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable
decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)(internal
quotations and citation omitted). Further, the Fifth Circuit has
also held that the “allegation of a future injury” can suffice if
the injury is “certainly impending, or there is a substantial risk
that the harm will occur.” Cruz v. Abbott, 849 F.3d 594, 598 (5th
Cir. 2017)(quoting Susan B. Anthony List v. Driehaus, 573 U.S.
23
149, 158 (2014)). Therefore, a plaintiff need not await prosecution
in order to seek relief. Id.
Here, it is undisputed that plaintiff has failed to abide by
the registry and notification requirements and is subject to arrest
and subsequent prosecution from both defendants NOPD and LSP. This
Court finds that plaintiff has standing, as his injury in fact is
certainly impending, and there is a substantial risk that either
defendant could effectuate an arrest warrant against plaintiff,
notwithstanding the fact that one has yet to be issued against
him.
D. Mootness
Defendant LSP contends that plaintiff’s claims are moot and
that he is able to pay for the community notification obligations,
as plaintiff: (1) received a life insurance pay-out following the
death
of
his
circumstances
mother
have
in
April
changed,
of
namely
2013 6;
that
(2)
he
that
has
his
life
found
new
employment, is working more hours, and continues to receive SNAP
benefits; (3) plaintiff’s rent has decreased; and (4) plaintiff
has no other bills and does not pay child support. Rec. Doc. 72-2
at 9-10. Plaintiff contends that he is unable to pay his costs
associated with the community notification requirements. Rec. Doc.
83 at 8. Specifically, plaintiff contends: (1) that he has lived
Approximately $3,500.00. Rec. Doc. 72-2 at 9 (citing Exhibit B, pp. 101102).
6
24
under the poverty line since his released from custody in 2017; a
Louisiana state court found him indigent in January and June of
2018; and (3) he has applied for “over 100 jobs but until recently
was unable to secure a full-time, permanent job.” Id.
There is a genuine dispute of material fact as to whether
plaintiff is able to pay for his community notifications, as LSP
contends that he has the ability, and plaintiff asserts that he
lacks the ability. Thus, this Court is preempted from rendering
summary judgment on whether his claim has been mooted by his
alleged change in financial circumstances.
E. Bearden v. Georgia is not applicable to the facts of this
case, and therefore forecloses several of plaintiff’s
theories of recovery.
Defendant LSP contends that plaintiff seeks a pre-arrest
Bearden type hearing by the New Orleans Police Department and/or
the Louisiana State Police, which defendant contends is an issue
under the Fourth Amendment and inapposite under Bearden v. Georgia.
Rec.
Doc.
72-2
“misunderstands”
at
12.
Plaintiff
plaintiff’s
claims
argument,
and
that
defendant
plaintiff
LSP
seeks
a
declaratory judgment that Louisiana Sex Offender Law, Louisiana
Revised Statute § 15:540, et seq., is unconstitutional under the
Fourteenth Amendment because its language does not mandate that a
court
make
an
indigency
determination
before
imprisoning
a
defendant. Rec. Doc. 83 at 13. Plaintiff further contends that his
25
claim is now a “facial challenge to the Registry Statute.” Rec.
Doc. 83 at 13. This is unpersuasive.
In plaintiff’s complaint, he requests a temporary restraining
order, or in the alternative injunctive relief barring defendants
from
“arresting”
plaintiff
for
failure
to
pay
community
notification fees and recalling all outstanding warrants relating
to non-compliance with sex offender registration and community
notification requirements. Rec. Doc. 34 at 17. Further, plaintiff
requests that this court: “[i]ssue a declaratory judgment that the
lack of a general fee waiver provision in the Louisiana Sex
Offender Registration law for indigent persons who have paid some
but not all fees is unconstitutional as applied to [plaintiff]
according to the Fourth and Fourteenth Amendments to the United
States Constitution.” Id.
The United States Supreme Court decision Bearden v. Georgia
is not applicable to the facts of this case as the requested relief
seeks
a
declaratory
judgment
that
Louisiana
Revised
Statute
15:540, et seq., is unconstitutional as applied to plaintiff. Rec.
Doc. 34 at 17. Bearden v. Georgia requires that, in a revocation
proceeding for failure to pay a fine or restitution, a “sentencing
court must inquire into the reasons for the failure to pay” and
determine if “the probationer willfully refused to pay or failed
to
make
sufficient
bona
fide
efforts
to
legally
acquire
the
resources to pay” before revoking a defendant’s probation or
26
imposing a sentence of imprisonment. Bearden v. Georgia, 461 U.S.
660, 672 (1983). If a probationer cannot pay after making “bona
fide efforts to acquire the resources to do so, the court must
consider
alternate
measures
of
punishment
other
than
imprisonment.” Id. at 672.
Bearden concerns what a court must do to ensure that they do
not erroneously deprive an indigent client of their liberty, for
the sole reason that they are indigent. See generally Bearden, 461
U.S. 660. Bearden does not require that a state official enforcing
a state law make an indigency determination before arrest, rather
Bearden instructs that a “sentencing court” must take procedural
safeguards to prevent the jailing of indigent offenders. Id. at
672. This inquiry is for the court to conduct, and not for
defendants LSP or Defendant to engage in prior to arrest or
issuance of a warrant. Further, plaintiff has available the means
to challenge his conviction when and if he is arrested for noncompliance
with
the
community
notification
provisions
in
the
statute. 7
Therefore, defendants LSP and NOPD should not be precluded
from performing their duties as officers of the state, particularly
that of arresting individuals who fail to meet the requirements of
7 Plaintiff may allege that his notification duty be waived or modified due to
his indigency. LA. REV. STAT. § 15:544.1. Further, plaintiff may file a pretrial motion to quash in light of Bearden’s requirements. See State v. Jones,
2015-500 (La. App. 5 Cir. 12/23/15); 182 So. 3d 1218.
27
the Louisiana Sex Offender Registration and Community notification
requirements. Thus, plaintiff is not entitled to summary judgment
with respect to a permanent injunction for the unconstitutionality
of the Registry Statute, as Bearden does not mandate that arresting
officers make indigency determinations, but rather requires a
court to make that determination, after lawful arrest. Because
Bearden is not applicable to the facts of this case, plaintiff is
unable the challenge the constitutionality of those statutes under
the Bearden analysis respecting instant law enforcement parties.
F. Fourth Amendment
Plaintiff alternatively contends that defendants’ enforcement
of the Registry Statute violates plaintiff’s Fourth Amendment
Rights under the United States Constitution, to be free from arrest
without probable cause. Rec. Doc. 73-1 at 15. However, plaintiff’s
claim that his Fourth Amendment rights have been violated still
rests on Bearden, as plaintiff contends that willfulness must be
taken into account in order to find probable cause to arrest for
violation of the Registry statute. As stated above, Bearden is not
applicable to the facts of the instant matter. Bearden mandates
what a court must take into account before sentencing an indigent
defendant, not the analysis that police officers must engage in to
effectuate an arrest. Therefore, as the statute does not take
intent or willfulness to pay applicable registration or community
notification fees, there is no requirement that law enforcement
28
officers
enforcing
willfully
refused
the
to
statute
pay
his
determine
that
required
fees.
plaintiff
has
Accordingly,
plaintiff’s claim that his Fourth Amendment rights have been
violated for failure to establish probable cause fails, as Bearden
is not applicable.
G. Permanent injunction
The
legal
standard
for
obtaining
a
permanent
injunction
mirrors the legal standard for obtaining a preliminary injunction.
Lionhart v. Foster, 100 F. Supp. 2d 383, 385-386 (E.D. La. 1999).
A plaintiff must demonstrate “(1) actual success on the merits;
(2) a substantial threat that failure to grant the injunction will
result in irreparable injury; (3) the threatened injury outweighs
any damage that the injunction may cause the opposing party; and
(4)
the
injunction
will
not
disserve
the
public
interest.”
Causeway Med. Suite v. Foster, 43 F. Supp. 2d 604, 610 (E.D. La.
1999). However, the difference between the legal standard for a
preliminary injunction and a permanent injunction is that the
Plaintiff must demonstrate actual success on the merits and not
just a likelihood of success. Lionhart, 100 F. Supp. 2d 383, 386.
Here, plaintiff’s claim that he is entitled to a permanent
injunction does not meet the first prong of the test to determine
whether
a
permanent
or
preliminary
injunction
is
warranted.
Plaintiff is unable to show that he will have actual success on
the merits of his claim, or even a likelihood of success, as
29
Bearden is not applicable to the facts of this case, and all of
plaintiffs claims rest on Bearden. Those claims do not show that
plaintiff
is
entitled
to
actual
success
on
the
merits,
and
therefore plaintiff is not entitled to a permanent nor preliminary
injunction.
New Orleans, Louisiana this 8th day of July 2020.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
30
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