Robinson v. Harrison et al
Filing
56
ORDER AND REASONS DENYING 35 Motion to Dismiss for Failure to State a Claim, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 03/19/2019. (am)
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)
ORDER AND REASONS
Before the Court are Defendant Colonel Kevin Reeve’s Motion
to Dismiss (Rec. Doc. 35), Plaintiff Sean Robinson’s Response in
Opposition (Rec. Doc. 41), and Defendant’s Reply (Rec. Doc. 45).
For the reasons discussed below,
IT IS ORDERED that the motion to dismiss is DENIED.
FACTS AND PROCEDURAL HISTORY
This is a civil rights case alleging violations of the Fourth
and Fourteenth Amendment. Plaintiff is a 32-year-old resident of
New Orleans, Louisiana. See Rec. Doc. 1 at 3. He was convicted of
sexual battery in 2011 and therefore is required to register as a
sex offender in accordance with state law. See id.1 Defendant is
being sued in his official capacity as Superintendent of the
Louisiana State Police (“LSP”). See Rec. Doc. 35 at 4.
According to Plaintiff, he has “made bona fide efforts to pay
all
fees
towards
compliance
with
the
Louisiana
sex
offender
For the 2011 sexual battery, Plaintiff received a sentence of five years
probation and five years suspended sentence. See Rec. Doc. 34 at 6.
Subsequently, Plaintiff was convicted of Failure to Register in April 2014 and
pled guilty to a second charge of Failure to Register in March 2018. See id.
1
1
statute”
but
his
“poverty
prevents
him
from
attaining
full
compliance.” Rec. Doc. 34 at 3. Specifcally, he has paid the annual
registration fee of $60 and newspaper notice fee of $193.50 while
being employed through a temp agency and receiving food stamps.
See id. However, he has not paid the postcard notification fee of
$861.50. See Rec. Doc. 41 at 5. Plaintiff claims that because of
his inability to pay the postcard notification fee, he is under
imminent arrest by the New Orleans Police Department and LSP. See
Rec. Doc. 34 at 3. 2
On
complaint
equal
id.
July
17,
alleging
protection
at
17.
He
2018,
Plaintiff
violations
of
the
filed
due
an
process
amended
clause,
clause, and probable cause requirement. See
also
alleges
that
his
harm
can
only
be
alleviated by injunctive relief. See id. at 17-18.3 Thereafter,
Defendant filed the instant motion to dismiss. See Rec. Doc. 35.
Plaintiff responded. See Rec. Doc. 41. Defendant replied. See
Rec. Doc. 34 at 45.4
In addition to paying majority of the fees, Plaintiff has also consistently
reported to NOPD as required, found housing, registered his address, submitted
his landlord verification, and requested addition time pay due fees. See Rec.
Doc. 41 at 5.
3 Plaintiff states that “this lawsuit does not prevent the State from charging
him with a crime, issuing a bill of information, or serving him with a summons
to be arraigned on criminal charges. However, as it relates to [LSP],
Plaintiff’s [rights] are violated while he remains under imminent possibility
of arrest according to Louisiana law.” Id. at 3.
4 After Plaintiff filed his Complaint, Defendant filed a motion to dismiss. See
Rec. Doc. 27. Plaintiff did not file any opposition to the motion but filed a
motion for leave to amend his Complaint. See Rec. Doc. 32. This Court granted
that motion for leave and dismissed Defendant’s motion to dismiss because
Defendant filed the instant motion to dismiss. See Rec. Doc. Nos. 33, 36.
2
2
LAW AND ANALYSIS
A. Motion to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted. To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff’s complaint “must contain
‘enough facts to state a claim to relief that is plausible on its
face.’” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
other words, a plaintiff’s “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly,
550
U.S.
at
555.
“A
claim
has
facial
plausibility
when
the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
that
the
defendant
is
liable
for
the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 556 U.S. at 556).
When deciding whether a plaintiff has met his or her burden,
a court “accept[s] all well-pleaded factual allegations as true
and interpret[s] the complaint in the light most favorable to the
plaintiff, but ‘[t]hreadbare recitals of the elements of a cause
of
action,
establish
supported
facial
by
mere
conclusory
plausibility.”
Snow
statements’
Ingredients,
cannot
Inc.
v.
SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir. 2016) (quoting Iqbal,
556 U.S. at 678) (some internal citations and quotation marks
3
omitted). Plaintiff must “nudge[] [his or her] claims across the
line from conceivable to plausible.” Twombly, 550 U.S. at 570.
B. Defendant is a “Person” Within the Meaning of Section 1983
Section 1983 makes certain “persons” liable for deprivation
of constitutional rights. See 42 U.S.C. 1983. Specifcally, in
relevant part, Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen . . . to the deprivation 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[.]
To prove a claim under this section, a plaintiff must prove that
a “person”, acting under the color of law, deprived him or her of
rights, privileges, or immunities secured by the Constitutions and
laws of the United States. See Lumpkins v. Office of Cmty. Dev.,
621 Fed. Appx. 264, 268 (5th Cir. 2015).
Historically, there was conflict surrounding the issue of
whether a state, or an official of a state while acting in his or
her official capacity, is a “person” within the meaning of Section
1983. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 61-64
(1989)(referencing several holdings to illustrate the conflict).
Today, there is less conflict. In fact, as Defendant contends, it
is well established that neither a state nor its officials in their
official capacities are “persons” under Section 1983. See Will,
491 U.S. at 71. However, Defendant overlooks that a state official
4
sued in his or her official capacity for injunctive relief is a
suable “person” under Section 1983. See id. at 71 n.10 (citing
Kentucky v.
Graham,
473
U.S.
159,
167
n.
14
(1985);
Ex
parte
Young, 209 U.S. 123, 159-160 (1908)).
Defendant argues that Plaintiff alleges facts as it relates
to LSP, not him as Colonel Reeves. See Rec. Doc. 35-1; Rec. Doc.
45
at
Colonel
2.
This
Reeves
argument
only
in
fails
his
as
Plaintiff
official
is
capacity
expressly
as
suing
Superintendent
Colonel of LSP. See Will, 491 U.S. at 71 (“The Supreme Court [of
the United States] has held that a lawsuit against a state employee
in
his
[or
her]
official
capacity
is
equivalent
to
an
action
against the state itself.”); see also La. R.S. § 40:1301 (showing
that LSP is an arm of the state).
Defendant argues in his Reply that Plaintiff cannot sue LSP
under Section 1983 because LSP is not a suable “person” within the
meaning of the section. See Rec. Doc. 45 at 1. This argument also
fails
because,
Supplemental
and
as
laid
Amended
out
clearly
Complaint,
in
Plaintiff’s
Plaintiff
is
First
seeking
injunctive relief.5 See Doe v. Caldwell, 913 F. Supp. 2d 262, 272
Specifically, Plaintiff requests that this Court (a) issue a temporary
restraining order and/or preliminary injunction barring the Defendants from
arresting Plaintiff for failure to pay sex offender registration notification
fees; (b) issue a temporary restraining order and/or preliminary injunction
requiring the recall of any already issued warrants related to Plaintiff’s
failure to pay sex offender registration notification fees; (c) issue a
permanent injunction barring the Defendants from arresting Plaintiff for failure
to pay sex offender registration notification fees; (d) issue a permanent
injunction requiring the recall of any already issued warrants related to
Plaintiff’s failure to pay sex offender registration notification fees; (e)
issue a declaratory judgment that the lack of a general fee waiver provision in
5
5
(E.D. La. 2012) citing Will, 491 U.S. at 71 n.10. Therefore,
Defendant is a “person” under Section 1983.
C. The Doctrine of Ex Parte Young Applies
Now that we have established that Defendant is a “person” and
therefore can be sued under Section 1983, we will continue our
analysis to establish whether Plaintiff may maintain his claim
against Defendant by way of an exception.
Specifically, the doctrine of Ex parte Young is a narrow
exception to the rule that official-capacity actions represent
actions against the state. See Mathia v. Bd. of Supervisors of La.
State Univ., 959 F. Supp. 2d 951, 957-58 (E. D. La. 2013) citing
to Will, 491 U.S. at 71 n.10 (quoting Kentucky v. Graham, 473 U.S.
159, 167 n. 14 (1985); Ex parte Young, 209 U.S. 123, 145-48
(1908)). 6 This exception “rest on the premise that when a federal
the Louisiana Sex Offender Registration law for indigent persons who have paid
some but not all fees is unconstitutional as applied to Mr. Robinson according
to the Fourth and Fourteenth Amendments to the United States Constitution; (f)
issue a judgment, pursuant to 28 U.S.C. §§ 2201-2202, declaring that the state
of Louisiana and its agencies cannot arrest indigent registrants who have made
bona fide efforts to comply with the sex offender statute; (g) award attorney
fees and costs to plaintiff in accordance with 42 U.S.C. § 1988 and 28 U.S.C.
§ 1920; (h) grant such other relief as the Court finds just and proper. See
Rec. Doc. 34 at 17-18.
6 In Blanchard v. Forrest, 1994 U.S. Dist. LEXIS 12697 *1, *7 (E.D. La. 1994)
this Court states:
The Fifth Circuit has recently recognized the distinction
between a suit against a state official for monetary damages and
one for prospective relief in American Bank and Trust Co. of
Opelousas v. Dent, 982 F.2d 917 (5th Cir. 1993). There the bank
sued, seeking declaratory judgment that a Louisiana statute
allegedly prohibiting the bank from selling insurance was
unconstitutional and also seeking an injunction against any acts by
the Louisiana Commissioner of Financial Institutions to enforce the
allegedly unconstitutional statute. Id. at 918. The bank alleged
that the statute denied the bank equal protection of the law
6
court commands a state official to do nothing more than refrain
from violating federal law, [the official] is not the state . .
..” See Caldwell, 913 F. Supp. 2d at 272 citing to Virginia Office
for Protection and Advocacy v. Stewart, 131 S.Ct. 1632, 1637
(2011). 7
To establish whether Plaintiff may maintain his claim under
the Ex parte Young exception “[this] Court need only conduct a
straightforward
inquiry
into
whether
[Plaintiff’s
First
Supplemental and Amended Complaint] alleges an ongoing violation
of
federal
law
and
seeks
relief
properly
characterized
as
prospective. See Mathia, 959 F. Supp. 2d at 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
here
and
the
enforcement
of
the
disputed
unconstitutional state act. See Caldwell, 913 F. Supp. 2d at 272.
The state official must be acting, threatening to act, or at least
pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983. Id. at
919.
In overturning a dismissal for lack of subject matter
jurisdiction, the Fifth Circuit stated: [Ex parte] Young
established the principle that the Eleventh Amendment does not bar
a Suit in federal court against a state official to enjoin his
enforcement of a state law alleged to be unconstitutional. The
Supreme Court, though it has clarified that Young cannot be extended
to permit a Suit for equitable monetary restitution from the state
treasury for a past breach of a legal duty, has reaffirmed the basic
holding of Young as to purely prospective relief on numerous
occasions. [Citations omitted.] Id. at 920.
7 See also Doe v. Caldwell, 913 F. Supp. 2d 262, 272 (E.D. La. 2012) citing to
K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)(Ex parte Young "is based on
the legal fiction that a sovereign state cannot act unconstitutionally[; t]hus,
where a state actor enforces an unconstitutional law, he is stripped of his
official clothing and becomes a private person subject to suit.”).
7
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 LeBlanc, 627 F.3d at 124
(quoting Ex parte Young, 209 U.S. at 157).
Defendant
mainly
relies
on
argument that Plaintiff fails to
three
meet
cases
the
to
“some
support
his
connection”
requirement. See Rec. Doc. 45 4-8. In two of the three cases,
courts found that the “some connection” requirement is met. In
this case, this Court finds the same.
8
Plaintiff’s lawsuit satisfies the straightforward inquiry: he
alleges
ongoing
rights
and
violations
seeks
of
Fourth
prospective
and
relief
Fourteenth
from
Amendment
remaining
under
imminent possibility of arrest. See Caldwell, 913 F. Supp. 2d at
273.
Furthermore,
Defendant
Plaintiff
and
the
shows
“some
disputed
connection”
unconstitutional
R.S. 15:540 requires sex offenders to register
enforcement
with
agencies.
apprehension
La.
of
R.S.
sexual
15:552
offenders
between
arrest. La.
with
state
law
explains LSP’s involvement
and
persons
required
to
register. See Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of
Workers’ Comp., 851 F.3d 507, 515 (5th Cir. 2017)(finding that the
Ex
parte
clearly
see
exception
Young
involved
also
in
Sonnier,
the
649
applied
because
challenged
F.
Supp.
2d
state
scheme and
at
defendants
its
were
enforcement);
493 (finding that the Ex
parte Young exception applied to an assistant vice
president
that
was specifically listed in the applicable policy).
This
connection
is
to
not
a
a
case
disputed
against
a
governor
unconstitutional
state
for
his
act.
or
See
her
e.g.,
King v. State ex rel. Jindal, 2013 U.S. Dist. LEXIS 148849 *1, *6
(E.D. La. 2013)(dismissing the governor as a party but not the
attorney general). This is a case against a Colonel Superintendent of
LSP for his connection to the state police’s power to arrest
9
non-compliant sex offenders. See Morris v. Livingston, 739 F.3d
740
(5th
Cir.
2014)(dismissing
the
governor
as
a
party
and
substituting he executive director of the Texas Department of
Criminal Justice in his official capacity). Therefore, Defendant
remains part of this lawsuit because Plaintiff states a claim upon
which relief can be granted.
New Orleans, Louisiana, this 19th day of March, 2019.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
10
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