Lavigne v. State of Louisiana, Department of Justice et al

Filing 40

ORDER granting 33 Motion for Summary Judgment and denying 34 Motion to Amend complaint. Pltf's remaining claim against defendants is dismissed. Signed by Judge Helen Ginger Berrigan on 05/09/11. (PAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SYLVESTER R. LAVIGNE, JR.

CIVIL ACTION

VERSUS

NO. 09-273

STATE OF LOUISIANA, DEPARTMENT
OF JUSTICE, ET AL.

SECTION: “C” (2)

ORDER
Before the Court are Defendants’ Motion for Summary Judgment, (Rec. Doc. 33), and
Plaintiff’s Second Motion for Leave to File Amended Complaint, (Rec. Doc. 34). Having reviewed
the memoranda of counsel and the applicable law, the motion for summary judgment is GRANTED
and the motion for leave to amend is DENIED for the following reasons.
Plaintiff’s only remaining claim before this Court is a Louisiana state law claim for malicious
prosecution. (Rec. Doc. 15 at 8; Rec. Doc. 1-1). The Fifth Circuit has recently held that the
elements of that cause of action are:
“(1) the commencement or continuation of an original criminal or civil proceeding;
(2) its legal causation by the present defendant in the original proceeding; (3) its
bona fide termination in favor of the present plaintiff; (4) the absence of probable
cause for such proceeding; (5) the presence of malice therein; and (6) damage
conforming to legal standards resulting to plaintiff.
Deville v. Marcantel, 567 F.3d 156, 173 (5th Cir. 2009) (citing Jones v. Soileau, 448 So.2d 1268,
1271 (La. 1984)). The Fifth Circuit went on to hold that if a district attorney exercises his or her
power to nolle prosse the charges against a plaintiff, then that plaintiff has not obtained a bona fide
termination in his or her favor, but rather has only obtained a procedural dismissal of the charges.
Id. Here neither party disputes that the district attorney decided to nolle prosse the charges against
Plaintiff. (Rec. Doc. 22-1 at 7; Rec. Doc. 38 at 5; Rec. Doc. 38-5). As a result, Plaintiff has not
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obtained a bone fide termination in his favor and therefore cannot prevail on his Louisiana malicious
prosecution claim. Deville, 567 F.3d at 176. When a party fails to establish an element essential
to that party's case, then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
Similarly, Plaintiff’s motion to amend his complaint must be denied, as he only seeks to
amend his complaint in order to assert malicious prosecution claims against Detective Dennis Fruge
and Sheriff Wayne Melancon. (Rec. Doc. 34 at 7). Because these claims all arise out of the same
prosecution, which ended when the district attorney decided to nolle prosse the charges against
Plaintiff, then they would also fail to state a claim for malicious prosecution, making any
amendment futile. See In re Westec Corp., 434 F.2d 195, 204 (5th Cir. 1970) (upholding denial of
leave to amend when the amended pleading only asserted unsupported legal theories).
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment is granted and Plaintiff’s
remaining claim against Defendants is dismissed. (Rec. Doc. 33).
IT IS FURTHER ORDERED that Plaintiff’s Second Motion for Leave to File Amended
Complaint is DENIED. (Rec. Doc. 34).
New Orleans, Louisiana, this 9th day of May, 2011.

______________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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