Cripps et al v. State of Louisiana Department of Agriculture and Forestry

Filing 17

RULING Granting in part and Denying in part 9 Motion to Dismiss. The Defendants qualified immunity claim is GRANTED with respect to any procedural due process claims but DENIED with respect to any substantive due process claims. Additionally, Plaintiffs are advised to file a motion to amend their complaint to include an Eighth Amendment claim(s). Signed by Judge James J. Brady on 12/6/2012. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHAEL ANTHONY CRIPPS
AND JOHN DAVID CRIPPS
CIVIL ACTION
VERSUS
NO. 12-452-JJB
STATE OF LOUISIANA THROUGH
THE DEPARTMENT OF
AGRICULTURE AND FORESTRY,
ET AL
RULING ON DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on Defendants’ motion to dismiss. (Doc. 9).
Plaintiffs have filed an opposition. (Doc. 11). Oral argument is not necessary. The
Court’s jurisdiction exists pursuant to 28 U.S.C. § 1331. For the reasons herein,
the Court DENIES the Defendants’ motion to dismiss on all grounds except for
qualified immunity for procedural due process.
I.
The Court makes the following factual findings based on the complaint
(Doc. 1-2) and the amended complaint (Doc 16). Plaintiffs Michael Anthony
Cripps (“Michael Cripps”) and John David Cripps (“John Cripps”) filed this action
on July 9, 2012 against Defendants, The State of Louisiana, through the
Department of Agriculture and Forestry, Structural Pest Control Commission, and
David M. Fields (collectively “Defendants”) seeking injunctive relief and damages.

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Michael Cripps and John Cripps are brothers who have worked in the pest
control industry for more than seventeen and sixteen years, respectively, prior to
January 27, 1999. On April 6, 1998, John Cripps began doing business as
Innovative Pest Management Company, and Michael Cripps was his employee.
On January 27, 1999, Defendant Structural Pest Control Commission
(“Commission”) imposed a civil fine of seventeen thousand ($17,000) dollars on
John Cripps for paperwork violations. The Commission suspended twelve
thousand ($12,000) of the fine on the condition that John Cripps would not have
any other violations for a two year period. In the letter notifying John Cripps of the
fine, Defendant David M. Fields (“Fields”) provided that the fine shall be paid over
two years beginning April 1999. John Cripps has not paid the fine on his belief
that the fine is unlawful, null, and void. On or about May 1, 2000, the Commission
suspended both John Cripps and Innovative Pest Management’s license for
failure to pay the fines, putting John Cripps, Michael Cripps, and Innovative Pest
Management out of business.
On June 8, 2000, the Commission imposed a civil fine of five thousand
($5,000) dollars on Michael Cripps for paperwork violations. Four thousand
($4,000) dollars of the fine was suspended on the condition that Michael Cripps
would not have any other violations for a two year period. In the letter notifying
Michael Cripps of the fine, Fields provided that payment was due within ten days.
On October 31, 2000, the Commission increased the fine to ten thousand

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($10,000) without notice or a hearing. Michael Cripps has not paid the fine on his
belief that the fine is unlawful, null, and void.
On July 5, 2011, Michael Cripps was employed by Terminex, Inc. on the
condition that he obtain recertification from the Commission. On that date,
Terminex applied to the Commission for Michael Cripps to be re-issued a
certificate. Recertification requires that the applicant take and pass an
examination. On July 7, 2011, Fields notified Michael Cripps and Terminex that
his registration was denied and that it would be denied until he appeared before
the Commission on August 3, 2011. On that date, Terminex terminated Michael
Anthony Cripps based on the letter and an e-mail that Fields had sent the day
before to Terminex.
On August 3, 2011, Michael Cripps appeared before the Commission and
stated that the Defendants had violated and were continuing to violate his
constitutional rights by depriving him of the right to work. John Cripps
accompanied him, although he was not on the schedule. After Michael Cripps
made his presentation, the Commission’s attorney offered testimony in rebuttal.
The Commission voted to refuse to grant his registration until his past due fines
plus interest had been paid. Moreover, the Commission ordered that John Cripps
pay interest on his own fine, although the Commission did not provide any notice
in connection with this order.
Michael Cripps alleges that the Commission’s refusal to issue him a
license was in retaliation for speaking at the hearing in violation of the First
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Amendment to the United States Constitution and Art. I § 7 of the Louisiana
Constitution. Moreover, he alleges that the Commission has denied his liberty
interest in pursuing his occupation in violation of the due process clause of the
Fourteenth Amendment and Art. § 2 of the Louisiana Constitution. Michael
Cripps also alleges that when the Commission imposed interest, this was ultra
vires and beyond the scope of what the Commission was authorized to do.
The Plaintiffs are seeking injunctive relief, compensatory damages, and
punitive damages. The Plaintiffs seek an injunction enjoining the Defendants
from requiring the Plaintiffs to pay legal interest, attempting to collect legal
interest, and from interfering with the Plaintiffs’ rights to pursue their livelihood. In
addition to compensatory damages, the Plaintiffs are seeking punitive damages
and allege that Fields has acted wantonly, willfully, and maliciously to put the
Cripps family out of business.
II.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). When reviewing the complaint, a court must accept all wellpleaded factual allegations as true. C.C. Port, Ltd. v. Davis-Penn Mortg. Co., 61
F.3d 288, 289 (5th Cir. 1995). In order to survive a motion to dismiss, the
complaint must plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Defendants have filed a motion to dismiss on the grounds that (1) Michael
Cripps failed to comply with the procedures required by the administrative
procedure act (“APA”); (2) John Cripps’s claim has prescribed; and (3) Fields is
entitled to qualified immunity. (Doc. 9).
Administrative Procedure Act
Defendants argue that the Commission is a part of the Louisiana
Department of Agriculture and Forestry (“LDAF”), a state agency, and therefore,
the APA is applicable. Pursuant to the APA, an aggrieved party is required to
seek redress before the relevant board or commission prior to filing an action in
district court. The Defendants point to the statutory language contained in
Louisiana Revised Statute 49:964 A (1), which provides that
[A] person who is aggrieved by a final decision or order
in an adjudication proceeding is entitled to judicial
review under this Chapter whether or not he has applied
to the agency for rehearing, without limiting, however,
utilization of or the scope of judicial review available
under other means of review, redress, relief, or trial de
novo provided by law.
La. R.S. 49:964 A(1). Section B provides that
Proceedings for review may be instituted by filing a
petition in the district court of the parish in which the
agency is located within thirty days after mailing of
notice of the final decision by the agency or, if a
rehearing is requested, within thirty days after the
decision thereon.
La. R.S. 49:964 B. A reviewing court may “reverse or modify the decision if
substantial rights of the appellant have been prejudiced because the
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administrative findings, inferences, conclusions or decisions are: (1) [i]n violation
of constitutional or statutory provisions.” La. R.S. 49:964 G(1).
Defendants argue that the notice of the final decision from the August 3,
2011 hearing was mailed on October 31, 2011. Therefore, Defendants assert,
Michael Cripps had thirty days to either file for a rehearing or file a petition for
judicial review in the district court. However, Michael Cripps filed a petition on
July 9, 2012 in the 19th judicial district court. Because he did not file timely,
Defendants argue that the decision of the Commission is final and he should not
be permitted to raise his claim and circumvent the requirements established by
the APA.
In Plaintiffs’ opposition (Doc. 11), Plaintiffs argue that the Supreme Court
of the United States has held that filing Section 1983 claim does not require the
exhaustion of state administrative remedies. See Patsy v. Board of Regents of
State of Fla., 457 U.S. 496, 502 (1982); Gibson v. Berryhill, 411 U.S. 564, 574
(1973). To find that exhaustion is required would ignore one of the purposes of a
Section 1983 claim, which is to provide a federal remedy that is “supplementary
to the state remedy, and . . . [that] need not be first sought and refused before
the federal one is invoked.” Monroe v. Pape, 365 U.S. 167, 183 (1961), overruled
on other grounds by Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).
Moreover, Plaintiffs point out that Michael Cripps’s claim is not for review of a
final agency decision or order. Rather, Michael Cripps is alleging a violation of
constitutional rights, which renders the APA inapplicable.
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Plaintiffs further argue that the Commission has no authority to hear
constitutional claims. Plaintiffs point out that Congress has given Article III courts
the power to hear constitutional claims. “When federal claims are premised on 42
U.S.C. § 1983 . . . we have not required exhaustion of state judicial or
administrative remedies, recognizing the paramount role Congress has assigned
to the federal courts to protect constitutional rights.” Steffel v. Thompson, 415
U.S. 452, 472-73 (1974). Plaintiffs argue that agencies lack subject matter
jurisdiction to hear constitutional claims, and asserts that Defendants’ argument
that Plaintiffs should seek redress before the agency is meritless. Plaintiffs
contend that no “logical reading of this statute [La. R.S. § 49:964 G(1), which
provides that a court may reverse or modify an agency’s decision if the decisions
are in violation of constitutional or statutory provisions] could conclude that the
Louisiana State Legislature intended to strip federal courts of their original
subject matter jurisdiction over § 1983 claims.” (Doc. 11 at 8).
The Court agrees with the Plaintiffs. This Court has previously found that a
“plaintiff need not exhaust his state administrative remdies before bringing a §
1983 claim, unless Congress creates an exception.” Doc’s Clinic, APMC v.
Louisiana ex rel. Dep’t of Health and Hospitals, 2009 WL 3199192, *3 (M.D. La.
2009). This Court finds no reason to disturb well-settled law and therefore,
DENIES the Defendants’ Motion to Dismiss on the grounds that the Plaintiff,
Michael Cripps, has not exhausted his administrative remedies.
Prescription
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Defendants argue that John Cripps’s action has prescribed because his
claim(s) arose more than one year prior to filing suit on July 9, 2012. Section
1983 has no statute of limitations, so courts must look to the forum state’s
limitations for the applicable claim. Owens v. Okure, 488 U.S. 235, 239 91989).
Here, the applicable statute of limitations is one year. La. Civil Code Art. 3492. A
Section 1983 claim accrues when the plaintiff knows or should have known of his
injuries. Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008).
Defendants argue that generally under Louisiana law, a party that raises
prescription as a defense has the burden of establishing that the claim has
prescribed. Savoy v. St. Landry Parish Council, 2009 WL 4571851, *3 (W.D. La.
2009). However, if the face of the complaint shows that prescription has run, the
burden shifts to the plaintiff to show that the prescriptive period has been
interrupted or tolled. Id. Defendants argue that the complaint alleges that John
Cripps’s rights were violated on January 27, 1999, when the Defendants imposed
a civil fine on him. His license was suspended on May 1, 2000, which Defendants
argue is the date which began the tolling of the prescriptive period. Because the
Plaintiffs did not file suit until July 9, 2012, Defendants argue that his claims for
an injury occurring over a decade earlier have prescribed.
In Plaintiffs’ opposition, Plaintiffs first argue that the cause of action arose
from the Defendants’ “imposition of excessive fines and deprivations of due
process occurring on July 7, 2011.” (Doc. 11 at 9). Because Plaintiffs filed on July
6, 2012, Plaintiffs argue that their claims have not prescribed. Moreover, Plaintiffs
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argue that their causes of action concerning the initial imposition of fines on May
1, 2000 have not prescribed because the Commission “grossly exceeded its
statutorily granted authority when it imposed fines . . . in excess of five thousand
dollars.” (Id.) Under Louisiana law, the maximum amount of civil penalties that
the Commission can impose is five thousand dollars. La. R.S. 3:3372 A(3).
Because the Commission imposed fines in excess of five thousand dollars, the
Plaintiffs argue that this is ultra vires, null, and void. A regulation which creates a
“rule out of harmony with the statute . . . is a mere nullity.” Manhattan Gen.
Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129, 134 (1936). Under the
Louisiana Civil Code, contracts that are null “may not be confirmed” and an
action for “annulment of an absolutely null contract does not prescribe.” La. Civ.
Code arts. 2030 and 2032. Therefore, Plaintiffs argue that the fines were
absolutely null and because absolute nullities do not prescribe, the Defendants’
motion should be denied.
This Court finds that John Cripps’s claims have not prescribed. John
Cripps has not paid fines that were imposed on him upon the belief that they
were void because they were in excess of the statutory limit of five thousand
($5,000) dollars. Moreover, the face of the complaint states that John Cripps
accompanied his brother to the hearing on August 3, 2011 and even though the
Commission did not provide him any notice, the Commission ordered him to pay
interest on past due fines. Because this occurred within the one year prescriptive

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period, John Cripps’s claims have not prescribed. Therefore, the Court DENIES
the Defendants’ motion to dismiss on the grounds of prescription.

Qualified Immunity
Defendants argue that Fields, as a government official, is entitled to
immunity because his conduct did not violate “clearly established statutory or
constitutional rights that a reasonable person would have known.” (Doc. 9-1 at
12). In Harlow v. Fitzgerald, the United States Supreme Court held that
“government officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). There is a two step
method in determining whether a defendant is entitled to qualified immunity, and
the sequencing of the method is left to the discretion of the lower courts. See
Pearson v. Callahan, 555 U.S. 223, 242 (2009). However, this Court will apply
the sequence established in Saucier v. Katz. Saucier v. Katz, 533 U.S. 194, 201
(2001).
In Saucier, the Supreme Court found that the initial question is whether,
taking the facts in the light most favorable to the party asserting injury, the
conduct violated a constitutional right. Id. If the conduct did not violate any
constitutional right, “there is no necessity for further inquiries.” Id. If the conduct

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did violate a constitutional right, the next step “is to ask whether the right was
clearly established.” Id.
The Defendants argue that the Plaintiffs have either failed to show facts to
demonstrate that Fields violated any constitutional right or that Fields’s conduct
did not violate any clearly established statutory or constitutional rights of which a
reasonable person would have known. Defendants first assert that there was a
clearly established right, which was procedural due process. Procedural due
process generally requires notice and a hearing prior to the deprivation of a right.
Defendants argue that Michael Cripps was given notice on July 7, 2011 of the
hearing set for August 3, 2011. Defendants contend that the plaintiffs were not
entitled to obtain registrant status because of their failure to pay their outstanding
fines and the only way to obtain this status “was to appear properly before the
Commission and satisfy the conditions uniformly set in place.” (Doc. 9-1 at 13).
Thus, Defendants argue that in taking the facts in the complaint in the light most
favorable to the plaintiff, Fields’s conduct could not have violated the plaintiff’s
right to notice and hearing.
Alternatively, Defendants argue that even if the Plaintiffs’ constitutional
rights were violated, these violations were not contrary to established law.
Defendants assert that the complaint does not specify any facts to show that
Fields acted unreasonably or intentionally violated the law. Moreover, because
the board voted to deny Michael Cripps’s registration, Defendants argue that this
underscores the objective reasonableness of Fields’s conduct.
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In their opposition, Plaintiffs argue that both Michael and John Cripps’s
constitutional rights were violated by Field’s conduct. First, Plaintiffs argue that
Fields violated Michael Cripps’s right to due process when he informed Michael
Cripps via letter that his certificate would not be reissued and that his registration
would be denied until he appeared at the hearing. Moreover, Plaintiffs argue that
his liberty interest, the freedom to “engage in any of the common occupations of
life,” was violated. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Plaintiffs object
to Defendants’ argument that he was never entitled to obtain registrant status
due to his outstanding fines for two reasons. First, Plaintiffs argue that
Defendants are characterizing his interest as a property interest instead of a
liberty interest, and there is an absence of any facts justifying the deprivation of
Michael Cripps’s right to pursue his profession. Moreover, Plaintiffs argue that
the guidelines established by the Louisiana Administrative Code that define the
Commission’s ability to suspend or revoke a license registration do not include
failure to pay fines. La. Admin. Code. tit. 7 XXV, § 127. Additionally, Plaintiffs
argue that Michael Cripps was never given any pre-deprivation notice or hearing.
The July 7, 2011 letter could not serve as a pre-deprivation notice because,
according to Plaintiffs, Michael Cripps’s liberty interest had already been
deprived at this point. Furthermore, Plaintiffs argue that John Cripps’s
constitutional rights were violated when the Defendant imposed fines on him at
the August 3, 2011 hearing when he was given no notice that his unpaid fines
would be addressed at the hearing.
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Plaintiffs also assert that the Defendants violated the Eighth Amendment
right to be free from excessive fines when the Defendants imposed the fines on
August 3, 2011 in excess of what the Commission is statutorily authorized to
impose. Although the Plaintiffs did not raise any Eighth Amendment claims in
their petition, Plaintiffs request that this Court grant leave to amend the petition to
include these claims.
Finally, Plaintiffs argue that Fields violated clearly established
constitutional rights of which a reasonable person would have known. Plaintiffs
first assert that the right to engage in a lawful chosen occupation is a clearly
established right. Additionally, Plaintiffs point out that the constitution “confers a
clearly established right to be free from retaliation for an individual’s exercise of
his First Amendment rights.” (Doc. 11 at 15). See Hartman v. Moore, 126 S.Ct.
1695 (2006). Finally, Plaintiffs argue that the Eighth Amendment is designed to
prevent the government from “abusing its power to punish.” (Doc. 11 at 15).
“[T]he Excessive Fines Clause was intended to limit only those fines directly
imposed by, and payable to, the government.” Austin v. United States, 509 U.S.
602, 607 (1993) (internal quotations and citations omitted). Plaintiffs assert that
Defendants’ conduct was not only unreasonable, but it was malicious and
retaliatory, and therefore, Fields is not entitled to qualified immunity.
This Court finds that the Defendant is entitled to qualified immunity on a
procedural due process claim, but not on a substantive due process claim.
Defendants devote their argument to procedural due process but ignore
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substantive due process arguments, and thus, the Court will not rule on a
substantive due process qualified immunity argument. Therefore, the
Defendants’ qualified immunity claim is GRANTED with respect to any
procedural due process claims but DENIED with respect to any substantive due
process claims.
Additionally, Plaintiffs are advised to file a motion to amend their complaint
to include an Eighth Amendment claim(s).

Signed in Baton Rouge, Louisiana on December 6th, 2012.






JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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