Delahoussaye et al v. Livingston Parish, Louisiana et al

Filing 60

RULING granting in part and denying in part 45 Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted.The Defendants Motion to Dismiss the state law whistleblower claims arising under La. R.S. 23:967 and La. R.S. 42:1169 is GRANTED, and the Plaintiffs claims for violations of La. R.S. 23:967 and La. R.S. 42:1169 are hereby dismissed with prejudice. The Defendants Motion to Dismiss the Plaintiffs 42 U.S.C. § 1983 claims arising under the First and Fourteenth A mendments is hereby DENIED.The Defendant Parish President Luther Layton Ricks Motion to Dismiss on the basis of qualified immunity is hereby GRANTED, and the Plaintiffs individual capacity claims against Luther Layton Ricks arising under 42 U.S.C. § 1983 are hereby dismissed with prejudice. Signed by Judge Shelly D. Dick on 9/11/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
COREY DELAHOUSSAYE
AND C-DEL, INC.

CIVIL ACTION

VERSUS
NO. 12-00481-SDD-SCR
LIVINGSTON PARISH, LOUISIANA
LUTHER LAYTON RICKS, JR.
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY, ALVIN FAIRBURN AND
ASSOCIATES, PROFESSIONAL
ENGINEERING CONSULTANTS
CORPORATION, AND INTERNATIONAL
EQUIPMENT DISTRIBUTORS, INC.
RULING
Before the Court is a FRCP Rule 12(b)(6) Motion to Dismiss for Failure to State a
Claim Upon Which Relief Can Be Granted1 filed by Defendants, Livingston Parish,
Louisiana, and Luther Layton Ricks, Jr., individually and in his official capacity.
Plaintiffs, Corey Delahoussaye and C-Del, Inc., have filed an Opposition2 to Defendants’
motion.
I.

BACKGROUND
Plaintiffs, Corey Delahoussaye and C-Del, Inc., filed this lawsuit on August 8,

2012 against Defendants, Livingston Parish, Parish President Luther Layton Ricks, Jr.,
individually and in his official capacity (“Livingston Parish Defendants”), Alvin Fairburn
and Associates (“AFA”), Professional Engineering Consultants Corporation (“PEC”), and
International Equipment Distributors, Inc. (“IED”). The lawsuit arises out of Livingston
Parish’s termination of a contract that the Parish Council had with Plaintiff C-Del to
1

Rec. Doc. 45.
Rec. Doc. 50.
DM No. 2048
2

1

organize and manage certain post-Gustav clean-up efforts in Livingston Parish.3 The
Parish terminated C-Del’s contract amid allegations of improper billing practices and
violations of federal and state laws, rules, and regulations by C-Del.

Following

termination of the clean-up contract, Plaintiffs, C-Del and its principal Corey
Delahoussaye, brought this suit alleging conspiracy to deprive Plaintiffs of their
constitutional rights guaranteed under the First and Fourteenth Amendments. Plaintiffs
further assert state law claims for retaliation, defamation, libel, and slander, and
unlawful and deceptive trade practices under La. R.S. 51:4109.4
The Livingston Parish Defendants now urge dismissal of the remaining claims
against them on the grounds that: (1) Plaintiffs are not “employees” for purposes of La.
R.S. 23:967 and La. R.S. 42:1169; (2) the factual allegations are insufficient to support
Plaintiffs’ conspiracy claims and any direct, non-conspiracy claims arising under the
First and Fourteenth Amendments; and (3) Defendant Ricks, asserts qualified immunity
as to any remaining individual capacity claims against him.
II.

LAW AND ANALYSIS
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”5 The
Court may consider “the complaint, its proper attachments, documents incorporated into
3

Plaintiffs’ Complaint names Livingston Parish, Louisiana as a Defendant. The Agreement, however, is
entered into by and between the “Livingston Parish Council” and C-Del, Inc. Pursuant to Livingston
Parish’s Home Rule Charter, the “legislative power of the parish government shall be vested in a council”.
Thus, for purposes of this case, Livingston Parish and the Livingston Parish Council refer to the same
juridical entity. See Livingston Parish Home Rule Charter, Art. II, Section 2-01.
4
The Court has previously dismissed Plaintiffs’ Louisiana Unfair Trade Practices Act (“LUTPA”) claims
without prejudice but retained jurisdiction over the remaining allegations against Livingston Parish
Defendants arising under La. R.S. 23:967, La. R.S. 42:1169, and the First and Fourteenth Amendments.
The Court also previously dismissed Defendants AFA and PEC finding that Plaintiffs had failed to plead a
viable conspiracy claim against the private entity Defendants. See Rec. Doc. 43.
5
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
DM No. 2048
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the complaint by reference, and matters of which a court may take judicial notice.”6 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”7 In Bell Atlantic Corp. v. Twombly, the
United States Supreme Court set forth the basic criteria necessary for a complaint to
survive a Rule 12(b)(6) motion to dismiss.8 “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.”9 A complaint is also insufficient if it merely “tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’”10 However, “[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.”11

In order to satisfy the

plausibility standard, the plaintiff must show “more than a sheer possibility that a
defendant has acted unlawfully.”12

“Furthermore, while the court must accept well-

pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.’”13 On
a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched
as a factual allegation.”14

6

Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)(quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
7
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (5th Cir. 2007)(quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, at 570 (2007)).
8
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (hereinafter Twombly).
9
Twombly, 550 U.S., at 555 (internal citations and brackets omitted).
10
Ashcroft v. Iqbal, 556 U.S. 662, at 678 (2009)(internal citations omitted)(hereinafter “Iqbal”)(quoting
Twombly, 550 U.S., at 557).
11
Id. (citingTwombly, 550 U.S., at 556).
12
Id.
13
Taha v. William Marsh Rice Univ., 2012 WL 1576099 at *2 (S.D. Tx. May 3, 2012)(quoting Southland
Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
14
Twombly, 550 U.S., at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
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A. Plaintiffs’ Whistleblower Claims
Plaintiffs assert whistleblower claims under La. R.S. § 23:967 and La. R.S.
42:1169. While both statutes address retaliation against whistleblowers, the latter is
concerned solely with public employees.
1. Louisiana’s Whistleblower Statute: La. R.S. 23:967
The Louisiana Whistleblower Statute (“LWS”), La. R.S. § 23:967, provides in
pertinent part that:
A. An employer shall not take reprisal against an employee who in good
faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice
that is in violation of state law.
(2) Provides information to or testifies before any public body
conducting an investigation, hearing, or inquiry into any violation
of law.
(3) Objects to or refuses to participate in an employment act or
practice that is in violation of law.

In order to state a claim for relief under the LWS, a plaintiff must “plead sufficient
factual matter to make out a plausible claim that: (1) his employer violated the law
through a prohibited workplace act or practice; (2) he advised his employer of the
violation; (3) he then refused to participate in the prohibited practice or threatened to
disclose the practice; and (4) he was fired or suffered some other adverse employment
action as a result of his refusal to participate in the unlawful practice or threat to disclose
the practice.”15 The statute expressly refers to “employers” and “employees”.
The Livingston Parish Defendants contend Louisiana’s Whistleblower Statute has
no application to the facts of this case because there was no employer-employee
15

Richardson v. Axion Logistics, LLC, 2014 WL 988840, at *3 (M.D.La. Mar. 12, 2014).
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relationship between the Parish and the Plaintiffs.

Defendants maintain that the

relationship between the parties was purely contractual and that the contract was
between C-Del and Livingston Parish Council, and not with Delahoussaye. Defendants
contend that C-Del was an independent contractor and that, as a corporate entity, C-Del
cannot be an “employee” as a matter of law. Defendants also argue, as a matter of fact,
that the Parish did not compensate Delahoussaye, provide him with any employee
benefits, or withhold any taxes on his behalf. These facts are not established in the
pleadings and no evidence was offered by the Defendants to establish these facts and,
therefore, the Court disregards these factual allegations for purposes of this Motion.
Plaintiffs argue that the determination of Livingston Parish’s status as employer
requires a fact intensive inquiry and is an improper determination on a motion to
dismiss. Because the Louisiana Whistleblower Statute does not define “employee,”
Plaintiffs further direct the Court’s attention to the Code of Governmental Ethics
Whistleblower Statute, La. R.S. 42:1169, to support their position that they are
employees.
Whether a corporate contractor, such as C-Del, can be considered an
“employee” for purposes of the state law whistleblower protection is res nova. In
conducting its own research on the LWS, the Court was unable to find any cases
involving a corporate contractor asserting a state whistleblower claim against a public
entity. Notably, the Plaintiffs cited no Louisiana jurisprudence supporting the contention
that corporate contractors are intended to be construed as employees under the LWS.
Rather, the jurisprudence relied upon by the Plaintiffs is distinguishable because, in
those cases, the whistleblower claims arose out of First Amendment constitutional
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protections and Louisiana’s Environmental Whistleblower Statute.16

Lack of

jurisprudence aside, however, the Court finds that Plaintiffs’ claims arising under the
LWS fail to state a claim for other reasons.
On a motion to dismiss, the Court must accept all well-plead facts as true. After
reviewing the Original and Supplemental and Amending Complaints, the Court finds that
Plaintiffs did not allege the existence of an employer-employee relationship with the
Livingston Parish Defendants. The Plaintiffs allege that they “provide their services to
Livingston Parish pursuant to a contract executed October 27, 2009” which contract was
subsequently amended as pertaining to the scope of work.17 Plaintiffs allege that C-Del
invoiced the Parish for services rendered and the Parish was contractually obliged to
remit payment for those services.18

Plaintiffs make not a single allegation of an

employer-employee relationship between the parties.
Because the Plaintiffs attached the parties’ Agreement to their Original
Complaint, the Court will consider it for purposes of the pending Motion to Dismiss.19 A
plain reading of the Agreement between C-Del and the Parish does not indicate that the
16

O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996); Collins v. State ex rel. Dept. of
Natural Resources, 118 So.3d 43 (La.App. 1 Cir. 5/30/13).
17
Rec. Doc. 1, ¶¶ 3- 4. “On October 27, 2009, Defendant Livingston Parish entered into a contract with
Petitioners whereby Petitioners were to organize and oversee certain aspects of clean-up efforts
conducted by AFA, PEC and IED in Livingston Parish necessitated by Hurricane Gustav.” ¶ 3.
“Petitioners provide their services to Livingston Parish pursuant to the contract executed on October 27,
2009. On March 30, 2010, the contract was amended to include a specific scope of work which directly
included interface on behalf of Livingston Parish with Federal and State officials. On July 28, 2010, the
contract as amended again to broaden the scope of Petitioners duties to include monitoring services for
burn site de-activation…As best evidence of their contents, the referenced contracts, as amended are
attached hereto and made part hereof as Exhibit 1, in globo.” ¶ 4.
18
Rec. Doc. 1,¶ 5. “[U]nder the plain terms of Petitioner’s contract, defendant Livingston was required to
remit payment for services within 30 days of receipt of invoice for services rendered.” Rec. Doc. 1, p. 6.
“Livingston Parish, through its Council, on June 19, 2012 ordered that the sum of $373,242.54 be paid to
Petitioners, but as of present, Petitioners still have not received the monies due and owing to them for
services performed pursuant to its contracts with Livingston Parish.”
19
Rec. Doc. 1-8. (See also, Rec. Doc. 1, p. 3, ¶4 wherein Plaintiffs state, “As best evidence of their
contents, the referenced contracts, as amended, are attached hereto and made part hereof as Exhibit 1,
in globo.”).
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parties contemplated an employment relationship.

The Agreement identifies and

defines the Livingston Parish Council as “Owner” and C-Del as the “Contractor.”
Delahoussaye is not a party to the contract. The contract requires C-Del to “furnish all
materials, tools, equipment, manpower, and consumables to complete the work.”20 The
contract provides that “[t]his Agreement shall be dissolved upon the completion of the
task . . . or by 30 days written notice of either party.”21 The contract defines a “scope of
work” to be completed by C-Del and remuneration to C-Del under the contract was to be
on a time and expense basis to be invoiced by C-Del.22 C-Del was required to have “full
and complete worker’s compensation coverage”.23 C-Del, as Contractor, agreed to
indemnify and hold harmless [Livingston Parish], its officers, agents, and
employees, from and against any and all liability, claims, damages,
demands, expenses, fees, fines, penalties, suits, proceedings, actions,
and costs of actions, including attorney’s fees for trial and on appeal, and
for the preparation of same arising out of [C-Del’s], its officers’, agents’,
and employees’ acts, or omissions associated with this Agreement arising
out of or related to the personal injury or property damage, unless such
claims or liability results from the wrongful acts or omissions of the
[Livingston Parish] or its agents, employees, agents or representatives.24
Neither the factual allegations of the Plaintiffs’ Complaint, nor the plain language
of the parties’ Agreement, support the existence of an employer-employee relationship
necessary to state a claim under La. R.S. 23:967. The Court declines to make an Erie
guess on whether the LWS, which by its clear and unambiguous terms applies to
“employees”, would be interpreted by a Louisiana state court to apply to independent
contractors.

Accordingly, Plaintiffs’ claims arising under La. R.S. 23:967 will be

dismissed for failure to state a claim.
20

Rec. Doc. 1, Exhibit 1 § I
Rec. Doc. 1, Exhibit 1 § II
22
Rec. Doc. 1, Exhibit 1 § IV, Exhibits A and B.
23
Rec. Doc. 1, Exhibit 1 § VII, C.2.
24
Rec. Doc. 1, Exhibit 1 § VII
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7

2. Code of Governmental Ethics Whistleblower Statute: 42:1169
La. R.S. 42:1169 is a component of Louisiana’s Code of Governmental Ethics,
and provides in pertinent part as follows:
B. (1) If any public employee is suspended, demoted, dismissed, or
threatened with such suspension, demotion, or dismissal as an act
of reprisal for reporting an alleged act of impropriety in violation of
this Section, such employee shall report such action to the
[Board of Ethics].
C. The board shall provide written notice of the commencement
of an investigation of a report of a violation of his Section … If the
board determines, following an investigation, that it shall offer a
consent opinion or conduct a public or private hearing to receive
evidence and determine whether any violation of this Section has
occurred, the board shall provide written notice of the hearing
or consent …
D. … the board shall forward a copy of its findings to the district
attorney of the parish in which the violation occurred for
appropriate action.
Thereafter, notwithstanding any other
provision of this Chapter, such district attorney shall have access to
all records of the board relative to such findings.25
Based on the Court’s finding that the Plaintiffs failed to plead the existence of an
employer-employee relationship, claims arising under La. R.S. 42:1169, Louisiana’s
Code of Government Ethics Whistleblower Statute, must also fail. Alternatively, even if
Plaintiffs were deemed to be public employees, the Court lacks subject matter
jurisdiction over claims arising under La. R.S. 42:1169, because federal and Louisiana
state courts have concluded that there is no right of private action under La. R.S.
42:1169.26

Accordingly, Plaintiffs’ claims under La. R.S. 42:1169 are dismissed for

failure to state a claim.

25

La. R.S. 42:1169.(emphasis added). (The Court is aware of the Louisiana Legislature’s Amendment to
this statute during the 2014 Legislative Session. (Act 362)).
26
Wells v. City of Alexandria, 2004 WL 909735, at *2 (5th Cir. April 29, 2004)(“The Code [of
Governmental Ethics] does not provide a private cause of action for government employees, except that a
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B. Plaintiff’s 42 U.S.C. § 1983 Claims Arising Under the First and
Fourteenth Amendments
The Livingston Parish Defendants seek dismissal of Plaintiffs’ individual and
conspiracy § 1983 claims arising under the First and Fourteenth Amendments. As
noted, the Court has previously dismissed the conspiracy claims.27 Hence, the Court
will address only the Plaintiffs’ §1983 claims arising under the First and Fourteenth
Amendment Claims as against the Parish and Ricks.

“Section 1983 imposes liability on anyone who, under color of state law,
deprives a person ‘of any rights, privileges, or immunities secured by the
Constitution and laws.’”28 In order to state a claim under 42 U.S.C. § 1983, the
Plaintiff must establish two elements: “(1) that the conduct in question deprived a
person of rights, privileges, or immunities secured by the Constitution or laws of
the United States; and (2) that the conduct or deprivation complained of was

court may enforce an order or decision of the Board, id. § 1135, and that appeals of these administrative
decisions may be made to the First Court of Appeal, id. § 1142.” See also Nolan v. Jefferson Parish
Hosp. Serv. Dist. No.2, 790 So.2d 725, 732 (La.Ct.App. 2001)(‘Jurisdiction to enforce the Code of
Governmental Ethics lies in the Board of Ethics. We find no provision of any private right of action under
the Code of Governmental Ethics; the employee’s remedy is to complain to the Board of Ethics, which
then investigates and takes action to protect the employee, if appropriate.)(citation and footnotes
omitted).’).”(unpublished). See also, Gogreve v. Downtown Development Dist., 426 F.Supp.2d 383, 389
(E.D.La. 2006)(“”the Code of Ethics does not provide plaintiff with a private right of action.”). More
recently, the Louisiana Court of Appeal for the First Circuit found that a plaintiff had failed to state a cause
of action arising under La. R.S. 42:1169 because “[a]n employee’s remedy under the Code of
Governmental Ethics is through the Board of Ethics … Louisiana Revised Statutes 42:1169(E) does not
provide an independent right of action, rather, it relies upon other statutes to provide a right of action.”
Collins v. State ex rel. Dept. of Natural Resources, 118 So.3d 43, 48 (La.App. 1 Cir. 2013).
27
In their Supplemental and Amending Complaint, Plaintiffs allege that certain private actors named as
defendants conspired with the public actors (Livingston Parish Council and the Parish President Layton
Ricks) to violate Plaintiffs’ constitutional rights and in violation of state law. The Court previously
dismissed the conspiracy claims. This Court ruled: “Interpreting the well-pleaded facts as true, the Court
finds that the Plaintiffs have failed to show specific facts of any agreement among the Defendants to
support a viable conspiracy claim * * * * the Court finds that the factual allegations fail to suggest that an
agreement among the Defendants was, in fact, made. Therefore, Plaintiffs' conspiracy claims cannot
survive a Rule 12(b)(6) motion to dismiss”. Rec. Doc. 43
28
Blessing v. Freestone, 520 U.S. 329, 340 (1997).
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committed by a person acting under color of state law.”29 As for the first element,
42 U.S.C. § 1983 only imposes liability for a violation of rights protected by the
United States Constitution—not for violations of duties of care arising out of tort
law.30 As to the second element, a “plaintiff must identify defendants who were
either personally involved in the constitutional violation or whose acts are
causally connected to the constitutional violation alleged.”31
“The performance of official duties creates two potential liabilities,
individual-capacity liability for the person and official-capacity liability for the
municipality.”32 Official-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an agent. However, to
be liable in one's official capacity under § 1983, the defendant must have been
delegated policy-making authority under state law. In contrast, a state actor
may have § 1983 liability in his/her individual capacity for actions causing the
deprivation of a federal right taken under color of state law. A state actor may
assert qualified immunity from individual capacity liability.
1. First Amendment Retaliation
Plaintiff Delahoussaye claims that he “enjoyed clearly established rights to report
and oppose unlawful practices” guaranteed by the First Amendment.33 To state a First
Amendment retaliation claim, a public employee must allege that he suffered an

29

Jones v. St. Tammany Parish Jail, 4 F.Supp.2d 606, 610 (E.D.La. 1998). See also, Elphage v.
Gautreaux, 969 F. Supp. 2d 493, 500-01 (M.D. La. 2013).
30
Griffith v. Johnston, 899 F.2d 1427, 1436 (5th Cir. 1990).
31
Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995).
32
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478 (5th Cir. 2000).
33
Rec. Doc. 1, p.7.
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adverse employment decision owing to speech on matters of public concern and that
the employee’s interest in commenting on matters of public concern outweighed the
defendant’s interest in promoting efficiency.34

Public employees and independent

contractors are afforded First Amendment protection from retaliation for speaking out on
matters of public concern.35
In O’Hare Truck Service, Inc., et al. v. City of Northlake, the owner and operator
of a tow truck service sued the City of Northlake for retaliation under the First
Amendment when his company was removed from the rotation list of available towing
companies for failure to support the incumbent mayor’s re-election campaign.36

In

O’Hare, the Supreme Court recognized the deep-rooted distinction between employees
and independent contractors in our legal tradition. Nevertheless, the Court found no
reason why First Amendment protections “should turn on the distinction, which is, in the
main, a creature of the common law of agency and torts.”37 The O’Hare Court, relying
on another Supreme Court decision rendered the same day addressing First
Amendment rights and independent contractors, stated:

“A rigid rule ‘giv[ing] the

government carte blanche to terminate independent contractors for exercising First
Amendment rights … would leave [those] rights unduly dependent on whether state law
34

Oscar Renda Contracting, Inc. v. City of Lubbock, Tex., 463 F.3d 378, 382 (5th Cir. 2006) (citing
Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004)(en banc).
35
Both of the following Supreme Court cases were decided on the same date, June 28, 1996. O’Hare
Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996); Board of County Commissioners v. Umbehr,
518 U.S. 668, 678-79 (1996)(“We therefore see no reason to believe that proper application of the
Pickering balancing test cannot accommodate the differences between employees and independent
contractors. There is ample reason to believe that such a nuanced approach, which recognizes the
variety of interests that may arise in independent contractor cases, is superior to a bright-line rule
proposed by the Board and the dissent would give the government carte blanche to terminate
independent contractors for exercising First Amendment rights. And that bright-line rule would leave First
Amendment rights unduly dependent on whether state law labels a government service provider’s
contract as a contract of employment or a contract for services, a distinction which is best a very poor
proxy for the interests at stake.”).
36
O’Hare Truck Service, Inc. at 722.
37
Id.
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labels a government service provider’s contract as a contract of employment or a
contractor for services, a distinction which is at best a very poor proxy for the interests
at stake.”38 It was the Court’s concern that reliance on such a distinction in assessing
such constitutional claims “would invite manipulation by government, which could avoid
constitutional liability simply by attaching different labels to particular jobs.”39 Ultimately,
the Court “decline[d] to draw a line excluding independent contractors from the First
Amendment safeguards of political association afforded to employees.”40 Hence, the
Court finds that the Plaintiffs’ failure to allege sufficient facts of an employee-employer
relationship is not fatal to the Plaintiffs’ First Amendment retaliation claim.
At this stage, the Court must construe the well-plead allegations in Plaintiffs’
Original and Supplemental and Amending Complaints as true. Considering the first
element of a First Amendment retaliation claim, the Court finds that Plaintiffs have
alleged an adverse employment action by virtue of the termination of C-Del’s contract
with Livingston Parish.
In determining whether speech addresses matters of public concern, the Court
must consider “the content, form, and context of a given statement, as revealed by the
whole record.”41 “Speech is not constitutionally protected if it is solely personal or jobrelated; it must relate ‘to a matter of political, social, or other concern to the
community.’”42 “Speech relates to a matter of public concern if it contributes to an
informed dialog in a democratic society or contributes informed opinions on important
38

Id. at 721 (quoting Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S., at 679).
Id. at 722.
40
Id. at 726.
41
Thompson v. City of Starkville, Miss., 901 F.2d 456, 461 (5th Cir. 1990)(quoting Connick v. Myers, 461
U.S. 138, 147-48 (1983)(footnote omitted)).
42
Gil Ramirez Group, LLC v. Houston Independent School Dist., 2013 WL 6079517 at *15 (S.D. Tex.
2013) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)).
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39

public issues.”43 For instance, matters of public concern include the following: “[p]olitical
speech, protests against racial discrimination, speech addressing public safety issues,
statements addressing official misconduct, and testimony in judicial proceedings.”44
“[B]efore asking whether the subject-matter of particular speech is a topic of
public concern, the court must decide whether the plaintiff was speaking ‘as a citizen’ or
as part of her public job.”45 “Even if the speech is of great social importance, it is not
protected by the First Amendment so long as it was made pursuant to the worker’s
official duties.”46

“Moreover, even if speech is ‘not necessarily required’ by an

employee’s job duties, it is not protected if it is sufficiently related to them.”47 There are
several factors that may be considered in determining whether speech is afforded First
Amendment protections. Furthermore, when a public employee “takes his job concerns
to persons outside the work place in addition to raising them up the chain of command
at his workplace, then those external communications are ordinarily not made as an
employee, but as a citizen.”48
Delahoussaye alleged that he “uncovered various irregularities with and improper
billing,” “unauthorized drainage district work orders”, “irregularities with arrangements
for debris removal”, “unauthorized lease agreements”, “misappropriation of funds”, and

43

Marceaux v. Lafayette City-Parish Consol. Government, 921 F.Supp.2d 605, 634 (W.D. La.
2013)(quoting Shatkin v. Univ. of Texas at Arlington, No. 4:06-CV-882-Y, 2009 WL 614788, at *4 (N.D.
Tx. Mar. 10, 2009)(citing City of San Diego v. Roe, 543 U.S. 77, 82-83, 124 S.Ct. 521 (2004)).
44
Id. at 635 (internal citations omitted).
45
Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008)(quoting Mills v. City of Evansville, 452 F.3d 646,
647 (7th Cir. 2006)(citing Garcetti v. Ceballos, 547 U.S. 410, 444 (2006)).
46
Williams v. Dallas Independent School Dist., 480 F.3d 689, 692 (5th Cir. 2007)(citing Garcetti v.
Ceballos, 547 U.S. 410, 421 (2006)).
47
Lewis v. San Jacinto County Appraisal Dist., 2010 WL 3784492 at *4 (S.D. Tex. Sept. 23, 2010)(citing
Charles v. Grief, 522 F.3d 508, 513 (5th Cir. 2008)).
48
Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008)(Citing Freitag v. Ayers, 468 F.3d 528 (9th Cir.
2006)).
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other violations of Louisiana and Federal laws.49

Plaintiffs alleged that Delahoussaye

reported these alleged irregularities to Parish officials and the media.50 Accepting the
well-plead factual allegations as true, the Court finds that Plaintiffs have sufficiently
plead facts that would plausibly support a conclusion that Delahoussaye’s speech was a
matter of public concern.51
As to the third and fourth elements, Plaintiffs have alleged that C-Del’s contract
was terminated because Delahoussaye reported the alleged illegal activity to State and
Federal agencies.52

According to the Plaintiffs’ allegations, C-Del was contractually

obliged to ensure the Parish’s compliance with state and federal laws.53 Based on this
allegation, the Court concludes that Plaintiffs have plead sufficient facts from which it is
plausible to conclude that the Plaintiffs’ interests in engaging in protected speech
outweighed the Livingston Parish Defendants’ need for efficiency.54 Accordingly, the
Court finds that the Plaintiffs have stated a viable claim of First Amendment retaliation.
2. Fourteenth Amendment Claims
Neither party substantively briefed the Plaintiffs’ Fourteenth Amendment claims.
In moving for dismissal of these claims, the Defendants merely regurgitate the 12(b)(6)

49

Rec. Doc. 1, pp. 3-4.
Rec. Doc. 1, p. 4. (“Due to Petitioners’ whistle-blowing activities and reporting the unlawful actions of
Defendants IED, Livingston, PEC, and AFA to the appropriate authorities and the media, Defendant
Livingston Council voted on August 25, 2011, to terminate its contract with Petitioners. On September
24, 2011, that contract was officially terminated.”)
51
Ostensibly made on behalf of his company, C-Del.
52
Rec. Doc. 1, p. 4.
53
Rec. Doc. 1, p. 3.
54
Rec. Doc. 1, pp. 2-3. (“Petitioner Mr. Delahoussaye, the President of C-Del, is primarily responsible for
oversight of the operations of C-Del and, by himself, possesses the expertise attributed to C-Del
herein.”)(“Defendant Livingston Parish entered into a contract with Petitioners whereby Petitioners were
to organize and oversee certain aspects of clean-up efforts … necessitated by Hurricane Gustav. As part
of these responsibilities, Petitioners were part of the services the Parish obtained to remove debris from
the hurricane [and to meet] FEMA’s and GOHSEP’s eligibility rules so that the Parish could pay the
contractors who completed this work with the allotted federal funds which met Environmental
compliance.”).
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50

pleading standards as elucidated by the Supreme Court in Twombly and Iqbal. The
Defendants utterly fail to substantively address the Fourteenth Amendment and provide
no analysis, whatsoever, applying the substantive Fourteenth Amendment law to the
allegations of the Plaintiffs’ Original and Supplemental and Amending Complaints.
Defendants fail to “provide a concise statement of reasons in support” of dismissal of
the Fourteenth Amendment claims as required by Local Rule 7.55

Accordingly, the

Court finds that the Plaintiffs’ Fourteenth Amendment claims, if any, have been
insufficiently challenged and, therefore, the Defendants’ Motion to Dismiss the
Fourteenth Amendment claims shall be denied.
C. Defendant Ricks’ Qualified Immunity Defense
In what can best be described as belt and suspenders argument, Defendant
Luther Layton Ricks, the Parish President, submits that he is entitled to qualified
immunity “with regard to any of the remaining claims asserted against” him because
“the alleged actions on his part constituted discretionary functions and did not violate
clearly established rights of which a reasonable person would have known.”56
“Qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable persons would have known.’”57 To overcome a qualified
immunity defense, a plaintiff must allege a violation of a constitutional right and show

55

Middle District of Louisiana’s Local Rules, available on-line at http://www.lamd.uscourts.gov/courtinfo/local-rules-and-orders.
56
Rec. Doc. 45-1, p. 6. In particular, Ricks argues that his “statement that the Parish was not going to
pay plaintiffs the amounts which plaintiffs claimed they were owed pending the outcome of any ongoing
investigation of the Louisiana Inspector General’s Office” does not support a finding that he is “plainly
incompetent” or that he “knowingly violated the law” and therefore he is entitled to qualified immunity.
Rec. Doc. 45-1, at pp. 7-8.
57
Winston v. City of Shreveport, 390 Fed.Appx. 379, 383 (5th Cir. 2010)(quoting Pearson v. Callahan,
555 U.S. 223, 230 (2009)).
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that “the right was ‘clearly established’ at the time of the challenged conduct.”58 And yet,
“[e]ven if the government official’s conduct violates a clearly established right, the official
is entitled to immunity if his conduct was objectively reasonable.”59

“Objective

reasonableness is gauged by assessing whether at the time and under the
circumstances of the challenged conduct ‘all reasonable officials’ in the same
circumstances would have come to the realization that the conduct complained of
violated a constitutional provision.”60
It is well-established within the Fifth Circuit that “[w]hen a defendant invokes
qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the
defense.”61

Having offered no response within their Opposition Memorandum to

counter Ricks’ qualified immunity argument, the Plaintiffs have failed to satisfy their
burden. While it is true that this Court has found that plausible grounds exist to support
a First Amendment retaliation claim and that the Fourteenth Amendment claims survive
dismissal under Rule 12(b)(6), Plaintiffs have made no attempt to show that Defendant
Ricks’ actions were objectively unreasonable. Accordingly, the Court grants Defendant
Ricks’ Motion to Dismiss the individual capacity claims arising under 42 U.S.C. § 1983
on the grounds of qualified immunity.

58

Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
59
Davis v. McKinney, 518 F.3d 304, 317 (5th Cir. 2008).
60
Newman Marchive Partnership v. Hightower, 735 F.Supp.2d 483, 502 (W.D.La. 2010)(quoting Pierce v.
Smith, 117 F.3d 866, 871 (5th Cir. 1997)(emphasis added)).
61
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). See also, Rushing v. Bd. of
Supervisors of Univ. of La. System, 2011 WL 6047097, at *2 (M.D.La. Dec. 5, 2011); See Alexander v.
Brookhaven School Dist., 2009 WL 224902, at *4 (S.D. Miss. Jan. 28, 2009)(quoting McClendon 305 F.
3d at 322 in support of its reasoning that plaintiff had failed to meet her burden, “having offered only a
cursory argument embedded within her response to [Defendant’s] motion”)).
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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Livingston Parish Defendants’ FRCP Rule

12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be
Granted is GRANTED IN PART and DENIED IN PART.62
IT IS FURTHER ORDERED that the Defendants’ Motion to Dismiss the state law
whistleblower claims arising under La. R.S. 23:967 and La. R.S. 42:1169 is GRANTED,
and the Plaintiffs’ claims for violations of La. R.S. 23:967 and La. R.S. 42:1169 are
hereby dismissed with prejudice.
IT IS FURTHER ORDERED that the Defendants’ Motion to Dismiss the Plaintiffs’
42 U.S.C. § 1983 claims arising under the First and Fourteenth Amendments is hereby
DENIED.
IT IS FURTHER ORDERED that the Defendant Parish President Luther Layton
Ricks’ Motion to Dismiss on the basis of qualified immunity is hereby GRANTED, and
the Plaintiffs’ individual capacity claims against Luther Layton Ricks arising under 42
U.S.C. § 1983 are hereby dismissed with prejudice.
Signed in Baton Rouge, Louisiana, on September 11, 2014.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

62

Rec. Doc. 45.
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