Ayo et al v. East Baton Rouge Parish

Filing 71

RULING denying 46 Motion to Dismiss. The Parties are to simultaneously brief the issue of Judicial Immunity as to the claims against RHI arising under 42 U.S.C. § 1983, briefs to be filed within ten (10) days of this Order, maximum of 10 pages, no replies permitted. Signed by Chief Judge Shelly D. Dick on 9/12/2018. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HENRY AYO and KAIASHA WHITE
on behalf of themselves
and all others similarly situated

CIVIL ACTION
17-526-SDD-EWD

VERSES
CLEVE DUNN SR., REHABILITATION HOME
INCARCERATION, SID J.
RULING
Before the Court is the Motion to Dismiss1 by Defendants Rehabilitation Home
Incarceration’s (“RHI”) and Cleve Dunn, Sr. (“Dunn”) (collectively “Defendants”). Plaintiffs
Henry Ayo (“Ayo”) and Kaiasha White (“White”)(collectively “Plaintiffs”) have filed an
Opposition2 to this motion. For the following reasons, the Motion to Dismiss is DENIED.
Plaintiffs have asserted federal3 and state4 Racketeering Influenced and Corrupt
Organization Act (“RICO”) claims against Dunn and Civil Rights violations against RHI.5
Plaintiffs have also asserted against RHI Louisiana state law claims of conversion, unjust
enrichment, and claims under the Louisiana Unfair Trade Practices Act (“LUTPA”).6
Defendants move for dismissal of the RICO and §1983 claims. Defendants do not
move to dismiss Plaintiffs’ LUTPA claims or the other state law claims for conversion or

1

Rec. Doc. 46.
Rec. Doc. 52.
3
18 U.S.C. §1962(c).
4
La. R.S. 15:1353(C).
5
42 U.S.C. §1983.
6
La. R.S. 51:1405.
2

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unjust enrichment; thus, the Court treats the present Motion as a motion for partial
dismissal.
The factual background has been previously reviewed by the Court and will not be
reiterated herein.7 Likewise, the applicable legal standard has been set forth by the Court
in its Ruling on the co-defendant’s Motion to Dismiss.8 The same standard is applicable
and will be applied to the present Motion before the Court.
RICO Claims Against Dunn
Defendants utterly fail to brief the elements of both the federal and state RICO
claims and fail to argue how the Complaint fails to state a claim. Rather, Dunn maintains
that he cannot or should not be amenable to suit because he “has done nothing wrong”
and is distinct from the RHI corporate entity. Dunn urges dismissal arguing that:
[Dunn] owns shares in the company [RHI] but does not alone control
the company. Plaintiffs have not and cannot prove nor point to any evidence
that CLEVE DUNN, SR., has done anything wrong to plaintiffs or that he
has the authority to control the jail house administration or the district court
judges.
Plaintiffs’ shotgun approach in this matter must be curtailed and
CLEVE DUNN, SR., must be dismissed from this matter as plaintiffs’
Complaint has failed to show what CLEVE DUNN, SR., has done wrong.
CLEVE DUNN, SR., must be dismissed as a defendant.
***
CLEVE DUNN, SR., avers that RHI is a citizen of Louisiana as it was
incorporated in Louisiana and has its place of business therein. Without a
doubt, a corporation is an entity quite distinct from its stockholders and
therefore, since plaintiffs have failed to separate CLEVE DUNN, SR., from
RHI and show this Court what CLEVE DUNN, SR., is personally liable for,
he should be dismissed from this matter.9

7

See Rec. Doc. 61.
Id.
9
Rec. Doc. 46-1.
8

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On a Motion to Dismiss, the Court cannot determine facts or make credibility
determinations. The only inquiry is whether the allegations of the Complaint,10 assumed
as true, state a plausible claim for relief.
Dunn argues that he cannot be sued under RICO because he is “personally
distinct” from RHI.11 This contention is erroneous. The United States Supreme Court has
held that “an employee who conducts the affairs of a corporation through illegal acts
comes within the terms of [the] statute.”12 The Supreme Court explained that RICO
“protects a legitimate enterprise from those who would use unlawful acts to victimize it,
and also protects the public from those who would unlawfully use an enterprise (whether
legitimate or illegitimate) as a vehicle through which unlawful . . . activity is committed.”13
The Complaint states a plausible claim against Dunn. In an apparent
misunderstanding of the allegations of the Complaint, Dunn argues that Plaintiffs failed to
allege that he committed fraud, misrepresentation, or collusion. However, a plain reading
of the Complaint reveals that the Plaintiffs’ RICO claim is predicated on allegations of
extortion. The factual allegations that Dunn and his agents communicate to arrestees that
they will not be released from jail until RHI’s initial fee is paid,14 and the allegations that
Dunn and his agents threaten pretrial supervisees with bond revocation and arrest if they
fail to pay RHI’s monthly fee,15 are sufficient to state claims under both federal and state
RICO statutes.

10

As used herein, the term “Complaint” refers to the Complaint and Amended Complaint, Rec. Docs. 1 &

2.
11

Id.
Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001).
13
Id. at 164 (internal citations omitted).
14
Rec. Doc. 2, ¶¶ 2, 49, 53, 56, 67, and 69.
15
Rec. Doc. 2, ¶¶ 4, 48-49, 58, 69, and 77.
12

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Dunn’s Motion to Dismiss the federal and state RICO claims is DENIED.
42 U.S.C. § 1983 Civil Rights Claims Against RHI
Seemingly addressing the Plaintiffs’ civil rights claims under 42 U.S.C. § 1983, RHI
argues that it “is a private corporation and [has] no judicial power whatsoever”16 and that
RHI cannot be liable for any constitutional violations because RHI’s policies were not the
“moving force” behind the alleged violations.17 The Court liberally construes this argument
as a challenge to the § 1983 claims brought against RHI.
To state a claim under 42 U.S.C. § 1983, a plaintiff must plead facts which plausibly
allege "(1) a deprivation of a right secured by federal law, (2) that occurred under color of
state law, and 3) was caused by a state actor."18 While RHI fails to brief the state actor
requirement, the Court construes the contention that RHI had no judicial power as a
challenge to the state actor element. “The party charged with the [constitutional]
deprivation must be a person who may fairly be said to be a state actor.”19 However,
private actors may be liable under § 1983 under some circumstances.20
The question thus presented is whether, under the facts plausibly plead, RHI was
acting under color of state law and, thus, amenable to suit under 42 U.S.C. § 1983. The
Complaint alleges that: RHI offers pretrial services for the 19th JDC;21 that RHI is “the
only approved vendor for pre-trial supervision on Judge White’s website”;22 that RHI “does
not have a formal written contract with the JDC, [and its] provision of services to Judge

16

Rec. Doc. 46-1.
Id.
18
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004).
19
West v. Atkins, 487 U.S. 42, 49 (1988).
20
Id.
21
Rec. Doc. 2, ¶19.
22
Rec. Doc. 2, ¶22.
17

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White is based on an informal arrangement between RHI and Judge White”;23 and that
RHI (and not Judge White) sets the conditions of pretrial release and the payment terms
for pretrial supervision.24
“Under color of state law has been defined as functions that are ‘traditionally the
exclusive prerogative of the state.’”25 “The maintenance of a prison system is something
‘traditionally reserved to the state.’”26 Likewise, pretrial detention and supervision are
traditionally state functions. Accepting the factual allegations as true, the Court finds that
RHI performs the same public functions as the state Court vis-à-vis pretrial conditions of
release.
Parroting the arguments advanced by the Sherriff in its Motion to Dismiss,27 RHI
argues that the § 1983 claim must be dismissed because, “[e]ven if Plaintiffs’
constitutional rights were violated, RHI internal policy cannot be and was not the ‘moving
force’ behind the alleged violations.”28 Conduct constitutes a “moving force” if there is a
“direct causal link” between the conduct and the alleged constitutional injury.29 Conduct
is the “moving force” if the alleged practice is the “cause in fact of the deprivation of rights
inflicted.”30
The Complaint alleges that representatives of RHI told the Plaintiffs that they would

23

Rec. Doc. 2, ¶23.
Rec. Doc. 2, ¶¶ 33, 34, 41, 42 and 43.
25
Stephens v. Correctional Services Corp., 428 F.Supp.2d 580, 583–84 (E.D.Tex. 2006)(citing Blum v.
Yaretsky, 457 U.S. 991, 1011 (1982)).
26
Id. at 584 (citing Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991), cert. denied, 503 U.S. 989
(1992)).
27
Rec. Doc. 17-1.
28
Rec. Doc. 46-1.
29
Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001).
30
Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (citation omitted).
24

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not be released on bond unless and until they paid the initial fee to RHI.31 The Complaint
also alleges that, after release, representatives of RHI threatened the Plaintiffs with rearrest if they failed to make monthly payments to RHI.32 The allegations plausibly suggest
that the state Court’s Bond Order created some indicia of authority in RHI which RHI then
exploited to extract fees under threat of continued detention or re-arrest. The Court finds
that these facts plausibly plead that RHI was the moving force behind the alleged
constitutional violation.
RHI’s Motion to Dismiss the § 1983 civil rights claim is DENIED.
IT IS HEREBY ORDERED that the Defendants’ Motion to Dismiss33 is DENIED.
IT IS FURTHER ORDERED that the Parties are to simultaneously brief the issue
of Judicial Immunity as to the claims against RHI arising under 42 U.S.C. § 1983, briefs
to be filed within ten (10) days of this Order, maximum of 10 pages, no replies permitted.
Baton Rouge, Louisiana this 12th day of September, 2018.

S

____________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

31

Rec. Doc. 2, ¶¶ 53, 56, and 69.
Rec. Doc. 2, ¶¶ 58, 69, and 77.
33
Rec. Doc. 46.
32

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