Lefebure v. Boeker, et al
Filing
82
RULING AND ORDER: For the reasons stated herein, the 57 Motion to Dismiss filed by Defendant, Samuel C. DAquilla, District Attorney for the 20th Judicial District, is GRANTED in part and DENIED in part as set forth above. Plaintiff's reque st for leave of court to amend her Complaint is GRANTED, a second and final time, and shall be submitted within thirty (30) days from the date of this Order. Plaintiff is also ordered to file a Rule 7(a) Response to the DA's assertion of the defense of qualified immunity as to the remaining individual capacity claims within this same deadline. Signed by Chief Judge Shelly D. Dick on 6/25/2019. (KAH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
PRISCILLA LEFEBURE
CIVIL ACTION
VERSUS
17-1791-SDD-EWD
BARRETT BOEKER, Assistant Warden
Louisiana State Penitentiary, individually
and in his official capacity, WEST
FELICIANA PARISH, SAMUEL D. D’AQUILLA,
20th Judicial District, individually and in his
official capacity, District Attorney, J. AUSTIN
DANIEL, Sheriff, West Feliciana Parish,
INSURANCE CO. DOES 1-5, DOES 6-20
RULING AND ORDER
This matter is before the Court on the Motion to Dismiss1 filed by Defendant,
Samuel C. D’Aquilla, individually and in his official capacity as District Attorney for the
20th Judicial District, State of Louisiana (“Defendant” or “the DA”), pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff, Priscilla Lefebure (“Plaintiff” or
“Lefebure”), filed an Opposition2 to this motion, to which Defendant filed a Reply.3 The
Court heard Oral Argument on this motion on March 25, 2019, and granted in part and
denied in part the DA’s motion, with detailed written reasons to be assigned.4 For the
reasons which follow, the Court has granted in part and denied in part the DA’s motion.
1
Rec. Doc. No. 57.
Rec. Doc. No. 70.
3
Rec. Doc. No. 74.
4
Rec. Doc. No. 81. The Court also reserved the right to “reconsider, modify, and/or supplement the oral
reasons” assigned from the bench.
2
51793
Page 1 of 51
I.
BACKGROUND
Plaintiff filed a Complaint5 and First Amended Complaint6 seeking relief under 42
U.S.C. § 1983 and § 1985 and under Louisiana law against Barrett Boeker (“Boeker”),
Assistant Warden at the Louisiana State Penitentiary, individually and in his official
capacity, West Feliciana Parish;7 Samuel C. D’Aquilla, District Attorney for the 20th
Judicial District, individually and in his official capacity; J. Austin Daniel, Sheriff, West
Feliciana Parish (“Sheriff Daniel”); and various unknown insurance companies and
unknown defendants.
At the outset, the Court recognizes that the allegations set forth in Plaintiff’s
Complaint and First Amended Complaint are disturbing and presented in vivid detail. At
this stage of the matter, this Court is charged with accepting the pled facts as true. The
Court also notes that this matter, as pled, is factually unique to the body of cases
implicated by the alleged claims, defenses, and the instant motion. While the claims,
defenses, and arguments raised are not new to this Court, the law as applied to the facts
alleged is largely uncharted in this Circuit.
Plaintiff claims that, on December 1, 2016, Boeker raped her at his home on the
grounds of the Louisiana State Penitentiary.8
Plaintiff claims that Boeker sexually
assaulted her a second time on December 3, 2016.9 Plaintiff had a rape kit administered
and completed on December 8, 2016, at Woman’s Hospital in Baton Rouge.10 Plaintiff
5
Rec. Doc. No. 1.
Rec. Doc. No. 37.
7
Defendant, Barrett Boeker, also filed a motion to dismiss pursuant to Rule 12(b)(6), or alternatively, motion
for more definite statement pursuant to Rule 12(e). Rec. Doc. No. 51. Boeker’s motion to dismiss is not
addressed in the instant Ruling and Order will be addressed by separate Ruling and Order.
8
Rec. Doc. No. 37, p. 1, ¶ 1.
9
Rec. Doc. No. 37, p. 1, ¶ 2.
10
Rec. Doc. No. 37, p. 2, ¶ 3.
6
51793
Page 2 of 51
alleges that the report on the rape kit noted bruising in the pattern of fingers and hand
prints and a red, irritated cervix. Photographs were taken.11 Plaintiff pleads disturbing
facts and circumstances of the alleged rape and sexual assault, the rape kit findings, and
her alleged damages.12
Boeker was arrested for second degree rape on December 20, 2016; however, he
was never indicted or convicted.13 Plaintiff alleges she was denied equal protection and
due process under the law as a result of the failure of the DA and Sheriff Daniel to
investigate Boeker’s alleged crimes and obtain the rape kit, which Plaintiff claims
demonstrates a conspiracy to protect Boeker. Plaintiff also claims her constitutional right
have been violated by the DA and Sheriff Daniel’s alleged policy of disproportionate
treatment of women and sexual assault victims.
Prior to the grand jury hearing, Plaintiff avers that neither the DA nor Sheriff Daniel
requested, picked-up, or examined her rape kit.14 Thus, the rape kit along with the
photographic evidence contained therein did not become a part of the DA’s investigative
file and was never presented to the grand jury. Plaintiff also claims that, prior to the grand
jury hearing, the DA did not interview or speak to Plaintiff because, according to DA in a
public statement, he was “uncomfortable” doing so.15 Plaintiff further claims that the DA
marked up his file copy of the police report to point out purported discrepancies in
Plaintiff’s description of the events and pointedly noted “plead 5th” on the police report.16
11
Rec. Doc. No. 37, p. 2, ¶ 4.
Rec. Doc. No. 37, pp. 1-7 and 10-16.
13
Rec. Doc. No. 37, p. 2, ¶ 5.
14
Rec. Doc. No. 37, p. 3, ¶ 9.
15
Rec. Doc. No. 37, p. 3, ¶ 11.
16
Rec. Doc. No. 37, p. 3, ¶ 10.
12
51793
Page 3 of 51
Because it comprised part of the DA’s investigatory file, the annotated and underlined
police report was presented to the grand jury. Plaintiff also alleges that the DA colluded
with the Sheriff to not investigate her rape claim.17 The gravamen of the Plaintiff’s
Complaint is that the DA worked in concert with the Sherriff to significantly curtail the
thoroughness of the investigative process in order to manipulate the grand jury outcome.
On December 21, 2017, Plaintiff filed this action against Boeker, the DA, and
Sheriff Daniel seeking to hold them individually and jointly liable for damages resulting
from the alleged rape, sexual assault, and what Plaintiff alleges as the lack of investigation
into her criminal complaints against Boeker. Plaintiff also seeks declaratory and injunctive
relief.18 In Plaintiff’s Amended Complaint,19 Plaintiff asserted the following causes of
action adverse to the following Defendants: (1) violation of the 14th Amendment (Equal
Protection) under 42 U.S.C. § 1983 and Louisiana Constitution Article I, Section 3 (Right
to Individual Dignity) adverse to District Attorney D’Aquilla and Sheriff Daniel in their
individual and official capacities;20 (2) violation of the 14th Amendment (Substantive Due
17
Additional allegations and details are alleged in support Plaintiff’s claims, such as: Defendant claimed
that there were no photos or cooperative witnesses available for the grandy jury hearing, but Plaintiff pleads
that there were photos with the rape kit and numerous corroborating witnesses; the issue at the grand jury
hearing, according to Defendant, was credibility, and Defendant determined without ever speaking to
Plaintiff that he did not believe her; Defendant did not believe that the rape kit was necessary because
Boeker said that Plaintiff consented to the alleged sexual acts, yet Plaintiff maintained at all times that she
did not consent; witnesses agree that rape kits are the “linchpins” to a proper investigation of sexual assault
allegations; Defendant’s policy is to present everything in his file to the grand jury, but there was no mandate
to request the rape kit and make it part of the file (suggesting an intentional design of a file void of evidence);
all Defendants conspired from the time of Boeker’s arrest to not investigate or prosecute Boeker for the
charges; Boeker’s wife is Plaintiff’s cousin, and she told Plaintiff that Boeker has committed these same
acts in the past; Boeker’s counsel is a relative of District Attorney D’Aquilla; Boeker was the Assistant
Warden of the Louisiana State Penitentiary at the time, living in a house on the premises; on the night
Boeker was arrested, he, his counsel, both Defendants, and the Warden met, and it was determined that
Boeker would be given preferential treatment and serve no jail time; Defendants colluded in the decision to
not investigate the claims. Rec. Doc. No. 37, ¶¶ 1-34 and 50-87.
18
Rec. Doc. No. 1, pp. 22-23, ¶ 128.
19
Rec. Doc. No. 37.
20
Rec. Doc. No. 37, pp. 16-19, ¶¶ 88-103.
51793
Page 4 of 51
Process) under 42 U.S.C. § 1983 and Louisiana Constitution Article I, Section 2 (Due
Process) adverse to District Attorney D’Aquilla and Sheriff Daniel in their individual and
official capacities;21 (3) Civil Conspiracy to violate civil rights under 42 U.S.C. §§ 1983
and 1985 adverse to all Defendants;22 (4) Abuse of Process under 42 U.S.C. § 1983
adverse to all Defendants;23 (5) Intentional Infliction of Emotional Distress, Negligent
Infliction of Emotional Distress, Assault, Battery, False Imprisonment, Rape, and Sexual
Battery under Louisiana State Law adverse to Defendant Boeker;24 and (6) Direct Action
Claims under Louisiana State Law adverse to all Defendant unknown insurance
companies.25
In the motion before this Court, the DA seeks dismissal of Plaintiff’s claims under
Rule 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim upon
which relief may be granted on her substantive federal and state law claims. Plaintiff
opposes the Defendant’s motion, arguing that she has demonstrated Article III standing,
that Defendant is not entitled to any immunity, and she has sufficiently and specifically
pled plausible causes of action adverse to Defendant.
II.
LAW AND ANALYSIS
A.
Rule 12(b)(1) Motion to Dismiss
“When a motion to dismiss for lack of jurisdiction ‘is filed in conjunction with other
Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
21
Rec. Doc. No. 37, pp. 19-20, ¶¶ 104-116.
Rec. Doc. No. 37, pp. 21-22, ¶¶ 117-126.
23
Rec. Doc. No. 37, p. 22, ¶¶ 127-132.
24
Rec. Doc. No. 37, p. 23, ¶¶ 133-136.
25
Rec. Doc. No. 37, pp. 23-24, ¶¶ 137-142.
22
51793
Page 5 of 51
addressing any attack on the merits.’”26 If a complaint could be dismissed for both lack
of jurisdiction and for failure to state a claim, “the court should dismiss only on the
jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state
a claim under [Rule] 12(b)(6).”27 The reason for this rule is to preclude courts from issuing
advisory opinions and barring courts without jurisdiction “from prematurely dismissing a
case with prejudice.”28
“A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard as
a motion to dismiss under Rule 12(b)(6).”29 Therefore, the Court must accept all wellpleaded facts in the complaint as true and view them in the light most favorable to the
plaintiff.30 Ultimately, “[t]he burden of proof for a Rule 12(b)(1) motion to dismiss is on the
party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof
that jurisdiction does in fact exist.”31
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is
characterized as either a “facial” attack, i.e., the allegations in the complaint are
insufficient to invoke federal jurisdiction, or as a “factual” attack, i.e., the facts in the
complaint supporting subject matter jurisdiction are questioned.32 As in this case, when
26
Crenshaw-Logal v. City of Abilene, Texas, 436 Fed.Appx. 306, 308 (5th Cir. 2011) (quoting Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635
F.3d 757, 762 (5th Cir. 2011); Fed.R.Civ.P. 12(h)(3)).
27
Crenshaw-Logal, 436 Fed.Appx. at 308 (quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.
1977)).
28
Id. (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210
(1998), and Ramming, 281 F.3d at 161).
29
Wagster v. Gautreaux, 2014 WL 3546997, at *1 (M.D. La. July 16, 2014) (quoting Hall v. Louisiana, et al,
974 F.Supp.2d 978, 985 (M.D. La. Sept. 30, 2013)) (citing Benton v. U.S., 960 F.2d 19, 21 (5th Cir. 1992)).
30
Lewis v. Brown, 2015 WL 803124, at *3 (M.D. La. Feb. 25, 2015).
31
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citations omitted).
32
In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, at *3 (E.D.
Tex. Jan. 6, 2011) (citing Rodriguez v. Texas Comm’n of Arts, 992 F.Supp. 876, 878-79 (N.D. Tex. 1998),
aff’d, 199 F.3d 279 (5th Cir. 2000)).
51793
Page 6 of 51
a defendant files a Rule 12(b)(1) motion without accompanying evidence it is analyzed as
a facial attack33 In a facial attack, allegations in the complaint are taken as true.34
B.
Rule 12(b)(6) Motion to Dismiss
When deciding a Rule 12(b)(6) motion to dismiss, the “court accepts all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.”35 The Court
may consider “the complaint, its proper attachments, documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice.”36 “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.’”37 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.38 “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.”39 A complaint is also insufficient if it merely “tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’”40 However, “[a] claim has facial plausibility when the
33
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
Blue Water, 2011 WL 52525, at *3 (citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir.
1995)).
35
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)).
36
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)).
37
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
540, 570 (2007)).
38
Bell Atl. Corp. v. Twombly, 550 U.S. at 544 (hereinafter “Twombly”).
39
Twombly, 550 U.S. at 555 (internal citations and brackets omitted).
40
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted) (hereinafter “Iqbal”) (quoting
Twombly, 550 U.S. at 557).
34
51793
Page 7 of 51
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”41 In order to satisfy the plausibility
standard, the plaintiff must show “more than a sheer possibility that a defendant has acted
unlawfully.”42 “Furthermore, while the court must accept well-pleaded facts as true, it will
not ‘strain to find inferences favorable to the plaintiff.’”43 On a motion to dismiss, courts
“are not bound to accept as true a legal conclusion couched as a factual allegation.”44
C.
Standing
“Article III standing is a jurisdictional prerequisite.”45 If a plaintiff lacks standing to
bring a claim, the Court lacks subject matter jurisdiction over the claim, and dismissal
under Rule 12(b)(1) is appropriate.46 The party seeking to invoke federal jurisdiction
bears the burden of showing that standing existed at the time the lawsuit was filed.47 In
reviewing a motion under 12(b)(1) for lack of subject matter jurisdiction, a court may
consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.48
Article III of the Constitution limits federal courts’ jurisdiction to certain “cases” and
“controversies.” “No principle is more fundamental to the judiciary’s proper role in our
41
Id. (citing Twombly, 550 U.S. at 556).
Id.
43
Taha v. William Marsh Rice Univ., 2012 WL 1576099, at *2 (S.D. Tex. May 3, 2012) (quoting Southland
Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
44
Twombly, 550 U.S. at 555 (quoting Papassan v. Allain, 478 U.S. 265, 286 (1986)).
45
Crenshaw-Logal, 436 Fed.Appx. at 308 (citing Steel Co., 523 U.S. at 101, 118 S.Ct. 1003, and Xerox
Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir. 1989)).
46
Whitmore v. Arkansas, 495 U.S. 149, 154-55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Chair King, Inc.
v. Houston Cellular Corp., 131 F.3d 507, 509 (5th Cir. 1997).
47
M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); Howery v. Allstate Ins. Co., 243
F.3d 912, 916 (5th Cir. 2001); Ramming, 281 F.3d at 161.
48
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
42
51793
Page 8 of 51
system of government than the constitutional limitation of federal-court jurisdiction to
actual cases or controversies.”49 “One element of the case-or-controversy requirement”
is that plaintiffs “must establish that they have standing to sue.”50
Defendant is correct that to establish constitutional standing, “the plaintiff must
show that [she] has suffered an ‘injury in fact’ that is: concrete and particularized and
actual or imminent, fairly traceable to the challenged action of the defendant; and likely
to be redressed by a favorable decision.”51 However, Defendant contends that “crime
victims do not have standing to ‘contest the policies of the prosecuting authority when he
or she is neither prosecuted nor threatened with prosecution.”52
Citing Linda R.S. v. Richard D. and Texas,53 the DA argues Plaintiff lacks standing
to bring claims against him because she is a “crime victim” who is contesting the DA’s
“prosecuting authority,” and, since Plaintiff is neither the person being prosecuted nor
threatened with prosecution, she lacks standing to bring these claims.54 In Linda, the
plaintiff was the mother of a child born out of wedlock who sought a judgment declaring
unconstitutional a Texas criminal statute which provided that a parent who fails to support
his/her children is subject to prosecution. The plaintiff challenged the statute because it
49
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal
quotation marks omitted); Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)
(internal quotation marks omitted); see, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 492-493, 129
S.Ct. 1142, 173 L.Ed.2d 1 (2009).
50
Raines, 521 U.S. at 818, 117 S.Ct. 2312; see also Summers, 555 U.S. at 492-493, 129 S.Ct. 1142;
DaimlerChrysler Corp., 521 U.S. at 342, 126 S.Ct. 1854; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
51
Rec. Doc. No. 57-1, pp. 4-5 (citing Lugan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130,
119 L. Ed. 2d 351 (1992)).
52
Rec. Doc. No. 57-1, p. 5 (citing Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L. Ed. 2d
536 (1977)).
53
Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L. Ed. 2d 536 (1977)
54
Id.
51793
Page 9 of 51
only applied to parents of children born of marriage. She also sought an injunction
forbidding the district attorney from declining to prosecute the biological father of her child
simply because they were unmarried. The case was dismissed for lack of standing on
the nexus prong. The Supreme Court found that the plaintiff had “an interest in the
support of her child” and suffered an injury, i.e., lack of payment of child support without
a legal mechanism to enforce payment. However, the Court ruled that the plaintiff could
not show the second prong of the standing requirement, namely, a “direct nexus” between
her injury and the government action which she attacked.55
The Supreme Court
explained:
The Court’s prior decisions consistently hold that a citizen lacks standing to
contest the policies of the prosecuting authority when he himself is neither
prosecuted nor threatened with prosecution. See Younger v. Harris, 401
U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971); Bailey v. Patterson,
369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962); Poe v. Ullman,
367 U.S. 497, 501, 81 S.Ct. 1752, 1754, 6 L.Ed.2d 989 (1961). Although
these cases arose in a somewhat different context, they demonstrate that,
in American jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.
Appellant does have an interest in the support of her child. But given the
special status of criminal prosecutions in our system, we hold that appellant
has made an insufficient showing of a direct nexus between the vindication
of her interest and the enforcement of the State’s criminal laws.56
In Linda, the Supreme Court pragmatically recognized that the plaintiff lacked a nexus
between her injury/interest (support for her child) and enforcement of the law at issue
55
Linda R.S., 410 U.S. at 617-18. “To be sure, appellant no doubt suffered an injury stemming from the
failure of her child’s father to contribute support payments. But the bare existence of an abstract injury
meets only the first half of the standing requirement. ‘The party who invokes (judicial) power must be able
to show … that he has sustained or is immediately in danger of sustaining some direct injury as the result
of (a statute’s) enforcement.’” Linda R.S., 410 U.S. at 618 (citing Massachusetts v. Mellon, 262 U.S. 447,
488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923)). “Here, appellant has made no showing that her failure to
secure support payments results from the nonenforcement, as to her child’s father, of Art. 602. … Thus, if
appellant were granted the requested relief, it would result only in the jailing of the child’s father.” Linda
R.S., 410 U.S. at 618.
56
Linda R.S., 410 U.S. at 619 (emphasis added).
51793
Page 10 of 51
because enforcement would likely place the father in jail unable to pay the child support
that she was ultimately seeking.57
Turning to the present case, neither Plaintiff nor Defendant directed the Court to
Fifth Circuit jurisprudence supporting a finding that the Plaintiff lacks standing in this
matter. Likewise, the Court did not identify Fifth Circuit jurisprudence pertinent to the
issue of standing under similar factual circumstances. The DA cites the Eighth Circuit’s
decision in Parkhurst v. Tabor58 which relies upon Linda. In Parkhurst, the biological
mother and adoptive father of a minor child asserted claims under Section 1983 against
Arkansas state prosecutors and the county, alleging a violation of their child’s right to
equal protection under the Fourteenth Amendment based on the prosecutors’ decision to
forego prosecution of the child’s biological father for sexual assault of the child. The
Western District of Arkansas granted the prosecutor’s Rule 12 motion. The Eighth Circuit
Court of Appeals affirmed, holding that the plaintiffs did not suffer an injury in fact and
therefore lacked standing.
In its analysis, the Eighth Circuit cited to Linda, stating: “[C]rime victims have
standing to challenge allegedly discriminatory prosecutorial conduct only if those victims
have a constitutional right to the nondiscriminatory prosecution of crime such that its
deprivation constitutes injury in fact.”59 Notably, the Parkhurst court specifically
recognized that “crime victims have standing” where there is a showing that the allegedly
discriminatory treatment implicates the protections of the Fourteenth Amendment.60
57
Id.
569 F.3d 861, 866 (8th Cir. 2009).
59
Parkhurst, 569 F.3d at 865 (citing Linda, 410 U.S. at 617).
60
Id.
58
51793
Page 11 of 51
Next, the Parkhurst court drew a distinction between crime victims who have
standing to bring claims based on the alleged “failure to protect” rather than the alleged
“failure to prosecute”:
The Parkhursts point to several cases where crime victims were determined
to have a right to challenge the allegedly discriminatory provision of police
protection. See, e.g., Estate of Macias v. Ihde, 219 F.3d 1018 (9th Cir.
2000); Thurman v. City of Torrington, 595 F.Supp. 1521 (D.Conn.1984). In
Macias, family members of a slain woman brought a § 1983 suit alleging
that police officers had ignored repeated complaints of threatened violence
and provided ‘inferior police protection’ because the decedent was a
member of a disfavored class of victims, thereby violating the Equal
Protection Clause. 219 F.3d at 1019. The Ninth Circuit concluded, without
reaching the merits, that ‘[t]here is a constitutional right [ ] to have police
services administered in a nondiscriminatory manner – a right that is
violated when a state actor denies such protection to disfavored persons.’
Id. at 1028. When faced with a similar allegation of discriminatory police
protection, the district court in Thurman determined that ‘[p]olice action is
subject to the equal protection clause and section 1983 whether in the form
of commission of violative acts or omission to perform required acts
pursuant to the police officer’s duty to protect.’ 595 F.Supp. at 1527.
The Parkhursts claim to have been injured by a failure to prosecute Belt
rather than by a failure to provide police protection to H.P., and they point
to no cases which have recognized a right to compel prosecution of a
wrongdoer. That the standing analysis differs depending on whether the
alleged injury arises from a failure to prosecute or a failure to protect is not
without rationale. While police officers are under a ‘statutorily imposed duty
to enforce the laws equally and fairly,’ … ‘[w]hether to prosecute and what
charge to file or bring before a grand jury are decisions that generally rest
in the prosecutor’s discretion.’61
In the Court’s view, the Plaintiff’s claims in the instant matter against the DA are
not for his failure to prosecute Boeker. Plaintiff may claim that the alleged failure to fully
investigate was motivated by a preference in the prosecutorial outcome, but the Plaintiff
does not assert the prosecutorial outcome as her injury. Rather, Plaintiff seeks relief for
61
Parkhurst, 569 F.3d at 866-67 (emphasis added).
51793
Page 12 of 51
the failure to investigate her claims, for the alleged conspiracy with the Sheriff not to
investigate her claims, and for the alleged long-standing practice, policies and procedures
that fostered the failure to investigate resulting in a discriminatory impact upon sexual
assault victims and women in violation of the Equal Protection and Due Process
Clauses.62
The DA also relies on Doe v. Pocomoke City.63 In Doe, female victims of sexual
assaults brought suit against city officials and the county attorney, alleging civil rights
violations in connection with their failure to properly investigate and refusal to prosecute
sex crimes. The claims were dismissed for lack of standing. The plaintiffs in Doe did not
complain about any specific sexual assault on themselves or the alleged failure of the
criminal process as to themselves. Rather, Doe involved plaintiffs as interested citizens,
albeit prior victims, coming forward to urge the investigation and prosecution in a sexual
assault matter that was completely unrelated to them. The court in Doe, relying upon
Linda, found that the plaintiffs lacked standing as they failed to demonstrate an injury in
fact and nexus.64
Doe is also distinguishable from the case before the Court. Here, Plaintiff has
alleged a particularized injury “fairly traceable” to, and allegedly as a result of, the alleged
actions or inactions of the DA, individually and in concert with Sheriff Daniel. Plaintiff has
not filed suit as an “interested citizen” seeking generalized relief. Plaintiff claims that the
DA refused to request, retrieve, and examine her rape kit as part of his investigation; thus,
62
Rec. Doc. No. 37, supra.
745 F.Supp.1137 (D.Md. 1990).
64
Doe, 745 F.Supp. at 1139-40.
63
51793
Page 13 of 51
the rape kit never became a part of the prosecutor’s file.65 Plaintiff alleges that this was
intentional and part of a broader conspiracy and plan to protect Boeker, a fellow law
enforcement officer.66 She further claims the DA conspired with all Defendants and
agreed not to investigate her rape complaint to ultimately protect Boeker from
prosecution.67
According to Plaintiff, the DA’s actions or inactions, protocol and
procedures, disproportionately affect female sexual assault victims generally and violated
her equal protection rights, specifically.68
In other words, Plaintiff claims the DA’s
intentional acts in this case and the DA’s policies and procedures create the danger of an
increased risk of harm to Plaintiff and other victims of sexual assault who are
disproportionately women.69 She further alleges a “long-standing refusal” to investigate
sexual assault crimes against women and/or female-identified individuals.70 In fact,
Plaintiff pleads a “history” of the DA’s discrimination against women.71 Plaintiff alleges
that the DA implemented “long-standing” and “historical” policies and procedures that
violated her equal protection rights.72 As a result of the alleged conduct of the DA, Plaintiff
alleges detailed mental and physical damages she has sustained.73
65
Rec. Doc. No. 37, ¶¶ 9 and 27.
Rec. Doc. No. 37, ¶¶ 77-87.
67
Rec. Doc. No. 37, ¶¶ 77-87.
68
Rec. Doc. No. 37, ¶¶ 88-103.
69
Rec. Doc. No. 37, ¶¶ 90-95.
70
Rec. Doc. No. 37, ¶ 96.
71
Rec. Doc. No. 37, ¶ 98.
72
Rec. Doc. No. 37, ¶¶ 99-102.
73
Rec. Doc. No. 37, pp. 24-25, ¶ 143 (“conscious and severe physical, mental, and emotional distress, and
pain and suffering; economic and other monetary injury including, but not limited to, loss of earnings, loss
of work prospects, loss of future income, and loss of past income; and, any other such damage cognizable
under these laws and statutes and provable at trial”).
66
51793
Page 14 of 51
Plaintiff also claims that ignoring the existence of her rape kit constitutes a taking
of her property and a violation of her substantive due process rights.74 Plaintiff claims a
constitutional property right in her rape kit and further claims that the DA ignoring her rape
kit and failing to present it to the grand jury constitutes a “taking” without substantive due
process. Plaintiff claims that the complete failure to investigate, including the failure to
request the rape kit and have it tested, deprived her of her due process rights to have her
alleged crime properly investigated.75 Plaintiff further claims the Defendants’ conspiracy
to protect Boeker from prosecution resulted in the violation of her rights to equal protection
under the law and substantive due process.76
On the face of the Complaint and First Amended Complaint, the Court finds that
Plaintiff has alleged an injury and interest particular to her and a nexus between her
injury/interest and the claims against the DA. As set forth above, there is jurisprudential
support for the finding the Plaintiff has standing based on the alleged violation of the Equal
Protection Clause.
The Court will discuss the viability of the alleged constitutional
violations in greater detail below. Accordingly, the Court denies the DA’s Motion to
Dismiss under Rule 12(b)(1) for lack of standing.
D.
42 U.S.C. § 1983 Claims
“Section 1983 imposes liability on anyone who, under color of state law, deprives
74
Rec. Doc. No. 37, ¶¶ 84, 92, and 104-116. Plaintiff contends a policy requiring collection and examination
of rape kits would have prevented her injuries and seeks: a declaratory judgment that it is unconstitutional
to allow rape kits and examinations to go without review; injunctive relief enjoining the Defendants from
acting in concert in violation of the Constitution; a plan that will require the Sheriff and the DA to collect and
review rape kits and present them as evidence; and compensatory and punitive damages. Rec. Doc. No.
37, pp. 25-26, ¶ 144.
75
Rec. Doc. No. 37, ¶¶ 84, 92, and 104-116.
76
Rec. Doc. No. 37, ¶¶ 117-126.
51793
Page 15 of 51
a person ‘of any rights, privileges, or immunities secured by the Constitution and laws.’”77
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
complained of was committed by a person acting under color of state law.”78 As for the
first element, 42 U.S.C. § 1983 only imposes liability for violations of rights protected by
the United States Constitution – not for violations of duties of care arising out of tort law.79
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.”80
“The performance of official duties creates two potential liabilities, individualcapacity liability for the person and official-capacity liability for the municipality.”81 Officialcapacity 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
Section 1983, the defendant must have been delegated policy-making authority under
state law. In contrast, a state actor may have Section 1983 liability in his/her individual
capacity for actions causing the deprivation of a federal right taken under color of state
law.82
77
Blessing v. Freestone, 520 U.S. 329, 340 (1997).
Jones v. St. Tammany Parish Jail, 4 F.Supp.2d 606, 610 (E.D. La. May 8, 1998); Elphage v. Gautreaux,
2013 WL 4721364, at *5 (M.D. La. Sept. 3, 2013).
79
Griffith v. Johnston, 899 F.2d 1427, 1436 (5th Cir. 1990).
80
Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995).
81
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 484 (5th Cir. 2000).
82
Coleman v. East Baton Rouge Sheriff’s Office, 2014 WL 5465816, at *3 (M.D. La. Oct. 28, 2014).
78
51793
Page 16 of 51
The DA has been sued under Section 1983 in both his individual and official
capacities. There appears to be no dispute that the DA was acting “under color of law”
in his alleged conduct. The Court turns to a consideration of whether Plaintiff has satisfied
the first requirement to state a claim under Section 1983, namely to state a claim of a
constitutional violation.
1.
Constitutional Violations Alleged
a.
Equal Protection Clause
The DA maintains Plaintiff has not stated a claim for an equal protection violation
and cites to a decision from the District of Maryland, Doe v. Pocomoke City, wherein the
court held that women who were victims of alleged sexual assault lacked standing to bring
a claim against the town’s Mayor and the State’s attorney alleging those parties
deliberately failed to properly investigate and prosecute sex crimes.83 The DA also cites
the Supreme Court’s decision in Linda R.S. v. Richard D., wherein the Court held that
crime victims lack standing to “contest the polices of the prosecuting authority when he
[or she] is neither prosecuted nor threatened with prosecution.”84
The Court does not view Plaintiff’s claim as one demanding the prosecution of her
alleged attacker. Rather, Plaintiff’s claim is that the Defendants have an implied policy or
custom to not properly investigation claim of sexual assault by women which violates their
official duties to protect the public equally. More recent jurisprudence recognizes this
distinction.
83
84
745 F.Supp. 1137 (D. Md. 1990).
410 U.S. 614, 619 (1977).
51793
Page 17 of 51
The Fourteenth Amendment states “No State shall ... deny to any person within its
jurisdiction the equal protection of the laws.”85 “[E]ssentially ... all persons similarly
situated should be treated alike.”86 To plead such a claim, “a plaintiff typically alleges that
[s]he ‘received treatment different from that received by similarly situated individuals and
that the unequal treatment stemmed from a discriminatory intent.’”87 To state a claim
under the Equal Protection Clause, a § 1983 plaintiff must either allege that (a) “a state
actor intentionally discriminated against [her] because of membership in a protected
class,” or (b) [s]he has been “intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.”88
In DeShaney v. Winnebago County Dept.of Soc. Servs., the Supreme Court held
that the “Due Process Clause does not require a State to provide its citizens with particular
protective services.”89 At the same time, however, DeShaney noted that “a State may
not, of course, selectively deny its protective services to certain disfavored minorities
without violating the Equal Protection Clause.”90 The Fifth Circuit stated: “this court
acknowledged that certain intentionally discriminatory policies, practices, and customs of
law enforcement with regard to domestic assault and abuse cases may violate the Equal
Protection Clause under the DeShaney footnote.”91 While granting qualified immunity on
the facts then before the court, Shipp provided an objective standard to inform
85
U.S. Const. amend. XIV, § 1.
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 212 (5th Cir. 2009) (citing Qutb v. Strauss, 11 F.3d 488, 492
(5th Cir. 1993)) (internal quotations and additional citations omitted).
87
Id. at 212–13 (citing Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001)).
88
Gibson v. Tex. Dep't of Ins., 700 F.3d 227, 238 (5th Cir. 2012) (internal citations omitted).
89
489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).
90
Id. at 197 n. 3, 109 S.Ct. 998.
91
Beltran v. City of El Paso, 367 F.3d 299,304 (citing Shipp v. McMahon, 234 F.3d 907, 914 (5th Cir. 2000),
overruled in part on other grounds by, McClendon, 305 F.3d at 328–29).
86
51793
Page 18 of 51
government officials of the type of conduct that violates federal constitutional or statutory
rights.92 To sustain a gender-based equal protection challenge under Shipp, a plaintiff
must show “(1) the existence of a policy, practice, or custom of law enforcement to provide
less protection to victims of domestic assault than to victims of other assaults; (2) that
discrimination against women was a motivating factor; and (3) that the plaintiff was injured
by the policy, custom or practice.”93 In Village of Willowbrook v. Olech, the Supreme
Court held that the Equal Protection Clause can give rise to a cause of action on behalf
of a “class of one,” even when the plaintiff does not allege membership in a protected
class or group.94 To state a class of one equal protection claim, a plaintiff must offer a
comparator she contends is similarly situated, but treated more favorably for no rational
purpose.95
The Court finds that Plaintiff has alleged a cognizable Equal Protection claim.
However, although Plaintiff presented argument on the DA’s individual liability for this
claim at the oral argument, Plaintiff failed to address the DA’s individual liability for an
Equal Protection violation in her Opposition; specifically, Plaintiff failed in her written
Opposition to respond to the DA’s assertion of qualified immunity for the equal protection
individual capacity violation Plaintiff asserted. In keeping with the Court’s comments at
92
Id. (citing Shipp at 914 (citing Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982))).
93
Shipp, 234 F.3d at 914.
94
See Village of Willowbrook v. Olech, 528 U.S. 562, 563-564 (2000) (finding the plaintiffs properly alleged
they had been treated differently from other similarly situated property owners); Gil Ramirez Grp., LLC v.
Houst. Indep. Sch. Dist., 786 F.3d 400, 419 (5th Cir. 2015) (explaining that an equal protection claim
depends on either identifying a class or showing that the aggrieved party is a “class of one”).
95
Monumental Task Comm., Inc. v. Foxx, No. 15-6905, 2016 WL 5780194, at *3 (E.D. La. Oct. 4, 2016)
(citing Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 (5th Cir. 2007))(emphasis added).
51793
Page 19 of 51
oral argument, Plaintiff will be allowed to amend her Complaint on this issue and will be
ordered to file a Rule 7(a) Response to the DA’s assertion of qualified immunity.
Many of Plaintiff’s Equal Protection allegations implicate official capacity liability,
and the Court will discuss this claim in greater detail below.
b.
Due Process Clause – Access to the Courts
Plaintiff alleged in her Complaints that the failure to obtain and process her rape
kit constituted a “taking” under the Due Process Clause. However, Plaintiff abandoned
this claim in her Opposition by failing to argue it and focused her Due Process claim
instead on the alleged denial of her right of access to the courts allegedly caused by the
DA’s conduct, which she claims impeded her ability to receive benefits under the
Louisiana Victim Compensation Fund (“LVCF”), which Plaintiff contends is the
unconstitutional deprivation of a property interest. However, in Carter v. State, Crime
Victims Reparations Bd. and Fund,96 the Louisiana First Circuit Court of Appeal held that
no property interest is created by the Louisiana Victims Reparations Act:
The Louisiana Victims Reparations Act does not require the granting of
applications for reparations upon the mere fulfillment of “certain specified
qualifications.” See Hagood, 385 So.2d at 409. Rather, the act allows the
board wide discretion in its decision on awards. Under the law, the board
considers the application using a preponderance of the evidence standard
of review. La. R.S. 46:1809 A. The initial consideration is whether a
pecuniary loss was sustained. Id. Secondly, the board must make ancillary
findings, including the victim's level of cooperation with law enforcement
and level of involvement in the crime itself. La. R.S. 46:1809 B. Thus,
reparations are a remedy or a benefit granted by the state, but not an
entitlement. Absent a protected property interest, a due process notice and
hearing were not required. See Hagood, 385 So.2d at 409.97
96
97
2003-2728 (La. App. 1 Cir. 10/29/04), 897 So.2d 149.
Id. at 151-52 (emphasis added).
51793
Page 20 of 51
A benefit does not give rise to a constitutionally protected property interest. Plaintiff
acknowledges the holding of Carter but urges the Court to ignore it, arguing that it is
erroneous considering the mandatory language of the statute.
The Court is not inclined to overrule Carter in this case. Indeed, “[w]here the state's
highest court has not yet spoken on an issue, the federal district court may look to the
state's appellate courts for guidance.”98 Further, the United States Supreme Court has
held that a decision by an intermediate appellate state court should not be disregarded
by a federal court unless it is convinced by other persuasive data that the highest court
of the state would decide otherwise.99
Considering the principles of federalism and
comity as set forth in both the Rooker-Feldman doctrine100 and the Younger abstention
doctrine,101 the Court declines to grant the relief Plaintiff requests. Any challenge to the
constitutional scope and interpretation of a state statute should be made through the state
court system before seeking relief from a federal district court. Accordingly, Plaintiff has
failed to state a claim under Section 1983 for a Due Process Clause violation based on
the alleged denial of access to the Louisiana Victim Compensation Fund.
c.
Abuse of Process
Plaintiff appears to allege an abuse of process claim under Section 1983 and under
98
TS & C Investments, L.L.C. v. Beusa Energy, Inc. 637 F.Supp.2d 370, 374 (W.D. La.2009)(citations
omitted).
99
West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940).
100
The Rooker Feldman doctrine “holds that inferior federal courts do not have the power to modify or
reverse state court judgments.” Union Planters Bank Nat. Ass'n v. Salih, 369 F.3d 457, 462 (5th Cir. 2004)
(citation omitted).
101
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). Further, the “Younger abstention also allows
federal courts to avoid interpreting state laws that would result in the unwarranted determination of federal
constitutional questions.” Health Net, Inc. v. Wooley, 534 F.3d 487, 495 (5th Cir. 2008) (citations and
internal quotation marks omitted).
51793
Page 21 of 51
state tort law.102 However, Plaintiff’s Opposition addresses her abuse of process claim
only in the context of state tort law. Thus, the Court will not consider Plaintiff’s abuse of
process claim as a federal constitutional claim brought under Section 1983.
2.
Absolute Immunity – Individual Capacity Claims
The United States Supreme Court has adopted a “functional approach” to the
question of absolute immunity, one that looks to “the nature of the function performed, not
the identity of the actor who performed it.”103 A prosecutor is immune for initiating and
pursuing a criminal prosecution. Specifically, a prosecutor is absolutely immune when
he104 acts in his “role as advocate for the State,”105 or when his conduct is “intimately
associated with the judicial phase of the criminal process.”106 However, a prosecutor
does not enjoy absolute immunity for acts of investigation or administration.107 Even if a
prosecutor fails to show absolute immunity for a given activity, he may still show qualified
immunity.108
An official seeking absolute immunity bears the burden of showing that such
immunity is justified for the function in question.109 “A prosecutor’s administrative duties
and those investigatory functions that do not relate to an advocate’s preparation for the
initiation of a prosecution or for judicial proceedings are not entitled to absolute
102
Rec. Doc. No. 37, p. 22, ¶¶ 127-132. Plaintiff’s Fourth Cause of Action alleges Abuse of Process under
Section 1983; however, in ¶ 128, she alleged that Defendants are liable for “the state tort of abuse of
process.” In ¶ 129, Plaintiff alleges that the Defendants acted in a manner violative of her “state and federal
constitutional rights.”
103
Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976).
104
The male pronoun will be used herein for convenience.
105
Burns v. Reed, 500 U.S. 478, 491, 111 S.Ct. 1934, 1942, 114 L.Ed.2d 547 (1991) (internal quotation
marks omitted).
106
Burns, 500 U.S. at 492, 111 S.Ct. at 1942 (internal quotation marks omitted).
107
Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993).
108
Buckley, 509 U.S. at 273, 113 S.Ct. at 2615-16.
109
Buckley, 509 U.S. at 269, 113 S.Ct. at 2613, 125 L.Ed.2d 209 (1993).
51793
Page 22 of 51
immunity.”110
A prosecutor is not absolutely immune for acting in the role of an
investigator or policeman if, in so acting, he deprives a plaintiff of rights under the
Constitution or federal laws.111
“[A] prosecutor who assists, directs or otherwise
participates with, the police in obtaining evidence prior to an indictment undoubtedly is
functioning more in his investigative capacity than in his quasi-judicial capacities of
deciding which suits to bring and … conducting them in court,” and is thus not entitled to
absolute immunity.112
Here, Plaintiff challenges the DA’s investigatory and administrative functions both
prior to the grand jury hearing and at the grand jury hearing. Plaintiff characterizes the
DA’s pre-grand jury conduct as investigatory, which she claims removes the shield of
absolute immunity. Specifically, Plaintiff’s alleged pre-grand jury functions of the DA are:
failing to request the rape kit and consider it in the investigation;113 the hand-written notes
on the police report;114 and failing to meet with Plaintiff and other corroborating
witnesses.115 Plaintiff also alleges that the DA failed to call investigators and medical
personnel as witnesses at the grand jury hearing.116
110
Buckley, 509 U.S. at 273, 113 S.Ct. at 2615 (citing Burns v. Reed, 500 U.S. at 494-96, 111 S.Ct. at
1943-44, 114 L.Ed.2d 547 (1991)).
111
Hart v. O’Brien, 127 F.3d 424, 439 (5th Cir. 1997) (citing Joseph v. Patterson, 795 F.2d 549, 556 (6th
Cir. 1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987)). See ¶ 25 of Plaintiff’s
First Amended Complaint alleging that it is “the cops” who usually “get the [rape] kit”, suggesting and
supporting that this is an investigative function.
112
Hart, 127 F.3d at 440 (citing Marrero v. City of Hialeah, 625 F.2d 499, 505 (5th Cir. 1980) (citation and
internal quotations omitted)) cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). See also,
Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) and Spivey v. Robertson, 197 F.3d
772 (5th Cir. 1999) (which altered the timing of when absolute immunity may apply; the analysis focusing
on whether the prosecutor is acting as an advocate). See also Lucas v. Parish of Jefferson, 999 F.Supp.
839 (E.D. La. Mar. 31, 1998) (for a complete history and evolution of absolute immunity).
113
Rec. Doc. No. 37, p. 3, ¶ 9.
114
Rec. Doc. No. 37, p. 3, ¶ 10.
115
Rec. Doc. No. 37, p. 3, ¶ 11.
116
Rec. Doc. No. 37, p. 3, ¶¶ 12-13.
51793
Page 23 of 51
Relying upon Imbler v. Pachtman,117 the DA argues that he is clearly protected
from civil suit by the doctrine of absolute immunity because he was at all times acting in
his role as the state’s advocate in the prosecution of Boeker.118 The DA cites numerous
cases post-Imbler wherein district attorneys were found to be absolutely immune from
civil suit.119 The DA emphasized those instances where absolute immunity was granted
even where the actions at issue were questionable.120
The plaintiff in Buckley v. Fitzsimmons alleged that the defendants, state
prosecutors who had participated in the early stages of the sheriff’s department’s
investigation, entered into a pre-indictment conspiracy with the sheriff’s deputies to create
false evidence linking a boot owned by the plaintiff with a bootprint left at a murder
scene.121 The defendants asserted the defense of absolute immunity, but the Supreme
Court determined that the defendants had failed to carry their burden of “establishing that
they were functioning as ‘advocates’ when they were endeavoring to determine whether
the bootprint at the scene of the crime had been made by [the plaintiff’s] foot.” In reaching
this conclusion, the Court recognized that, although “‘the duties of a prosecutor in his role
as advocate for the State involve actions preliminary to the initiation of a prosecution and
actions apart from the courtroom,’ [t]here is a difference between an advocate’s role in
evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand,
117
424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
Rec. Doc. No. 57-1, p. 10.
119
Id.
120
Id. at pp. 10-12 (“[A]bsolute immunity shelters prosecutors even if when they act ‘maliciously, wantonly
or negligently’”).
121
Buckley, 509 U.S. at 262-72, 113 S.Ct. at 2610-15, 125 L.Ed.2d 209 (1993).
118
51793
Page 24 of 51
and the detective’s role in searching for clues and corroboration that might give him
probable cause to recommend that a suspect be arrested, on the other hand.” 122
The Supreme Court also noted in Buckley that the conduct of the prosecutors was
“during the period before they convened a special grand jury,” finding that the prosecutors’
mission “at that time was entirely investigative in character.”123 The Court stated that it
was “well after” the alleged fabrication of evidence that the grand jury was empaneled.124
Finally, the Court characterized the timing of the conduct in question as occurring before
the prosecutors could properly claim to be acting as advocates.125 Thus, the Court held
the defendants were not shielded by absolute immunity. 126
The DA also relies on Charles v. Greenberg, an Eastern District of Louisiana case,
where the testing of a rape kit was at issue.127 In Charles, the plaintiff was exonerated
and released from prison for a 1982 aggravated rape conviction after a DNA test of the
rape kit revealed that he was not the perpetrator. Following his exoneration, the plaintiff
122
Buckley, 509 U.S. at 273, 113 S.Ct. at 2615 (quoting Imbler, 424 U.S. at 431, n. 33, 96 S.Ct. at 995, n.
33).
123
Buckley, 509 U.S. at 274.
124
Buckley, 509 U.S. at 275.
125
Id.
126
The Court recognizes that the DA disagreed in his reply memorandum that pre-grand jury activities, such
as interviewing witnesses or choosing not to interview witnesses, was an investigatory action that removed
the prosecutor from the protection of absolute immunity. Rec. Doc. No. 74, p. 3. The DA relied on Cook v.
Houston Post, 616 F.2d 791 (5th Cir. 1980). The DA is correct that the Fifth Circuit in Cook v. Houston
Post stated: “Not all of an advocate’s work is done in the courtroom. For a lawyer to properly try a case,
he must confer with witnesses, and conduct some of his own factual investigation.” Cook, 616 F.2d at 793.
However, the Court notes that: (1) Cook was decided in 1980, approximately 13 years before the Supreme
Court decided Buckley v. Fitzsimmons; and (2) the Cook opinion is ambiguous as to whether the witness
interviews occurred before the grand jury hearing or not. The opinion states that the grand jury investigation
had been in progress “several months” before the district attorney was assigned to the case (Cook, 616
F.2d at 793), and then stated that the district attorney would have been negligent if he had not interviewed
witnesses “before presenting the testimony to the grand jury.” Cook, 616 F.2d at 793. In fact, there was
very little analysis of the action at issue and the timing of same to garner a guiding principle and timeline
from the Fifth Circuit in the Cook opinion.
127
Charles v. Greenberg, 00-958, 2000 WL 1838713 (E.D. La. Dec. 13, 2000). The Court notes that this
is the only “rape kit” case from Louisiana federal courts where immunity was an issue.
51793
Page 25 of 51
filed suit under 42 U.S.C. § 1983 alleging that the prosecutor wrongfully opposed his postindictment, pre-trial request to test the rape kit. The prosecutor defendants claimed
absolute immunity. After setting forth the controlling standards in Imbler and Buckley, the
Chalres court noted that the requests to have the rape kit tested were post-indictment,
presented in court, and the prosecutors’ opposition to these requests was heard in court.
This was found to be a part of the prosecutors’ “official duties” and “directly attached to
the judicial process,” thus, absolute immunity attached.128
The Court finds the holding in Charles inapposite to the facts presently before the
Court. The challenges to the testing of the rape kit in Charles were not pre-indictment.
Rather, the issue was litigated in open court as part of the pre-trial evidentiary
proceedings following indictment. In Charles, the defendant’s motion to test the rape kit
was an effort to perpetuate exculpatory trial evidence. A prosecutor’s in-court advocacy
in opposing a request to test a rape kit is part of his/her prosecutorial duties. This is
markedly different from the allegations presented herein which involve purported
investigative omissions that occurred before the grand jury convened.
Taking the
allegations as true for purposes of this motion, the Court finds these acts and/or omissions
were related to investigation as opposed to advocacy and thus not cloaked by absolute
immunity.
The Court finds that the DA’s alleged conduct in failing to request, obtain, and
examine the rape kit; making notes on the police report; and failing to interview the Plaintiff
prior to the grand jury hearing129 were investigative functions for which absolute immunity
128
129
Charles, at *2.
Rec. Doc. No. 37, p. 3, ¶¶ 9-11.
51793
Page 26 of 51
does not apply. On the other hand, the alleged failure to call specific witnesses before
the grand jury130 is an advocacy or prosecutorial function for the which the DA is
absolutely immune. Thus, the DA is shielded by absolute prosecutorial immunity for the
prosecutorial function of determining how to conduct the grand jury hearing. Accordingly,
the DA’s Motion to Dismiss individual capacity claims brought against him based on
absolute immunity is granted as to his prosecutorial functions and denied as to his alleged
investigative conduct.
3.
Qualified Immunity – Individual Capacity Claims
As discussed above, Plaintiff failed to address the DA’s individual liability under
the Equal Protection Clause, the only viable federal constitutional claim asserted, in her
Opposition memoranda, although she presented argument on this issue at the oral
argument.131
Plaintiff’s only Opposition response to the DA’s assertion of qualified
immunity was based on her Due Process/access to the Courts claim, which the Court has
held is not a viable constitutional violation under the facts alleged.
Fundamental fairness requires that the Plaintiff be permitted leave to conform her
Opposition pleading to the oral arguments presented. Accordingly, because Plaintiff is
hereby ordered to submit a Rule 7(a) Response to address the DA’s individual capacity
liability under the Equal Protection Clause and respond to his assertion of the defense of
qualified immunity under the deadlines set forth below.
130
131
Rec. Doc. No. 37, p. 3, ¶¶ 12-13.
Rec. Doc. Nos. 70 & 71.
51793
Page 27 of 51
4.
Official Capacity Claims
A suit against a government official in his official capacity is the equivalent of filing
suit against the government agency of which the official is an agent.132 Accordingly, the
claims against the DA in his official capacity are, in effect, claims against the municipal
entity he represents, which is the West Feliciana Parish District Attorney’s Office.133 A
plaintiff asserting a Section 1983 claim against a municipal official in his official capacity
or a Section 1983 claim against a municipality “must show that the municipality has a
policy or custom that caused his injury.”134 To establish an “official policy,” a plaintiff must
allege either of the following:
1. A policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the municipality's lawmaking officers or by
an official to whom the lawmakers have delegated the policymaking
authority; or
2. A persistent, widespread practice of city officials or employees, which,
although not authorized by officially adopted and promulgated policy, is
so common and well settled as to constitute a custom that fairly
represents municipal policy. Actual or constructive knowledge of such
custom must be attributable to the governing body of the municipality or
to an official to whom that body had delegated policy-making
authority.135
To state a claim for municipal liability, the policymaker must have final
policymaking authority.136 “[W]hether a particular official has final policymaking authority
is a question of state law.”137 Moreover, “each and any policy which allegedly caused
132
Monell v. New York City Dep't of Soc. Serv, of City of New York, 436 U.S. 658, 691 n. 55 (1978).
Graham, 473 U.S. at 165; see also Bellard v. Gautreaux, No. CIV.A. 08-627, 2010 WL 3523051, at *4
(M.D. La. Sept. 3, 2010) amended in part, No. CIV.A. 08-627, 2010 WL 4977480 (M.D. La. Dec. 2, 2010),
affirmed, 675 F.3d 454 (5th Cir. 2012) and affirmed, 675 F.3d 454 (5th Cir. 2012).
134
Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007).
135
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984).
136
City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
137
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (internal quotations omitted) (emphasis in
original).
133
51793
Page 28 of 51
constitutional violations must be specifically identified by a plaintiff” for the necessary
determination to be made on the policy's relative constitutionality.138
Although “a single decision may create municipal liability if that decision were
made by a final policymaker responsible for that activity,”139 absent an official policy,
actions of officers or employees of a municipality do not render the municipality liable
under Section 1983.140 A municipality cannot be held liable under Section 1983 for the
tortious behavior of its employees under a theory of respondeat superior.141 “Congress
did not intend municipalities to be held liable unless action pursuant to official municipal
policy of some nature caused a constitutional tort.”142 However, a plaintiff may establish
a policy or custom based on isolated decisions made in the context of a particular situation
if the decision was made by an authorized policymaker in whom final authority rested
regarding the action ordered.143
To state a claim, plaintiffs “must plead facts showing that a policy or custom
existed, and that such custom or policy was the cause in fact or moving force behind a
constitutional violation.”144 Liability for failure to promulgate a policy requires that the
defendant acted with deliberate indifference.145
“A failure to adopt a policy can be
deliberately indifferent when it is obvious that the likely consequences of not adopting a
138
Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001).
Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir.1996) (internal quotations and citations omitted) (emphasis
in original).
140
Id.
141
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
142
Id.
143
Cozzo v. Tangipahoa Parish Council–President Gov't, 279 F.3d 273, 289 (5th Cir. 2002)(citing City of
Saint Louis v. Praprotnik, 485 U.S. 112, 124–25, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Bennett v. Pippin,
74 F.3d 578, 586 (5th Cir.1996)).
144
McClure v. Biesenbach, No. 08–50854, 2009 WL 4666485, at *2 (5th Cir. Dec.9, 2008) (unpublished)
(citing Spiller v. City of Tex. City, Police Dep't, 130 F.3d 162 (5th Cir.1997)).
145
Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011).
139
51793
Page 29 of 51
policy will be a deprivation of constitutional rights.”146 “Deliberate indifference is a high
standard—‘a showing of simple or even heightened negligence will not suffice.’”147 A
mere showing of generalized risk is insufficient to establish deliberate indifference; rather,
the plaintiff must show that a reasonable policy maker would conclude that the
constitutional deprivation that occurred was a plainly obvious consequence of his
decision.148
The Supreme Court has expressly prohibited the application of a heightened
pleading standard to Section 1983 claims against municipalities.149 Rather, a plaintiff
need only comply with notice pleading requirements by presenting a “short and plain
statement of the claims showing that the pleader is entitled to relief.”150 While boilerplate
allegations of inadequate municipal policies or customs are generally sufficient,151 a
complaint need only “give the defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests.”152
The following allegations in Plaintiff’s First Amended Complaint pertain to Plaintiff’s
claims asserted against the DA in his official capacity:153
22. On information and belief, the West Feliciana Parish District Attorney’s
Office does not have a policy requiring rape kits and sexual assault
146
Id. (quoting Rhyne v. Henderson Cnty., 973 F.2d 386, 392 (5th Cir. 1992)).
Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010)(quoting Piotrowski v. City of Houston, 237
F.3d 567, 579 (5th Cir. 2001) (quoting Brown, 520 U.S. at 407, 117 S.Ct. 1382)).
148
Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 411 (1997).
149
Jones v. Bock, 549 U.S. 199, 212–13, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (citing Leatherman v.
Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517
(1993)).
150
Id.
151
See, e.g., Mack v. City of Abilene, 461 F.3d 547, 556 (5th Cir.2006); Ortiz v. Geo Group, Inc., No. 07–
645, 2008 WL 219564, at *2 (W.D.Tex. Jan.25, 2008); Jacobs v. Port Neches Police Dept., No. 94–767,
1996 WL 363023, at *13–15 (E.D. Tex. June 26, 1996); DeFrancis v. Bush, 839 F.Supp. 13, 14
(E.D.Tex.1993).
152
Mack, 461 F.3d at 556 (quoting Leatherman, 507 U.S. at 168).
153
Rec. Doc. No. 37.
147
51793
Page 30 of 51
examinations to be picked up and reviewed or sent to the state crime lab
for testing.
23. On information and belief, at the time of the assaults and through June
2017, the West Feliciana Parish Sheriff’s Office did not have a policy
requiring rape kits and sexual assault examinations to be picked up and
reviewed or sent to the state crime lab for testing.
24. Rape kits and sexual assault examinations are known to be evidentiary
linchpins in sexual assault cases and former district attorneys, defense
attorneys, and victim’s advocates agree that proper investigation always
includes review of the rape kit and assault examination. They further agree
that departmental protocol in both law enforcement and district attorney’s
offices should require examination and analysis of the kit or exam. Even in
cases where DNA testing will not be determinative of whether an assault
occurred.
25. As retired East Baton Rouge assistant district attorney Sue Bernie told
reporters, “[i]f there’s a rape exam done, I can’t imagine not looking at the
sexual assault exam.” East Baton Rouge Coroner Beau Clark noted that
when the cops get the kit can change (from case to case), but they always
come get the kit and they’re the ones that submit it to the crime lab.”
……
41. Defendant SAMUEL D. D’AQUILLA is the present District Attorney of
the 20th Judicial District, a position he has held since 2002. Defendant
D’AQUILLA is sued in his official and personal capacity. Defendant
D’AQUILLA directly and in conspiracy with other defendants deprived
Plaintiff of her constitutional rights.
….
84. During this meeting, and at other times since, but before the convening
of the grand jury, Defendants Boeker, D’Aquilla, and Austin conspired to
ensure that Ms. Lefebure’s constitutional rights to equal protection, due
process, and a property right in her rape kit.
85. Defendants D’Aquilla and Austin are the elected and effective policy
makers for the District Attorney’s Office and the Sheriff’s Department,
respectively.
….
89. At all relevant times, Defendants D’Aquilla and Austin acted individually,
officially, and under color of law.
51793
Page 31 of 51
90. Defendants D’Aquilla and Austin knew that Ms. Lefebure had provided
evidence of sexual assault and further knew that neither Defendant was
taking steps to properly investigate her allegations.
91. Defendants D’Aquilla and Austin had a duty to diligently investigate the
allegations and to collect the rape kit, submit it to the crime lab for
examination, and review it and the sexual assault examination as part of
their own investigation.
92. Defendants D’Aquilla and Austin acting individually and together
conspired to and engaged in a course of conduct that deprived Ms. Lefebure
of her constitutional property right in her DNA samples and rape kit, her right
to seek redress in the courts, and of her rights to equal protection and due
process by failing to investigate the accused and failing to pick up, analyze,
examine, or submit rape kit and/or sexual assault examination evidence.
93. Defendants D’Aquilla and Austin are the elected and effective policy
makers for the District Attorney’s Office and the Sheriff’s Department,
respectively.
94. With deliberate indifference Defendants D’Aquilla and Austin failed to
draft or implement procedures in either the Sheriff’s Department or the
District Attorney’s Office to ensure proper investigation of rape cases and
proper review, examination, collection, and handling of rape kits and sexual
assault examinations.
95. Defendants D’Aquilla and Austin’s deliberate, and willful and wanton
conduct created a danger of an increased risk of harm to Plaintiff and other
victims of sexual assault, which are disproportionately women, by failing to
investigate sexual assault crimes, by fostering an environment whereby
perpetrators of sexual assault are allowed to prey on victims without fear of
investigation by the West Feliciana Sheriff’s Department or District Attorney.
96. On information and belief, Defendant Boeker knew of Defendant
D’Aquilla’s longstanding refusal to properly investigate sexual assault
crimes against women and/or female identified individuals.
97. At all relevant times, Defendants D’Aquilla and Austin’s conduct was
intentional, under color of law, and motivated by Plaintiff’s gender.
98. On information and belief, Defendants have a history of discriminating
against women and/or individuals who identify as female. Defendants have
failed to investigate or take seriously reports of sexual assault from women
and generally treat these allegations with less priority than other crimes not
involving sexual assaults against women.
51793
Page 32 of 51
99. Defendants D’Aquilla and Austin, acting individually and collectively,
had the duty and ability to prevent the violation of Ms. Lefebure’s
constitutional rights, but failed to do so. Indeed, their acts lead to the
direction violation of Ms. Lefebure’s rights.
100. Defendants D’Aquilla and Austin’s conduct violated the Fourteenth
Amendment’s promise of equal protection of the laws and 42 U.S.C. section
1983.
101. As a direct and proximate result of Defendants D’Aquilla and Austin’s
actions, omissions, policies, practices and customs, Plaintiff was denied the
rights afforded to her by the state and federal constitutions.
….
103. A departmental policy established or enacted by either Defendant
D’Aquilla or Defendant Austin in their respective municipal organizations
requiring collection and examination of rape kits would have prevented
plaintiff’s injury, and extreme emotional pain and suffering.
….
107. Defendants D’Aquilla and Austin had a duty to diligently investigate the
allegations and to collect the rape kit, submit it to the crime lab for
examination, and review it as part of their own investigation.
108. With deliberate indifference Defendants D’Aquilla and Austin failed to
implement procedures in either the Sheriff’s Department or the District
Attorney’s Office to provide for proper investigation of rape cases and
proper review, examination, collection, and handling of rape kits and sexual
assault examinations.
….
111. Defendants D’Aquilla and Austin’s deliberate indifference and willful
and wanton behavior created a danger and increased risk of harm by sexual
assault.
112. Defendants D’Aquilla and Austin’s conduct violated the Fourteenth
Amendment’s promise of substantive due process and 42 U.S.C. section
1983.
113. As a direct and proximate result of Defendants D’Aquilla and Austin’s
actions, omissions, policies, practices and customs, Plaintiff was denied the
rights afforded to her by the state and federal constitutions.
51793
Page 33 of 51
114. Defendants violated Plaintiff’s civil rights by having an express policy
to not collect evidence or rape kits and/or to not investigate when a female
or female-identified person makes a rape or sexual assault allegation. This
policy, when enforced, caused a constitutional deprivation to Plaintiff. Even
if Defendants’ conduct did not rise to the level of an express policy, the
practice of failing to properly collect and review rape kits and/or the practice
of failing to investigate sexual assault allegations by women was so
widespread and/or custom that, although not authorized by written law or
express municipal policy, was so permanent and well settled as to constitute
a custom or usage with the force of law.
115. Defendants D’Aquilla and Austin are the elected and effective policy
makers for the District Attorney’s Office and the Sheriff’s Department,
respectively. Plaintiff’s constitutional injuries inflicted by Defendants were
caused by individual’s with final policymaking authority in West Feliciana
Parish, the West Feliciana Parish Sheriff’s Office, and/or the West Feliciana
Parish District Attorney’s Office.
a.
Eleventh Amendment Sovereign Immunity
Notwithstanding the DA’s strained attempt at arguing that an official capacity claim
against him is barred by Eleventh Amendment sovereign immunity,154 the Fifth Circuit has
held to the contrary in several cases. The law is well-settled that district attorney offices
in Louisiana are local government entities and thus not entitled to Eleventh Amendment
sovereign immunity.155
b.
Absolute Immunity
The Court finds that the DA is likewise not immune from an official capacity suit
based on the defense of absolute prosecutorial immunity. In Burge v. Parish of St.
Tammany, the Fifth Circuit held that “the district court erred in granting summary judgment
for the District Attorney in his official capacity on the basis of his absolute prosecutorial
154
See Rec. Doc. No. 57-1 fn 11 (acknowledging Fifth Circuit jurisprudence foreclosing the DA’s argument).
See Kentucky v. Graham, 473 U.S. 159, 167,(1985); Burge, 187 F.3d at 466; Hudson v. City of New
Orleans, 174 F .3d 677, 691 (5th Cir. 1999). See also Spikes v. Phelps, 131 F. App'x 47, 49 (5th Cir. 2005)
(“based on Louisiana law, ... a parish district attorney is not entitled to Eleventh Amendment immunity”).
155
51793
Page 34 of 51
immunity because that form of personal or individual immunity is not available in an official
capacity suit.”156 The Burge court held:
We conclude that the District Attorney is not entitled to have the official
capacity suit dismissed for either of the grounds used by the district court.
Instead, the crucial issues appear to be whether the District Attorney
failed to establish adequate policies, procedures or regulations to
ensure adequate training and supervision of employees with respect to the
government's Brady responsibility; if so, whether the need to control the
agents of the government was so obvious, and the inadequacy of the
existing practice so likely to result in the violation of constitutional rights, that
the District Attorney can reasonably be said to have been deliberately
indifferent to the need; and, if so, whether the District Attorney's deliberate
indifference and failure to establish such policies, procedures, or
regulations caused Burge's constitutional injury.
Official capacity suits generally represent another way of pleading an action
against an entity of which an officer is an agent. Monell, 436 U.S. at 691 n.
55, 98 S.Ct. 2018. Unlike government officials sued in their individual
capacities, municipal entities and local governing bodies do not enjoy
immunity from suit, either absolute or qualified, under § 1983.
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).157
In Burrell v. Adkins, the plaintiffs brought a Section 1983 lawsuit against the former
and current District Attorneys of Union Parish, claiming that the District Attorneys had,
inter alia, caused the plaintiffs to be falsely arrested and imprisoned, deliberately withheld
Brady material, and maintained an official policy “designed to facilitate and condone his
office's non-disclosure of Brady material to criminal defendants, in violation of plaintiffs'
constitutional rights in this case.”158 The court explained the standard applicable to the
plaintiffs’ Monell claims:
Municipalities cannot be held liable for constitutional torts under Section
1983 on a respondeat superior theory, but they can be held liable when
156
187 F.3d 452, 467 (5th Cir. 1999)(citing Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)).
157
Id. at 466-67 (emphasis added).
158
2007 WL 4699169, at *4 (W.D. La. Oct. 23, 2007).
51793
Page 35 of 51
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury. Burge, 187 F.3d at 471, citing
Monell, 436 U.S. at 689, 98 S.Ct. at 2018. Thus, a plaintiff seeking to impose
liability on a municipality under Section 1983 is required to identify a
municipal policy, or custom, that caused the plaintiff's injury. Board of Cty.
Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403-404, 117 S.Ct. 1382,
1388 (1997). The “official policy” requirement may be proven in at least
three different ways: (1) when the appropriate officer or entity promulgates
a generally applicable statement of policy and the subsequent act
complained of is simply an implementation of that policy, (2) where no
official policy was announced or promulgated but the action of the
policymaker itself violated a constitutional right; and (3) even when the
policymaker fails to act affirmatively at all, if the need to take some action
to control the agents of the local governmental entity is so obvious, and the
inadequacy of existing practice so likely to result in the violation of
constitutional rights, that the policymaker can reasonably be said to have
been deliberately indifferent to the need. Burge, 187 F.3d at 471, and cases
cited therein.
Relying heavily on Burge, the court stated that “[a] district attorney is the
independent and final official policymaker for all administrative and prosecutorial functions
of his office.”159 The court noted that “the only issue before the court is whether the Brady
violations were committed pursuant to ‘official policy.’”160 The court ultimately found that:
Since former District Attorney Adkins was found to have been directly
involved in the alleged Brady violations, plaintiffs have satisfied the
requirements of Monell by proving that actions of the policy maker, which
represented official policy, violated their constitutional rights. Thus, the real
party in interest in this suit against Adkins and Levy in their official
capacities, the office of the District Attorney of Union Parish (currently held
by Levy), is liable to plaintiffs.161
Although the Burrell decision was addressing a case at the summary judgment
stage, the holding demonstrates that district attorneys are not absolutely immune from
Monell liability where it is found that a policy or custom directly implemented by a district
159
Id. at *5 (citing Burge, 187 F.3d at 469).
Id. at *10.
161
Id.
160
51793
Page 36 of 51
attorney caused constitutional injury. Accordingly, the DA is not shielded from Monell
liability by absolute prosecutorial immunity. The Court now turns to a discussion of the
elements of Plaintiff’s Monell claims.
c.
Policymaker
It is undisputed that DA D’Aquilla is a policymaker. Under Louisiana state law, a
district attorney “shall have charge of every criminal prosecution by the state in his district,
be the representative of the state before the grand jury in his district, and be the legal
advisor to the grand jury.”162 Accordingly, DA D’Aquilla is the policymaker with final
policymaking authority for the West Feliciana Parish District Attorney's Office.
d.
Official Custom or Policy
Plaintiff must plead sufficient facts to establish the existence of an official policy or
custom. An “official policy” may be established in one of three ways: (1) “when the
appropriate officer or entity promulgates a generally applicable statement of policy and
the subsequent act complained of is simply an implementation of that policy; (2) where
no rule has been announced as ‘policy’ but federal law has been violated by an act of the
policymaker itself; and (3) even where the policymaker has failed to act affirmatively at
all, so long as the need to take some action to control the agents of the government ‘is
so obvious, and the inadequacy [of existing practice] so likely to result in the violation of
constitutional rights, that the policymaker ... can reasonably be said to have been
deliberately indifferent to the need.’”163
From the Plaintiff’s Amended Complaint, it
appears her allegations fit within the second and third categories.
162
La. Const. Art. V, § 26; see also La. Rev. Stat. § 16:1.
Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 417-19, 117 S. Ct. 1382, 1395 (1997)
(Souter, J., dissenting), (quoting City of Canton v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 1205 (1989)).
163
51793
Page 37 of 51
Specifically, Plaintiff alleges that, on information and belief, the West Feliciana
Parish District Attorney’s Office does not currently, nor did it at the time of the alleged
assaults and through June 2017, have a policy requiring rape kits and sexual assault
examinations to be picked up and reviewed or sent to the state crime lab for testing.164
Plaintiff further alleges that, with deliberate indifference, DA D’Aquilla failed to draft or
implement procedures in the District Attorney’s Office to ensure proper investigation of
rape cases and proper review, examination, collection, and handling of rape kits and
sexual assault examinations.165 Plaintiff also alleges that, on information and belief,
Defendant Boeker knew of DA D’Aquilla’s “long-standing refusal to properly investigate
sexual assault crimes against women and/or female identified individuals,”166 and
Defendants “have a history of discriminating against women and/or individuals who
identify as female. Defendants have failed to investigate or take seriously reports of
sexual assault from women and generally treat these allegations with less priority than
other crimes not involving sexual assaults against women.”167 Finally, Plaintiff alleges
that “[a] departmental policy established or enacted by … Defendant D’Aquilla … in their
respective municipal organizations requiring collection and examination of rape kits would
have prevented plaintiff’s injury, and extreme emotional pain and suffering.”168
Additionally, Plaintiff has alleged that DA D’Aquilla directly participated in the
allegedly unconstitutional conduct. Plaintiff alleges that: the DA refused to examine or
164
Rec. Doc. No. 37, ¶¶ 22 & 23.
Id. at ¶ 94.
166
Id. at ¶ 96.
167
Id. at ¶ 98.
168
Id. at ¶ 103.
165
51793
Page 38 of 51
pick up her rape kit;169 his mark-up of the police report highlighted only Plaintiff’s possible
discrepancies and cast doubt only on Plaintiff;170 neither the DA nor any member of his
staff met with Plaintiff in person prior to the grand jury hearing, nor did they ever speak to
her about the alleged assaults;171 at the grand jury hearing, the DA did not call the police
officers who investigated the case or the nurse who conducted Plaintiff’s sexual exam,
and no expert from the coroner’s office was called to testify about the rape kit;172 the DA
attempted to proceed to the grandy jury hearing without Plaintiff’s testimony after he
reneged on a promise to her lawyer that he would give her a continuance to prepare;173
after a no true bill, the DA told reporters that the issue in the case was credibility and there
were no photos or witness cooperation;174 the DA told reporters he did not pick up or
examine the rape kit because it was unnecessary because it would not speak to the issue
of consent;175 the DA told reporters that Defendant Boeker claimed it was consensual but
“kind of rough” sex, a simple credibility call;176 days after a news station reported that
Plaintiff’s rape kit was never retrieved or examined, the DA told the Advocate that his
office had called the coroner’s office and asked for the rape kit multiple times;177 the DA
told reporters that he presents everything in his file every time there is a grand jury;178
and the DA met with Boeker and his attorney, who is related to the DA, after his arrest179
169
Id. at ¶ 9.
Id. at ¶ 10.
171
Id. at ¶ 11.
172
Id. at ¶ 12.
173
Id. at ¶ 14.
174
Id. at ¶ 17.
175
Id. at ¶ 20.
176
Id. at ¶ 21.
177
Id. at ¶ 26.
178
Id. at ¶ 27.
179
Id. at ¶ 77, 80.
170
51793
Page 39 of 51
and conspired with other Defendants, including Plaintiff’s alleged rapist, to ensure that
Boeker would not be investigated for rape.180
These very specific factual allegations dispel the DA’s argument that Plaintiff’s
allegations are conclusory or boilerplate. The Court must accept Plaintiff’s allegations as
true for the purpose of this motion, and Plaintiff’s factual allegations are specific and, in
many instances, purport to be quotes given to the media. Plaintiff is not required to prove
her case at the Rule 12(b)(6) stage, and the Court finds that her claim that it was policy
or customary practice for the DA to fail to investigate or give credence to reports of sexual
assault by women is plausible under the facts pled. Further, the facts pled, if proven,
would constitute deliberate indifference rather than mere negligence on the part of the
DA.
e.
Moving Force Behind Constitutional Violations
The DA maintains that Plaintiff has failed to state a claim because she has not
alleged a constitutional violation. Plaintiff claims that the DA’s conduct and policy violated
her constitutional rights to equal protection and due process/access to the courts. The
Court has determined as set forth above that Plaintiff has alleged a constitutional violation
under the Equal Protection Clause.
f.
Equal Protection Clause181
Plaintiff alleges that the DA’s
deliberate, willful, and wanton conduct created a danger of an increased
risk of harm to Plaintiff and other victims of sexual assault, which are
disproportionately women, by failing to investigate sexual assault crimes,
by fostering an environment whereby perpetrators of sexual assault are
180
Id. at ¶ 82.
The Court adopts by reference the discussion and analysis set forth above in Section II.D.1.a of this
Ruling.
181
51793
Page 40 of 51
allowed to prey on victims without fear of investigation by the West Feliciana
Sheriff’s Department or District Attorney.182
Plaintiff further alleges, on information and belief, that Defendant Boeker knew of the DA’s
“longstanding refusal to properly investigate sexual assault crimes against women and/or
female identified individuals.”183 Plaintiff claims that Defendants’ conduct was purposeful
and motivated by Plaintiff’s gender.184 Plaintiff also alleges, on information and belief,
that Defendants have a history of discriminating against women and/or individuals who
identify as female in that Defendants have failed to investigate or take seriously reports
of sexual assault from women and generally treat these allegations with less priority than
other crimes not involving sexual assaults against women.185 Finally, Plaintiff claims that
Defendants violated Plaintiff’s civil rights
by having an express policy to not collect evidence or rape kits and/or to not
investigate when a female or female-identified person makes a rape or
sexual assault allegation. This policy, when enforced, caused a
constitutional deprivation to Plaintiff. Even if Defendants’ conduct did not
rise to the level of an express policy, the practice of failing to properly collect
and review rape kits and/or the practice of failing to investigate sexual
assault allegations by women was so widespread and/or custom that,
although not authorized by written law or express municipal policy, was so
permanent and well settled as to constitute a custom or usage with the force
of law.186
As set forth above, to sustain a gender-based equal protection challenge, a plaintiff
must show “(1) the existence of a policy, practice, or custom of law enforcement to provide
less protection to victims of domestic assault than to victims of other assaults; (2) that
182
Rec. Doc. No. 37, ¶ 95.
Id. at ¶ 96.
184
Id. at ¶ 97.
185
Id. at ¶ 98.
186
Id. at ¶ 114.
183
51793
Page 41 of 51
discrimination against women was a motivating factor; and (3) that the plaintiff was injured
by the policy, custom or practice.”187 Plaintiff allegations as detailed above satisfy this
three-part test. However, the Court finds that Plaintiff has failed to allege a “class of one”
cause of action, which she pleads in the alternative. To state a class of one equal
protection claim, a plaintiff must offer a comparator she contends is similarly situated, but
treated more favorably for no rational purpose.188 Plaintiff has not alleged a similarly
situated comparator. In accordance with the Court’s statements at the oral argument,
Plaintiff will be granted leave to amend on this issue.
Accordingly, the DA’s Motion to Dismiss official capacity claims asserted against
him is DENIED as to Plaintiff’s Equal Protection claim but is GRANTED as to all other
official capacity claims and Plaintiff’s class of one Equal Protection claim, subject to leave
to amend.
E.
42 U.S.C. §§ 1983 & 1985 (2) and (3) Civil Conspiracy Claims
“In order to prevail on a section 1983 conspiracy claim, a plaintiff must establish
(1) the existence of a conspiracy involving state action and (2) a deprivation of civil rights
in furtherance of the conspiracy by a party to the conspiracy.”189 Regarding the first
element: “To establish a cause of action based on conspiracy a plaintiff must show that
the defendants agreed to commit an illegal act.”190 “Mere conclusory allegations of
187
Shipp, 234 F.3d at 914.
Monumental Task Comm., Inc. v. Foxx, No. 15-6905, 2016 WL 5780194, at *3 (E.D. La. Oct. 4, 2016)
(citing Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 (5th Cir. 2007))(emphasis added).
189
Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990); see also Jabary v. City of Allen, 547
F. App'x 600, 610 (5th Cir. 2013) (“To prove a conspiracy under § 1983, a plaintiff must allege facts that
indicate (1) there was an agreement among individuals to commit a deprivation, and (2) that an actual
deprivation occurred.” (citing Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.1994)).
190
Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982) (Rubin, J.).
188
51793
Page 42 of 51
conspiracy cannot, absent reference to material facts, survive a motion to dismiss.”191
“[M]ore than a blanket of accusation is necessary to support a § 1983 claim.”192 Plaintiff
must make “specific allegation[s] of fact tending to show a prior agreement has been
made.”193
Nevertheless, a Section 1983 conspiracy “claim need not [meet] a ‘probability
requirement at the pleading stage; [plausibility] simply calls for enough fact [s] to raise a
reasonable expectation that discovery will reveal evidence of illegal agreement.’”194
Plaintiff’s “facts, when ‘placed in a context . . . [must raise] a suggestion of a preceding
agreement, not merely parallel conduct that could just as well be independent action.’”195
As to the second element, “[r]egardless of whether or not [a defendant’s] actions
alone actually caused a constitutional violation, liability can still be imposed on him
through his alleged membership in the conspiracy.”196 That is, “[a] conspiracy allegation
under § 1983 allows a plaintiff to ‘impose liability on all of the defendants without regard
to who committed the particular act.’”197
“A conspiracy may be charged under section 1983 as the legal mechanism through
which to impose liability on all of the defendants without regard to who committed the
particular act, but ‘a conspiracy claim is not actionable without an actual violation of
section 1983.’”198 For example, “in a case alleging both Fourth Amendment violations
191
Id. (citing Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977)).
Id. (citations omitted).
193
See id. at 1023–24.
194
Jabary, 547 F. App’x at 610 (quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955).
195
Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955).
196
Latiolais v. Cravins, 484 F. App'x 983, 991 (5th Cir. 2012) (citing Hale v. Townley, 45 F.3d 914, 920–21
(5th Cir.1995)).
197
Jabary, 547 F. App’x at 610 (citing Hale, 45 F.3d at 920).
198
Hale, 45 F.3d at 920 (quoting Pfannstiel, 918 F.2d at 1187).
192
51793
Page 43 of 51
and a § 1983 conspiracy, the proper order of review is first whether Plaintiffs have alleged
a constitutional violation that is objectively unreasonable in light of clearly established
Fourth Amendment law, and only if that is the case should the court then consider whether
Plaintiffs have alleged a conspiracy.”199
Thus, in Hale, the Fifth Circuit found that,
because all of the alleged conspirators were entitled to qualified immunity on plaintiff’s
First Amendment claim, the conspiracy claim was not actionable.200
The Court finds that Plaintiff has alleged a viable constitutional violation of the
Equal Protection Clause; thus, the Court must consider whether Plaintiff has sufficiently
pled facts to state a claim for a Section 1983 civil conspiracy claim.
Plaintiff has also asserted a civil conspiracy claim under 42 U.S.C. § 1985(2) and
(3). “Section 1985 prohibits a conspiracy to interfere with civil rights.”201 In order to state
a 42 U.S.C. § 1985 claim, a plaintiff must allege the following: “(1) a conspiracy by the
defendants, (2) with a purpose of depriving the plaintiff of equal protection of the laws or
equal privileges and immunities under the law, (3) a purposeful intent to discriminate, (4)
action by the defendants under color of state law or authority, and (5) injury to the person
or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United
States resulting from actions in furtherance of the conspiracy.”202 Additionally, the plaintiff
must assert “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.”203
199
Morrow v. Washington, 672 F. App'x 351, 355 (5th Cir. 2016) (emphasis in original).
Hale, 45 F.3d at 921.
201
Bishop v. J.O. Wyatt Pharm., 2015 WL 4997890, at *7 (N.D. Tex. Aug. 21, 2015).
202
Id. (citing Granville v. Hunt, 411 F.2d 9, 11 (5th Cir. 1969)).
203
Suttles v. U.S. Postal Service, 927 F.Supp. 990, 1001 (S.D. Tex. 1996)(quoting Griffin v. Breckenridge,
403 U.S. 88, 102 (1971)).
200
51793
Page 44 of 51
The district court for the Northern District of Texas explained how the Fifth Circuit
and the Supreme Court have interpreted 42 U.S.C. § 1985(2) and (3):
The first clause of § 1985(2) “prohibits conspiracies to deter witnesses from
attending court or testifying, punishing witnesses who have so attended or
testified, or injure jurors.” Bryant v. Military Dep’t of Miss., 597 F.3d 678,
687 n. 6 (5th Cir. 2010). The clause has been read as protecting any party,
witness, or juror from intimidation regardless of any racial animus on the
part of the defendant. Montoya, 614 F.3d at 149 (citing Kush v. Rutledge,
460 U.S. 719, 723-27, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). The second
clause of § 1985(2) “prohibits conspiracies to deny any citizen equal
protection of the laws or injure a citizen for his efforts to ensure the rights of
others to equal protection.” Bryant, 597 F.3d at 687. Since the equal
protection language in the second clause of § 1985(2) parallels the equal
protection language in § 1985(3), the race or class-based animus
requirement of § 1985(3) also applies to claims under the second part of §
1985(2). See Daigle v. Gulf State Utils. Co., Local Union No. 2286, 794
F.2d 974, 979 (5th Cir. 1986) (citing KIimble v. D.J. McDuffy, Inc., 648 F.2d
340, 346 (5th Cir. 1981) (en banc), cert. denied, 454 U.S. 1110, 102 S.Ct.
687, 70 L.Ed.2d 651 (1981)).204
In this case, Plaintiff relies on the second clause of § 1985(2) and (3). The DA
contends that Plaintiff has failed to state viable 42 U.S.C. § 1985(2) and (3) conspiracy
claims against him. He argues that, “for the same reasons that preclude Plaintiff from
having standing,” and because “the allegations against D’Aquilla are not sufficient,”
Plaintiff fails to state a claim upon which relief may be granted.205
The Court finds that Plaintiff has alleged sufficient facts to support a claim for civil
conspiracy under Sections 1983 and 1985. Plaintiff alleges in detail that the DA and the
other named Defendants conspired together or that they were motivated by a class-based
animus, i.e., gender. Specifically, Plaintiff alleges:
From the moment of his arrest, Defendant Boeker was not treated as a
suspect in a crime, but instead given preferential treatment by Defendant
204
205
Payne v. Universal Recovery, Inc., 2011 WL 7415414, at *8 (N.D. Tx. Dec. 7, 2011).
Rec. Doc. No. 57-1, p. 17.
51793
Page 45 of 51
West Feliciana Parish District Attorney Samuel D. D’Aquilla and his office
and West Feliciana Parish Sheriff J. Austin Daniel and his office.206
Within 24 hours of his arrest, Mr. Boeker’s attorney Jerome Cy D’Aquilla –
relative of Defendant District Attorney Sam D’Aquilla – secured two bond
reductions totaling $77,000.00. Mr. Boeker did not spend a single night in
custody and his remaining, reduced bond was paid largely by an unknown
source from Ascension Parish.207
After his release, Defendant Boeker faced no investigation or scrutiny from
the District Attorney or the Sheriff.208
Both the District Attorney and the Sheriff refused to examine or pick up Ms.
Lefebure’s rape kit and sexual assault examination, which showed bruising
consistent with trauma.209
Defendant D’Aquilla’s markup of the police report highlighted only possible
discrepancies in Ms. Lefebure’s description of the events. His handwritten
notes cast only doubt on Ms. Lefebure, with ‘drinking’ written out and heavily
underlined, and the words ‘go get the stuff,’ ‘where are the texts,’ and ‘NO
[illegible] plead 5’ and ‘plead 5th.’ None of these phrases were included in
the police report itself or Ms. Lefebure’s description of the events and Mr.
and Mrs. Boeker are the only parties alleged to have been drinking at the
time of either assault.210
Prior to the grand jury hearing Defendant D’Aquilla did not meet with Ms.
Lefebure in person or speak with her about the assaults. He told reporters
he was ‘uncomfortable’ with speaking with her. No one from Defendant
D’Aquilla’s office or staff met with Ms. Lefebure either.211
Defendant D’Aquilla also noted that ‘[e]very time we have a grand jury, we
present everything we have in our file.’ If Defendant D’Aquilla’s office had
retrieved the rape kit as any other prosecutor would have, the photos of the
bruising and the exam would have been presented to the grand jury.212
Defendant Sheriff Austin admitted to reporters at WBRZ that his office made
an error by not picking up Ms. Lefebure’s rape kit and exam and that it
should have been processed sooner. He told the news station on June 26,
206
Rec. Doc. No. 37, p. 2, ¶ 6.
Rec. Doc. No. 37, p. 2, ¶ 7.
208
Rec. Doc. No. 37, p. 2, ¶ 8.
209
Rec. Doc. No. 37, p. 3, ¶ 9.
210
Rec. Doc. No. 37, p. 3, ¶ 10.
211
Rec. Doc. No. 37, p. 3, ¶ 11.
212
Rec. Doc. No. 37, p. 6, ¶ 27.
207
51793
Page 46 of 51
2017, that he had recently issued a verbal protocol to everyone in his office
that rape kits need to be sent to the crime lab when they are collected.213
Defendant Sheriff Austin and Defendant District Attorney D’Aquilla did not
pick up the rape kit and examination until, at the earliest, March 10, 2017.
See Exhibit B. This was only days after WBRZ reported that the kit had not
been retrieved or tested.214
Ms. Lefebure’s rape kit did not make it to the state crime lab until six months
after her assault and two months after Mr. D’Aquilla refused to his job as a
district attorney and investigate and seek the indictment of Defendant
Boeker.215
Instead of protecting her rights as the victim of a violent crime, the
Defendants derided Ms. Lefebure throughout the process, denied her
information about and access to victim resources, and violated her rights to
equal protection and due process of the law by willfully refusing to do their
jobs and instead colluding protect [sic] an alleged rapist from prosecution.216
Plaintiff is informed and believes and thereon alleges that each Defendant
was at all material times an agent, servant, employee, partner, joint venture,
co-conspirator, and/or alter ego of the remaining Defendants, and in doing
the things herein alleged, was acting within the course and scope of that
relationship. Plaintiff is further informed and believes and thereon alleges
that each of the Defendants herein gave consent, aid, and assistance to
each of the remaining Defendants, and ratified and/or authorized the acts
or omissions of each Defendant as alleged herein, except as may be
hereinafter specifically alleged. At all material times, each Defendant was
jointly engaged in tortious activity and integral participant in the conduct
described herein, resulting in the deprivation of Plaintiff’s constitutional
rights and other harm.217
Mr. Boeker’s defense counsel was Attorney Jerome Cy D’Aquilla, a relative
of the elected District Attorney and Defendant Sam D’Aquilla.218
On information and belief, after he was arrested Mr. Boeker met with
Defendant D’Aquilla and/or Defendant Austin, and his lawyer and an
213
Rec. Doc. No. 37, p. 6, ¶ 28.
Rec. Doc. No. 37, p. 6, ¶ 29.
215
Rec. Doc. No. 37, p. 6, ¶ 30.
216
Rec. Doc. No. 37, p. 7, ¶ 32.
217
Rec. Doc. No. 37, p. 10, ¶ 47.
218
Rec. Doc. No. 37, p. 15, ¶ 77.
214
51793
Page 47 of 51
unknown Warden from the prison to ensure that he was given preferential
treatment and not required to stay in jail for any length of time.219
During this meeting Defendant Boeker claimed that he and Ms. Lefebure
had been having consensual sex and that she was lying. On information
and belief, the unknown DOE Warden colluded with Defendant Boeker to
corroborate his false claim of a consensual relationship.220
During this meeting, and at other times since, but before the convening of
the grand jury, Defendants Boeker, D’Aquilla, and Austin conspired to
ensure that Mr. Boeker was not investigated for the alleged rapes.221
During this meeting, and at other times since, but before the convening of
the grand jury, Defendants Boeker, D’Aquilla, and Austin conspired to
ensure that Mr. Boeker would not be convicted of the alleged rapes.222
During this meeting, and at other times since, but before the convening of
the grand jury, Defendants Boeker, D’Aquilla, and Austin conspired to
ensure that Ms. Lefebure’s constitutional rights to equal protection, due
process, and a property right in her rape kit.223
Defendants D’Aquilla and Austin are the elected and effective policy makers
for the District Attorney’s Office and the Sheriff’s Department,
respectively.224
Finally, Plaintiff re-asserts these allegations in summarizing the supporting allegations for
her Third Cause of Action pursuant to 42 U.S.C. §§ 1983 and 1985.225
As demonstrated above, Plaintiff’s conspiracy allegations contain particular detail,
including allegations of specific meetings and agreements in furtherance of the
conspiracy and of “long-standing” practices adverse to women and sexual assault victims.
219
Rec. Doc. No. 37, p. 15, ¶ 80.
Rec. Doc. No. 37, p. 15, ¶ 81.
221
Rec. Doc. No. 37, p. 15, ¶ 82.
222
Rec. Doc. No. 37, p. 16, ¶ 83.
223
Rec. Doc. No. 37, p. 16, ¶ 84.
224
Rec. Doc. No. 37, p. 16, ¶ 85.
225
Rec. Doc. No. 37, pp. 21-22, ¶¶ 117-126.
220
51793
Page 48 of 51
Accordingly, the DA’s Motion to Dismiss Plaintiff’s claims under Sections 1983 and 1985
is DENIED.
F.
State Law Claims
It appears that the only state law claim asserted against the DA is abuse of
process. In Louisiana, “[t]he essential elements of a cause of action for abuse of process
are (1) the existence of an ulterior purpose; and (2) a willful act in the use of the process
not in the regular prosecution of the proceeding.”226 “The precise inquiry involves the
misuse of a process already issued whereby a party attempts to obtain some result not
proper under the law.”227 The DA moves to dismiss this claim on the grounds of absolute
prosecutorial immunity.228
In Singleton v. Cannizzaro,229 the district court for the Eastern District of Louisiana
recently addressed the application of Imbler/Buckley absolute prosecutorial immunity to
state law claims:
Because determining whether a prosecutor enjoys absolute immunity turns
on “the nature of the function performed” by the prosecutor, this Court must
analyze the “specific activities that give rise to the cause of action.” In other
words, absolute immunity attaches to specific conduct, not specific
claims.20 If specific conduct is protected by absolute immunity, and that
same conduct forms either a crucial foundation for or the entire basis of
certain claims, a finding of absolute immunity may well defeat certain claims
on a 12(b)(6) motion.230
* * *
226
Duboue v. City of New Orleans, 909 F.2d 129, 132 (5th Cir. 1990) (citations omitted).
Id.
228
The Court notes that most of the caselaw upon which Defendant relies in seeking immunity from
Plaintiff’s state law claims concern malicious prosecution claims. Plaintiff is not an alleged perpetrator,
criminal defendant, or former criminal defendant; rather, she is the purported victim of an alleged rape and
alleged sexual assault. Therefore, the collection of malicious prosecution cases relied upon by Defendant
are not germane to the issue of prosecutorial absolute immunity in this matter.
229
372 F.Supp.3d 389 (E.D. La. 2019).
230
Id. at *3 (citations omitted).
227
51793
Page 49 of 51
[T]he Louisiana Supreme Court in Knapper v. Connick held that prosecutors
enjoy absolute immunity against state law claims in addition to the immunity
they enjoy from § 1983 claims. The full scope of absolute prosecutorial
immunity under Louisiana law is not clear, but the Louisiana Supreme Court
in Knapper cited heavily to federal law in its decision and adopted the
functional approach that federal courts employ when analyzing
prosecutorial absolute immunity issues. For this reason, any conduct for
which prosecutors enjoy absolute immunity in this case will apply equally to
Plaintiffs' federal and state law claims.231
As set forth repeatedly above, Plaintiff has alleged detailed facts that, if proven,
sufficiently state a claim for abuse of process under Louisiana law. Further, as held above
regarding Plaintiff’s federal claims, to the extent Plaintiff’s state abuse of process claims
implicate prosecutorial rather than investigative or administrative conduct, Defendant is
entitled to absolute prosecutorial immunity for that conduct. Thus, the DA’s Motion to
Dismiss Plaintiff’s state law abuse of process claim is GRANTED in part and DENIED in
part. Plaintiff cannot maintain an individual abuse of process cause of action against the
DA for conduct that is prosecutorial. The Defendant’s motion is denied with respect to an
individual capacity abuse of process claim for investigatory and administrative conduct
and is also denied as to the abuse of process claims asserted against the Defendant in
his official capacity under Louisiana law.
III.
CONCLUSION
For the reasons stated above, the Motion to Dismiss232 filed by Defendant, Samuel
C. D’Aquilla, District Attorney for the 20th Judicial District, is GRANTED in part and
DENIED in part as set forth above. Plaintiff’s request for leave of court to amend her
Complaint is GRANTED, a second and final time, and shall be submitted within thirty (30)
231
232
Id. at *4 (citations omitted).
Rec. Doc. No. 57.
51793
Page 50 of 51
days from the date of this Order. Plaintiff is also ordered to file a Rule 7(a) Response to
the DA’s assertion of the defense of qualified immunity as to the remaining individual
capacity claims within this same deadline.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on June 25, 2019.
S
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
51793
Page 51 of 51
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?