Ulrich v. Scott et al

Filing 31

MEMORANDUM RULING re 22 Second MOTION to Dismiss For Failure to State a Claim Kenya Ellis and Jordan Bird filed by Jordan Bird, Kenya Ellis. Signed by Judge S Maurice Hicks on 03/24/2015. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
AMBER HAHMER ULRICH

CIVIL ACTION NO. 14-0037

VERSUS

JUDGE S. MAURICE HICKS, JR.

CHARLES R. SCOTT, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court is a Motion to Dismiss Pursuant to Rule 12(b)(6) filed by
Defendants, Caddo Parish Assistant District Attorneys Jordan Bird (“Bird”) and Kenya Ellis
(“Ellis”). See Record Document 22. Defendants argue that Plaintiff Amber H. Ulrich’s
(“Ulrich”) complaint as amended fails to state a claim upon which relief can be granted.
See id. Bird and Ellis argue that many of Ulrich’s allegations fails as conclusory and,
additionally, that they are entitled to absolute immunity. See id. They further maintain that
Ulrich continues to assert claims against them which assume they are policymakers for the
Caddo Parish District Attorney’s Office. See id. Ulrich has opposed the motion. See
Record Documents 24 & 28. For the reasons which follow, the Rule 12(b)(6) Motion is
GRANTED and Ulrich’s federal claims against Bird and Ellis are DISMISSED.
BACKGROUND
Ulrich asserts claims against Bird and Ellis for alleged violations of the Fourth
Amendment (false arrest), Fifth Amendment (protection against double jeopardy), and Sixth
Amendment (right to a speedy trial).1 See Record Document 21 at ¶¶ 34-50. She also

1

Ulrich has also named Caddo Parish District Attorney Charles Scott, in his official
capacity, as a defendant. See Record Document 21 at ¶ 3A. Ulrich also named the City
of Shreveport (“the City”) and City Attorney Terri Scott (“Scott”) as defendants. See id. at
¶¶ 3D & 3E. All federal claims against the City and Scott have been dismissed. See
Record Documents 29 & 30. Only state law claims remain against them. See id.

asserts state law claims of negligence, malicious prosecution, abuse of process and
unlawful detention. See id. at ¶¶ 51-56.2 Her claims arise from the Shreveport City
Attorney transferring a dismissed misdemeanor case to the Caddo Parish District Attorney
for prosecution of a felony. See Record Document 21 at ¶ 12. Ulrich alleges that the
transferred case had been closed and dismissed by the Shreveport City Attorney in
February 2008 after she paid administrative fees and completed “the City Attorney’s
probation.” Id. at ¶¶ 5-6. She contends that her “sentence was a final adjudication.” Id.
at ¶ 6.
After the case was transferred to Caddo Parish District Court, Ulrich was arrested
in January 2013, spent two to three weeks in jail, lost her security officer job at a local
casino, and lost her gaming license. See id. at ¶¶ 7-10, 27. The felony charges were
ultimately dismissed in February 2013, with the Caddo District Attorney’s Office citing
“defendant convicted in another jurisdiction” as the reason. Id. at ¶¶ 11, 28.
Ulrich contends that this chain of events occurred, in part, because two assistant
district attorneys sent illegal, unfounded, unauthorized letters in August 2011 and
September 2011 for her to appear in court to answer criminal charges that had been
dismissed three and a half years prior. See id. As to Bird and Ellis, Ulrich specifically
alleges:
13.

2

The Caddo Parish District Attorney’s office was negligent in failing to
determine if the charge had been disposed of in the city court which
would have protected Plaintiff Ulrich from double jeopardy. The
prosecution had no probable cause in part because the case had
already been prosecuted and because the Caddo Parish DA
dismissed the case before trial commenced.

Bird and Ellis have not moved to dismiss the state law claims.
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14.

On August 8, 2011, without plaintiff’s knowledge, the Caddo Parish
District Attorney’s office mailed a letter addressed to plaintiff but at a
three and a half year old address to appear in the First Judicial District
Court. At the time the letter was mailed the District Attorney had not
initiated a criminal prosecution against Plaintiff. The First Judicial
District Court had not issued any order for Plaintiff’s appearance. .
..

15.

Th DA’s letter was addressed to the same address listed on the
summons that was issued to Plaintiff Ulrich in March, 2006. At the
time of the letters, this summons was over five (5) years old and the
Caddo Parish District Attorney did not determine if this matter had
already been prosecuted and did not verify the five (5) year old
address.

16.

The letter dated August 8, 2011 was returned to the Caddo Parish
District Attorney’s office as “undeliverable.” On September 6, 2011,
the Caddo Parish District Attorney’s office through . . . Bird again sent
another letter requiring Plaintiff’s appearance in court under the
penalty of contempt for failure to appear. It was mailed to the same
address as the letter dated August 8, 2011, providing a new court
date. The second letter was also returned as “undeliverable.”

17.

The Caddo Parish District Attorney had access to obtaining Plaintiff
Ulrich’s correct address through the Louisiana Department of Motor
Vehicles. Her correct address was on her State of Louisiana driver’s
license issued on February 15, 2011. The Caddo Parish DA never
notified Plaintiff that she was required to appear in court on any
criminal charges. Bird and Ellis knowingly told the First Judicial Court
that Plaintiff had been notified of her duty to appear and had failed to
appear under penalty of contempt at a time when Bird and Ellis knew
that to be untrue. Based upon the untrue assertions of Bird, the court
issued a bench warrant for Plaintiff’s arrest.

18.

On March 10, 2011, Defendant Ellis requested a docket number from
the Clerk. . . .

19.

Assistant District Attorney . . . Ellis and . . . Bird caused to be issued
from the DA’s office letters to Ulrich for her to appear in court on
criminal charges under the penalty of contempt. These letters were
not authorized by law. . . .

20.

Ellis and Bird failed to notify Ulrich of the court dates. Ellis and Bird
. . . neither notified Ulrich, but persisted in continuing the prosecution.
On September 22, 2011, knowing that Ulrich had no knowledge of any
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requirement for her to be in Court, Ellis and Bird, and that no lawful
order had issued to her to appear in the First Judicial District Court,
requested that a bench warrant be issued for Plaintiff Ulrich for her
alleged failure to appear in district court. Ellis and Bird knew or should
have known at the time they issued the letters and made the decision
to request the bench warrant that there was a substantial probability
that (1) the prosecution of Plaintiff and all attendant proceedings were
in violation of the Double Jeopardy and Due Process clauses of the
Louisiana Constitution and the U.S. Constitution and (2) Plaintiff had
received no notice of the proceedings against her and that a request
for a bench warrant was unsupported by probable cause. There had
been no probable cause determined by a court of law. Ellis and Bird
knew or should have known that the notices to Ulrich to appear, and
a decision to request for a bench warrant under these circumstances
violated Plaintiff’s Fourth, Fifth and Fourteenth Amendment rights. The
failure to verify Plaintiff’s Fourth, Fifth and Fourteenth Amendment
rights. The failure to verify and obtain the correct address of Plaintiff
was a cause in fact of the issuance of the bench warrant.
21.

None of the named Defendants herein had a policy or practice of
verifying whether or not a city police issued summons over . . . two
years old had been previously prosecuted. Rather the defendants
had a policy or practice of prosecution without verification of charges
that were based on events over two years old. . . . The Defendants
should know under these circumstances that bench warrants are at
substantial risk of being issued with double jeopardy or due process
violations and without probable cause.

22.

Based upon information, Plaintiff also alleges that none of the
defendants have any policy relative to the verification of correct
addresses of a defendant. . . .

23.

The defendants have provided no training, practice or policy to the
DA’s clerical staff or the assistant district attorneys to verify current
addresses with the databases afforded to them through the Louisiana
Department of Motor Vehicles, the Louisiana Gaming Control Board,
the Louisiana State Police or other sources that are readily available.

24.

When the first court appearance notice letter was returned to the
District Attorney’s office marked “undeliverable,” [P]laintiff alleges that
no other verification was sought. The Caddo Parish District Attorney
simply sent another letter to the same exact address and got the
same results. No other searches or efforts were made to notify
Plaintiff, except to issue a bench warrant. These failures by the
Caddo District Attorney, his employees and ADA Ellis and Bird are
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nonprosecutorial, administrative functions. The verification of an
address is not an integral part of the judicial process.
25.

The DA, ADA Ellis, ADA Bird, City Attorney and City of Shreveport did
not provide training, nor made any policy or practice as to the use of
addresses listed on summons which is known to be outdated or which
present indicia of being stale (over two years old). The lack of such
a practice or policy is an obvious deficiency which would lead to a
constitutional violation such as a false arrest on a bench warrant or
which result in a violation of double jeopardy. A prudent parish district
attorney and a prudent city attorney would be motivated under such
circumstances to implement a policy of checking summons that are
dated over either two or five years to insure that the matter is still an
open case and additionally the information on the defendant is
accurate and current and would provide training to clerical staff and
assistant district attorneys.

Id. at ¶¶ 13-25.
Bird and Ellis have now moved to dismiss all of Ulrich’s federal claims against them.
The instant Rule 12(b)(6) motion does not address Ulrich’s state law claims. Likewise, the
motion does not address Ulrich’s claims against Caddo Parish District Attorney Charles
Scott. Those claims are unaffected by the instant ruling and remain pending.
LAW AND ANALYSIS
I.

Rule 12(b)(6) Standard.
Federal Rule of Civil Procedure 12(b)(6) allows for dismissal of an action “for failure

to state a claim upon which relief can be granted.” While a complaint attacked by a Rule
12(b)(6) motion does not need detailed factual allegations in order to avoid dismissal, the
plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-1965
(2007); see also Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007). A plaintiff’s obligation
“requires more than labels and conclusions, and a formulaic recitation of the elements of
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a cause of action will not do.” Id. The Supreme Court expounded on the Twombly
standard, explaining that a complaint must contain sufficient factual matter to state a claim
to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In evaluating a motion to dismiss, the Court must construe the
complaint liberally and accept all of the plaintiff’s factual allegations in the complaint as true.
See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2009). However,
“the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” The Iqbal court explained:
Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a prior
era, but it does not unlock the doors of discovery for *679 a plaintiff armed
with nothing more than conclusions. . . . [W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged–but it has not shown–that the pleader is entitled to
relief.
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 678-679, 129 S. Ct. at 1949-1950 (internal citations and quotations
omitted).
II.

Absolute Immunity Standard.
A prosecutor sued in his individual capacity is immune from civil suit for damages

under Section 1983 for his actions in initiating and pursuing a criminal prosecution through
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the judicial process. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995 (1976);
see also Brooks v. George County, 84 F.3d 157, 168 (5th Cir.), cert. denied, 519 U.S. 948,
117 S.Ct. 359 (1996) (“Actions which are related to the judicial process fulfill the
prosecutor’s advocatory function and are considered absolutely immune from suit”). The
immunity afforded prosecutors is absolute, not qualified, and protects a prosecutor from
being sued in connection with his duties altogether, regardless of the merits of the claim.
See Lucas v. Parish of Jefferson, 999 F.Supp. 839, 942 (E.D.La. 1998). Absolute immunity
protects prosecutors from all liability even when they act “maliciously, wantonly, or
negligently.” Morrison v. City of Baton Rouge, 761 F.2d 242, 248 (5th Cir. 1985). “[A]cts
which are investigative or administrative do not carry absolute immunity.” Brooks, 84 F.3d
at 168.
III.

Analysis.
At the outset, the Court notes that Ellis and Bird are sued in their individual

capacities only.3 Ellis and Bird first argue that many of the allegations set forth against
them are nothing more than legal conclusions unsupported by factual allegations. They
further contend that all of their acts regarding Ulrich were related to the prosecution of a
criminal offense; thus, they are absolutely immune from civil liability in their individual
capacity.

Finally, they maintain that assistant district attorneys are not considered

policymakers and, therefore, they argue that the claims against them for adopting or failing
to adopt a policy, practice, or custom must be dismissed.

3

Ulrich concedes that official capacity claims against Bird and Ellis should be
dismissed. See Record Document 24 at 12. Thus, to the extent necessary, the Court
hereby DISMISSES such claims.
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A.

Conclusory Allegations.

Ulrich alleges that Bird and Ellis “knew or should have known” that Ulrich did not
receive notice of the proceedings; that the notice to appear and bench warrant violated
Ulrich’s rights; that the prosecution was barred on legal grounds; or that Ulrich had been
prosecuted in another jurisdiction. See Record Document 21 at ¶¶ 20, 35 & 36. She
further alleges that one or both of Bird and Ellis continued the prosecution while knowing
she had not received the letters. See id.
Under Iqbal, this Court is not bound to accept as true legal conclusions couched as
factual allegations. See Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949-1950. In Twombly, the
Court found allegations that relied upon information and belief and those that set forth a
“wholly conclusory statement of claim” to be inadequate. Twombly, 550 U.S. at 561, 127
S.Ct. at 1968. Here, Ulrich’s allegations regarding what Bird and Eillis knew or should have
known and what they did “while knowing” are conclusory in nature and the type of
allegations that are not entitled to the assumption of truth. There is simply no factual
support for the Court to even reach the plausibility stage as to these assertions.
Accordingly, the Court hereby GRANTS the Rule 12(b)(6) motion as to Ulrich’s “knew or
should have known” or “while knowing” allegations, as these allegations are nothing more
than conclusory allegations that are not entitled to the presumption of truth at the Rule
12(b)(6) stage.
B.

Claims Based on Policies, Customs, Practices and/or Training.

Many of Ulrich’s claims against Bird and Ellis relate to training, policies, customs,
and/or practices of the District Attorney’s Office. Such allegations include: (1) no policy or

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practice of verifying whether or not a city police issued summons over two years old had
been previously prosecuted; (2) no policy relative to the verification of correct addresses
of a defendant; (3) no training, practice or policy to verify current addresses with the
databases afforded to Defendants; and (4) no training, policy or practice as to the use of
an address listed on summons which is known to be outdated or which present indicia of
being stale. See Record Document 21 at ¶¶ 21-23 & 25.
There is no dispute that Bird and Ellis have been sued in their individual capacities
only. Likewise, Ulrich does not contest that Bird and Ellis were assistant district attorneys.
In this instance, it is the Court’s “task is to identify those officials or governmental bodies
who speak with final policymaking authority for the local government actor concerning the
action alleged to have caused the particular constitutional or statutory violation.” Burge v.
Parish of St. Tammany, 187 F.3d 452, 468 (5th Cir.1999). In Burge, the Fifth Circuit
concluded that “a district attorney is the independent and final official policymaker for all of
the administrative and prosecutorial functions of his office.” Id. at 469. Thus, because they
have been sued in their individual capacities only, assistant district attorneys Bird and Ellis
can not be held liable as to the existence, or lack thereof, of a policy, a practice, a custom,
or training. See Truvia v. Julien, 187 F. App’x 346, 350 (5th Cir. 2006) (“An assistant
district attorney, therefore, is not a policymaker and not the proper defendant for an official
capacity claim against the District Attorney’s Office.”). Thus, the Rule 12(b)(6) motion is
GRANTED as to all claims relating to policy, practice, custom, and/or training.4

4

Such claims are more properly directed against Caddo Parish District Attorney
Charles Scott, who has been sued in his official capacity.
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C.

Absolute Immunity.

Moving past the conclusory allegations and the policy/custom/practice/training
allegations, Ulrich’s remaining claims relate to a discrete set of facts: requesting a docket
number, mailing two letters, and requesting a bench warrant. For purposes of the instant
ruling, the Court will assume these factual allegations to be true pursuant to Rule 12(b)(6).
Ulrich argues that absolute immunity is not available to Bird and Ellis for these acts
because (1) issuing the letters in question were administrative functions; (2) the acts of
issuing the letters happened before any probable cause determination and indictment; (3)
Bird and Ellis used an unauthorized process to compel Ulrich to appear; and (4) Bird and
Ellis intentionally provided false or misleading information to the state court to issue the
bench warrant. See Record Document 24 at 12. The Court disagrees, finding that the acts
which Ulrich complains of are either prosecutorial functions or administrative functions so
closely tied to advocacy in a criminal matter that absolute immunity attaches.
Issuance of Letters
Ulrich argues that the acts of Bird and Ellis in creating, obtaining and sending letters
are administrative functions and not advocative functions. See Record Document 24 at 24.
She likewise contends that Bird and Ellis are not entitled to absolute immunity because they
had no authority to mail such letters prior to the commencement of criminal proceedings,
i.e., before any probable cause determination and/or indictment. See id. at 25.
At the outset, this Court notes the broad impact of absolute immunity, as the doctrine
protects prosecutors from all liability even when they act “maliciously, wantonly, or
negligently.” Morrison, 761 F.2d at 248. Moreover, the Court believes that the issuance
of the notice letters was an action related to the judicial process such that it fell within the
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prosecutorial role of Bird and Ellis. See Brooks, 84 F.3d at 168. As argued by Defendants,
this Court finds that sending a notice to defendant regarding their upcoming arraignment
should be protected by that same shelter that protects other prosecutorial acts from the
threat of subsequent vexatious litigation.
Notwithstanding, even if this Court were to consider the issuance of such letters to
be administrative, such acts falls within the scope of the Supreme Court’s Van de Kamp
decision. In Van de Kamp v. Goldstein, 555 U.S. 335, 129 S. Ct. 855 (2009), the Supreme
Court compared administrative duties not connected with prosecution versus those
administrative duties so closely related to prosecutorial functions such that they are
covered by absolute immunity. The Court held:
Even so, we conclude that prosecutors involved in such supervision or
training or information-system management enjoy absolute immunity from
the kind of legal claims at issue here. Those claims focus upon a certain kind
of administrative obligation – a kind that itself is directly connected with the
conduct of a trial. Here, unlike with other claims related to administrative
decisions, an individual prosecutor’s error in the plaintiff's specific criminal
trial constitutes an essential element of the plaintiff’s claim.
The
administrative obligations at issue here are thus unlike administrative duties
concerning, for example, workplace hiring, payroll administration, the
maintenance of physical facilities, and the like. Moreover, the types of
activities on which Goldstein’s claims focus necessarily require legal
knowledge and the exercise of related discretion, e.g., in determining what
information should be included in the training or the supervision or the
information-system management. And in that sense also Goldstein’s claims
are unlike claims of, say, unlawful discrimination in hiring employees. Given
these features of the case before us, we believe absolute immunity must
follow.
Id. at 344, 129 S. Ct. at 861-862. Based upon this rationale, absolute immunity follows
because the sending of the notices was directly connected with the conduct of prosecution.
Moreover, in sending the letters, Bird and Ellis necessarily employed some level of legal
knowledge and the exercise of their related discretion.
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Alleged Unauthorized Process to Compel and the Alleged Intentional Provision of False or
Misleading Information to the State Court to Issue the Bench Warrant
Ulrich argues that the illegality and unconstitutionality of the process used in the
attempt to notify her about forthcoming filing of a bill of information prevents the attachment
of absolute immunity.5 Additionally, she contends that Bird and Ellis intentionally provided
false or misleading information to the state court to issue the bench warrant and, thus,
absolute immunity is unavailable.6
Again, the Court is mindful that absolute immunity protects prosecutors from all
liability even when they act “maliciously, wantonly, or negligently.” Morrison, 761 F.2d at
248. Here, the Court believes that obtaining a warrant when Ulrich did not appear was
clearly a prosecutorial function. Many of Ulrich’s allegations as to these issues are part of
her “knew or should have known” or “while knowing” allegations. The Court has previously
held that such allegations are conclusory and are not entitled to the presumption of truth.
The Court is also unconvinced by Ulrich’s argument that the illegality of the notices negates
the availability of absolute immunity, as the cases cited by Ulrich are inapposite to the
instant matter. For these reasons, the Rule 12(b)(6) motion is GRANTED as to all
remaining federal claims against Bird and Ellis, as they are entitled to prosecutorial
absolute immunity.

5

Ulrich maintains that the letters commanding her appearance under the threat of
contempt of court were not authorized by law, as there was no pending prosecution and
no probable cause determination.
6

Ulrich contends that the bench warrant was issued based upon representations by
Bird and Ellis that Ulrich had received notice and she was under a lawful order to appear.
Page 12 of 13

CONCLUSION
Based on the foregoing analysis, the Court GRANTS the Rule 12(b)(6) Motion as
to all federal claims against Bird and Ellis. Ulrich’s state law claims against Bird and Ellis
and her federal claims against Caddo Parish District Attorney Charles Scott, in his official
capacity, remain.
IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 24th day of March, 2015.

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