Citations
- 921 F. Supp. 2d 605
Full opinion text
JUDGMENT
RICHARD T. HAIK, SR., District Judge.
This matter was referred to United States Magistrate Judge Patrick Manna for Report and Recommendation. After an independent review of the record, including the Objections and Reply to Objections, this Court concludes that the Report and Recommendation of the Magistrate Judge is correct and adopts the findings and conclusions therein as its own. As such, it is hereby ORDERED:
1. The defendants’ motion is GRANTED with regard to all of plaintiffs’ claims for injunctive relief, section 1985 conspiracy claims, state-law claims, claims predicated upon alleged violations of the Fourth Amendment, and claims predicated upon alleged violations of their due process and equal protection rights under the Fifth and Fourteenth Amendments. These claims are DISMISSED.
2. The defendants motion is GRANTED with regard to the claims asserted against defendants Durel, Stanley, Craft, Alfred, Ted Vincent, Randy Vincent, Firmin, Domingue, Prejean, Prevost, and Gremillion in their official capacities, as well as the claims against the Lafayette City Police Department to the extent it is named as a specific defendant. These claims are DISMISSED.
3. The defendants’ motion is GRANTED with regard to the claims asserted against defendants Durel, Firmin, Ted Vincent, Randy Vincent, Domingue, Prejean, Prevost, and Gremillion in their individual capacities. These claims are DISMISSED.
4. The defendants’ motion is GRANTED with regard to the claims asserted by plaintiffs Myers, Harding, Sanchez, Polanco, Briscoe, and Roberts. These claims are DISMISSED.
5. The defendants motion is DENIED in all other respects.
REPORT AND RECOMMENDATION
PATRICK J. HANNA, United States Magistrate Judge.
Currently pending before the Court is the defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Rec. Docs. 5, 64). The motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. The motion is opposed. For the following reasons, it is recommended that the motion be granted in part and denied in part.
Factual Background and Procedural History
This lawsuit was brought by fifteen current or former police officers with the Lafayette police department under 42 U.S.C. §§ 1983 and 1988, seeking to recover monetary damages and other relief for alleged acts by their employer and/or fellow city employees that they claim constitutes retaliatory discharge, wrongful discharge, and deprivation of procedural due process in violation of rights protected by the United States Constitution. (Rec. Doc. 74 at ¶ 344). The plaintiffs also seek to recover under Louisiana state law. (Rec. Doc. 74 at ¶ 353). In general, the plaintiffs contend that an alleged “Code of Silence” was imposed by Police Chief Jim Craft, Lafayette City-Parish Consolidated Government Chief Administrative Officer Dee Stanley, and others “in order to maintain control” of the Lafayette Police Department, and that the alleged “Stanley-Craft Organization” “perpetuat[ed] a permanent hostile work environment,” by initiating “bogus internal complaint and bogus internal affairs investigations,” strong-arming witnesses, manipulating statements, and testifying falsely for the purpose of defeating legitimate policies and ultimately seeking the termination of targeted officers who failed to comply with the “Code of Silenee.” (Rec. Doc. 74 at ¶¶ 44-48). Thirteen defendants, including the City, the Police Department, and various individual City officials and police officers, all of whom are city employees, are named in the lawsuit. The defendants deny the factual allegations of the plaintiffs’ complaint and, in the pending motion, seek dismissal of the plaintiffs’ claims for failure to state a claim upon which relief may be granted.
The plaintiffs’ original complaint (Rec. Doc. 1) was thirty-eight pages long and contained 271 numbered paragraphs setting forth a variety of allegations against Craft, Stanley, other defendants, and third parties many of which were controversial. Its filing was extensively covered by the local news media.
The defendants responded to the complaint with a motion to strike the allegedly redundant, immaterial, impertinent, and scandalous content of the complaint (Rec. Doc. 4) and, with the instant motion to dismiss, sought dismissal of the complaint for failure to state a claim. (Rec. Doc. 5). A motion for sanctions (Rec. Doc. 13) and a motion for protective order (Rec. Doc. 18) quickly followed.
Following a Rule 16 conference held on September 5, 2012 concerning the pending motions, the plaintiffs were afforded an opportunity to amend their complaint. (Rec. Doc. 27). The amended complaint, comprised of fifty-eight pages with 354 numbered paragraphs, added six new plaintiffs and seven new defendants. (Rec. Doc. 74). The defendants supplemented their motion to dismiss (Rec. Doc. 64) and re-urged their motion to strike. (Rec. Doc. 65).
Following extensive briefing and lengthy oral argument, the defendants’ motion to strike was granted in part and denied in part, with the undersigned striking a total of 102 paragraphs, 93 from the original complaint and nine from the amended complaint, as scandalous, immaterial, or impertinent. (Rec. Doc. 77). The pending motion to dismiss has also been briefed extensively, and a lengthy oral argument was held on October 16, 2012. This report and recommendation addresses whether the remainder of the plaintiffs’ complaint, as amended, states a claim upon which relief may be granted.
Despite being afforded an opportunity to amend the complaint, the plaintiffs have provided this Court with a very lengthy complaint that is short on substantive allegations which support a cause of action based on existing statutory or constitutional law. The plaintiffs have asserted claims for “money damages” under 42 U.S.C. §§ 1983 and 1988, arguing that the defendants have subjected them to retaliatory discharge, deprivation of procedural due process, and wrongful discharge and, in so doing, have infringed their rights protected by the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. (Rec. Doc. 74 at ¶¶ 1, 344, 352). They have also asserted a conspiracy claim, which they contended at oral argument was based on 42 U.S.C. § 1985, and a claim for injunctive relief. Finally, they have asserted claims “pursuant to the laws of the State of Louisiana, including Civil Code Articles 2315 and 2317 arising from the facts alleged” in the amended complaint. (Rec. Doc. 74 at ¶ 353).
Many of the claims are ambiguous. In some instances, particularly in the original complaint, there is a complete absence of a specific claim, by a specific plaintiff, against a specific defendant. In some articles, only official capacity claims are alleged against the individual defendants, yet in another article individual claims are alleged. All of the claims under § 1983 appear to be brought only against the municipality, (Rec. Doc. 74, ¶ 352) yet in the identification of the individual defendants, it appears that there are individual capacity claims brought as well. (Rec. Doc. 74 ¶¶ D-7-D-G). Finally, there is no reference to particular state law causes of action beyond reference to the “laws of the State of Louisiana, including Civil Code Articles 2315 and 2317.... ” (Rec. Doc. 74, ¶¶ C.4, 353). These problems were exacerbated rather than cured by the amendment; consequently, this Court sees nothing to be gained by allowing another amendment.
In support of their motion to dismiss, the defendants contend (1) that plaintiffs Hewitt, Briscoe, and Harding failed to state any claim whatsoever; (2) that plaintiffs Marceaux, Cormier, Poiencot, Myers, Thompson, and Stelly have not stated a claim for § 1983 retaliation by a municipality; (3) that plaintiffs Marceaux, Cormier, Poiencot, Myers, Thompson, and Stelly have not stated a claim for § 1983 supervisor liability; (4) that plaintiffs Marceaux, Cormier, Poiencot, Myers, Thompson, and Stelly have not stated a claim for § 1983 discrimination; (5) that the plaintiffs have not stated a due process claim under the Fifth or Fourteenth Amendments; (6) that the plaintiffs have not stated First Amendment claims; (7) that the plaintiffs have not stated Fourth Amendment claims; (8) that the plaintiffs have not stated a claim for injunctive relief; (9) that many of the plaintiffs’ claims have prescribed; (10) that, per La. Const. Art. X § 12, the Lafayette Fire and Police Civil Service Board has exclusive jurisdiction over “employment related matters;” (11) that plaintiffs Sanchez, Polanco, Joseph, Ceaser, Taylor, and Roberts have not established constitutional violations; (12) that the plaintiffs have not stated state-law causes of action; and (13) that the plaintiffs have not stated a conspiracy cause of action. The plaintiffs oppose the motion in all respects.
In order to best address the issues in a logical fashion, the analysis contained in this report will be divided into seven categories: (1) the appropriate legal standard; (2) the § 1983 elements applicable to the municipal entities and officials to determine if there is any type of claim alleged against each of the defendants; (3) the Constitutional violations cited as the bases for the claims of the plaintiffs to determine if any plaintiff has any claim against the remaining defendants; (4) the conspiracy claims; (5) the state law claims; (6) prescription; and (7) the claims for injunctive relief.
Applicable Substantive Law and Analysis
I. The Standard for Analyzing a Rule 12(b)(6) Motion to Dismiss
A motion to dismiss for failure to state a claim, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, is appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a district court must limit itself to the contents of the pleadings, including any attachments thereto. The court must accept all well-pleaded facts as true, and it must view them in the light most favorable to the plaintiff. However, conclusory allegations and unwarranted deductions of fact are not accepted as true, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”
To survive a Rule 12(b)(6) motion, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” The allegations must be sufficient “to raise a right to relief above the speculative level,” and “the pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” “While a complaint ... does not need detailed factual allegations, a plaintiffs 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.” If the plaintiff fails to allege facts sufficient to “nudge[ ][his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.”
A claim meets the test for facial plausibility “when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” “[D]etermining whether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Therefore, “[t]he complaint (1) on its face (2) must contain enough factual matter (taken as true) (3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence of each element of a claim.”
11. The Section 1983 CLaims
Section 1983 does not create substantive rights; it is a procedural rule that provides a private cause of action for redressing a violation of federal law. Therefore, an underlying constitutional or statutory violation is a predicate to any theory of liability under § 1983. Generally, three elements must be established in a § 1983 action: (1) deprivation of a right secured by federal law, (2) that occurred under color of state law, and (3) was caused by a state actor. However, the elements are more refined and specific in the context of the claims raised in this lawsuit.
A. Section 1983 Liability fob Municipalities and Municipal Officials in their Official and individual Capacities
Municipalities are not vicariously liable for violations committed by their employees, but they are liable when then-official policies cause their employees to violate another person’s constitutional rights. Therefore, a claim of municipal liability under § 1983 requires proof of three elements: a policymaker, an official policy, and a violation of constitutional rights whose moving force is the policy or custom. The proper analysis of such claims requires an inquiry into two separate issues: “(1) whether plaintiffs harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.”
A city’s official policies include any persistent, widespread practice of city officials or employees that is not authorized by officially adopted and promulgated policy, but is so common and well settled as to constitute a custom that fairly represents municipal policy. In this case, the plaintiffs argue that the “Code of Silence” is such a policy.
In order to assert a valid claim against an official in his individual capacity, a § 1988 claimant must establish that the defendant was either personally involved in a constitutional deprivation or that his wrongful actions were causally connected to the constitutional deprivation. “Under section 1988, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability.” “A supervisory official may be held liable ... only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury.” To establish supervisor liability for constitutional violations committed by subordinate employees, the plaintiffs must show that the supervisor acted or failed to act with deliberate indifference to the violation of others’ constitutional rights committed by their subordinates. Deliberate indifference requires “proof that a municipal actor disregarded a known or obvious consequence of his action.”
The plaintiffs specifically asserted a claim for failure to properly train and supervise in the section of the amended complaint regarding state-law claims (Rec. Doc. 74 at ¶ 353), but it is not immediately apparent whether a § 1983 claim for failure to properly supervise was also asserted as the only allegations in that regard against Stanley are found in his identification as a defendant. (Rec. Doc. 74 at ¶ 7.C).
A municipality may incur § 1983 liability for its employees’ acts when a municipal policy of hiring or training causes those acts. When such a claim is asserted, the plaintiff must show (1) that the training or hiring procedures of the municipality’s policymaker were inadequate; (2) that the municipality’s policymaker was deliberately indifferent in adopting the hiring or training policy; and (3) that the inadequate hiring or training policy directly caused the plaintiffs injury.
Asupervisor may be liable for failure to supervise or train if: (1) the supervisor failed to supervise or train the subordinate officer; (2) a causal connection exists between the failure to supervise or train and the violation of the plaintiffs rights; and (3) the failure to supervise or train amounted to deliberate indifference to the plaintiffs constitutional rights.
B. The Official Capacity Claims
The plaintiffs have purportedly asserted § 1983 official capacity claims against Lafayette City-Parish president Joey Durel, Lafayette City-Parish chief administrative officer Dee Stanley, the City’s human resources manager Ray Domingue, Lafayette police chief Jim Craft, and police officers Jackie Alfred, Ted Vincent, Randy Vincent, Levy Firmin, Dwayne Prejean, U.J. Prevost, and Keith Gremillion. (Rec. Doc. 74 at ¶ 1). However, in the original and amended complaints, the plaintiffs state: “The plaintiffs hereby assert claims against LCG for damage and for the violations and injuries set forth above under 42 U.S.C.1983.” (Rec. Doc 1, ¶ 268; Rec. Doc. 74, ¶ 352). The plaintiffs have also sued Lafayette City-Parish Consolidated Government and the Lafayette Police Department through the Lafayette City-Parish Consolidated Government.
“A judgment in a § 1983 lawsuit against an official in his official capacity imposes liability against the entity he represents.” Therefore, it is “well settled that a suit against a municipal official in his or her official capacity is simply another way of alleging municipal liability.” When, as in this case, the government entity itself is a defendant in the litigation, claims against specific individuals in their official capacities are redundant, and for that reason, courts in this circuit have found it is appropriate to dismiss them.
In keeping with this principle, the undersigned finds that the plaintiffs’ claims against the individual defendants in their official capacities are redundant of the claims asserted against the City and that neither the Lafayette City Chief of Police nor the Lafayette City Police Department has the capacity to be sued under § 1983. Accordingly, the undersigned recommends that the plaintiffs’ claims against Joey Durel, Dee Stanley, Ray Domingue, Jim Craft, Jackie Alfred, Ted Vincent, Randy Vincent, Levy Firmin, Dwayne Prejean, U.J. Prevost, and Keith Gremillion in their official capacities be dismissed. The undersigned also recommends that the claims against the Lafayette City Police Department be dismissed.
C. The Claims Against the City and the Individual Capacity Claims against. Stanley and Craft
As noted above, a claim of municipal liability under § 1983 requires proof of a policymaker, an official policy, and a violation of constitutional rights motivated by the policy or custom. In order to properly allege individual liability for a municipal official, the plaintiff must set forth facts that the defendant was either personally involved in a constitutional deprivation or that his wrongful actions were causally connected to the constitutional deprivation. A claim of supervisor liability requires that the plaintiff allege facts indicating the supervisor (1) affirmatively participated in the acts that cause the constitutional deprivation, or (2) he implemented unconstitutional policies that causally result in the constitutional injury. To establish supervisor liability for constitutional violations committed by subordinate employees, the plaintiffs must allege facts that show that the supervisor acted or failed to act with deliberate indifference to the violation of others’ constitutional rights committed by their subordinates.
The plaintiffs have presented allegations regarding a “Code of Silence,” which they contend is a policy actually confected by defendants Stanley and Craft that resulted in a permanent hostile work environment in the police department and led to adverse employment actions, including wrongful terminations, against police officers who failed to comply with the “Code of Silence.”
The undersigned finds that sufficient facts have been alleged concerning the existence and enforcement of the “Code of Silence” to conclude that some but not all of the plaintiffs’ claims against the City and the individual claims against Stanley and Craft withstand the defendants’ challenge to the plaintiffs’ complaint. Accordingly, the undersigned recommends that the defendants’ motion to dismiss be denied to the extent it seeks dismissal of claims against the City and those against Stanley and Craft in their individual capacities. The same cannot be said for most of the remaining defendants.
D. The Claims Against Durel in his Individual Capacity
In this case, although the allegations are ambiguous, conclusory, and devoid of any facts, and therefore are given no assumption of truth, the plaintiffs “possibly” asserted a claim against Lafayette City-Parish President Joey Durel in his individual capacity. (Rec. Doc. 74 at ¶ 7.0, but cf. Rec. Doc. 74, ¶¶ 352 and 353).
In the portion of the amended complaint pertaining to state-law claims, the plaintiffs contend that Durel, only in his official capacity, along with several other defendants, failed to properly train, supervise, manage, or discipline defendants Stanley, Craft, and Alfred and failed to correct the police “Code of Silence” (among other allegations), but these allegations are not made against him in regard to individual liability.
Supervisory officers such as Durel cannot be held liable under § 1983 for the actions of their subordinates on any theory of vicarious liability; instead, only the direct acts or omissions of government officials, not the acts of subordinates, will give rise to individual liability under § 1983. A state actor may be liable under § 1983 only if the plaintiff establishes that the defendant supervisory official was personally involved in the acts causing the deprivation of the plaintiffs constitutional rights or that a causal connection exists between an act of the official and the alleged constitutional violation.
As the president of the Lafayette City-Parish Consolidated Government, Durel is the top-ranking supervisory officer in the city government. Durel is presumably included with several other defendants in the conclusory allegations that the “Defendants ... have maintained, supported, and/or fostered a police ‘Code of Silence’ ” and that “failure to honor this so-called ‘code’ is punished with severe employment-based retaliation.” (Rec. Doc. 74, ¶¶ 12-13). The complaint also alleges that the defendants have “maintained various unwritten policies amount to policy, custom, conventional usages with complete indifference ... to the requirements of the United States Constitution.... ” (Rec. Doc. 74 at ¶ 38).
However, the plaintiffs do not allege that Durel was a part of the alleged “Stanley-Craft organization” (Rec. Doc. 74 at ¶ 45) nor are there any allegations anywhere in the original complaint or in the amended complaint suggesting that Durel was directly involved in the specific acts and omissions that the plaintiffs claim violated their constitutional rights. The plaintiffs’ failure to include Durel among the alleged participants in the “Stanley-Craft Organization” removes him from the universe of persons who allegedly formulated the “Code of Silence” policy and disciplined those who failed to conform with that policy.
In this case, no specific allegations are made with regard to Durel, and he cannot be held vicariously liable for the actions of the city employees who may answer to him. There are no allegations that any plaintiff was harmed because of specific actions or omissions by Durel. Likewise, there are no facts supporting a conclusion that Durel actually played a part in formulating, applying, or enforcing the “Code of Silence” or in punishing police officers who did not comply with the “Code of Silence.”
Consequently, the undersigned finds that all of the plaintiffs have failed to allege sufficient facts supporting a legally cognizable § 1983 claim, plausible on its face, against Durel in his individual capacity. Accordingly, the undersigned recommends that all of the plaintiffs’ claims against Durel in his individual capacity be dismissed.
E. The Claims Against Domingue in his Individual Capacity
Ray Domingue, the City’s Human Resources Manager, was sued both in his official and individual capacity. The plaintiffs allege that Domingue is a member of the “Stanley-Craft Organization” and that the “organization” has fostered a permanent hostile work environment in the police department. (Rec. Doc. 74 at ¶¶ 45-46). Although the plaintiffs contend that the members of the “organization” engaged in various “machinations” designed to defeat legitimate policies and ultimately terminate the employment of the persons targeted by the “organization” (Rec. Doc. 74 at ¶ 48), these allegations, standing alone, are too general and conclusory to form the basis for a valid individual claim against Domingue.
Furthermore, as noted previously, a plaintiff asserting a § 1983 claim must establish that the defendant was either personally involved in a constitutional deprivation or that his wrongful actions were causally connected to an alleged constitutional deprivation. The specific allegations set forth in the plaintiffs’ complaints do not support the conclusion that Domingue did anything that resulted in the violation of a plaintiffs constitutional rights. What is specifically alleged against Domingue is that plaintiff Gus Sanchez offered to pay $5 toward the cost of a lost radio and that the offer was declined by the Human Resources Department. (Rec. Doc. 74 at ¶ 215). It is also alleged that Sanchez filed a complaint with the Human Resources Department, which was “brushed aside.” (Rec. Doc. 74 at ¶¶ 232, 234). There is no allegation that Domingue handled either the payment for the radio or Sanchez’s complaint. No facts were alleged that might support the conclusion that Domingue formulated or enforced a policy of compliance with the alleged “Code of Silence” or of disciplining police officers who disagreed with the “Code of Silence.” No dates were alleged, no documents were referred to, no meetings were documented, no facts of any kind were alleged.
Accordingly, the undersigned finds that none of the plaintiffs have alleged sufficient facts supporting a legally cognizable § 1983 claim, plausible on its face, against Domingue in his individual capacity, and the undersigned recommends that all of the plaintiffs’ claims against Domingue in his individual capacity be dismissed.
F. The Claims Against Police Officers Ted Vincent, Randy Vincent, Prejean, Prevost, and Gremillion in their Individual Capacities
Just as was done with Domingue, the plaintiffs allege in conclusory fashion that police officers Ted Vincent, Randy Vincent, Dwayne Prejean, U.J. Prevost, and Keith Gremillion are members of the “Stanley-Craft Organization” and that the “organization” has fostered a permanent hostile work environment in the police department. (Rec. Doc. 74 at ¶¶ 45-46). The plaintiffs contend that the members of the “organization” engage in various “machinations” designed to defeat legitimate policies, maintain a permanent hostile work environment in the police department, and ultimately terminate the employment of the persons targeted by the “organization.” (Rec. Doc. 74 at ¶ 48, 56). Also as in the case of Domingue, there are very few facts alleged with regard to these defendants as to what might constitute such “machinations” or how these “machinations” resulted in a constitutional deprivation. There are no facts alleged which would arguably support a violation of anyone’s constitutional rights by any of these officers.
(1) Ted and Randy Vincent
In the original complaint, there are allegations concerning conversations involving Ted Vincent and Randy Vincent but no specific allegations that actions or omissions by either of them violated any plaintiffs constitutional rights.
There are no allegations concerning Ted Vincent found in the amended complaint. With regard to Randy Vincent, the amended complaint alleges only that he filed a complaint against plaintiff Kane Marceaux, which Marceaux believes was undertaken with a retaliatory motive, although the factual basis for such a motive is not stated in the complaint. (Rec. Doc. 74 at ¶ 62).
(2) Dwayne Prejean
The original complaint contains no allegations that Dwayne Prejean took any action that violated any plaintiffs constitutional rights. In the amended complaint, the plaintiffs allege that Dwayne Prejean was assigned to “shadow” plaintiff Donald Ceaser during a period of training and that, during this time period, Prejean lodged four allegedly false disciplinary complaints against Ceaser. (Rec. Doc. 74 at ¶¶ 274-275). As a result of these complaints, Internal Affairs, at the behest of Craft, demoted Caesar. (Rec. Doc. 74 ¶¶ 275-277). The “intermediate demotion” was allegedly presented by Craft to the then presiding chief of police and a member of the civil service board and he (Craft) convinced them to vote for demotion which was overturned and Caesar was reinstated to his position. (Rec. Doc. 74, ¶¶ 279-280). While the allegations do include that Caesar was temporarily demoted, it is clear Prejean had no such authority to order the demotion and that, if anything, he leveled false accusations at Caesar.
(3) U.J. Prevost
The original complaint contains no allegations that U.J. Prevost took any action that violated any plaintiffs constitutional rights. In the amended complaint, the plaintiffs allege that Officer Joey Prevost (who can only be presumed to be the same person as defendant U.J. Prevost) administered two polygraph examinations to plaintiff Greg Cormier, and misrepresented to the Civil Service Board on August 31, 2012 that Cormier suffered from a medical condition precluding him from taking a polygraph test. (Rec. Doc. 74 at ¶¶ 76-79).
(4) Keith Gremillion
The original complaint contains no allegations that Keith Gremillion took any action that violated any plaintiffs constitutional rights. In the amended complaint, the plaintiffs allege that Gremillion served an administrative investigation complaint on plaintiff Kane Marceaux, told Marceaux that defendant Randy Vincent had filed a complaint against him, and failed to respond to Marceaux’s request for information on the status of the complaint filed by Vincent. (Rec. Doc. 74 at ¶¶ 61-64). The plaintiffs also allege that, during a meeting in Gremillion’s office, plaintiff Gus Sanchez was ordered to sign for a letter but told Gremillion that he was not comfortable doing so. (Rec. Doc. 74 at ¶¶ 216-217). It is not alleged that Gremillion ordered Sanchez to sign for the letter. The date of the meeting is not alleged.
When these factual allegations are taken as true, as they must be for purposes of this motion, the allegations do not support a finding that any of these defendants violated any plaintiffs constitutional rights. As noted previously, a plaintiff asserting a § 1983 claimant must establish that the defendant was either personally involved in a constitutional deprivation or that his wrongful actions were causally connected to an alleged constitutional deprivation. Adverse employment actions recognized by the Fifth Circuit are discharges, demotions, refusals to hire, refusals to promote, and reprimands. Under certain circumstances, transfers may also constitute adverse employment actions. However, the following are not adverse employment actions: accusations or criticism, investigations, psychological testing, false accusations, and polygraph examinations that do not have adverse results for the plaintiff. None of the allegations concerning these defendants constitute adverse employment actions. Consequently, the actions taken by these six policemen that the plaintiffs complain about are not violations of constitutionally-protected rights.
The undersigned finds that the facts set forth in the plaintiffs’ complaints concerning defendants, Ted Vincent, Randy Vincent, Prejean, Prevost, and Gremillion are insufficient to support the conclusion that their actions violated any plaintiffs rights. Accordingly, the undersigned finds that the plaintiffs have failed to allege sufficient facts supporting a legally cognizable § 1983 claim, plausible on its face, against these defendants in their individual capacities, and the undersigned recommends that all of the plaintiffs’ individual capacity claims against these defendants be dismissed.
G. The Claims Against Firmin in his Individual Capacity
Defendant Levy Firmin is also included in the group of defendants alleged to have been a part of the “Stanley-Craft Organization” which fostered a permanent hostile work environment in the police department (Rec. Doc. 74 at ¶¶ 45^46), the members of which allegedly engaged in various “machinations” designed to defeat legitimate policies, maintain a permanent hostile work environment in the police department, and ultimately terminate the employment of the persons targeted by the “organization.” (Rec. Doc. 74 at ¶ 48, 56).
The pertinent specific facts alleged with regard to Firmin are that he gave false deficiencies to plaintiff Taylor, and as a result, Firmin re-assigned Taylor to a desk at a location in the lobby of the police department which was described as a fire hazard, and in addition, Firmin was tasked with making Taylor either resign or retire. (Rec. Doc. 74 at ¶¶150, 308-309, 343).
Although not all duty transfers constitute adverse employment actions, transfers can constitute adverse employment actions if they are sufficiently punitive or if the new job is markedly less prestigious and less interesting than the old one. For that reason, the undersigned concludes that at least one plaintiff has alleged factual allegations sufficient to find an adverse employment action was taken against him by Firmin. However, as set forth in Part III of this report, this Court finds that plaintiff Taylor has failed to state a claim upon which relief can be granted as he has not alleged factual support for the elements necessary. The undersigned, therefore, recommends that the defendants’ motion be granted with regard to the claims asserted against Firmin.
H. The Claims Against Alfred in His Individual Capacity.
In the original complaint, there are allegations that Jackie Alfred’s actions violated plaintiff Marceaux’s constitutional rights. Alfred is alleged to have retaliated against Marceaux by filing (or threatening to file) an Internal Affairs complaint against Marceaux because he filed a complaint with the Civil Service Board complaining of the transfers he had received. (Rec. Doc. 1 ¶¶ 200, 211-219). It is not clear exactly what type of proceeding the Internal Affairs complaint might trigger but, giving the plaintiff the benefit of the doubt for purposes of this motion, the undersigned finds this may constitute an adverse employment action.
The amended complaint also contains allegations concerning Alfred. Plaintiff Hewitt allegedly was made the subject of a false complaint, and at a pre-disciplinary hearing, he produced a recording that exonerated him of the accusations ostensibly because the accusations were exposed as false. (Rec. Doc. 74 ¶¶ 140-145). The plaintiffs allege that Craft vetoed the findings and sustained the complaint, and as a result, Alfred gave Hewitt a “bogus deficiency”, which resulted in Hewitt being “punitively transferred” to Hell’s Kitchen” by Alfred. (Rec. Doc. 74 ¶ 147-148).
The amended complaint also alleges that false complaints and retaliations ultimately resulting in Hewitt’s termination were initiated by Alfred because he was displeased that Hewitt would not greet him. (Rec. Doc. 74, ¶¶ 161-163).
Punitive transfers and terminations do constitute adverse employment actions, and because the plaintiffs allege Alfred’s personal and direct involvement in the actions tied to the plaintiffs exercise of their First Amendment rights, the plaintiffs have alleged sufficient facts to state a cause of action against Alfred in his individual capacity under § 1983. Therefore, the undersigned recommends the defendants’ motion be denied as to the claims against Alfred.
I. CONCLUSION AND RECOMMENDATIONS AS TO PART II
(1) Considering the factual allegations contained in the original and amending complaints, this Court concludes that the plaintiffs’ claims under § 1983 against the. defendants Durel, Stanley, Craft, Domingue, Alfred, Ted Vincent, Randy Vincent, Prejean, Prevost, and Gremillion in their official capacity are redundant inasmuch as the Lafayette Parish Consolidated Government is a named defendant. In addition, the Lafayette City Police Department and the Chief of the Lafayette City Police lack the legal capacity to be sued. Therefore, the undersigned recommends these claims against these defendants be dismissed as to all plaintiffs.
(2) Considering the factual allegations contained in the original and amending complaints, this Court concludes that the plaintiffs have failed to state a cause of action for which relief can be granted under § 1983 against Durel, Domingue, Fir-min, Ted Vincent, Randy Vincent, Prevost, and Gremillion in their individual capacities. Therefore, the undersigned recommends these claims against these defendants be dismissed as to all plaintiffs.
(3) Considering the factual allegations contained in the original and amending complaints, this Court concludes that at least some of the plaintiffs have stated a cause of action for which relief can be granted under § 1983 against the Lafayette City Parish Consolidated Government, and against defendants Stanley, Craft, and Alfred in their individual capacities.
III. The Constitutional Violations Claimed
A. Fourth Amendment
The Fourth Amendment, which was made applicable to the States by the Fourteenth Amendment, states that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” A seizure of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” In this case, the plaintiffs allege that their § 1983 claim is predicated upon violation of the Fourth Amendment.
The plaintiffs do not expressly state a factual basis for their Fourth Amendment claim. The defendants argue (Rec. Doc. 5-1 at 17-18) that this claim rests upon the plaintiffs’ allegation that the defendants illegally wiretapped the plaintiffs, and the plaintiffs do not disagree. The amended complaint contains only one paragraph addressing the topic of the alleged illegal wiretapping. (Rec. Doc. 74 at 19, 41). There, it is alleged only that the police department “upon information and belief’ uses “illegal wiretapping using the Internal Affairs Department.” (Rec. Doc. 74 at ¶ 41). Neither the original complaint nor the amended complaint contains an allegation that any defendant illegally wiretapped or monitored the telephone calls of any plaintiff.
In the original complaint, however, the plaintiffs allege that the Internal Affairs section of the Lafayette Police Department conducted systemic eavesdropping by means of non-consensual wire intercept apparatus. (Rec. Doc. 1 at ¶ 255). It is alleged that Internal Affairs was “monitoring and recording ALL telephone calls throughout the entire Lafayette Police Department.” (Rec. Doc. 1 at ¶ 256). The plaintiffs allege that they have all used the telephones in the department’s building and, consequently, their communications have been intercepted or monitored without one-party consent in contravention of the provisions of 18 U.S.C. § 2510, et seq. (Rec. Doc. 1 at ¶ 259).
The defendants contend that, if these allegations are true, the plaintiffs have failed to state a claim because the department’s conduct falls within a statutory exception. Although 18 U.S.C. § 2510 provides a civil cause of action and statutory damages to individuals whose wire or oral communications are intercepted, 18 U.S.C. § 2510(5)(a) exempts law enforcement personnel from the scope of the statute when communications are monitored in the ordinary course of business. This exemption is necessary “due to the need to preserve and to accurately recall messages pertaining to emergencies or to official police business.”
The plaintiffs respond to this argument, suggesting that the statute permits only the monitoring of calls on “established designated lines.” In fact, however, there is no such language in the statute. Furthermore, the plaintiffs have not alleged that there was any selective monitoring of department telephones. Instead, they alleged that “Internal Affairs was monitoring and recording ALL telephone calls throughout the entire Lafayette Police Department.” This allegation supports a conclusion that every telephone call into and out of the department was being monitored in the ongoing course of police business. The undersigned finds that this activity falls within the scope of the law enforcement exclusion to the wiretapping statute.
Accordingly, the undersigned finds that the plaintiffs have failed to allege facts sufficient to state a legally cognizable § 1983 claim, plausible on its face, predicated on the violation of the Fourth Amendment. For that reason, the undersigned recommends that all of the plaintiffs’ Fourth Amendment claims be dismissed.
B. Fifth Amendment Due Process
The plaintiffs contend that their § 1983 claim is predicated on a violation of Fifth Amendment rights. (Rec. Doc. 74 at ¶ 1). “The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without ‘due process of law.’ ” Since the Fifth Amendment proscribes deprivation of life, liberty, or property without due process of law by federal actors while the Fourteenth Amendment proscribes such action by state actors, the plaintiffs’ Fifth Amendment claim is presumably a reiteration of their contention that they were deprived of procedural due process under the Fourteenth Amendment. There is, however, no dispute that all of the defendants are city employees and therefore state actors. The plaintiffs have not alleged that any federal actor has deprived them of any rights. For that reason, the plaintiffs have failed to allege the facts necessary to support a Fifth Amendment due process claim that is cognizable by this Court.
Accordingly, the undersigned finds that the plaintiffs have not alleged a plausible § 1983 claim based upon a violation of the Fifth Amendment, and the undersigned recommends that all of the plaintiffs’ claims that are predicated upon a violation of the Fifth Amendment be dismissed.
C. Fourteenth Amendment
The Fourteenth Amendment protects an individual’s substantive due process, procedural due process, and equal protection rights.
(1) Substantive Due Process
Substantive due process bars arbitrary, wrongful government action regardless of the fairness of the procedures used to implement them. “To succeed with a claim based on substantive due process in the public employment context, the plaintiff must show two things: (1) that he had a property interest/right in his employment, and (2) that the public employer’s termination of that interest was arbitrary or capricious.” In order to validly assert a substantive due process claim premised on the loss of government employment, a government employee must assert a property interest in continued employment. In other words, only government employees who can show that they have a property interest in continued employment are entitled to the substantive due process protections of the Fourteenth Amendment. At-will employees do not have a property interest in continued employment under the Fourteenth Amendment’s Due Process Clause.
None of the plaintiffs in this lawsuit have asserted substantive due process claims, and none of them have alleged that they have a property interest in their employment. Accordingly, the undersigned finds that no plaintiff has asserted a valid substantive due process claim. The undersigned therefore recommends that the defendants’ motion to dismiss be granted with regard to all of the plaintiffs’ substantive due process claims.
(2) Procedural Due Process
To establish a violation of the Fourteenth Amendment’s guarantee of procedural due process, a plaintiff must prove that (1) he was deprived of a life, liberty, or property interest (2) without the process that was due. -“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” In any case, however, whenever (1) a state actor (2) deprives (3) a person (4) of a protected interest, some sort of procedural protection must be provided. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.
Although the plaintiffs broadly allege in a conclusory fashion that they are asserting due process claims (Rec. Doc. 74 at ¶ 1), there are no allegations specifically alleging that any particular plaintiff actually had a property interest, or that he or she was deprived of a property interest, or that he or she was denied the opportunity to be heard at a meaningful time and in a meaningful manner. To the contrary, the complaints are replete with references to hearings, administrative proceedings, and lawsuits. For example, plaintiffs Myers and Stelly currently have grievances pending before the Lafayette Municipal Fire and Police Civil Service Board (Rec. Doc. 74 at ¶¶ 96-97, ¶¶ 105-107); Hewitt currently has appeals pending before the Civil Service Board (Rec. Doc. 74 at ¶¶ 155, 161) and his termination is now on appeal to the Civil Service Board (Rec. Doe. 74 at ¶ 161); and Sanchez was scheduled for a pre-disciplinary hearing before he was terminated. (Rec. Doc. 74 at ¶ 245).
The Lafayette Municipal Fire and Police Civil Service Board is empowered under La. Const. Art. X, § 12(B) to exclusively “hear and decide all removal and disciplinary cases” involving public officials and employees. The decisions of the board are subject to judicial review by the court of appeal where the commission is located. There are no allegations the process employed by this body is inadequate or otherwise unconstitutional under the Fourteenth Amendment.
Based on the allegations set forth in the plaintiffs’ complaints, the undersigned finds that the plaintiffs have not alleged a sufficient factual basis for their procedural due process claims. Accordingly, the undersigned recommends that the defendants’ motion to dismiss be granted with regard to ail the plaintiffs’ procedural due process claims.
(3) Equal Protection
The equal protection clause of the Fourteenth Amendment requires that persons similarly situated be treated the same way. To state a claim for intentional discrimination under § 1983, a plaintiff must allege that a state actor intentionally discriminated against him because of his membership in a protected class. It is undisputed that the actions that the plaintiffs complain about were taken by state actors, since all of the defendants are governmental entities or employees. But facts supporting the other elements must also be alleged.
When an employment discrimination claim is brought under § 1983, the evidentiary framework used in Title VII eases to determine whether the defendant intentionally discriminated against the plaintiff is utilized. Intentional discrimination can be established through direct or circumstantial evidence. Therefore, a plaintiff must either produce direct evidence of intentional discrimination or satisfy the three steps of McDonnell Douglas Corp. v. Green, which together make out a circumstantial case for intentional discrimination.
Under McDonnell Douglas, an employee must first make out a prima facie case of discrimination by showing that: (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) she was replaced by someone outside the protected class or, in cases alleging disparate treatment, that others similarly situated were treated more favorably. If the employee satisfies those four criteria, successfully establishing a prima facie case of discrimination, a presumption of intentional discrimination arises, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.
As indicated below, this Court concludes that while' only one of the plaintiffs has possibly alleged a constitutional violation under the equal protection clause, that claim is prescribed on its face, and therefore, the undersigned recommends that all claims based on deprivation of equal protection rights under the Fourteenth Amendment be dismissed.
D. First Amendment Free Speech
The plaintiffs contend that the defendants violated their First Amendment right to free speech by terminating their employment, retaliating against them, or imposing other adverse employment actions because the plaintiffs did not adhere to the alleged “Code of Silence.” “It is well established that a public employee may not be discharged for exercising his or her right to free speech under the first amendment.” To establish such a claim, a plaintiff must prove the following elements: (1) that he suffered an adverse employment decision, (2) that his speech involved a matter of public concern, (3) that his interest in speaking outweighed the governmental defendant’s interest in promoting efficiency, and (4) that the protected speech motivated the defendant’s conduct.
With regard to the second element of the requisite analysis, the Court must engage in a two-step evaluation, first determining whether the plaintiff was speaking as a citizen rather than as an employee and next whether the speech was on a topic of public concern. The determination of whether a public employee’s speech addresses a matter of public concern is not a factual issue; it is a question of law to be decided by the court. Although the distinction between matters of public concern and matters of private concern is not always clear, matters of public concern are generally considered to be “any matter of political, social, or other concern to the community.” To determine whether a statement addresses a matter of public concern, the content, form, and context of a given statement, as revealed by the whole record must be considered.
A matter of public concern is something that is a subject of legitimate news interest. Speech relates to a matter of public concern if it contributes to an informed dialog in a democratic society or contributes informed opinions on important public issues. Speech may be related to public concerns if it is made against the backdrop of public debate. Political speech, protests against racial discrimination, speech addressing public safety issues, statements addressing official misconduct, and testimony in judicial proceedings are all matters of public concern.
On the other hand, “when an employee speaks about matters that are of personal interest only, the speech does not address matters’ of public concern.” An employee’s complaints about his job or working conditions, as well as speech pertaining to internal personnel disputes are strictly personal and are not protected under the First Amendment.
To establish a claim for retaliation because of a plaintiffs exercise of his First Amendment rights, the same four elements must be shown: first, the plaintiff must suffer an adverse employment decision; second, the plaintiffs’ speech must involve a matter of public concern; third, the plaintiffs’ interest in commenting on matters of public concern must outweigh the defendant’s interest in promoting efficiency; and fourth, the plaintiffs speech must have motivated the defendant’s action.
As set forth below, this Court concludes that some of the plaintiffs have properly alleged a constitutional violation under the First Amendment. Applying the elements necessary to properly allege a constitutional deprivation under the First Amendment, this Court will look to the allegations of each plaintiff.
(1) Plaintiffs Marceaux, Poiencot, Thompson, Cormier, Stelly, and Hewitt have Stated Plausible Free Speech Claims
Plaintiff Kane Marceaux alleges that he was transferred from the DEA Task Force to Metro Narcotics in retaliation for complaining to Craft that Metro Narcotics conducted inadequate investigations. (Rec. Doc. 1 at ¶ 180). Since Marceaux was not working in Metro Narcotics when his complaints were made, the undersigned will assume for purposes of this motion that his complaints addressed issues of public concern and were not simply complaints about working conditions. Marceaux also alleges he was denied the opportunity to work full time after the transfer and was ordered to work light duty, however, the light duty positions were then eliminated by Craft. (Rec. Doc. 74, ¶¶ 185,193).
Plaintiff Scott Poiencot alleges that, after he appeared as a plaintiff in the original complaint filed in this lawsuit, Craft initiated three investigations against him, ultimately resulting in his termination. (Rec. Doc. 74 at 25, ¶ 83).
Plaintiffs Gabriel Thompson and Greg Cormier both allege that, the day after filing a state court lawsuit, they were transferred in retaliation for filing the suit and reassigned to work on the north side of Lafayette or on night duty. (Rec. Doc. 1 at ¶¶ 231, 234-235).
Plaintiff Novey Stelly alleges that, after the instant lawsuit was filed, he was punished with a duty transfer. (Rec. Doc. 74 at ¶¶ 102,111-112).
Although this part of his claim may possibly be prescribed, Plaintiff Uletom P. Hewitt alleges that he was punitively transferred to a duty station on the north side of Lafayette, which he alleges is referred to by Lafayette police officers as “Hell’s Kitchen.” (Rec. Doc. 74 at ¶ 148.) This transfer came about after he presented evidence at a hearing that a complaint lodged against him by Craft was false. (Rec. Doc. 74 ¶¶ 141-148). He also alleges he was wrongfully terminated based on false complaints and investigations lodged after he filed multiple appeals. (Rec. Doc. 74 ¶161)
The undersigned finds that these plaintiffs have alleged sufficient facts to state plausible § 1983 claims predicated on an alleged violation of their First Amendment rights.
Thompson, Cormier, and Stelly all expressly allege that they were transferred in retaliation for filing the original complaint in this lawsuit. Filing a lawsuit is a type of speech that also implicates the petition clause of the First Amendment. Whether viewed through the free speech prism or through the petition clause prism, the analysis remains the same since “[t]he Fifth Circuit ... require[s] a public employee seeking redress under the right to petition prong of the First Amendment to establish a public interest.” The original complaint in this lawsuit alleged widespread corruption in the police department. If allegations of corruption are true, they are matters of public concern and outweigh the government’s interest in efficiency.
Marceaux allegedly complained of inappropriate investigations by the Lafayette Metro Narcotics Department and that he was transferred in retaliation for for making those complaints, was ordered to take light duty and then his light duty position was terminated by Craft based on a “new policy”. It is questionable whether his complaints are a matter of public concern with a legitimate news interest rather than speech concerning the job or working conditions. Although discovery may reveal to the contrary, at this stage of this litigation, the plaintiffs’ allegations must be taken as true. “Because the speech at issue complained of misconduct within the police department, it should be classified as speech addressing a matter of public concern.” Therefore, for purposes of this motion, his complaints are presumed to be public speech and protected by the First Amendment.
Although not all duty transfers are adverse employment actions, transfers that involve significant deprivation maybe adverse employment actions. A transfer may be equivalent to a demotion and consequently an adverse employment action even without resulting in a decrease in pay, title, or grade if the new position proves to be objectively worse than the prior position, such as being less prestigious, less interesting, or providing less room for advancement.
With regard to Poiencot, although investigations are not adverse employment actions, termination of employment is an adverse employment action. Poiencot alleged both that he was terminated and also that he was terminated because he filed the lawsuit, thus alleging that his protected speech motivated the defendant’s conduct. (Rec. Doc. 74 at ¶ 84).
Cormier (Rec. Doc. 74 at ¶ 81) and Hewitt (Rec. Doc. 74 at ¶ 161) also both allege that they were terminated from their employment which is an adverse employment action. Cormier’s termination is allegedly in retaliation for filing a lawsuit. Hewitt filed multiple appeals to the Civil Service Board (Rec. Doc. 74, ¶ 152-155) in which he apparently challenges false allegations/investigations. For purposes of this motion, the undersigned construes the appeals to the Civil Service Board to constitute public speech. He alleges he was wrongfully placed on administrative leave by Craft and required to undergo two “fit for duty” evaluations which he allegedly passed. (Rec. Doc. 74, ¶¶ 156-160). Afterwards, new complaints and investigations were used as a basis to terminate him. (Rec. Doc. 74, ¶ 161).
Accordingly, the undersigned finds that the facts alleged by plaintiffs Marceaux, Thompson, Poiencot, Cormier, Stelly, and Hewitt are sufficient to state a plausible § 1983 claim predicated upon an alleged violation of their First Amendment rights. The undersigned recommends that, with regard to these claims, the defendants’ motion to dismiss be denied.
(2) Plaintiffs Taylor, Ceaser, and Joseph HAVE FAILED TO STATE PLAUSIBLE
Claims
Plaintiff Paul Taylor, Jr. alleges that, after returning to work following medical leave, he was assigned to “shadow” defendant Firmin and that, during that time period, Firmin harassed Taylor “in every possible manner” including forcing him to sit at a desk in the lobby in such a manner as to constitute a fire hazard. (Rec. Doc. 74 at ¶¶ 299-309). Taylor also alleges that Craft tasked Firmin with “finding a way to force Taylor to resign or retire.” (Rec. Doc. 74 at 313). The amended complaint does not allege whether Taylor has in fact retired, resigned, or been terminated.
Plaintiff Donald Ceaser alleges that he was “forced to retire” after being persecuted following his miscalendaring a police department meeting. (Rec. Doc. 74 at ¶ 294).
The claims asserted by these two plaintiffs seem to be constructive discharge claims. “To show constructive discharge, an employee must offer evidence that the employer made the employee’s working conditions so intolerable that a reasonable employee would feel compelled to resign.” Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but the following factors are relevant, either singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not. An employee suffers an adverse employment action if a reasonable employee would have found the challenged action materially adverse, which means that the action might have dissuaded a reasonable worker from making or supporting a discrimination charge.
Plaintiff Kencil D. Joseph alleges that he was “targeted for termination” (Rec. Doc. 74 at ¶ 263) and is currently appealing his termination to the Civil Service Board (Rec. Doc. 74 at ¶ 270). He does not allege the basis for his termination.
As noted previously, establishing a claim for violation of an employee’s right to free speech requires a showing that (1) the e